Scheduling of Cannabis Incorrect?

ghost of ireland past

There is nothing wrong with seeking to become intoxicated, and animals besides humans do so. Is that the same as a natural predisposition?

GM228

marieholmfan wrote: »

However in Dudgeon the ECtHR accepted the existence of a natural predisposition to homosexuality (something that is now a normative opinion).

And interestingly the Dudgeon case held the predisposition to apply to males only, granted the law in force in NI only dealt with males.

marieholmfan wrote: »

Surely there is no natural predisposition to consume cannabis?

The clue is in the word natural, it could never be argued there is a natural predisposition to take canabis, taking drugs is not natural, it's something caused.

GM228

ghost of ireland past wrote: »

There is nothing wrong with seeking to become intoxicated, and animals besides humans do so. Is that the same as a natural predisposition?

No, "natural" is the key word.

African elephants for example getting drunk off the fermenting fruit of the Marula tree is not comparable to the average night out for a human, it is something caused, not something natural.

I'm not sure what relevance animal habits have in relation to human rights.

marieholmfan

GM228 wrote: »

And interestingly the Dudgeon case held the predisposition to apply to males only, granted the law in force in NI only dealt with males.





The clue is in the word natural, it could never be argued there is a natural predisposition to take canabis, taking drugs is not natural, it's something caused.

Well don't fixate on that word because they might have said inherent or whatever. I just don't see how homosexuality and cannabis consumption are of the same importance (both should be legal IMO).

GM228

marieholmfan wrote: »

Well don't fixate on that word because they might have said inherent or whatever. I just don't see how homosexuality and cannabis consumption are of the same importance (both should be legal IMO).

No they used the term natural, or rather "nature". They said a "person who is by nature homosexually predisposed or orientated", but all this is irrelevant to the argument, no one could ever argue a about a "person who is by nature a cannabis user by predisposition".

They are not comparable and there wasn't any UN convention agreed by the majority of the world dealing with the banning of homosexuality either.

ghost of ireland past

Of course a person can be a 'cannabis user by nature or by predisposition'.

I think it'd be an easy matter to establish a 'natural predisposition' to use drugs not only among humans, but also among mammals in general and also among wider animal groups, like bees for example, who use bouncers on their hives to prevent drunk bees entering the hive.

I don't think that'd be sufficient though to force the legalisation of cannabis.


As GM228 pointed out there were no international treaties which purported to ban homosexuality, but there are treaties or agreements which ban cannabis.

Is it the existence of those treaties banning cannabis which prevent Article 8 from being used to legalise cannabis use in private homes?

I'd like to look at the treaties themselves to look for loopholes but it's unlikely there will be loopholes for recreational use, it all depends on the language used. And also on whether the Irish government at the time had the authority to enter into what ever agreement it is that they have entered into.

Cannabis use should not be banned in private homes.

ghost of ireland past

Thankfully, I have great news to report to the forum!

It is not necessary under the 1961 Single_Convention_on_Narcotic_Drugs that personal use of cannabis be banned.

I have consulted with the good folks at Wikipedia, and they have assured me as follows.

On this page, https://en.wikipedia.org/wiki/Single_Convention_on_Narcotic_Drugs, there is a section called Possession for personal use, and this is how it starts.

Possession for personal use wrote:

It is unclear whether or not the treaty requires criminalization of drug possession for personal use. The treaty's language is ambiguous, and a ruling by the International Court of Justice would probably be required to settle the matter decisively. However, several commissions have attempted to tackle the question. With the exception of the Le Dain Commission, most have found that states are allowed to legalize possession for personal use.
... (and so it goes on)

That section, Possession for personal use, continues on for another eight or ten paragraphs and mostly it concludes that personal possesion and use need not be banned.



There is also the question of the United States, and whether or not they are a signatory to this treaty, and if so, how is it that they have legalised cannabis, for recreational use, in 11 states? (according to Wiki)

GM228

ghost of ireland past wrote: »

Thankfully, I have great news to report to the forum!

It is not necessary under the 1961 Single_Convention_on_Narcotic_Drugs that personal use of cannabis be banned.

I have consulted with the good folks at Wikipedia, and they have assured me as follows.

On this page, https://en.wikipedia.org/wiki/Single_Convention_on_Narcotic_Drugs, there is a section called Possession for personal use, and this is how it starts.



