History of cannabis in Sri Lanka.
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| Kansa is usually grown surrounded by banana plantations to make it invisible to be seen from above. |
Before colonial masters criminalized cannabis in the island in 1929, cannabis(Ganja) had played a major role in Sri Lanka's Ayurvedic folk medicine and its traditional culture. The history of kansa plant in the country goes back to 17th century. The use of cannabis in the island runs back to ancient times as evidenced from Sanskrit references to different inducing properties of the kansa plant such as virapati, capta, ananda, trilok kamaya and harshini. Despite cannabis being criminalized for decades, there are estimated users of cannabis around 300 000 above the age of fourteen and estimated regular users close to 180 000 in Sri Lanka. About 500 hectares of lands are used to illegally cultivate cannabis. An approximate economic value of this black-market industry is not known since its economic activities are unrecorded. Thanamalwila, Middeniya, Wellawaya, Buttala and Ambilipitiya are some of the well known areas where Sri Lanka's illegal Mal industry is thriving.
What is the law governing cannabis in Sri Lanka?
The Poisons, Opium and Dangerous Drugs Ordinance No.17 of 1929 as amended(PODDO) is the principal enactment which regulates sale, import, export and cultivation of cannabis in Sri Lanka. Cannabis plant is referred to as Hemp plant in the Ordinance and section 26 defines hemp plant as Cannabis sativa L. According to paragraph 2 of Group B in the Third Schedule of PODDO, any galenical preparation of hemp plant is identified as a dangerous drug. Thus cannabis is considered a dangerous drug in Sri Lanka.
Can you grow, import or export cannabis in Sri Lanka?
The PODDO makes it illegal to grow, import, export, sell cannabis without a license issued by Director of Health Services. Thus, a government license is needed to cultivate, import or export cannabis. Interestingly, no such lawful cultivation, import, export under government licenses take place in the country. Thus in reality, no state-licensed cultivators grow cannabis or supply, import or export cannabis in Sri Lanka.
Some of the main provisions of PODDO relating to supply, import and export of cannabis are as follows.
- Section 28 bans import or bringing into Sri Lanka or export of hemp plants, seeds, pods, leaves, flowers or any part of the hemp plant and any preparation thereof.
- Section 29 prohibits import and possession of resin, bhang, hashish and ganja. It is illegal for anyone to collect, prepare, manufacture, import, or bring into or export from Sri Lanka, obtain or have in possession or consume or use any resin obtained from the hemp plant commonly known as bhang, hashish or ganja, or any other preparation of which such resin forms a part. However, exceptions are made in this regard by provisions made in Chapter V which permit their importation, possession, export under a license issued by Director of Health Services.
- In terms of section 30, import, export, supply, manufacture, use, or possession of galenical preparations of the hemp plant can be permitted under a license issued under Chapter V.
- Section 49(2) prohibits import of cannabis into Sri Lanka without a license issued by the Director of Heath Services.
- Section 50(2) prohibits export of cannabis from Sri Lanka without a license issued by Director of Health Services authorizing the export thereof.
- In terms of Section 51, no person can engage in whole sale or retail trade of cannabis except in accordance with the regulations made Minister in that behalf.
- Section 53 prohibits manufacture of and any process of manufacturing cannabis.
- Section 54 restricts the sale and supply and procuring of cannabis for any person whether in Sri Lanka or outside Sri Lanka, or advertise for sale except as permitted under a license issued by Director of Health Services.
- Section 54A (c) makes it illegal for a person to import or export cannabis without a license and, where net weight of cannabis imported or exported illegally is less than 5 kilo grams, an accused shall be liable upon conviction to a fine not exceeding Rupees 25 000 or, simple or rigorous imprisonment not exceeding one year. Where net weight is more than 5 kilo grams, an accused shall be liable upon conviction to a fine not less than Rupees 25 000 and not exceeding Rupees 50 000, or simple or rigorous imprisonment for not less than 2 years and not exceeding 5 years.
Can you possess cannabis in Sri Lanka?
Section 52(1) and (2) in particular make it illegal for a person to obtain and possess cannabis and consumer it unless it is prescribed and supplied by an authorized medical practitioner. Section 54A (d) also criminalizes unauthorized possession of cannabis. In Sri Lanka cannabis cannot be possessed by a person in private or in public. Thus, recreational use of cannabis is criminalized under the Ordinance.
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| Freshly picked young cannabis bud |
According to section 54A(d), any person accused of unauthorized possession of cannabis shall on conviction by High Court without a jury be liable to a fine not exceeding Rupees 25 000 or, simple or rigorous imprisonment not exceeding one year if the amount possessed is less than 5 kilo grams. If net weight of cannabis possessed is more than 5 kilo grams, he shall be liable to a fine not less than Rupees 25 000 and not exceeding Rupees 50 000, or simple or rigorous imprisonment for not less than 2 years and not exceeding 5 years.
