Dissenting Opinion (Salvamento de Voto) on sentence No. C-221/94

REF.: Record D-429

"True liberty doesn't consist of the right to choose evil, rather in the right to choose only among paths that

lead to good."


"True liberty consists of the absolute dominion over oneself."


The undersigned magistrates, JOSE GREGORIO HERNANDEZ GALINDO, HERNANDO HERRERA VERGARA, FABIO MORON DIAZ and VLADIMIRO NARANJO MESA abstain from voting on the topic of reference because they do not share the decision of the Plenary Session of the Constitutional Court (Sala Plena de la Corte Constitutional) of May 5, 1994, which declared unconstitutional articles 51 and 87 of Law 30 of 1986.

The reasons that move the undersigned magistrates to separate themselves from the majority decision are

basically legal. They consider that the norms declared unconstitutional had complete constitutional basis and, therefore, did not oppose any of the precepts of the Political Constitution. Additionally, we consider that said decision not only contradicts clear precepts that inform the Social State of Law, but also that their effects can be highly harmful to goods protected by the Constitution such as the physical and mental health of Colombians, peaceful coexistence of citizens, or the integrity of the family as a fundamental nucleus of society, and that they oppose the obligation that every person has to procure the integral care of one's health and the health of the community, the principle of social solidarity, the principle of the prevalence of common interests over a particular interest, and the obligation to respect the rights of others and not abuse of one's own rights, among other constitutional precepts. Following are the reasons that motivate our dissent:

The Sentence has a motive that well could be qualified as ingenuous and anachronistic at the same time. A simple reflection on the concept of individualistic 19th Century liberalism, sustainer of the absolute "gendarme State" of the Laisseez faire-laissez passer, absolutely disregarding the ideological, political and economic evolution experienced by contemporary liberalism. Said evolution is described in the concept of the Social State of Law, whose design began in Colombia in the Constitutional Reform of 1936 and ended in the Constitution of 1991. This is a liberalism that exalts freedoms and rights, but that admits limits to these in the name of the common good and State intervention in social and economic life, looking with this activity to achieve a just order and the prevalence of common interests over individual interests.

1. The right to free development of personality is not an absolute right.

An imprecision about the meaning of liberty -said Locke- can anull liberty itself. Other aspects will be affirmed about the right to free development of personality, consecrated in our Constitution, in article 16. To interpret, as the majority has done, that this right implies the unlimited faculty of every person to do or not to do what one pleases with one's life, even when arriving at extreme irrationality -such as attempting against one's own physical or mental integrity-constitutes a fatal error. But even worse is the interpretation that such a right can be exercised even in prejudice to others. We, the undersigned magistrates, cannot share this interpretation of article 16 that is profoundly individualistic and at the same time absolutist. This interpretation is openly contradictory to reiterated jurisprudence of this Court, in which we recognize that absolute rights or freedoms do not and cannot exist, and that every right or liberty is limited by the rights and freedoms of others and by the legal order.

The case of the right to free development of personality is not an exception. It is surprising that the majority decision has passed by the evident fact that article 16 itself clearly indicates the limitations that this right has: "those that impose upon the rights of others and the legal order". In the case of the drug addict, the object of the norms declared unconstitutional, it is evident that this person is not only causing serious physical and mental harm to his or herself, but is also gravely affecting the surrounding family and the social surroundings with her or his behavior. It is true that a drug addict cannot be considered as a delinquent per se, but rather must be considered a sick person in whose behalf the State and society have the obligation to interfere. But due to the mental and psychological condition to which the situation leads, it is not less true that the drug addict runs the risk, more than any other addict, of falling into delinquency, as is shown in a increasingly alarming way in all of the statistics in this area. The problem of drug addiction cannot be reduced in such a simplistic way to an issue that only has to do with an internal right or the private life of the person. On the contrary, it necessarily affects the entire social surrounding.

Consequently, we cannot tolerate that fundamental goods of the associates recognized in our Political Constitution, such as the rights to life, peace, health, security, cohabitation, welfare, etc.; be trampled in name of defending individual initiatives in every circumstance.

The classic philosophers -of every line of thought- coincide in that there is no liberty that goes against the human species, and also that in every liberty there is a responsible party. To affirm that there is liberty for vice is the equivalent of saying that vice, in one way or another, is a legally protected object. Since vice cannot be considered as a good, rather as a cause and origin of evil; such an assertion is absurd. Liberty cannot go against human nature because, in the essence of humans as a principle of operation, is our reason for being. Human nature is rational, and in such a virtue humans can measure and regulate their acts and tendencies; therefore liberty presupposes the dominion of the person over her/himself. The Spanish author Millan Puelles analyzes the topic of possible -and confused- disjunction between nature and freedom that some people pretend to establish thus: "Nature continues to be identical throughout change. As a principle of behavior, it is something fixed. But it is not the same to be a [fixed principle of behavior], as a [principle of fixed behavior]. In the confusion of these two things is the key to judge the historical criticism of Aristotle's notion of nature. To affirm that this is a principle of fixed behavior is not to say that such a behavior cannot be free; nor is there any necessary consequence. This is only a generic determination that is susceptible to specific inflections, but in which, nonetheless, there is already something valuable for the issue at hand: the concept of nature as a principle and source of operation and behavior".3

As we can see, the supposed contradiction between nature and freedom obeys a confusion: the belief that human nature is a fixed behavior. When we speak of human nature, it is in reference to a principle of operation and not a line of behavior. However, this principle is [rational] -it tends towards perfection and not towards destruction- and in such a virtue, it is free. Therefore there is no disjuncture between nature and freedom, rather just the contrary: freedom is based on the prefectionable nature of humans. Freedom cannot oppose humans, because to be human is an end in itself. Therefore it is erroneous to affirm that, in the name of freedom, humans can degenerate, which equivalates depersonalization. The right to free development of personality supposes that humans, in the free exercise of their actions, increase their autonomy to become lords of themselves; that is to say, as a person and not the contrary: that they are annulled as such.