That section, Possession for personal use, continues on for another eight or ten paragraphs and mostly it concludes that personal possesion and use need not be banned.



There is also the question of the United States, and whether or not they are a signatory to this treaty, and if so, how is it that they have legalised cannabis, for recreational use, in 11 states? (according to Wiki)

You may have missed a previous point I made:-

GM228 wrote: »

Rule 101: Don't refer to Wikipedia for legal argument

You are also reading the wrong Convention!

Isn't it odd how Wikapedia fails to mention that following those commissions (and other related matters) that the Commission on Narcotic Drugs and the Economic and Social Council requested follow up action to the 1961 Convention (and a later 1971 Convention) to further the provisions of the 1961 Convention and clarify THAT very question:-

Behold the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988:-

Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention

It clarified that member states were required to ban the possession, purchase or cultivation for personal consumption by essentially copying Article 36 of the 1961 Convention and adding in personal use to it's scope.

Off the top of my head I know of an E&W Court of Appeal and ECJ case confirming the provisions of the 1988 Convention.

Also forget the US, there's a legal contradictory at play there, like the situation in the Netherlands.

ghost of ireland past

The 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly allows for exemptions if the provisions of the UN treaty would infringe the pre-existing constitutional rights of a particular country.

I would suggest that two provisions of the Irish Constitution would allow for personal cannabis use, inside your own home.

First.
Article 40
3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Also Article 40
5 The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.


The UN treaty provisions cannot be applied in Irish law to the personal use of cannabis inside dwellings, as Irish citizens had a pre-existing right under our constitution to use cannabis, under our personal rights, and under our pseudo privacy at home rights.
The personal rights guaranteed under the irish constitution don't extend to allow cannabis use outside the home, just inside the home, because of course the State should be more permissive inside the home. This is the distinction that makes my argument different from previous arguments along these lines, if there have been any.

So, cannabis is back legal, we agree?

ohnonotgmail

ghost of ireland past wrote: »

The 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly allows for exemptions if the provisions of the UN treaty would infringe the pre-existing constitutional rights of a particular country.

I would suggest that two provisions of the Irish Constitution would allow for personal cannabis use, inside your own home.

First.
Article 40
3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Also Article 40
5 The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.


The UN treaty provisions cannot be applied in Irish law to the personal use of cannabis inside dwellings, as Irish citizens had a pre-existing right under our constitution to use cannabis, under our personal rights, and under our pseudo privacy at home rights.
The personal rights guaranteed under the irish constitution don't extend to allow cannabis use outside the home, just inside the home, because of course the State should be more permissive inside the home. This is the distinction that makes my argument different from previous arguments along these lines, if there have been any.

So, cannabis is back legal, we agree?

as Irish citizens had a pre-existing right under our constitution to use cannabis, under our personal rights, and under our pseudo privacy at home rights.

cannabis was made illegal in the free state in 1925, though it was already illegal under an existing british law we inherited. so why do you think we had a right to something under the constitution (which one btw the free state constitution that was in force at that time or the current one?) that was explicitly illegal?

GM228

ghost of ireland past wrote: »

The 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly allows for exemptions if the provisions of the UN treaty would infringe the pre-existing constitutional rights of a particular country.

I would suggest that two provisions of the Irish Constitution would allow for personal cannabis use, inside your own home.

First.
Article 40
3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Also Article 40
5 The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.


The UN treaty provisions cannot be applied in Irish law to the personal use of cannabis inside dwellings, as Irish citizens had a pre-existing right under our constitution to use cannabis, under our personal rights, and under our pseudo privacy at home rights.
The personal rights guaranteed under the irish constitution don't extend to allow cannabis use outside the home, just inside the home, because of course the State should be more permissive inside the home. This is the distinction that makes my argument different from previous arguments along these lines, if there have been any.

So, cannabis is back legal, we agree?

Cannabis is not legal no, it's a fact, it has been illegal since the formation of the state and also under the original (now replaced) Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs which predates the constitution.

What pre existing right do you speak of? You need to do some unenumerated constitutional rights study.

I wonder is taking canabis considered to stem from the Christian and democratic ethos of the State

Rezident

Fonny122 wrote: »

They really should just go about legalising it full stop. The only logical thing I can see stopping the government is cynically looking at older voters who might treat it as a single issue on an election front to be honest. Canada had had it legal for well over a year now, and some US states for several years, and from what I can tell they have not burned to the ground (but have had a noticeable economic bump in many instances).

