Irish Court Legalises Crystal Meth and Ecstacy

Australians have been engaging in a lively and important debate recently about whether or not cannabis should be decriminalised.

Meanwhile in Ireland, the Court of Appeal effectively made the possession of drugs like crystal meth and ecstacy legal for a day after ruling that part of the Misuse of Drugs Act 1977 was unconstitutional.

The decision gave newspapers worldwide a field-day, with various ‘Irish jokes’ about the subject featuring prominently on their pages.

Of course, the decision was not ‘accidental’ as some newspapers reported – the court was well-aware of the effect that its decision would have, and gave the government advance notice.

The Irish Minister for Health, Leo Varadkar, confirmed that possession of ecstasy, magic mushrooms, ketamine, crystal meth and several other drugs was briefly legal – although other drug offences like drug supply, drug manufacture and drug importation remained illegal.

The Minister also stated that the possession of cannabis, heroin, cocaine and about 125 other drugs remained illegal because they were outlawed by different and older provisions that were not invalidated by the decision

Why was the legislation deemed void?

Like in Australia, the law in Ireland says that legislation that contravenes the Constitution is only invalid to the extent of the inconsistency. This means that if a part of an Act is inconsistent, only that part is void rather than the entire Act.

The Irish Constitution sets out particular rules for making laws. Under Article 15 of the Constitution, only parliament can enact legislation. The Irish parliament consists of the President, House of Representatives and Senate and a certain formula must be followed for passing laws. But those rules were not followed when amendments were made to the Misuse of Drugs Act, as they were made by Ministerial order instead.

The laws remained in force until challenged by a Lithuanian man, Stansilav Bederev, who was arrested in 2012 and charged with possessing methylethcathinone. At trial, Mr Bederev’s lawyers argued that he had not committed an offence because the regulations that made the drug illegal in 2011 were unconstitutional.

To Bederev’s disappointment, the High Court found that the laws were legal. However, that decision was reversed by the Irish Court of Appeal earlier this week. That Court warned the government last week that the offending part of the Misuse of Drugs Act might be invalid, giving the government notice of the potential effects.

It was possible for the government to have appealed the decision to the Supreme Court, but that could have taken months, and would have meant that the drugs remained legal pending the appeal.

Instead, emergency legislation was rushed through to make the drugs illegal again. The first step was for the House of Representatives to pass the legislation, after which it went to the Senate for endorsement, and finally to the President for approval. The government is currently scrambling to prevent those who were guilty of possessing various types of drugs over the past few years from launching appeals.

While this case has made international headlines, it is not uncommon for courts to strike out parts of legislation that are deemed to be invalid. Several High Court decisions in Australia over the years have found laws that were passed by state and federal governments to be unconstitutional and therefore invalid.