Prohibiting smoking pot would actually be forbidden

The new Federal Constitution of 1999 defines for the first time a clear catalog of fundamental rights. These human rights cannot be changed or abolished. They are above the law and must permeate state action. What does this mean for us?

Today's narcotics law (NarcA) prohibits the consumption, possession, distribution, cultivation and sale of stoned material. But we stoners do not abide by it. The vast majority of us do not have a guilty conscience. Are we all notorious lawbreakers? Or is there a legal basis for the fact that we don't give a damn about this narcotics law?

The new Federal Constitution, which was adopted by the people on April 18, 1999, contains the basic provisions by which our country is to be governed. For the first time, it contains a clear, formulated catalog of fundamental rights and defines what is permissible in terms of state regulations. There are therefore limits that must be observed by the people, the parliament and the administration. Or as former Justice Minister Metzler used to say: Switzerland is not only a democracy, but also a constitutional state. Democracy essentially means that the majority should decide; the rule of law means that there are certain fundamental rights that no majority, no matter how large, may change or curtail. In this article I would like to take a look at the new Federal Constitution (BV) to see what it means about smoking pot. (You can view the entire text of the constitution directly at www.admin.ch/ch/d/sr/c101.html or download it as a PDF file and print it out).

The general purpose of our state is the protection of freedom, the promotion of cultural diversity and the concern for the greatest possible equality of opportunity (Art. 2). These provisions are not directly applicable, they are more intended to describe the general meaning and purpose of our state. Or as the explanatory message to the new BV (Bot BV) says: “The prominent mention of the purpose of freedom and justice aims to commit the Confederation to the rule of law.”

This is then stated more concretely in Art. 5 BV: “The basis and barrier of state action is the law. State action must be in the public interest and proportionate.” By “law” is meant not only the laws, but also the constitutional fundamental rights, which we will come to later in detail. By “public interest” many things can be meant: public peace and order, security, health or morality, as it is called in the Bot BV. By “proportionate” three things are meant: “A state measure must be suitable to achieve the desired goal (suitability); state action may not restrict in material, spatial, temporal and personal terms more severely than is necessary to achieve the goal (necessity, 'least possible interference'); finally, the suitable and necessary measure must be in reasonable proportion to the desired goal (proportionality in the narrower sense or proportionality of the required sacrifice).” This is what it says in the Bot BV.

By the way, these considerations should be taken into account not only by the legislator (the parliament), but also by the authorities applying the law (i.e. the police, the public prosecutor and the courts). We are still in a rather general part of our constitution; however, it can be said that the society has to justify very well a restriction of personal freedom, the highest good of our legal system.

Fundamental rights are now no longer as theoretical as the introductory remarks. But “fundamental rights, insofar as they are addressed to individuals, are in fact directly applicable by the judicial authorities; this means concretely that any person may appeal to the courts against their violation.” (Bot BV). So even if a law says that such and such is prohibited, a court must make a balancing between the fundamental rights and the law set. And the courts can and should be allowed to develop this concrete implementation of fundamental rights in the future. (This is then also expressed in Art. 35 BV: “Fundamental rights must be applied in the entire legal order. Whoever performs state functions is bound by fundamental rights and obliged to contribute to their realization.”)

Art. 8 BV is called “equality of rights” and is elaborated by Bot BV as follows: “The principle of equality of rights is addressed equally to those who legislate and to those who apply the law. Legislative authorities must treat like things equally according to their equality and unlike things unequally according to their inequality”. Here we already see the first concrete violation in NarcA. While alcohol may be consumed in principle, smoking pot is forbidden in principle. Both are psychoactive substances, i.e. substances that influence people's consciousness. There is a rather pleasurable consumption of both THC products and alcoholic beverages, as well as a certain dependence potential. However, deaths due to pure alcohol consumption are widely documented and generally accepted, whereas this is not the case at all with the pure consumption of THC products. Hashish and weed must therefore be considered less dangerous than alcoholic beverages. With it the legal position is however exactly wrong: Not THC products would have to be forbidden completely and the alcohol in principle permitted, but alcohol would have to be allowed to be consumed with stricter conditions than THC products. The demand for legal equality is violated here in an extremely blatant manner.

Article 8 of the Federal Constitution then goes on to say: “All persons are equal before the law. No one shall be discriminated against, in particular on the grounds of origin, race, sex, age, language, social status, form of life, religious, philosophical or political conviction, or physical, mental or psychological disability.” Discrimination as a result of personally preferred drug use is not mentioned by name here, but the spirit of this article is, after all, according to Bot BV: “According to this principle, no circumstance justifies the different treatment of a group of persons if it serves as a motive for discrimination against that group.”