Emmanuel Kant warns, with respect to the finality of human beings, that free will cannot have its essence except in the realization of the rational ends of humans. The finality that the German philosopher speaks about is the finality of nature; said finality is not anythingother humans themselves since they are "the only beings on earth that possess an understanding and, therefore, the faculty to propose ends, therefore they certainly deserve the title of lord of nature, and if nature is considered as a theological system, it is the final goal of nature according to destiny, but only in a conditional manner; that is to say, a condition from which one knows and has the will to establish between nature and human beings a final relation that is independent of nature and is enough in itself to therefore be the ultimate end".4

For others, the errroneous interpretation of the right to free development of personality as an absolute right as is given in the Sentence, would also lead to the conclusion that, in the exercise of such a right, other conducts would be legal that apparently belong to the internal affairs of the person, such as when a women consents to end the life of the creature that is in her womb, that is to say, abortion. In this way, the Sentence is thus in open contradiction to recent jurisprudence established by this same Corporation, that declared constitutional article 343 of Decree 100 of 1980, which penalizes abortion (Sentence C-133 of March 17, 1994, expounding Magistrate: Dr. Antonio Barrera Carbonell).

2. Drug addiction attempts against human dignity.

It is a contradiction, to say the least, that one of the scarce legal arguments that the Sentence mentions to endorse the supposed unconstitutionality of the considered norms is human dignity.

Human dignity, which is a definite good, is implicit in the end that humans look for in their existence. To be human is an end in itself, since all earthy finalities, in one way or another, are referred to human beings' ideal of perfection. Each person, in the use his or her liberty, must be conscious of this, because only humans have superiority over other beings in the universe. This is why it is an end in itself. However, said finality is not absolute, but rather limited since personal being is destined towards ends that are determined by human nature. Humans live not only for themselves, but also for others.

What does human dignity imply? A person is a being destined towards perfection as an essential end. The elevation of human dignity is a demand of the essence of the person oneself, which is perfectionable. To separate oneself from dignity unavoidably leads to human degradation. Thus the reiterated reference of the authors of fundamental rights to the [rational ends of humans]; and also that such ends thus constitute for civilization the basic principles of the morality of human acts. The perfection of humans, obtaining goals, that brings with it the plenitudo essendi, constitutes their fundamental [duty of being], because achieving perfection is a demand of their personal being. In this sense, the [duty of being], besides being an imperative, implies the assent of humans towards the realization of their rational ends.

The human person is therefore destined towards certain ends and this implies that goods such as life, health, and physical, psychological and moral integrity are full of finalities and transcendency. We have the liberty to increase the dominion of the person over the environment; not to degrade personality. Liberty supposes an indivisible ethical imperative and therefore contributes to the supreme ends of human beings. This is linked -says Kant- to natural law. Such law is not merely an extrinsic addition to human beings; rational law that directs tendencies of humans towards their own ends is the rule and measure of human acts. Thus what is fundamental with respect to life, physical, psychological and moral integrity, and health is the duty to conserve them. But at the same time, since human beings -as it has been manifested- are beings of ends, and liberty is a manifestation of personal being, such a faculty directs the ends of human beings.

These considerations were the ones that moved John Locke, considered to be the father of philosophical liberalism, to proclaim that liberty is destined towards an end(s) and doesn't consist of an absolute power, and much less of a disposition that attempts against the person per se or others. "Human liberty in society consists -says Locke- in not being subordinated to a legislative power other than that which is established with the consent of the State". Locke refutes the subjectivist philosopher Robert Filmer, who conceived liberty as "the faculty that everyone has to do what seems best to them, to live how they please, and to not find themselves limited by any law". "Human liberty subjected to a civil power, sustains Locke, consists of having a fixed law to accommodate human life, a law common to all those who form part of society and that has been dictated by the legislative power that governs that society. That is to say, the faculty of following my own will in all that is not determined by this law".5

Various conclusions can be clearly drawn from Locke's thought: in the first place, the distinction between natural liberty and civil liberty. Natural liberty means the self-determination of the person who is not submitted to any power on the earth, and who has no more limitations than natural law. In civil liberty the person only submits him or herself to the law, which, in order to be valid, needs common consensus in which the same judgment of a person who consents to submit him/herself to the law to thus enjoy liberty in the bosom of society is, without a doubt, included. The law, for Locke, is not a limit to liberty but rather its social guarantee. By respecting the content of the law, individual faculties coordinated towards common good are assured. Liberal philosophy shows that Filmer's thesis denies the essence of liberty, since this doesn't consist of doing what pleases us because we have the obligation to direct our powers towards good.

Furthermore, Erich Fromm, a contemporary psychoanalyst -cited in the Sentence approved by the majority- also explains, from another perspective, how freedom is perfectionist and censures the false ideal of liberty that carries with it the power to destroy us, individually or collectively. "We know -says Fromm- that poverty, intimidation, and isolation are directed against life; that everything that serves freedom and develops the courage and strength to be oneself is something in favor of life. What is good and bad for the person is not a metaphysical question but rather an empirical one and can be resolved by analyzing the nature of human beings and the effect that certain conditions have on them".6 Thus we see how this famous scientist coincides with the classic scientists in the sense that they do not recognize a supposed liberty that denies human values.

