Towards a ‘human rights-based’ drug policy | Karen Mamo

In 2018, Malta became one of the first European countries to fully decriminalise cannabis for medicinal purposes; followed up by a broader reform to (within limits) decriminalise the drug for recreational purposes, too. For people brought up in a very different Malta – where drug-users were routinely criminalised – the contrast is rather striking. Yet it also forms part of what appears to be an international movement: away from ‘prohibitionism’, and towards a ‘harm-reduction’ approach. First of all: how do you account for this trend, yourself?

I think there are a lot of factors involved. You cannot pinpoint just one force, which is pushing some countries to go towards a decriminalized – or at least, more regulated - cannabis model. In fact, decriminalisation itself is not even all that ‘new’, really:  if you look at individual countries, and how their drug legislation has evolved over the decades, you will find that the process has actually been ongoing for around 20 or 30 years.

But yes: in the past decade, there have been a lot more countries going in that direction… including some which were previously considered highly conservative, on such issues. It came as a surprise to many, for instance, that Thailand [which formerly had the death-penalty for drug-offences] has now decriminalized cannabis: even though here are still certain issues, and the law itself needs to be adjusted. Nonetheless, it remains a fact that even countries which were known for their very draconian drug policies, are beginning to change their approach.

Even if you look at how the international community talks about the issue, today: there has been a change in tone, in the past 10 years… for example, in how the UN Special rapporteur for Health has been reporting about PWUD [people who use drugs]. Then you have other UN institutions, calling for a decriminalized system…

But the main problem is that the UN Drug Control Conventions of 1961, 1971 and 1988, still act as the main body of international law, when it comes to national approaches to drug legislation. And those conventions are highly prohibitive: having been drawn up at a time when there was a full-on ‘War on Drugs’.

However: even within those conventions, there were always certain provisions that allowed for the possibility of a less ‘criminalised’ approach. This is, in fact, why certain countries – such as The Netherlands, for instance – started to decriminalize all the way back in the 1970s.

Already back then, it was clear that ‘locking people up’; or ‘threatening them with prison’; or – as someone recently suggested – ‘hoping they will hit rock-bottom, so that they seek treatment’… none of that is conducive, either to reducing the prevalence of drug use; nor even to improving the health of the person using drugs.

Would you say, then, that Malta’s own recent policy of decriminalization, was inspired by a similar realization that past drug strategies were simply ‘not working’?

Up to a point, yes. And not just in Malta, by the way: in fact, the first thing I pointed out, in my article last week, was that: “The World Drug Report of 2021 explains that despite a coordinated international approach to address drug use in society, the number of drug users increased by 22% between 2010 and 2019.”

And even 10 years earlier, the UN Special Rapporteur for health had denounced the failure of current drug policies, as “constituting a direct infringement to the Right to Health for People Who Use Drugs.”

This is something we can easily see, just by looking back at the actual outcomes of Malta’s drug policies, over the years. For instance, we had the case of Daniel Holmes: where, unfortunately, a person’s life was ruined, for more than 10 years, because of our draconian approach to cannabis. We also have other cases that are still ongoing: such as the fact that people are now being arrested for ‘CBD flowers’ [a medicinal extract of the cannabis plant, that has no psychoactive properties]: which you could almost describe as ‘finding a new way’ to criminalise people, in spite of the recent administrative changes.

Because even though the law now establishes what constitutes a ‘narcotic drug’, and what does not… there are still interpretations which continue to criminalise people, over substances which have otherwise been ‘decriminalised’. In the case of CBD, it’s because the legislator did not update the Dangerous Drugs Ordinance – which is very archaic – or, even better, remove it altogether… so as to ‘start afresh’.

So while the approach may be towards a more human-rights based policy, there are still certain elements – including the UN conventions I mentioned earlier; and the way they are still sometimes being interpreted – that are holding the process back.

In fact, your articles places a lot of emphasis on human rights: in particular, the ‘Right to Health for People Who Use Drugs (PWUD)’. Now: some people out there (and I’m not one of them, myself) might contend that… those ‘PWUD’ willingly chose to jeopardise their own health, by ‘using drugs’ in the first place. So why should the rest of us care about their ‘right to health’? How would you answer a question like that?

Interestingly enough, this was actually part of the focus of my Masters thesis: which explored – among other things – how a punitive, draconian approach to drug policy, also results in the ‘dehumanisation’ of people who use drugs.

But let me start with this: human rights law is above and beyond all international drug-control policies, and conventions. So even if a country chooses – as Malta did, until recently – to adopt a fully-criminalised approach… you still cannot be in breach of human rights.

For example: if your legislation permits you to arrest and imprison people, for drug-related offences… it doesn’t mean you can also violate their fundamental human right to, say, a fair trial; or to be treated with dignity, and so on.

But when it comes specifically to the right to health: there is a tendency to assume that the ‘right to health’, means ‘the right to be healthy’. But that is not the case at all. Nowhere do the UN conventions mention a ‘right to be healthy’; but they do include a number of rights, freedoms and entitlements - as well as responsibilities – to which all human beings (without exception) are entitled, simply by virtue of existing.

