The Constitution and the Legalization of Marijuana

INTRODUCTION

One of the political platforms of the Duterte administration is to suppress or, if possible, rid the Philippines of illegal drugs. The Philippine government has been very vocal towards its campaign against illegal drugs and intends to eradicate or at least minimize the use and proliferation of illegal drugs such as meth, cocaine, ecstasy, and marijuana by seriously implementing the provisions of R.A. 9165 or also known as the "Comprehensive Dangerous Drugs Act of 2002". Of the above-named substances, marijuana is the second mostly abused in the country.[footnoteRef:1] Notwithstanding said propaganda, the public interest in the legitimation of medical Cannabis or more popularly known as medical marijuana has intensified. Research and several literatures have proven and testified to the efficacy of marijuana in treating some of the most serious and life-threatening diseases such as treatment of symptoms of multiple sclerosis (MS), epilepsy, movement disorders, cancers, and so on. [1: Dangerous Drug Boards. Republic of the Philippines.]

With the legalization of both medical and recreational marijuana escalates in many parts of the world, it seems as though the marijuana's propulsion is getting unstoppable. The mania for the legalization and/or decriminalization of marijuana, both medical and recreational, continues to flare up. Supporters contend that medical marijuana is relatively safe if administered properly and if used in moderation. They also claim it is probable that legalization of marijuana will boost a country’s economy since the cultivation and sale of such, if taxed, could provide a country with millions of pesos of revenue; hence, decreasing the burden on taxpayers. Contrarily, dissenters point out the dangers of marijuana use, most particularly its relationship with other crimes. Marijuana use is said to lead to the commission of more violent crimes that disrupt peace and order. Furthermore, one of its prominent harmful effects that is emphasized by opponents of its legalization is its adverse effect to the youth’s cognitive development. This research paper aims to present a variety of perspectives on the constantly changing realm of marijuana legalization in the Philippines especially the constitutionality of the laws that bind its prohibition and its possible legalization.

LEGAL HISTORY OF MARIJUANA IN THE PHILIPPINES

Under Republic Act 9165 or the Comprehensive Dangerous Drugs Act of 2002, the cultivation and use of cannabis in the Philippines is illegal.[footnoteRef:2] It has been illegal in the Philippines since 1972 by virtue of Republic Act No. 6425, or the Dangerous Drugs Act of 1972.[footnoteRef:3] Marijuana is classified as a prohibited drug, and the importation, sale, manufacture, cultivation, possession, and use of such, as well as possession of any drug-related paraphernalia will incur punitive damages as provided for in R. A 6425. R.A 6425 also created the Dangerous Drugs Board, giving it jurisdiction over drug-related cases. The Dangerous Drugs Act of 1972 (marijuana as an illegal drug) is the law that repealed the provisions under Title V of the Revised Penal Code, entitled Opium and Other Prohibited Drugs. Prior to the emergence of marijuana in the Philippines, the drug of choice in the country for decades had been opium which was brought by the Chinese. Marijuana was brought by American veterans from Korea and Vietnam years after WWII. They came to our shores, planted and cultivated the plant in our soil. Authorities during that time did not pay much attention to it and the use of marijuana was just considered as an innocent vice. It was not until the rape of actress Maggie de la Riva on June 26, 1967, by four young men belonging to rich clans of the country (Jaime Jose, Basilio Pineda, Edgardo Aquino, and Rogelio Canial) when marijuana caught the national attention. Above-mentioned felons were said to be high on drugs, not of other illegal substances, but of marijuana, when they committed the crime. After then, the 7th Congress enacted R.A. 6425 on March 30, 1972, authored by Cebu Senator (and Governor) Rene Espina as an answer to the tragedy. Espina as chairman of the Senate Committee on Health also had the Lower House adopt and pass his bill.[footnoteRef:4] [2: R.A. 9165. AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES] [3: R.A. 6425. The Dangerous Drugs Act of 1972". Republic Act No. 6425 of April 4, 1972] [4: Erik Espina. “Legal history of marijuana” https://news.mb.com.ph/2017/10/11/legal-history-of-marijuana/]

As of these days, marijuana remains illegal in the Philippines. Anybody caught possessing or using it even for medical purposes may be sentenced to years in jail or life imprisonment. However, the country is gradually gearing towards the legalization of medical marijuana to address the needs of patients with diseases treatable by the medicinal properties of the plant.