Fromm explains: "The phenomena of masochism demonstrates that people can feel impulsed to experiment suffering or submission. There is no doubt that this as well as suicide constitute the antithesis of the positive objectives of life (...). Such an attraction towards that which is most prejudicial to life is the phenomena that seems to merit more than any other the name pathological perversion. Many psychologists have supposed that the experience of pleasure and the rejection of pain represents the only legitimate principle that guides human action; but dynamic psychology demonstrates that the subjective experience of pleasure does not constitute a sufficient criteria to value, in function of human happiness, certain forms of behavior. An example of this is the masochistic phenomena. Its analysis shows that the sensation of pleasure can be the result of a pathological perversion, and it also represents little decisive proof with respect to the meaningful objective of the experience, like the sweet taste of a poison for its effects on the organism. Thus we come to define as a true ideal any purpose that favors development, liberty and the happiness of the young, considering, instead, fictitious those compulsive and irrational ends which, although they subjectively represent attractive experiences, in reality are prejudicial to life".7

In other words, we need to surpass the illusion of liberty that is based on absolute subjectivity, to come to the real experience within liberty that has an ethical limit needed to coordinate distinct and legitimate vital interests within a margin of respect, tolerance and mutual support. This is a proclamation of the singularity of every person without obstructing the vital development of oneself nor others.

The free development of personality must consist of acts of rationality and not of barbarity. Human reason determines the expression of personality: moral life demands the creativity of each person; it is the origin and cause of his or her deliberated acts. Reason finds its basis in the path towards perfection, in the ontological growth of the person. The free development of personality is based then, on the principle of a just autonomy of the person, as the personal subject of his or her acts. In virtue of natural reason, which is the expression of wisdom, human reason is the supreme law of human beings. Reason isn't more than the rule and measure of humans acts which make the person free, and in the name of liberty, responsible. Practical autonomy of reason means that human beings per se possess their own law of prudence in practice. People's own rational autonomy does not imply, due to the former, rejection of the moral order, rather just the contrary: the mutual understanding of full rationality in the perfectionist ends to which humans are called. Through freedom, the human being is a [moral animal], as St. Thomas Aquinas called them, alluding to Aristotle's zoon politico'n.

Human dignity demands unconditional respect and promotion of bodily life; therefore, human dignity is opposed to the concept that, in the name of immediate pleasure, impedes personal realization by irreversibly annulling understanding as well as will. That is, it turns the person into a slave of vice, as occurs in the pathetic case of drug use. It cannot be affirmed that the use of drugs could be something optional because there is no undetermined factor of its effects, rather just the contrary: it leads to the deprivation of a good -health, physical as well as mental- in a way often irreversible and always progressive. The production of narcotics is, in every light, an actual -and not a potential- crime against humanity, and to tolerate the consumption of the cause of an evil is to legitimatize its harmful effects.

In other words, it legalizes what is illegitimate per se.

Our Constitution is based on the dignity of the person. Effectively, article 1 of the Constitution establishes that "Colombia is a Social State of Law, organized in the form of a Unified Republic ... founded on the respect of human dignity". For this reason no attempt against the personal value of human beings that is dignity is admissible. Every legal, political, and economic order must permit that each citizen preserve her or his dignity, and must coherently guarantee the prevalence of said dignity, which is always a common interest. The dignity of human beings does not permit them to be enslaved nor to run the risk of falling under the effects of drug addiction, which is a form of slavery. On the contrary, the State and society have the obligation to preserve the person in his or her dignity, and especially, to defend youth from every moral and physical danger.

The direction of the person towards good is only achieved through liberty understood as the faculty to consciously work towards the perfectionistic finalities of human nature. Liberty is often confused with licentiousness, which is the distortion of liberty, its caricature. Liberty fomented in a depraved way leads to licentiousness and does not dignify the human being, rather it detracts from his or her dignity. Human dignity requires, therefore, that the person act according to her or his conscience and free choice; that is to say, induced by internal personal conviction and not under the pressure of a passion or undirected desire, that in the end is a compulsion. Therefore, to abandon drug addicts to their luck is the same as leaving them submitted to the slavery that their dependence has created. To abandon them to their apparent use of freedom is nothing more than to saddle them to the control of those who manipulate and control the infamous narcotic market, who will be pleased to see that its victims are now authorized to continue depending on its lethal market.

This radically individualistic and blind focus, in whose virtue the free determination of the person should be permitted, in that which concerns the consumption of narcotics, even if in limited doses; is not in harmony with the concept of human dignity. We do not need to demonstrate the harmful effects that drugs cause on the mind, body and spirit of the addict, who is converted into a being lacking of all dominion over him or herself, indifferent and lost to all concept of dignified behavior, governed only by the irrational impulses that provoke her or him to ingest toxic substances.

We who subscribe to this Dissenting Opinion do not understand how the self-destruction of the individual, without any possibility of repressing this harmful conduct nor even rehabilitation, can be considered as a form of realizing the constitutional mandate of respect for human dignity. It is precisely this that is first wounded, and worse yet, annihilated by the irrational state to which the drug consumer is unavoidably driven.

Human beings realize their dignity when they are totally free of the captivity of passions and can freely work towards their vital ends without the coercion of external circumstances.

The argument that the Sentence sustains, as has been shown, is an erroneous interpretation. As human will desires, on certain occasions, drugs, in the name of the free development of personality, this decision must be permitted by legal order -which is external- to avoid the risk of involving itself in the private life of each person. Pure sensory feeling is not an expression of a conscious will, so a drug addict, when consuming drugs, is not exercising free will, which is always rational but letting him or herself be carried along by sensory feelings; that is to say, the drug addict is not exercising his or her full liberty.