However, since both section 52 and section 54A(d) are relating to possession of dangerous drugs, section 52 is no longer in practice. Interestingly, section 54A(d) also is not used to file charges of unauthorized possession of cannabis. Cases involving possession are presented to Magistrate Court under Section 78 (5) of PODDO. However, section 78 does not specify any offence and, it is the general penalty provision for all offences in the ordinance except for offences under section 54A. In cases of possession filed under section 78(5), the sentencing order does not mention an offence or the provision under which a convict is declared guilty. But such order merely mentions that the accused is declared guilty and fined under section 78(5) in accordance with penalties set out in section 78(5). According to section 78(5), any person accused of unauthorized possession shall be liable on summary conviction by a Magistrate, to a fine not less than 1000 and not exceeding 10000 or to imprisonment of either description for a period not exceeding 5 years or to both such fine and imprisonment.
The above analysis of the legal provisions of the ordinance and practice of the police reveal that the police has a discretion to file cases of possession either under section 54A(d) or section 78(5). In some cases where an accused had in his possession negligible amounts of dangerous drugs, the police used to indict suspects under section 54A(d). Under section 54A(d) suspects must be indicted in High Court. Therefore even where negligible amounts of cannabis are found in suspects' possession, the case had to go to Attorney General and this created unnecessary workload for the AG's department. To reduce this discretion then available to police, Attorney General issued a circular in 2012 and, according to the circular where net weight of cannabis found in possession is less than 1kg and more than 500g and if the suspect is involved in trafficking and has previous drug related convictions or three or more pending drug related cases, the case must be filed in Hight Court under section 54A. Usually if there is no clear evidence of trafficking in cases where net weight of cannabis found in possession is under 5 kilo grams the case should be filed under section 78(5)(a).
How trafficking of cannabis is penalized in Sri Lanka?
Section 54A(b) introduced by Amendment Act No 13 of 1984 prohibits trafficking of cannabis. According to section 54A (b) a person accused of the offence of trafficking of less than 5 kilo grams of cannabis without a license shall be upon conviction by the High Court without a jury be liable to a fine not exceeding Rupees 25 000 or simple or rigorous imprisonment not exceeding one year. If a person is convicted of trafficking more than 5 kilo grams of cannabis, such person shall be subjected to a fine not less than Rupees 25 000 and not exceeding Rupees 50 000, or simple or rigorous imprisonment for not exceeding 5 years and not less than 2 years. Trafficking means to sell, give, procure, store, administer, transport, send, deliver or distribute; or offer to do anything mentioned above. Any person who abets the commission of or who attempts to commit or does any act preparatory to or in furtherance of the commission of trafficking, importing or exporting without a license shall be liable on conviction to the same punishment.
Granting bail to suspects of cannabis related offences.
The Bail Act No.30 of 1997 does not apply to cannabis related offenders indicted in High Court under section 54A of PODDO. Section 83 of PODDO provides that persons indicted under section 54A or section 54B shall not be released on bail, except by High Court in exceptional circumstances. Usually cases of unauthorized possession of cannabis where net weight is below 5 kilo grams are filed in Magistrate Courts under section 78(5), unless suspect has pending or previous drug related cases or is a trafficker. In these cases filed under section 78(5) of PODDO, the Bail Act is applicable and bail can be granted by a Magistrate under section 7 of the Bail Act. However exceptional circumstances must be shown in cases of trafficking filed under section 54A to obtain bail in High Court.
In response to the latest instructions regarding bail issued by the Attorney General to reduce overcrowding of remand prisons owing to COVID-19, IGP has issued circular dated 13-08-2021 requiring all police officers to adhere to guidelines therein and not to object to granting bail. Accordingly, even in cases of cannabis related offences indicted in High Court under section 54A, only for the purpose of awarding bail to suspects, facts can be reported to the Magistrate Court, provided such suspects have not engaged in trafficking or money laundering in the relevant case, or have no previous drug related offences or is not an IRC. In cases where police bail can be granted, it's recommended by the circular to grant police bail under the Bail Act.
Is use of cannabis legalized for other economic industries other than for recreational use?
Section 69 makes the following cannabis related preparations and parts of the cannabis plant 'restricted articles.'
(a) Hemp plants, seeds, pods, leaves, flowers, roots and any part of the hemp plant or any preparation of the hemp plant other than hemp rope or cordage or hemp fiber suitable for manufacture into rope or cordage or for the purposes of any industry, and
(b) The resin obtained from the hemp plant and the preparations of the hemp plant known as bhang, hashish or ganja or any other preparation of which such resin forms a part.
Section 70 (1) makes it unlawful to carry any such restricted article through Sri Lanka or the territorial waters or any port of Sri Lanka, or to bring into territorial waters or any part of Sri Lanka with a view to carry it through Sri Lanka or any port of Sri Lanka.
