An overdue step in the right direction

The newly launched White Paper for Drug Law Reform represents a much needed break with the traditional approach legislators have had to the issue of drug abuse.

Even the name is significant: it refers to drugs which may be abused (‘drogi tal-abbuz’), rather than the more habitual approach which simply assumes that all drug-taking is automatically a case of abuse.

This same distinction acquires a whole new dimension of meaning when one considers that a section of the white paper is dedicated to drugs used for medicinal purposes: a serious issue involving hundreds of people suffering from serious health complications, but which has hitherto always been overlooked by Maltese legislation.

The significance of this shift in perspective cannot be overstated, for it addresses the very crux of the issue concerning drugs in Malta. That drug abuse is associated with serious personal, health and social problems is a fact that no one can really deny.

But likewise, no one can deny that our approach to this issue on a legislative level has to date been highly irrational: guided for the most part by political considerations and objectives, at the expense of the reality on the ground.

For years, experts in the field have pointed out numerous inconsistencies and flaws in the current legislative set-up. The clinical director of Sedqa – the government’s own agency for drug and other addictions – urged a rethink of drug laws in 2010. Not only does Malta’s traditionally hard-line approach often translate into individual miscarriages of justice… but it has also failed in its primary objective: i.e., to contain the growth of the drug problem at source. There is statistical evidence (including reports by the European Union’s drug monitoring agency) that the incidence of problem drug use in Malta, especially cocaine and synthetic ‘new’ drugs, has skyrocketed despite the draconian laws in place.

Apart from the social and medical implications, the failure of the present system has also incapacitated the judicial system by inundating the law courts with an endless queue of unnecessary criminal cases.

Clearly, something had to be done to address this anomaly; and at the risk of oversimplifying matters, the white paper proposes a number of major and minor policy changes.

Among the proposals is a classification system for different drugs, which are currently lumped together under the Dangerous Drugs Ordinance. A distinction would also be made between trafficking for profit (in which case the present laws will remain in force) and trafficking to sustain one’s own habit, in which case the courts will be empowered to hand down alternative penalties to prison and fines.

With the exception of cannabis, those charged with drug possession for the first time will not face criminal sanctions in court, but will instead be referred to a council (as yet vaguely defined) to be considered on a case-by-case basis. Where necessary, this council will have the authority to order victims to undergo rehabilitation programmes.

The exception for cannabis is that simple possession of the drug will no longer entail criminal procedures at all. The situation for trafficking and aggravated possession will however remain unchanged.

There are also proposals to harshen penalties in cases where drugs are sold in or next to a school or other places frequented by children.

These are courageous proposals, in a country where over 80% are reported to oppose drug decriminalisation. Admittedly the white paper does not actually propose decriminalisation entirely. Possession of all drugs except cannabis will remain a criminal offence, only subject to more reasonable penalties aimed at assisting victims rather than punishing them. In the case of cannabis, cultivation will remain illegal even for personal use.

Ultimately, however, what sets this white paper apart from all previous approaches is that the government has clearly listened to the opinions of its own advisors in the field. The proposals reflect concerns raised by stakeholders in various consultative meetings, and for this reason alone they mark a significant improvement over the present legal framework.

Having said this, there are areas where the white paper seems vague and poorly thought-through. For instance, it distinguishes between simple and aggravated possession for all types of drugs, but gives no indication of the factors that would constitute this distinction in practice. We are not told how much of any given substance would be considered ‘for personal use’, and how much would denote intention to traffic. One assumes this will be the subject of further discussion in future.

Moreover there are apparent contradictions. Given that cannabis possession would no longer entail criminal consequences, it remains unclear why the police should be involved in referring cannabis users to the aforementioned council (as proposed in the paper). By the same reasoning that the police do not involve themselves in minor traffic infringements – there are wardens for that purpose – it seems strange that a policy which no longer regards cannabis use as a crime should allow for police involvement in cannabis-related cases.

Nonetheless, by distancing itself from all the hysteria and political chest-thumping that has always drowned out previous discussions on this subject, the white paper clearly marks a step in the right direction. One hopes the ensuing discussion will adopt the same thrust and tone.