Human dignity, then, leads people to exercise free will and does not let them be determined by mere sensory feelings. By not being thus, legal rationalizations, exhortations, precepts, prohibitions, prizes and punishments would be useless. To demonstrate this, one must keep in mind that there are beings that act without any previous judgment, as happens with beings lacking reason. Others act with previous, but not free, judgment: animals act with an instinctive, natural judgment, but not with deliberated judgment. In contrast, human beings act with judgment, since due to their cognizant faculty they judge between what they should avoid or seek out. Since this judgment does not come from natural instinctive reactions to a concrete case but rather from a rational analysis, we conclude that they act according to free judgment. When dealing with something contingent, reason can take contrary directions. However, the particular actions are contingent and, therefore, the judgment of reason over them can follow diverse directions without determining a single one. Thus it is necessary that a person have free will because people are rational. But when humans fall under absolute drug dependency, we cannot say that they are self determining, rather, the person has lost her or his free will and is subordinated to sensory feelings that determine the necessity of the drug. What liberty is there in the drug addict? Can there be a liberty against dignity?

3. The consumption of narcotics cannot be considered as an indifferent act.

As is already an unobjectable legal tradition, acts of law can be classified as ordering, permitting, prohibiting, and punishing; according to the nature of human acts. Thus, for example, the law orders human acts that are beneficial to and necessary for the common good; for example acts of solidarity. At the same time, the law prohibits acts that are harmful to the common good; for example homicide, kidnapping, drug trafficking. Indifferent acts, that is to say, those acts that have very little good or bad, are permitted. And infringement of the law is punished.

It is deduced from the majority decision that the personal consumption of narcotics, since it is a private act, is an indifferent act for the law, although it has moral repercussions. However, not every private act is, per se, indifferent because it can affect the community, common interests, and the common good. The evident severity -that therefore doesn't need to be demonstrated- of drug consumption makes it hardly reasonable to judge the that use of such substances is indifferent. Neither the State nor civil society can be indifferent to the fact that one of its members is depriving him or herself of health in an unjustified way and with the complicity of associates. The welfare of each one of the associates is of common interest. The Sentence argues that, in this order of ideas, alcoholic beverages and the consumption of cigarettes would also have to be banned. The difference between these is well known: the possibility of harm exists with the consumption of cigarettes or alcoholic beverages, and as one cannot be obliged to the impossible neither can one be limited by every possibility given the indetermination of an object. The possible fact is uncertain. But with the consumption of hallucinogenic drugs, the circumstance is not merely a possibility of harm but a [certainty] of harm with a very high [probability] of dependence. Now there is not a mere risk but rather a grave and imminent danger that harmful effects will be produced.

For all the reasons just stated, it is deduced that the consumption of drugs is not an indifferent act but instead one that is harmful to the common good and that disregards common interests. The law has to prohibit this conduct to avoid the risk of legalizing an evident disorder in human relations; a disorder that makes it impossible to achieve the goals of the Social State of Law and that seriously damages human dignity.

It is therefore against the nature of law to lift the penalties from a conduct harmful that is per se. It is a right of society and of the sick people themselves that the law not permit the consumption of substances which, as amply demonstrated, inexorably and irreversibly attempts against the human species. There is no valid legal title that permits the destruction of humanity. The sophism that the Sentence brings into account, according to which all vices must then be prohibited, was resolved a long time ago by Roman jurists and Pandectist classics when they demonstrated how not all human vices can be erradicated by the law. It is a different question when in the presence of a vice that directly, gravely and imminently obstructs individual and collective welfare, a case in which reason implores prohibition due to necessity.

4. The norms declared unconstitutional have solid constitutional bases.

As we affirmed in the beginning of this Dissenting Opinion, the norms declared unconstitutional have solid constitutional bases. To begin, in the Preamble of the Political Constitution, among other ends is the goal of "assuring to its members life, cohabitation, work, knowledge, freedom and peace within a legal framework (...) that guarantees a just social order". No further explanation is needed to show that life, cohabitation, work and peace, among other values, are gravely compromised by the effects of drug addiction. The coexistence of a true just order and the gradual destruction of a sector of the population victim to drug consumption is not compatible. Furthermore, we fear that this sector will be incentivated by lifting the penalizations on drugs, even if this is limited to a so-called "personal doses".

Next we will show other extremely clear constitutional bases that have been repudiated in the Sentence by declaring the norms object of the decision unconstitutional:

4.1 They are based on the concept of the Social State of Law.

Article 1 defines Colombia as a Social State of Law, with all the implications that this has, particularly to the extent that it makes the principle of the prevalence of common interest, which is also consecrated in this article, effective. Moreover, it states that the Republic of Colombia is "founded on the respect for human dignity, on the work and solidarity of the people members". Human dignity, as has been shown in an incontrovertible way in the present Dissenting Opinion, is flagrantly disregarded when the consumption of psychotropic and hallucinogenic drugs is permitted given that under the effects of these drugs, the person attempts against his or her own dignity upon being reduced to the category of an entity that acts without responsibility or conscience, falling into the most abject state of moral and ethical looseness, in irrational and unfortunately frequently criminal conducts. It is a contradiction to protect the lifting of penalties on drugs, even limited to a so-called "personal doses", in argument of the defense of human dignity because it is precisely this dignity that is gravely damaged under the effects of drug addiction. On the other hand, it is not difficult to show how one's work is gravely affected by the scourge of drug addiction, and how the victims of drug addiction are perceptibly reduced in their productive capacity. Statistics clearly show how, in a high percentage, those who fall into drug addiction, upon diminishing their work capacity, end up adding to the number of unemployed, vagrants or beggars.