Alcohol, even in the dangerous variant of schnapps (with 40 percent alcohol), may be bought by adults everywhere - billions are spent on it every year. But those who want to consume the less dangerous weed or hash to act out their need for psychological change are not allowed to do so. Even the mere consumption is punishable. It is precisely here that it is important for the courts to develop the above list. And in my opinion, the term “lifestyle” contains exactly the decisive criterion. When I smoke pot, I am not endangering anyone else. At most, I am endangering myself if I smoke cannabis. Self-endangerment can never be a basis for a ban in a liberal constitutional state (otherwise the most blatant self-endangerment, suicide, would also have to be banned). Smoking pot is simply my way of dealing with my desire to experience other mental states than simply sobriety. Smoking pot is therefore a special part of my way of life; for the rest, I work, look after myself, love, engage myself - just like the people who don't smoke pot.

The similarity to other ways of life, which are only practiced by a minority, but, like smoking pot, do not require any sacrifices (i.e. do not violate the rights of third parties) and were only prohibited in the past due to unreflective feelings (“I just don't do that”, “that is not acceptable”), is obvious. For example, the prohibition of concubinage. Until the nineties, in various regions of Switzerland, the cohabitation of a man and a woman without a marriage certificate was forbidden under penalty of law. Until well into the last century, same-sex love was forbidden.

And it is similar with smoking pot: Just because a majority has no idea about it and finds it indecent, it is forbidden. And our constitution does not provide a basis for such prohibitions; on the contrary, it clearly states that such discrimination is forbidden. Everyone must abide by this. The people as a whole, as well as our parliament and our judiciary. If they do not, they are trampling on our constitutional state.

Freedom of faith and conscience, as enshrined in Art. 15 of the Federal Constitution, is also protected in Switzerland: “Everyone has the right freely to choose his religion and his philosophical convictions and to manifest them alone or in community with others. In this regard, the Bot BV further states, “Religion is to be understood here in a very broad sense, encompassing any relationship of man to the divine or transcendent. (…) Personal acts of worship are commonly understood to include prayer, confession, meditation, fasting, or ritual washing.” In Christianity, in particular, it is, after all, a drug, wine, that has central religious significance for the faithful (the Lord's Supper). And in the Rasta religion, but also in other religions, it is hemp that takes over this part (although alcohol is often forbidden). In any case, the consumption of THC is certainly for many people a kind of contemplation, of inner reflection, of connection with the transcendent, that is, that which points beyond everyday experience. This alone actually protects the free consumption of cannabis products.

In this regard, Art. 41 of the Federal Constitution states: “The Confederation and the cantons, in addition to personal responsibility and private initiative, shall endeavor to ensure that: (…), b. every person receives the care necessary for his or her health.” Now cannabis is one of the oldest remedies of mankind; both the non-psychoactive seeds and the resin of the hemp plant have been used as medicine since time immemorial. To this day, there is no better sleep aid; it is the least problematic mild pain reliever; it is effective against depression; it is appetizing; it is mildly aphrodisiac (sexually stimulating); it reduces spasms (muscle spasms). What does the legislator really want more than for sick people to grow their own plants on their own initiative and consume them on their own responsibility in order to relieve their suffering? This does not even cost the health insurances anything…

However, there is Art. 36 BV, where the possibility of restricting fundamental rights is described: “Restrictions of fundamental rights require a legal basis. Serious restrictions must be provided for in the law itself. (…) Restrictions of fundamental rights must be justified by a public interest or by the protection of fundamental rights of third parties. Restrictions on fundamental rights must be proportionate. The core content of fundamental rights is inviolable.”

In the last sentence we have again the absolute validity of fundamental rights, at least in their core content. Outside the core content (this fuzzy term must then be interpreted by the courts) restrictions are permissible. However, not completely arbitrary any.

The restriction of fundamental rights must be proportionate. An absolute ban on smoking pot, even by adults alone at home, is disproportionate. If someone drinks a beer or opens a bottle of wine, that is not prohibited either. The basic rights of third parties are not affected when I inhale a THC balloon at home. It concerns only myself. Bot BV: ”… gives expression to the classical idea that the freedom of each finds its limits where the freedom of the other begins.“ According to Bot BV, an interference with fundamental rights is justified in the following way: “the concept of justification necessarily implies that the public interest outweighs that of the individual in the exercise of his freedom.”

However, the prohibition of smoking pot has a legal basis: there is a validly adopted NarcA. But this alone is not sufficient in my opinion. Only if one interprets the public interest in such a way that society has an important interest in ensuring that no one ingests THC (because it would trigger the most serious illnesses or could lead to the disintegration of society), one could find a justification for such a ban.

And indeed: if you followed the debate in the National Council and the discussion in the media at the end of last year on cannabis decriminalization, you come across exactly such opinions. “Hash is a narcotic”, “smoking pot is dangerous and leads to hard drugs”, “cannabis, unlike alcohol, has no gastronomic value, it's just the high you're looking for”, “we don't want any more drugs”, “civilization is at risk if people limit their judgment” and so on. However, since there are no cannabis rehab clinics (but plenty for alcohol), no list of cannabis deaths (but there is for heroin, tobacco and alcohol), no signs of neglect among users (but there is for opiates and alcoholics), these “arguments” are assertions that say one thing above all: there are relevant forces that simply see smoking pot as something indecent that must be put a stop to.