In other words: irrespective of whether or not a person uses an illicit substance… they continue to retain full access to human rights, as human beings.  So if, for example, we deny someone the right to information, regarding what a particular substance may contain… that is also, up to a point, ‘endangering’ that person’s health.

As such, it is a violation of that person’s basic right to health… and it’s not the only example, either.

Let’s take the case of someone who was arrested on cannabis possession and/or consumption charges, 20 years ago or more. As a result, they would have a tainted criminal record - in the same way as if they had acted violently; or committed some other serious crime - and therefore, all those years later, they are still being denied equal job opportunities: as well as certain other social benefits.

Another example – which I myself find particularly disturbing, to tell you the truth - is the fact that, to this day, we still have an ‘Addict’s Registry’ in this country. Every person who has ever needed detox services - or rehab, or any such government service - in the past, has to be included in this registry… for life!

And this issue copped up again recently, because there were people who needed medicinal cannabis… but because they had a heroin problem 20 years ago, they were denied access to treatment on the pretext that: ‘Once an addict, always an addict…’

Which brings me to the most important part of all: the way we actually talk about ‘PWUD’. First of all, the tendency here is to always speak about… ‘addicts’. And I hate that label. It’s not a term I would ever use, myself; I prefer to talk about ‘People Who use Drugs’… not just because it’s more accurate – in the sense that, not all PWUD are necessarily ‘addicted’ – but also, because it changes the way we frame the entire issue.

For starters: the word ‘addict’ carries a lot of negative connotations. As do similar terms, such as ‘junkie’. Historically, these labels are associated with all sorts of other societal problems… and in any case, they do not do justice to the issue itself. If you look into more recent research into addiction, and problem drug-use in general: there are a lot of other variables involved in the development of problematic behaviour… and they are not necessarily linked to the use of any one chemical, or substance.

So by simply reducing PWUD to ‘addicts’, or ‘junkies’… all it really does is, is encourage us to look at those people as being, themselves, ‘the problem’.  That is why I prefer to use the acronym PWUD: because it places the ‘person’ as the main focus of our approach. It prioritises ‘the person’, over ‘the problem’; and as such, it also reminds us that – as human beings - those people have rights which must be respected, too…    

Yet in your article, you also alluded to a ‘diplomatic consensus to adhere to a threat-based language’ [and to resist the decriminalisation process in other ways]. Here in Malta, most of the resistance has come from national drug agencies such as Caritas, the Oasi Foundation, Sedqa, and so on.  Why do you think those agencies are so sceptical of decriminalisation? Do you share the (admittedly cynical) view that those agencies are - at least, in part – concerned with a potential loss of their own power and influence?

I understand what you’re driving at, but… to be honest, what I really would like to see is more dialogue. And obviously that includes those organisations, too: because they do have a lot of valid ideas, and perspectives. Unfortunately, however, it often seems as though they have not been keeping up with recent research and data on the subject.

For example: it is one thing to remind people about the health risks involved in using cannabis. But to create the impression that the substance is so ‘dangerous’, that a child might be harmed just by ‘touching a cannabis plant’… I mean, come on. There is nothing to be gained from using such extremist language.  It does not contribute to any positive outcome: because if you take things to such extremes… no one will listen to you, at the end of the day. It would be more helpful, to stick to a more scientific, facts-based approach.

And I think that was one of the biggest problems with the former approach to drug policy, as a whole: it was always rooted in this idea that ‘Drugs are bad’… and that we must therefore do everything in our power, to ‘wipe them from the face of the earth’, so that we can all live in a ‘drug-free society’…

Part of the problem with this approach is it is simply ‘unrealistic’: in the sense that, if people want to consume a certain substance… they will try to get hold of that substance, regardless whether it’s ‘illegal’ or not.

But another part if that… it also endangers the lives of some of those people; in fact, this is what the most recent research shows, about the public health outcomes of prohibitive drug policies. By making drugs as ‘difficult to access’ as possible, we only succeeded in making them more ‘dangerous’…

At the risk of another devil’s advocate question: some would argue that these issues have all already been addressed, through the recent cannabis reform itself. What do you yourself make of that? Is our new drug policy really more ‘human rights-oriented’, than our old one?

To be fair: this is something ‘new’ for Malta… and as such, it is an exciting time to be living in. Because in reality, [the cannabis reform] does place us right at the very top of the table, when it comes to a human rights-based approach to drugs.

But it also depends on whether certain parameters of the law start being implemented. For example: the expungement of criminal records. We have no information on that, for now. Seven months after the law was enacted, we still don’t know if anyone really did have their criminal records ‘cleaned’, as promised.

Nor do we even know how many people are still in prison [on prior drug convictions]; and whether – on the same principle as the expungement of criminal records – they can now be released.

Nonetheless, there is no doubt that we have taken important steps forward; and perhaps the most important step of all, is that – through the formation of NGOs such as Relief – the dialogue now includes the voices of PWUD themselves.

All I can really add, then, is that it is crucial that we continue in the same spirit of open, honest dialogue with each other.