4.2 They are based in the essential goals of the State.

Article 2 indicates the essential ends of the State. Among these are the goals to "serve the community, promote general prosperity and guarantee the effectivity of the principles, law and duties consecrated in the Constitution, as well as assuring peaceful cohabitation and the rule of a just order". The coexistence of a true just order, general prosperity and peaceful cohabitation is not compatible with the gradual destruction of ever greater sectors of the population, particularly of young people, due to the consumption of hallucinogenic drugs.

Even less compatible with the existence of a just order and peaceful cohabitation is the fact that the lifting of penalties on the consumption of psychotropic and hallucinogenic drugs incentivates the production and traffic of said drugs, thus strengthening the drug cartels that for many long years have been the worst enemies of Colombian and international society who, not only through nefarious drug trafficking but also through their criminal acts which in a grave and irreparable way have attempted and attempt against fundamental rights, peaceful cohabitation and the legal order. The article 2 also establishes that "the authorities of the Republic are instituted to protect all the people resident in Colombia, their {lives}, honor, goods, beliefs, and other rights and liberties, and {to assure} that the State and {individuals fulfill their social obligations}".(Our emphasis). It is clear that the norms declared unconstitutional constitute a development of this disposition, especially with regard to the protection of life and to the assurance of the social obligations of particular individuals, the latter a disposition which is also framed within the concept of the Social State of Law.

4.3 They are based in the duty of the State and society to protect the health of its associates.

In a clear and reiterated way, the Constitution tries to assure the protection of the physical and mental health of its associates. Article 13 establishes that "the State will especially protect those people who due to their physical or mental condition ... are found to be in a circumstance of manifest weakness". It is evident that the drug addict should be an object of this special protection, due to his/her physical and mental condition and to the circumstance of manifest weakness to which dependence on hallucinogenic drugs reduces him/her.

On the other hand, article 47 of the Political Constitution states: "The State will advance a policy of prevention, rehabilitation and social integration for physically, sensorily, or psychically impaired, to whom the State will offer the special treatment they require."

In the two norms declared unconstitutional, mechanisms for rehabilitation and social integration of drug addicts were foreseen. Drug addicts should logically be treated as physically, sensorily and psychically impaired and thus should be offered the special attention that they need through psychiatric or similar public or private establishments for the time needed for their recuperation, as article 51 of Law 30 of 1986 stated. Moreover, this article established that: "The corresponding authority will be able to entrust the drug addict to the care of the family or remit him/her under the family's responsibility, to a clinic, hospital or health center for the corresponding treatment, which will be prolonged for the time necessary for the recuperation of the addict".

Article 49, for its part, consecrates that "attention to health and environmental sanitation are public services for which the State is responsible" and that "all people are guaranteed access to services for the promotion, protection and recuperation of health". And in its final clause, this same article pre-empts:

"Every person has [the obligation] to procure the integrated care of her or his health and the health of the community". (Our emphasis).

This disposition is not limited to guaranteeing access to services of health promotion, protection andrecuperation to all people. It also imposes upon each person the [obligation] to procure the integral care not only of their own health but also of the community's health. Thus, it can be inferred that within a Social State of Law, the problem of individual health is not a problem to which the State can be indifferent, rather it interests the State and the entire community in general.

As if this were little, article 366 establishes that "the general welfare and improvement of the quality of life of the population are social finalities of the State" and that "a fundamental objective of its activity will be the solution of the unsatisfied basic necessities of health, etc...". Thus, the general welfare as well as improvement of the quality of life, which would be seriously affected by drug addiction, are consecrated as social finalities of the State. A fundamental objective of the State's activity is the solution of unsatisfied health necessities; a solution that is worked towards, among other mechanisms, through the provisions in the norms declared unconstitutional.

As can be appreciated, the Political Constitution consecrates the obligation of health care to each associate individually considered as well as to the State itself. None of the enunciated constitutional objectives can materialize if a legal norm that obliges the State to offer specialized attention to those who suffer from notorious and grave diseases caused by drug addiction is considered to be opposed to the Political Constitution.

Moreover, in the same field of solidarity as an orienting criteria for the interpretation of the Constitution, it must be said that to permit people to freely carry and consume determined doses of drugs represents the negation of solidarity. The consequences derived from the consumption of hallucinogenics, for those who use them as well as for the surrounding social nucleus, are disastrous.

4.4 They are based on the prevalence of common interests over particular interests and in the catalogue of people's obligations.

To the extent that the prevalence of common interests over particular interests is a recommended principle in different constitutional norms (Arts. 2, 58, 82), this principle is openly disregarded by the Sentence with which we disagree. This principle is subordinated by an absolute concept of the right to the free development of personality, letting prevail elements such as the unstoppable desire and the imperious necessity of consumption of who, under the sole pretext of free will, poisons her or his own organism and projects the negative effects of the mental perturbation that the substance causes, on society. The collectivity, on its part, remains defenseless since given the interpretation that has been imposed, it cannot even count on the protection of the law to repress the use of drugs, nor in order to act on behalf of the drug addict for his or her recuperation. The elements of social defense have thus been excluded from the legislation.

We refuse to accept this in light of the Constitution. As we have already emphasized, article 16 itself, invoked by the majority as an unconstitutional norm, imposes on the free development of personality the limitations of the rights of others and the legal order, which are authentic expressions of common interests.

We must take into account as well that article 95 of the Constitution indicates that the first duty of every person is to respect the rights of others and not to abuse our own (art. 95, No. 1). In the following paragraph, said article also consecrates as obligations of the person and citizen the duty "to act in accordance with the principle of social solidarity, responding to situations that endanger the lives or health of people with humanitarian acts". (art. 92, No. 2). At the same time, formerly cited article 49, final clause, imposes on every person "the obligation to procure the integrated care health of her or his health and the health of the community."