As revealed from the proviso to section 69(a), any part of the cannabis plant can be used to manufacture hemp rope, hemp fiber, cordage and is legally permitted to be used for any other industrial purposes except recreational purposes.
Is medicinal cannabis legalized in Sri Lanka?
Section 55 of PODDO authorizes Director of Health Services in his discretion, on payment of a prescribed fee, to supply cannabis to medical practitioners, dentists, pharmacists or veterinary surgeons for uses specified in section 56. Thus, medical practitioners are permitted to obtain cannabis under a license granted by the Director of Health Services. Provisions have been made in the Ayurveda Act no. 31 of 1961 as amended by Act no 5 of 1962 entitling registered ayurvedic practitioners to obtain cannabis for their medicinal preparations. According to section 56(1) medical practitioners are entitled to administer, prescribe or supply cannabis for the treatment of his patients. But, at a time, such practitioner is permitted to supply only the amount of cannabis his patient is prescribed for three days. Section 57 entitles pharmacists to supply cannabis to any person on prescription of a medical practitioner. Section 58 makes it illegal for a medical practitioner to supply, administer or prescribe any dangerous drug which includes cannabis either to himself or any other person otherwise than as properly required for the purposes of medical treatments. Section 59 prohibits any person other than a medical practitioner to prescribe cannabis.
As revealed from the provisions, PODDO has not criminalized medicinal cannabis. But it has not either legalized medicinal cannabis in Sri Lanka. The technical exception made in Chapter V for limited use of cannabis for medical purposes does not qualify Sri Lanka to be recognized as a country which has legalized medical cannabis. The term 'legalizing medical cannabis' refers to commercial growing of cannabis for medicinal and scientific purposes and for making medicinal products derived from cannabis commercially available in the market. It means much more than permitting prescription of cannabis to some patients exclusively by some Ayurvedic practitioners who obtain cannabis under a government license. These Ayurvedic practitioners obtain cannabis from suppliers licensed by Ayurvedic commissioner out of stocks of cannabis grown illegally seized by the police. Thus the origin of cannabis supplied to medical practitioners can be traced back to illegally grown cannabis in the black market. It is also alleged that the percentage of cannabidiol in cannabis plants seized by police drops and quality of cannabis turns bad by the time they reach Ayurvedic physicians. Moreover, the third schedule to the Ordinance recognizes any galenical preparation of hemp plant as dangerous drugs. As a result the natural chemical compound found in cannabis called 'cannabidol' which has the required healing properties for medicinal purposes is also illegal. Thus, it is manifestly clear that Sri Lanka has not legalized medicinal cannabis, though some argue that Sri Lanka has already legalized medicinal cannabis under PODDO.
The way forward for a commercially viable medicinal cannabis industry in Sri Lanka.
Substantive law as provided in PODDO and the procedures associated with the supply chain of cannabis for the purpose of sections 55-59, are not sufficient to regulate a booming medical cannabis market as those emerging in other countries where medical cannabis is legalized. As a tropical country with a conducive climate for growing cannabidiol high medicinal cannabis, coupled with increasing demand for medicinal cannabis in the global markets, the economic prospects are high for Sri Lanka. But the current legal framework in PODDO is not feasible to facilitate a multi-billion dollar medicinal cannabis industry at home and abroad.
Therefore new legal provisions legalizing cannabis for medical and scientific purposes should be introduced to supplement the current technical exception made in Chapter V so as to make an efficient regulatory framework. Provisions should be made for a fair distribution of harvest and lands to be cultivated among private licensees to avoid oligopoly in the market. New procedures must be introduced to buy harvest directly from the existing small-scale cannabis farmers, thus incorporating previous illegal cultivators into the supply chain under a new license scheme. A new regulatory body should be established to monitor and supervise the stakeholders in the medical cannabis market and to issue licenses and provide technical assistance to cannabis farmers. Provisions should also be made for sale and purchase of products made from cannabis in the domestic market. Further, a wide range of issues such as authorization
of physicians beyond the indigenous medicine community to prescribe products derived from cannabis, and issuance of medical ID cards to patients entitled to receive those medicinal products must be introduced to facilitate a regulated medicinal cannabis market. Under a new robust legal framework with streamlined procedures, Sri Lanka has enormous potential to brand itself as the best tropical medicinal cannabis supplier in emerging global medicinal cannabis markets. Thus, a regulated medicinal cannabis industry is a great opportunity for Sri Lanka to overcome its looming economic crisis in the backdrop of plunging foreign exchange earnings. African continent is already preparing itself to cash in on this highly lucrative global market to bring much needed revenue for their economies hit by COVID-19 pandemic. Before it is too late, Sri Lanka should expedite the process of legalizing medicinal cannabis. The early bird, as they say, catches the worm.
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