Cannabis law still reflects discriminatory practices | Andrew Bonello

The national report on the Drug Situation and Responses in Malta 2021 explains that the number of drug law offences for 2020 amounted to 283 in total with 166 for possession and 117 on trafficking. The majority of criminal offences for possession were related to cannabis, amounting to 87 cases. The report highlights that during the period since the Tribunal was established in 2015 until December 2020 (thus for persons found with less than 3.5 grams), the majority of cases processed were for possession of cannabis, amounting to 1897 people.   

The reform enacted by the Maltese government in 2021 Act No. LXVI to establish the Authority on the Responsible Use of Cannabis and to amend various laws relating to certain cannabis activities, included strong provisions to safeguard public health, human rights, respect for personal freedoms and autonomy. This approach has been done whilst taking due considerations for (a) the wrongdoings and structural abuses of the past, (b) the need to frame drug policy within broader human rights considerations, including a strong Harm Reduction approach, and (c) the importance of keeping in full view injustices and discrimination still faced by people who consume cannabis in Malta.  

Nonetheless, parts of the new law, including the de facto implementation of the law, continue to reflect discriminatory practices of the past and replicates injustices and suffering for people who consume cannabis.

Five of the post pressing matters are:

1. the continued practice of considering a criminal offence the act of sharing cannabis, better known as trafficking by sharing,
2. the lack of a social equity approach to remedy the wrongdoings of the past,
3. a low threshold of cannabis permitted on the person and in the household, thus indirectly contributing to criminalise the person, push increased consumption, waste or sale
4. the complete ban on consumption within the Associations and other designated places, thus directly hindering the role of a communal approach based on harm reduction principles, and
5. no clear access to CBD flowers, products and derivatives      

People awaiting the law courts for years to take a decision for the non-violent crime of consuming, cultivating or sharing cannabis have essentially been robbed of their human dignity and left to live in a costly legal limbo. The latter, directly impacting the person’s health, job opportunities and social relations. Others, incarcerated, had to suffer the harrowing experiences of reclusion and the dangerous unsanitary environment of a prison. These people have never been criminals. These people deserve redress and the necessary legislative tools to partake and enjoy the benefits of a partially decriminalised system regulating cannabis. Unfortunately, the law has totally ignored the negative effects caused by criminalisation and continues to promote a stigmatised approach.   

ReLeaf Malta is hereby submitting a number of recommendations to further highlight the role of a holistic approach to drug policy reform, and the importance of embracing harm reduction principles as a comprehensive set of tools, not limited to the health aspect, but including also considerations for the social and legal consequences of past and present policy.   

1. Include the possibility of sharing at no cost cannabis between adults, thus further giving consumers the tools to stir away from the illicit market and further strengthen dialogue between cannabis consuming peers. This is a practice already allowed in countries adopting a similar legislative framework, whereby cannabis is ‘gifted’ and not sold to other adults.   
2. Establish a unit within the Directorate for Human Rights, titled, Human Rights for People who use Drugs Unit, providing a human rights-based platform to research, write, and educate the general public about the rights of people who use drugs. In view of the partial decriminalisation of cannabis, the Unit should include a ‘grievances board’ inviting people with previous non-violent convictions related to cannabis, and others who have suffered discrimination as a result of their cannabis consumption to submit a complaint and explore legal and social ways on how to remedy.   
3. Increase the personal threshold of cannabis carried on the person from 7 grams to 15 grams, and cannabis kept at home from 50 grams to 300 grams, thus being better reflective of the 4 plants allowance, and giving the person the possibility to preserve certain strains from one month to the next without being considered a trafficker.   
4. By facilitating the creation of a safe space, thus one which allows consumption on site or other venues accessible only to members, the law would further fulfil its core principles founded on harm reduction, and therefore one based on a community approach acting as a safety net, a hub for educational exchange, and a place where to promote a healthier approach to cannabis consumption
5. Ensure CBD flowers, products and derivatives are completely separated from provisions regulating THC flowers, thus ensuring Maltese legislation is in line with the EU and UN.