4.5. They are based in the rights of the family, children and adolescents.

Article 5 of the Constitution recognizes and protects the family as the [basic institution of society] and article 42 defines the family as the [fundamental nucleus] of society.

It is the family who first suffers, and in a special way, from the negative effects that the consumption of drugs by any of its members causes. Drug addiction destroys family unity, it makes family members lose respect for one another, it generates violence, it implies the loss of self-control for the user, it eliminates all values and disappears any edifying concept in the person. The harm that a drug addict parent causes is very serious: his/her state provokes the rupture of affective ties, generates disintegratation between spouses and causes, due to the de-personalization of the victim, a breakdown of her/his authority and the absolute impossibility of educating the children, without counting the moral and material ruin that this almost inevitably produces in the heart of the family institution if the cause of the evil persists. The affected person loses all sense of responsibility and judgment.

For their part, a son or daughter mentally disturbed by the ingestion of hallucinogenics does not recognize the authority of the parents, he or she becomes a bad example for the other siblings, the bases for understanding and respect that this person inspires in the home are undermined, and this person becomes a permanent threat to the other family members.

There must be some answer to such delicate consequences, and this answer is found in the Political Constitution. The State and society, according to article 42 "guarantee the integral protection of the family". This must comprehend material aspects as well as moral aspects and family harmony, which are indispensable for its subsistence and necessary for the peaceful cohabitation within the social environment.

The same norm declares that the dignity of the family is inviolable and establishes that family relations are based on mutual respect among all its members. Both one and the other are gravely affected when drugs invade the heart of the home.

Article 42 also represses "every form of violence" in the family because it is considered "destructive to its harmony and unity", which is why it is established that violence will be sanctioned by law.

It is senseless that while the Constitution seeks to protect the family with such emphasis, it invokes the free development of personality of one of the family members as a prevailing argument over such institutional concepts within an individualistic criteria that in every light turns out to be estranged from the contemporary concept of law.

Considering the grave effects that drug consumption has on the heart of the family, causing its destruction and gravely wounding its members; we cannot refrain from referring to the rights of children and adolescents consecrated in articles 44 and 45 of the Constitution.

In reference to children, the Political Constitution includes among its fundamental rights the right "to have a family", as well as the rights "to care and love". These are all elements that disappear when narcotic dependence affects the parents or older brothers or sisters.

The precept also shows that children "will be protected against every form of abandonment and physical or moral violence". In our judgment, it is clear that the young children are the first victims of hallucinogenic consumption on the part of the parents because if the person responsible for the family or one its is members is an addict, the child is abandoned to his or her own means, and it is almost certain that he or she will fall victim to physical violence and definitely to moral violence on the part of the addict.

With regard to the adolescent, article 45 of the Constitution declares that this person "has the right to protection and complete formation". That is to say, when the legislator -as in the case of the accused norms- establishes concrete forms in the field of the recuperation of the young person who has fallen into drug dependency, he/she is doing nothing other than developing the constitutional mandate. This is even more so in a Social State of Law like the one proclaimed in the first article of the Constitution, with which the defense of state organs indifferent to the promise to assist adolescents, whose state of physical and moral prostration demands the efficient presence of those in charge of the care of the community, is not compatible.

4.6 They are based on the Convention of Vienna signed by Colombia.

Article 93 of the Constitution says that the rights and duties therein consecrated in it "will be interpreted in conformity with the international human rights treaties ratified by Colombia". In the matter at hand, the United Nations Convention on the illicit traffic of narcotics and psychotropic substances, signed in Vienna on December 20, 1988, approved by Law 67 of 1993 and found constitutional by this Court (Sentence C-176 of April 12, 1994, expounding Magistrate: Dr. Alejandro Marti'nez Caballero), is exceptionally important.

This treaty affirms that the parties that adopt the agreements that compose the Convention are "deeply concerned for the magnitude and rising trend of the production, {demand} and illicit traffic of narcotics and psychotropic substances that represent a grave threat to the health and welfare of human beings and undermine the economic, cultural and politic bases of society". (Our emphasis).

According to article 3 of the Convention, every party will adopt the measures necessary to typify in their internal law crimes related to the production, sale, transport and traffic of narcotics and psychotropic substances.

Section 2) of said article states that, under the reservations of their constitutional principles and the fundamental concepts of their legislation, every party will adopt the measures necessary to typify as criminal offenses the possession, acquisition or cultivation of narcotics or psychotropic substances for personal use. That is to say, in light of the Convention of Vienna, each State can, in its judgment, establish in its legislation the penalization or non-penalization of the so-called personal doses. The Colombian legislature did nothing else than this with Law 30 of 1986 in the articles declared unconstitutional.

5. Penalization of holding narcotics for personal use.

The question of whether holding narcotics for personal use should or should not be object to legal sanction has been widely debated in the countries where penalties have been lifted as well as in those where they are maintained, as are the vast majority. With respect to the first, it is opportune to demonstrate how permissiveness has produced fatal consequences as have occurred in Spain, England -where the measure has been reconsidered-, or in Holland itself, the leader in this field; and how, in general, in these countries permissiveness is limited to drugs that are less harmful, such as marijuana or hashish in small quantities, but prohibition has been maintained for the so-called "hard" drugs. In any case, the lifting of penalties has had, in general, counterproductive effects. Thus reports a study on the matter:

"There are two important antecedents that demonstrate the failure of legalization: England took measures in the 1960s and 70s so that addicts could legally receive heroin in pharmacies; the result was a 100% increase in the number of addicts and a 300% increase in illegal trafficking. Alaska established a law that increased the personal doses of marijuana to 4 ounces (140 grams) and the result is that the use of marijuana in children between 11 and 14 years was almost three times greater there than in the rest of the United States. This measure was recently repealed".8

It is worthwhile to note for others that in these cases, the countries are not drug producers nor exporters; different from the Colombian cases where high levels of consumption adds to the disgracing fact that it is one of the main world producers and exporters with the all implications this can have.