In 2014, Isabela representative Rodolfo Albano III filed House Bill No. 4477 – the Compassionate Use of Medical Cannabis Act, but was rejected in the 16th Congress. It was then dubbed as a hotly-debated topic in the Congress.[footnoteRef:5] Three years after, the House of Representatives Committee on Health approved House Bill 6517 (substitute of HB 108) or the Philippine Compassionate Medical Cannabis Act. The bill aims to legalize and regulate the use of medical marijuana in the country despite President Duterte’s consistent, violent, and tough approach to ridding the Philippines of illegal drugs. Moreover, the imposable penalty for its violation is a fine of P50, 000 to P100, 000 or higher at the discretion of the Court and imprisonment of six to 12 years for use of cannabis for purposes aside from treatment of a debilitating medical condition.[footnoteRef:6] Nevertheless, the President himself has expressed his support for the medical usage of marijuana, but has vehemently rejected the idea of using it for recreational purposes. [5: Pocholo Concepcion. “Marijuana as medicine” https://newsinfo.inquirer.net/922738/marijuana-as-medicine] [6: House Bill 6517. AN ACT PROVIDING COMPASSIONATE AND RIGHT OF ACCESS TO MEDICAL CANNABIS AND EXPANDING RESEARCH INTO ITS MEDICINAL PROPERTIES.]

Just recently, Senate President Vicente Sotto III pronounced that there is no point in legalizing medical marijuana in the Philippines as it is already allowed. The Senate leader alluded to the provisions stipulated under Section 2 of Republic Act 9165, or the Comprehensive Dangerous Drugs Act of 2002, which states that, "the government shall pursue an intensive and unrelenting campaign against the trafficking and use of dangerous drugs and other similar substances through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs, and projects. The government shall however aim to achieve a balance in the national drug control program so that people with legitimate medical needs are not prevented from being treated with adequate amounts of appropriate medications, which include the use of dangerous drugs.” Nonetheless, supporters of marijuana legalization insisted that the only way to have a clear approach involving the matter is to give it a push in the legislation and eventually pass the bill as a law. It has been argued that its passage is a must to comply with the constitutional mandates and international obligations of promoting the right to health as well as to distinguish the blurred lines between the beneficiaries of said law and the criminals who just ride on it.

THE CONSTITUTIONALITY OF MEDICAL MARIJUANA’S LEGALIZATION

It is an undeniable fact that the Philippines is already a latecomer when it comes to the legalization of medical marijuana and its application in the country’s medical field. Most probably, the defiance against the medical use of marijuana is largely attributable to the country’s national policy of zero-tolerance toward illicit drugs. This objection is extended to include a prohibition on legalizing marijuana for medical purposes as well, and is underscored by three suppositions as postulated by its dissenters. First, marijuana remains unproven in terms of safety or efficacy. Thus, the current limited evidence on the efficacy of medical cannabis, the strong evidence on its harmful effects, as well as its negative health impact in the face of increasing cannabis potency makes legalization of medical cannabis in the country a serious threat to public health.[footnoteRef:7] Second, marijuana is said to be a “gateway drug” that leads to more serious drug use which means marijuana use is likely to precede the use of other licit and illicit drugs and the development of tolerance to other substances.[footnoteRef:8] Third, any legalization of marijuana for medical purposes will make the youth susceptible to marijuana dependency and make them think that marijuana is acceptable for recreational use and even beneficial to them.[footnoteRef:9] They insist that based on studies there is increased cannabis-use due to decreased perception of risk especially in the home by the youth. As attitudes become more tolerant and cannabis-use becomes more accessible, adolescents perceive cannabis as more beneficial and are more likely to use it.[footnoteRef:10] On the contrary, legalization advocates argue that allowing the drug but regulating it could reduce use and make its use safer. They contested that the studies on negative impacts of medical marijuana legalization by and large only show correlation, meaning it might not be medical marijuana legalization that’s necessarily causing the increase in use. And it’s possible — although not likely — that the effects of medical marijuana laws on use could be more pronounced than full legalization.[footnoteRef:11] [7: UP Manila Newsletter. Speakers object to legalizing marijuana at a UP Manila forum. p. 4] [8: Secades-Villa R, Garcia-Rodríguez O, Jin CJ, Wang S, Blanco C. Probability and predictors of the cannabis gateway effect: a national study. Int J Drug Policy. 2015;26(2):135-142. doi:10.1016/j.drugpo.2014.07.011.] [9: Stempsey WE. The Battle for Medical Marijuana in the War on Drugs. America. 1998 Apr 11;23:14. [PubMed] ] [10: UP Manila Newsletter. Speakers object to legalizing marijuana at a UP Manila forum. p. 4] [11: Lopez, G. The research suggests marijuana legalization could lead to more use.]

