Something happened on the way to drug law reform…

I suppose it was too good to be true. For much of the last two years, the government has been making noises about ‘decriminalising’ drug use in Malta. And loud, self-congratulatory noises they were, too. “We will not shy away from taking courageous decisions!” “Our policies are guided by common sense!”, etc., etc.

In brief, everything pointed towards a policy of decriminalisation based (loosely) on the Portuguese model… whereby all drugs were decriminalised in 2001, resulting in an overall drop in problem drug use (more of which later).

There was even a White Paper to that effect: broadly welcomed by all those who have long been arguing that Malta’s previous ‘zero policy’ on drugs had not only failed in its primary objective, but actually made things considerably worse.

The White Paper openly declared that “personal use of drugs and drug abuse should only be considered as a health and social problem and not as a criminal one”. More importantly, it aimed to end the culture of ignorance and obscurantism that had resulted in a law automatically equating cultivation of marijuana with trafficking, and entailing a mandatory prison term of up to 25 years.

I won’t go into the full arguments here, but this rethink had been precipitated by a number of often glaring injustices arising from the law as it stood (and stills stands today). A pattern had emerged in the way drug possession cases were dealt with by the courts. Often it would transpire that someone caught in possession of drugs several years earlier would have – in the long years it took for his case to reach a verdict – successfully attended a rehab programme… only to be sentenced to prison regardless, by a judge who would even complain in court that the law left him or her no room for judicial discretion.

Even without such glaring injustices, the fact remained that our already over-burdened criminal courts are simply bursting at the seams with pending drug-related cases, often as not featuring quantities of drugs that most other European jurisdictions – even those where drugs have not been decriminalised – would not even bother with.

And all along, there was mounting evidence that this draconian approach to drugs was not only unsuccessful, but counter-productive. Annual reports published by the European Drug Monitoring Agency consistently reveal that Malta boasts the highest rates for problem heroin use in Europe: defying the trends in other countries, where heroin (by far the most dangerous of commonly used illicit drugs) has broadly been on the decline. 

In 2009, EMCDA reported 5.9 cases of heroin use per 1,000 people in Malta, describing this as “the highest figure recorded among the countries surveyed” (i.e., the rest of the EU).

All in all, it is hard to imagine a more complete and utter failure, than a ‘zero tolerance’ drug policy which somehow resulted in the highest rate of problem drug use in Europe. 

So I would like to think it was a (belated) cognisance of the shocking, abysmal failure of the current drug law regime that first prompted the government to change its approach towards this issue. And it was helped along the way by some of Malta’s anti-drug agencies, which likewise came to the same conclusion.

Sedqa’s clinical director, Dr George Grech, had called for a discussion on decriminalisation as long ago as 2010: “Prison is not giving results – it’s no secret there are drugs in prison, and we have come to learn that incarceration does not work with people who are purely drug addicts,” he said, pointing towards the Portuguese model as an alternative. 

Elsewhere, Caritas director Mgr Victor Grech has often complained about the fact that much of his agency’s work in rehabilitating drug users was being undone by a system which insisted on incarcerating even those who had overcome their drug habit (only to reacquire it in jail).

The White Paper published last year reflected all these concerns. But then, something must have happened. It has now been superseded by a bill that, on closer scrutiny, doesn’t quite amount to the same thing at all. 

To be fair, several of the key elements of the original plan are still in place. Under the new law, people caught with small quantities of marijuana will no longer face criminal charges in court. Instead, repeat offenders will face a tribunal – not unlike the tribunals governing parking and other menial offences – and face a maximum of 100 euros fine. 

And where someone is caught with one (1) marijuana plant, the case will be treated as one of simple possession, rather than automatic trafficking.

But as is often the case, the devil is in the detail. It transpires, for instance, that even those caught in possession of small quantities of drugs such as marijuana will be interrogated by the police, who will be empowered (as they are today) to detain them for up to 48 hours.

More worryingly, the distinction between cultivation and trafficking has not been fully inscribed in the bill currently being discussed… with the exception of the ‘one-plant’ scenario. With the new law in place, anyone caught growing two or more plants will still be charged with trafficking and face a mandatory jail term, even if no further evidence is presented of any drugs having been bought or sold. 

In such cases, judges and magistrates will still find themselves in the same position some of them complain about today: i.e., left with no option but to impose a prison sentence, even in cases which they feel do not warrant such severe punishment.

These differences may appear small, but in many respects they overturn the entire thrust of the original proposed reform. By definition, arrest and interrogation by the police are part of the criminal investigation process: regardless of whether or not these procedures actually result in criminal charges against the accused. 

We can therefore no longer talk about ‘decriminalisation’, if the person who commits the offence is still effectively treated as a criminal in the eyes of the law. Suddenly, it seems that the government’s ‘courageous decision’ no longer looks quite so courageous or even decisive. In a very short space of time, it seems that we have lost sight of the primary objective of this reform: which was not merely administrative, but also cultural. 

The original declared aims of the White Paper went beyond a mere overhaul of current legal mechanisms to counter drug use. They also challenged perceived notions of drugs and drug users in general: urging society to desist from looking at these people through a criminal lens. 

Yet here we all are, looking at these people through the same criminal lens as before. Something clearly happened in the meantime; and it seems reasonable to ask exactly what.

One possible answer has been provided by Mgr Grech, the same former Caritas director who previously complained about the old system. In spite of those former concerns, Caritas opposes decriminalisation. This agency also advises the government on drug policy (Caritas was closely involved in the discussion on the white paper), and it did not go unnoticed that this sudden change in direction came about directly after the consultation exercise.

So what sort of advice did Caritas give the government? You can get an overall idea from the arguments presented by Mgr Grech to a local newspaper this week.

“I am not impressed by what other countries are doing,” he told a journalist, when asked to comment about the decriminalisation policies of countries such as Portugal and Uruguay. “Marijuana is harmful and addictive [and] also serves as a gateway drug to harder substances.”

Personally, I find it hard to understand how someone so deeply involved in drug rehabilitation would be so blithely uninterested in recent international developments in his own field. But I suppose that’s his own affair. For the record, however, the developments that seem not to interest Mgr Grech include an overwhelming improvement in the drug problems of those countries which have so far decriminalised drug use.

This, for instance, is an excerpt from Forbes Magazine in 2011: “Ten years ago, Portugal decriminalized all drugs. One decade after this unprecedented experiment, drug abuse is down by half:

“… Portugal’s decision 10 years ago to decriminalise drug use and treat addicts rather than punishing them is an experiment that has worked. […] The number of addicts considered ‘problematic’ – those who repeatedly use ‘hard’ drugs and intravenous users – had fallen by half since the early 1990s, when the figure was estimated at around 100,000 people….”

These are not results that can be so easily dismissed, especially by the same people who (theoretically, anyway) are supposed to be advising our own government on how to achieve similar successes locally. 

But none of this seems to matter to Malta’s foremost drug rehabilitation agency. Results? Success? Who cares about such trivial things, anyway? The only important thing, it would seem, is that we doggedly stick to policies which have time and again proved utterly disastrous in the past: policies which do not cut the incidence of problem drug use in half… but on the contrary, only seem to ever increase it, year in, year out. 

As things stand, the only silver lining is that Caritas’ advice seems to have had only a slight (though, sadly, significant) impact on the proposed law. Let’s just hope that the government also starts seeking the advice of a few other people, too: including one or two who actually do give a toss about what happens in the rest of the world.