On the topic of penalization of personal use, we consider it pertinent to transcribe the very authorized concept of the jurist Carlos Santiago Nin'o, in his work "Etica y derechos humanos":

"Upon debating this topic it is relevant to start from the basis that addiction, at least with some drugs, can effectively degrade the quality of life of an individual upon the deterioration of various or his or her affective, intellectual, work or other capacities.

"In the same way, no responsible debate on this topic can leave out the factual arguments that legislators and judges have allegated to justify the repression of holding narcotics for personal use.

"It is undoubtedly true, in the first place, that habitual consumption of, at least, many of the substances qualified as narcotics cause serious physical disorders and even, eventually, death of consumers. It is also unquestionable that this habit can give rise to grave psychic perturbations, be it by direct effect of the drug or by effect of the combination of increasing dependence and the difficulty of satisfying the necessity that this dependence generates.

"Neither can it be doubted that the consumption of narcotics on the part of certain individuals has consequences that are extremely dangerous to society as a whole. In the first place, as has been said many times, the initial circle of drug addicts naturally tends to expand, as in the case of a contagious illness. L.G. Hunt formulated the hypothesis that drug addiction has the characteristics of a true epidemic since every addict introduces others to the vice who, in turn, introduce others, extending addiction in a contagious way. In the second place, drug consumption seems to be associated with the commission of certain crimes, principally, crimes against property.

"Furthermore the consumption of drugs is linked to situations of unemployment, although one must be cautious in establishing the direction of the causal relationship.

"When appreciating the harmful social effects of drug consumption, one must also take into account the incidence that the prohibition of drug trafficking itself has on the generation of these effects. For example, it is undoubtable that narcotic consumption feeds a type of organized crime with international ramifications, that is associated with acts of violence, corruption and a wide range of other illicit activities. This type of crime takes advantage of the opportunity to exploit any lucrative activity that is legally prohibited in a certain ambit, as was the case of the production and sale of alcoholic beverages in the United States during the 1920s, and is now with regards to clandestine gambling, prostitution, arms traffic, etc.

"It is possible that the perception of the individual and social damages that narcotic consumption generates is not the only reason that it is negatively valued by average morality. Given a hypothetical case in which, due to the characteristics of the drug consumed or to the conditions in which it is consumed, we were relatively sure that the drug addict is not exposed to serious physical harm nor to disagreeable psychic disorders, and that the addiction would not have harmful consequences for other people nor for society as a whole; the habit of consuming drugs would still be considered disgusting and reproachable by the prevailing moral opinion of the social environment. Drug addiction is judged to be a degrading habit that manifests defective moral character independent of its harmful effects. It is not easy to articulate the justification of this moral reaction, but it is possibly associated with an ideal of personal excellence that is part of our western culture and that exalts, on one hand, the preservation of our capacity to adopt and carry out decisions in contrast to a self-inhibition in this sense, and that exalts, on the other hand, the acquisition of 'real' experiences through our own actions, in contrast to the enjoyment of 'artificial' experiences that don't correspond to our actions in the world. Robert Nozick makes explicit some of the aspects of this ideal of human excellence upon showing how insatisfactory it would be for us to imagine the alternative of passing all our lives connected to a fantastic 'experiences' machine that we could program at will from time to time, providing us the sensation of living the life that we consider most satisfactory. We prefer to have less pleasant lives that are 'our' lives, that is, the results of our actions and contact with reality. Narcotics can be seen as a rudimentary substitute for this 'experiences' machine".9

6. Are alcohol and tobacco as harmful as drugs and therefore should they be given the same treatment?

The Sentence pretends to compare the effects of drug consumption with those of alcohol. It even asks with alarm: "Why is the treatment openly different, irritatingly discriminatory, for alcoholics and drug addicts?" And, although it is not clearly stated, it suggests that by penalizing drug consumption and not alcohol consumption, the right to equality is unrecognized. It pretends to demonstrate this assertion with facts, according to which, in the city of Medell!n the percent of victims of violent death who had "positive percentages of alcohol" in their blood increased in the last decade (It would be helpful to ask: under the effects of what substances were the perpetuators?). We do not fail to recognize in any way the harmful effects that alcohol consumed in large quantities can have on the organism, nor the fact that alcohol has been the cause of many acts of interpersonal violence. But to compare the damages that drugs cause for the person him/herself as well as for the social surrounding with the damages that can be caused by alcohol or tobacco is a broadside that would not withstand any scientific nor statistical analysis.

With regard to tobacco, it is evident that the nicotine it contains is a health problem which is aggreviated with addiction. However, nicotine is not a toxic substance that becomes a threat to human behavior; nor is it a source, imaginary or real, or great internal powers or intuitions. No one commits a crime induced by a doses of nicotine. Similarly, no one goes to work with signs of incapacity to fulfill his or her labors, nor to school with learning problems, because of tobacco. While drug consumers are socially referred to as addicts, smokers of tobacco are never assigned this social qualification.