Just as in the past homosexuality or concubinage or swimming in the lake outside of bathing establishments or sitting on a meadow in the park or even earlier the consumption of coffee or tobacco were held responsible for the fact that society is just not as one would like it to be. Our constitution puts a stop to such arbitrary, discriminatory and disproportionate bans. It is up to us to challenge the violation of our fundamental rights in court, if necessary, and it is up to the courts to grant us these fundamental rights. I think there is a good chance that in the next decades a right to freely choose the psychoactive substance, also and especially cannabis products, will be affirmed by the courts.

So far, we have looked at the basic personal rights and seen that the Federal Constitution contains some provisions in our favor, at least as far as the personal use of cannabis products is concerned (consumption, possession, cultivation for personal use, purchase). But what about the trade of THC-containing products like hash and weed?

Art. 27 BV guarantees the freedom of trade and commerce: “Economic freedom is guaranteed.” Bot BV states: ”(…) the Federal Constitution advocates an economy that is fundamentally free of the state, based on the idea of private autonomy and oriented towards market economy principles.“ And Art. 94 BV states: “The Confederation and the cantons shall adhere to the principle of economic freedom. (…) Deviations from the principle of economic freedom, in particular also measures directed against competition, are only permissible if they are provided for in the Federal Constitution (…).” Again, according to Bot BV, we see that “government restrictions on free enterprise require justification by overriding public interests and a sufficient legal basis.” “In this regard, it (the Federal Court) has developed namely the maxim that 'not every public interest of some kind' justifies an interference with the freedom of trade and commerce.”

And it is “forbidden to adopt regulations and measures that distort competition among private economic entities or even make competition impossible altogether. No individual competitors may be favored and others disadvantaged.” However, the total ban on cannabis trade does not implement economic freedom in this area. This is despite the fact that other psychoactive substances such as alcohol, tobacco or even various medicines may be sold, albeit under certain conditions (protection of minors, packaging regulations, taxation, etc.).

Such treatment would also be possible for the cannabis trade - so why should a full ban be proportionate? And also if you look at the competition between the different drugs: Doesn't banning THC products give an unjustified competitive advantage to alcohol (which causes bigger problems) or tobacco (which creates a very big addiction)? The above considerations do not mean that one can derive from the BV a total freedom of consumption or sale of cannabis to all and in any way. But one can infer, in my opinion, that there must be a comparable (albeit less strict!) regulation as for alcohol sales also for hash and weed trade. That would be the correct way to deal with the issue.

Incidentally, this is also suggested by Art. 118 of the Federal Constitution (the Narcotics Act in force today is based on this article of the Federal Constitution): “The Confederation shall (…) take measures to protect health. It shall issue regulations on: the handling of foodstuffs as well as medicinal products, narcotics, (…) which may endanger health.” There is nothing here about a total ban, but measures are to be taken to protect health. Nobody has anything against rules in dealing with THC products (information campaigns, package labels, package inserts, taxation, advertising restrictions, if necessary restriction of places for consumption, protection of minors). This should and can be regulated in a “THC law”. But an excessive, freedom-destroying, discriminatory and disproportionate total ban that creates legal inequality without a justified public interest - there is nothing in our constitution about that.

The fundamental rights, as we have presented them in our article, can be directly invoked by an individual affected person in court. For example, someone who has been reported for smoking pot and has received a fine could appeal against it on the grounds that the currently applicable NarcA violates his or her fundamental rights (prohibition of discrimination, equality of rights, etc.).

It is then up to the court to determine whether the interest of society in enforcing the current narcotics law is to be weighted higher than the guarantee of personal freedom in the Federal Constitution. How such a weighing of interests would turn out is not easy to predict. Of course, there would be a high probability that the courts - as in the past - would give preference to NarcA and one would remain convicted. But it is equally possible that the court would uphold fundamental rights. One would have to try it out. (In Germany, for example, the Constitutional Court has held that occasional use should not be punished and has instructed the legislature to amend NarcA accordingly. This shows that my argument is not completely absurd. In fact, I think it should be obvious to all people who think in terms of the rule of law).

It would therefore be desirable to test the argumentation of this article in court. For this we need two things. First, we need a person who has been specifically reported and would be willing to take the (long) march through the courts. And second, it needs money. Since the first such lawsuits would probably end unfavorably for us (or at least this possibility cannot be ruled out), there would have to be enough money to cushion even such a negative outcome.

If the fine and the writing fees cost for example in Zurich 258 francs after a report because of smoking pot, then a hearing before the district court costs again about 500 to 1000 francs, such before the cantonal high court about 1000 francs and a judgement of the federal court in Lausanne again 2000 francs (of course only if one loses, but just . . . ). Together these are costs of 4000 francs. If you add a few hours of lawyer's fees (to clarify certain questions in more detail), you quickly add up to another 3000 francs (this would result in five paid working hours of a lawyer per instance). In total we are now at 7000 francs. These would have to be ready on an account, before such an attempt can be started. In case of defeat, the same thing would have to be tried again every five to ten years. In case of victory, I would be in favor of investing the money in a big celebration.