Supporters and critics of the legalization of medical marijuana agree that the status quo is intolerable and the only way to put an end to this issue is either to make legislators pass the bill or completely reject it. However, before the finality of its fate, it is crucial to examine the constitutionality of the bill enacted so that the end justifies the means.

In general, the constitutional arguments against the medical marijuana law can be categorized into two. The first is comprised of challenges to the right of the government to regulate the use of medical marijuana. The constitutional bases for such a challenge are the rights of privacy, fundamental peripheral rights, and substantive due process. The second category includes arguments against the manner in which medical marijuana will be controlled and the severity of the penalties in parallel with the violation of the proposed Act. Under this category, equal protection and due process arguments can be raised with regard to the distinction in the use marijuana for medical purposes and its use for recreational purposes.

Whose rights more matter?

Human rights regimes are individualistic, as opposed to centering upon whole populations.[footnoteRef:12] Nonetheless, the freedom to exercise such rights guaranteed by our Constitution is not an unrestricted license to do exactly as one pleases. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others.[footnoteRef:13] Thus, in availing one’s rights, one must act with justice, give others their due, and observe honesty and good faith.[footnoteRef:14] When it comes to the evaluation of the constitutionality of a statute which allows the use of medical marijuana and prohibits the use of recreational marijuana, it first must be established that such proposed act is protected by a fundamental constitutional right. The legislators then must establish that its objectives could be reasonably met by regulation of its use or alternate means of control. In order to find a compelling state interest, the alleged social harms and benefits in the use of medical marijuana must be evaluated. Proponents of such legislative act need only prove that one part of their argument is correct. If individuals have the right to health and freedom of choice in medical marijuana consumption and such right is protected by the Constitution, then this right must not be deprived. Likewise, the proponents, in its interest in prohibiting the use of recreational marijuana, should apply the reasonable relationship test. Under this test, it must be proven that alleged harms of recreational marijuana, though not supported by substantial evidence, are sufficient to meet the requirement of reasonable relationship to the legislative purpose. [12: Labont© R. 2008. Global health in public policy: Finding the right frame? Critical Public Health ,467–482.10.1080/09581590802443588 [CrossRef]] [13: De Leon, H. 2005. Textbook on the Philippine Constitution. p.142.] [14: See Article 19. Civil Code.]

It logically follows the premise of the contention of both supporters and critics of said proposed act if their suppositions are proven to be true. Admittedly, in our society, the uncertainty argument favors the status quo. The notion that our country should not legalize medical marijuana because most Filipino people are not certain what would happen and its present image as an illegal substance which must be avoided as the use of it will lead to commission of more violent crimes bars people from supporting the movement of medical marijuana legalization.

However, the non-passage of the bill will also sacrifice the rights of millions of Filipino people who are suffering from medical conditions treatable by marijuana’s medicinal properties. As mentioned earlier, a lot of research have already attested to marijuana’s efficacy to cure debilitating medical conditions. It goes to show that if the Congress rejects the passage of the bill into becoming a law, the constitutional rights of these people will also be withheld. It is the mandatory duty of the State to protect and promote the right to health of every Filipino by making quality and adequate health care available and accessible to everybody, especially the poor and the disadvantaged[footnoteRef:15]. Sections 11, 12, and 13 of Article XIII of the 1987 Constitution explicitly provide the States’ protection and promotion of the right to health. Both human rights and public health relate to the regulation of State behavior through international norms. The lens of human rights can offer a distinctive and useful perspective when contemplating medicinal cannabis use, since drug policy is inherently political rather personal. There exists a key tension between a State’s interests in restricting certain psychoactives (the justification usually being to protect the health, welfare, morality and/or safety of its citizenry) and an individual’s rights to consume them, in order to regain control over their own faculties and bodily integrity.[footnoteRef:16] [15: De Leon, H. 2005. Textbook on the Philippine Constitution. p.417.] [16: Human rights, public health and medicinal cannabis use. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4662098/]

“Health”. (As a right appeared only as a part of social services in the 1973 Constitution) House Bill 6517 provides a framework under which qualifying patients, physicians, caregivers, medical marijuana treatment centers, and the marijuana itself, would be subject to regulation and oversight.[footnoteRef:17] [17: House Bill 6517. AN ACT PROVIDING COMPASSIONATE AND RIGHT OF ACCESS TO MEDICAL CANNABIS AND EXPANDING RESEARCH INTO ITS MEDICINAL PROPERTIES.]

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