Our kids are going to look back at this the same way we look at prohibition in the USA.

It's not just the US and Canada, around 62 countries have rightly decriminalised cannabis so far. Since it has never killed anyone in over 10,000 years and is so widely used, it makes no sense for all of those hundreds of millions of Euros to go to criminal gangs every year instead of towards Revenue to reduce all of our tax bills.



It should also be regulated as some of it is now highly potent and people do not understand the psychoactive effects or the post-effects the day after use.



Ireland is well behind the curve here again, which is a shame considering how widely used it is in Ireland judging by how often I smell it openly being used in Dublin. But the criminal gangs must be loving it, knowing Ireland, they are probably bribing politicians to slow down the decriminalisation process. Should have been decriminalised years ago, how much Garda time is wasted chasing Mother Nature?

GM228

ohnonotgmail wrote: »

cannabis was made illegal in the free state in 1925, though it was already illegal under an existing british law we inherited. so why do you think we had a right to something under the constitution (which one btw the free state constitution that was in force at that time or the current one?) that was explicitly illegal?

1934 in the free state and 1928 in the UK, the Dangerous Drugs Act, 1920, Adaptation Order, 1926 did not incorporate the UK amendment into law here.

ghost of ireland past

The law giveth, and then it giveth again;

Article 50, Irish Constitution wrote:

1 Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.

So, the laws that had been in force immediately prior to the new constitution coming into force, will continue in force, but only if they are not inconsistent with the new constitution. And obviously the laws against cannabis are inconsistent given the personal rights and the pseudo privacy at home rights of Article 40.


This is very similar to Harry Potter, where there was some confusion as to who exactly was in command of a particular wand, right at the end of all those movies. Just when he needed it, the ostensible owner of a wand found that it had not actually committed to him, but to someone else.
The laws of Saorstát Éireann might have been thought to have continued in force but now we know that most likely they didn't, at least some of them, the ones pertaining to the use of cannabis inside private dwellings, by fine upstanding folk, for example.


How would these arguments go down in the district court do you think?
I expect thet'd be well received wouldn't they?

marieholmfan

GM228 wrote: »

1934 in the free state and 1928 in the UK, the Dangerous Drugs Act, 1920, Adaptation Order, 1926 did not incorporate the UK amendment into law here.

Admiralty law

ohnonotgmail

ghost of ireland past wrote: »

The law giveth, and then it giveth again;



So, the laws that had been in force immediately prior to the new constitution coming into force, will continue in force, but only if they are not inconsistent with the new constitution. And obviously the laws against cannabis are inconsistent given the personal rights and the pseudo privacy at home rights of Article 40.


This is very similar to Harry Potter, where there was some confusion as to who exactly was in command of a particular wand, right at the end of all those movies. Just when he needed it, the ostensible owner of a wand found that it had not actually committed to him, but to someone else.
The laws of Saorstát Éireann might have been thought to have continued in force but now we know that most likely they didn't, at least some of them, the ones pertaining to the use of cannabis inside private dwellings, by fine upstanding folk, for example.


How would these arguments go down in the district court do you think?
I expect thet'd be well received wouldn't they?

obviously? i presume you have a ruling that supports that?

GM228

marieholmfan wrote: »

Admiralty law

I'm not sure what the reference to maritime law is supposed to indicate here?

The UK first banned cannabis in 1928 when they finally agreed to the provisions of the International Opium Convention 1912, prior to that recreational use was lawful, although it must be ssid that some British colonies banned it long before the UK.

marieholmfan

GM228 wrote: »

I'm not sure what the reference to maritime law is supposed to indicate here?

The UK first banned cannabis in 1928 when they finally agreed to the provisions of the International Opium Convention 1912, prior to that recreational use was lawful, although it must be ssid that some British colonies banned it long before the UK.

Should be Brehon law.

GM228

ghost of ireland past wrote: »

The law giveth, and then it giveth again;



So, the laws that had been in force immediately prior to the new constitution coming into force, will continue in force, but only if they are not inconsistent with the new constitution. And obviously the laws against cannabis are inconsistent given the personal rights and the pseudo privacy at home rights of Article 40.