With regard to alcoholism, one does not need to go far to prove that the damages caused by drug addiction against oneself and the social surroundings are immensely worse than those that can be caused by alcoholism. From what is known, an alcoholic does not usually attack or assassinate to obtain money to buy a drink neither here nor in other parts of the world. From what is known, neither are alcoholics the protagonists of massacres and genocides; while in contrast it has been fully proven that, in many cases, the assassins that commit such crimes do so under the effects of hallucinogenics. Neither does one need to have great medical knowledge to know that the principal effects of alcohol are a relaxation of motor functions and drowsiness, which impedes acting with agility, something which does not happen with drugs which, on the contrary, in the majority of cases excites the nervous system. As we have said, it is unarguable that alcohol has been the cause of violence in Colombia. However, that drugs have been the cause in immensely greater proportions is also indisputable. It is not a simple coincidence the fact that the alarming increase in the criminality figures in our country in the last decades was equal to drug consumption, without counting the crimes that drug trafficking generated. The increase in common delinquency is inseparably and unquestionably associated with the traffic and consumption of drugs.

With regard to the risk of addiction by consumption, statistics show that while regular alcohol consumption is 10%, cocaine is greater than 80% and bazuco or "crack", or heroine, for example, reach almost 100%. With regard to the power to mentally alter, while nicotine only causes affective alterations and alcohol consumed in large quantities can have effects of mental alteration; cocaine in contrast, used in small doses, has the highest risk of producing mental alterations. With respect to the argument that the consumption of marijuana does not have worse effects than the consumption of alcohol or nicotine, a United Nations report shows the following:

"Unlike alcohol, that in general leaves the organism within 24 hours given that it is soluble in water, marijuana is soluble in fat, which means that the psychoactive chemical products become fixed in the fatty parts of the organism (generally the brain and reproductive organs) and can be detected for up to 30 days after initial use. An in-depth investigation has demonstrated that marijuana alters the short term memory and retards learning; makes normal reproductive functions difficult; negatively affects cardiac functions; has grave consequences on perception and the performance of specialized activities such as driving or other complicated activities in which judgment or specialized motor skills take part, and makes lung and respitory functions seriously difficult. One marijuana cigarette contains more carcinogenic agents than the strongest tobacco cigarette".10

According to Dr. Herbert Kleber, an expert on drugs from the University of Columbia in New York, psychiatrist and ex-government official of the office on Drug Control Policy; the addictive power of cocaine powder is 5 to 1. That it to say, for every five people that consume this drug, one will become an addict. For crack, the proportion is 3 to 1 and for alcohol, in contrast, it is 7 to 1. On the other hand, a study done by Dr. Mark Gold, professor at the University of Florida, shows that "adolescents are particularly susceptible to addiction to cocaine. Dr. Gold shows that while an adult requires an average of four years of cocaine consumption to experience physical deterioration and consequent addiction, in the case of adolescents this lapse is reduced to an average of one and a half years."11

7. An inexplicable paradox and a prominent contradiction.

A paradox and an ambiguity that are very difficult to understand result from the majority decision. The consumption of a personal doses is authorized but drug trafficking continues to be penalized. That is to say, individuals are allowed to consume drugs, but drug production, distribution and sale are prohibited. It is completely lacking in logic that a law that protects the consumer of a product sanctions those who supply it. How can this dilemma be solved? By lifting the penalties on the production, distribution and sale of drugs as well? That is to say, by legalizing all drug trafficking activities and thus from one day to the next converting sinister mafias into "honest merchants and exporters"? National and international opinion, with every reason, would be unanimous in repudiating such an abhorrent solution that would imply no less than converting by the stroke of a pen the worst criminals that our history has known, responsible for thousands and thousands of assassinations, kidnappings, magnicides, and the systematic and collective poisoning of youth; in victims innocent of the weight of the law. We who undersign this

Dissenting Opinion are pre-emptory in profoundly rejecting such a possibility. However, throughout the opinion, we manifest our perplexity before the enormous contradiction that was created with this sentence.


Finally, the undersigned magistrates view with concern how this sentence has provoked in all levels of society a foreseeable and, in our judgment, justifiable reaction of unconformity and rejection which necessarily influences the well-earned prestige of a Corporation that, like the Constitutional Court, has been working with such dedication to defend the legal order, the foundations of the Social State of Law, and the highest values of Colombian society. We recognize, however, that the decision of the five magistrates that make up the majority was adopted in full exercise of clear constitutional authority. Furthermore, we celebrate the fact that the authority the legislature has to "regulate the circumstances of place, age, temporary exercise of activities and other analogies within which the consumption of drugs is inadequate or socially harmful" has finally been sentenced in an express manner. This clarification will moderate the effects of this very grave decision approved by the majority and will restore in part the effectivity of the norms declared unconstitutional, but it leaves an incalculable damage.

However, without this clarification the effects of the Sentence would be even more disastrous than those that society in general, with just cause, fear.

Date ut supra.






1. Paido's, Buenos Aires, 1962.

2. "Contingencia, Ironi'a y Solidaridad", Paido's, Buenos Aires, 1991.

3. MILLAN PUENTES, Antonio. Sobre el hombre y la sociedad (Madrid, 1976). Pg. 34.

4. KANT, Emmanuel. Cri'tica del Juicio (Paris, 1965). Pg. 23+.

5. LOCKE, John. Ensayo sobre el Gobierno Civil. Cap.IV. No.21.

6. FROMM, Erich. "El miedo de la libertad", Buenos Aires, Paido's, XV edition, 1991, pg. 253.

7. Ibid. Pg. 254.


9. Nin'O, Carlos Santiago. "Etica y derechos humanos". 2nd Edit. Astrea, Buenos Aires. 1989. Pg. 420+.

10. United Nations Program with the International Prosecution of Drugs; LAS NACIONES UNIDAS Y LA FISCALIZACION DEL USO INDEBIDO DE DROGAS, 1992; Pg. 57.

11. Taken from the information provided by the United States Information Services to the National Narcotics Director. May 1994.