This is very similar to Harry Potter, where there was some confusion as to who exactly was in command of a particular wand, right at the end of all those movies. Just when he needed it, the ostensible owner of a wand found that it had not actually committed to him, but to someone else.
The laws of Saorstát Éireann might have been thought to have continued in force but now we know that most likely they didn't, at least some of them, the ones pertaining to the use of cannabis inside private dwellings, by fine upstanding folk, for example.


How would these arguments go down in the district court do you think?
I expect thet'd be well received wouldn't they?

It's pretty obvious you know as much about Constitutional law as you do about the law of the ECtHR and International law which is very little to be honest.

Cannabis is illegal (that is in accordance with international law), as per statute, and, it also enjoys the benefit of the Doctrine of Presumption of Constitutionality (and you can't argue against that in the DC).
.
First time I"ve seen Harry Potter referenced as a comparative in a legal arguement here, best keep that for the Wizengamot court

ED E

You've the patience of a saint GM.

ghost of ireland past

It was necessary that I consult with Wikipedia.

Wiki wrote:

In constitutional law, the presumption of constitutionality is the legal principle that the judiciary should presume statutes enacted by the legislature to be constitutional, unless the law is clearly unconstitutional or a fundamental right is implicated.

The laws in question in our current case were not enacted by the legislature, because these laws were the ones to be carried over from the previous adminstration. So the Doctrine of Presumption of Constitutionality does not apply.


Privacy rights and rights to determine your own life are fairly fundamental also.

GM228

marieholmfan wrote: »

Should be Brehon law.

Can't say I have ever heard of Cannabis/drugs being dealt with under Brehon laws?

GM228

ghost of ireland past wrote: »

It was necessary that I consult with Wikipedia.


The laws in question in our current case were not enacted by the legislature, because these laws were the ones to be carried over from the previous adminstration. So the Doctrine of Presumption of Constitutionality does not apply.


Privacy rights and rights to determine your own life are fairly fundamental also.

Oh dear your at it again quoting Wikapedia, it is not law.

Another lesson 101 for you - EVERY Act of the Oireachtas enacted since 1937 (and every pre 1937 Acts post 1937 amendment) is afforded the presumption of constitutionality.

ghost of ireland past

But the laws purporting to ban cannabis are carry over laws from Saorstat Eireann, which is the predecessor to the current Irish State. Therefore, the presumption of constitutionality is inappropriate to be used, even as a guide and not as a binding rule, because the Irish Constitution explicity requires, in Article 50, that carry over laws be consistent with the new constitution, and, even if, and this is crucial, even if the presumption of constitutionality was said to apply it would only mean that the carry over laws were consistent with the constitution under which they were written, in other words, the old constitution!
They would still need to be tested for conformity with the new constitution and I'm suggesting they'd fail, and I reckon nine out of ten legal scholars would agree. Perhaps only eight and a half but what use is half a legal scholar?


So the presumption of constitutionality is of no use here unfortunately, if your intention is to argue for the illegality of cannabis.

GM228

ghost of ireland past wrote: »

But the laws purporting to ban cannabis are carry over laws from Saorstat Eireann, which is the predecessor to the current Irish State. Therefore, the presumption of constitutionality is inappropriate to be used, even as a guide and not as a binding rule, because the Irish Constitution explicity requires, in Article 50, that carry over laws be consistent with the new constitution

You really have no idea what you are talking about.

The laws prior to 1937 are irrelevant because the current laws are post 1937, the presumption of constitutionality applies to ANY Act of the Oireachtas enacted from 1937 onwards, the previous version/s of the law or the time the law originates from is irrelevant, in any case there was no right in 1937 to use cannabis under our Constitution so the point your trying to argue is irrelevant.

The presumption isn't any old "guide", it's a legal presumption, and a very strong one at that which is difficult to rebut even where there are legitimate concerns.

And I still can't figure out where this inconsistency you claim comes from? Unenumerated constitutional rights don't exist simply because you say they do or ought to, you can't just read them in, they exist under common law when the Superior Courts confirm they do.

ghost of ireland past wrote: »

even if, and this is crucial, even if the presumption of constitutionality was said to apply it would only mean that the carry over laws were consistent with the constitution under which they were written, in other words, the old constitution!

The presumption of constitutionality applies to our current constitution, it has nothing to do with the old constitution.

ghost of ireland past wrote: »

They would still need to be tested for conformity with the new constitution and I'm suggesting they'd fail, and I reckon nine out of ten legal scholars would agree. Perhaps only eight and a half but what use is half a legal scholar?

The arguments sound like that of an 8 and a half year old.

Now you do realise that legal scholars actually know and understand the law don't you?

Also you don't just test the laws willy nilly because they "need to be", we haven't even touched on any potential locus standi you may have to even take such a challenge.



You are trying to make your arguments based on human rights, constitutional rights, international law and historical law which you have no understanding of and also probably on Harry Potter and Wikapedia examples.......best of luck with that.

GM228

ED E wrote: »

You've the patience of a saint GM.

I may need to exercise my "rights" and take something to keep them that way! :pac:

ghost of ireland past

The unenumerated personal rights in the Irish Constitution allow for cannabis use in my view, as there is no reason that cannabis should be banned. It is not sufficiently harmful to individual health, if it is at all, and public health and morals don't come into it.

If laws purporting to ban cannabis pre-existed the formation of the Irish State in 1937 then those laws would not continue in force after the adoption of the new constitution as they are not consistent with the personal rights in the new Constitution, as per Article 50, continuance of laws.

If laws purporting to ban cannabis were passed by the Oireachtas after 1937 then they are unconstitutional if they attempt to ban the private use of cannabis in the private home, as they are not consistent with Article 40, personal rights, and pseudo privacy at home rights.

The UN treaties are not relevant as they infringe the pre-existing constitutional rights of Irish people, as explained above.

GM228

This argument is like a merry go round.

ghost of ireland past wrote: »

The unenumerated personal rights in the Irish Constitution allow for cannabis use in my view, as there is no reason that cannabis should be banned. It is not sufficiently harmful to individual health, if it is at all, and public health and morals don't come into it.

What unenumerated rights would that be?

Unenumerated rights are specific unwritten rights afforded by the Constitution as held by the Superior Courts, there has been no such right afforded by the courts, you seem to fail to understand that.

Lack of a reason for a ban does not equate to a constitutional right, obligations under international law is always a legitimate reason for passing of laws.

ghost of ireland past wrote: »

If laws purporting to ban cannabis pre-existed the formation of the Irish State in 1937 then those laws would not continue in force after the adoption of the new constitution as they are not consistent with the personal rights in the new Constitution, as per Article 50, continuance of laws.

Dear god, why are you concentrating on pre 1937 laws, the law banning cannabis in force now is all that matters, and a law can only be inconsistent with the Constitution if there is a provision (enumerated or unenumerated) which it is contrary to.

ghost of ireland past wrote: »

If laws purporting to ban cannabis were passed by the Oireachtas after 1937 then they are unconstitutional if they attempt to ban the private use of cannabis in the private home, as they are not consistent with Article 40, personal rights, and pseudo privacy at home rights.

Once again show us all this personal right to use canabis under the Constitution, oh that's right you can't because no court has given us such a right. You can't just read in your own personal rights to suit the argument.

ghost of ireland past wrote: »

The UN treaties are not relevant as they infringe the pre-existing constitutional rights of Irish people, as explained above.

Your arguments are bordering on the Freeman approach, but just for the sake of your argument if you really want to push the Constitutional issue I'll point out that the ban is also a requirement as an EU member state as the EU has also signed up to the 1988 Convention, and so that point will probably lead us to the next legal lesson for you involving the Supremacy of EU Law which trumps your argument.

marieholmfan

I wonder if the drug laws have been challenged under the right to bodily integrity.

It sounds stupid to be honest.

What was the English case where they were hammering nails into each other's mickeys.

GM228

marieholmfan wrote: »

I wonder if the drug laws have been challenged under the right to bodily integrity.

It sounds stupid to be honest.

Bodily integrity? Seriously, it's not a case of the state forcibly trying to remove the drugs from your body, there is a difference between interfering with your right of bodily integrity and making the possession of drugs illegal.

marieholmfan wrote: »

What was the English case where they were hammering nails into each other's mickeys.

The R vs Brown [1993] UKHL 19 case where it was held consent was not a valid legal defence for actual bodily harm. IIRC it didn't involve any claim to bodily rights, rather rights in respect of private and family life under the ECHR - their convictions still stood though.