Changing Malta’s drug laws: Compassion or appeasement?

Karol Aquilina was quick off the blocks to say the Nationalist Opposition will be voting against changes being proposed by the government to several drug laws. 

He accused Justice Minister Jonathan Attard of going light on drug traffickers and called the Bill “irresponsible and dangerous”. 

Aquilina’s main concerns stem from three particular changes that would see persons caught with higher drug quantities having their case heard by the lower courts where the maximum punishment is 10 years’ imprisonment rather than life; the possibility of drug users caught with weapons to be afforded rehabilitation; and the granting of new powers to the minister to change drug quantity limits. 

Justice Minister Jonathan Attard rebutted the criticism, insisting that drug trafficking will remain a crime punishable with a maximum life sentence. However, he also insisted the changes will widen the scope for drug cases to be decided by the Magistrates’ Court because jail terms handed down over the past 14 years have never exceeded 10 years. 

Other changes, he added, are intended to give problem drug users a greater chance to follow a rehabilitation programme. 

How the changes are interpreted stems from a person’s viewpoint on drugs, rehabilitation and the fight against drug trafficking. 

Aquilina has insisted the drug limits to determine whether a person’s case can be heard in the lower courts rather then proceed to trial allows drug traffickers the chance to get off with a lighter sentence. 

The watering down of an exception that prevents the court from considering the route of rehabilitation for the accused if the charges also include possession of a weapon or explosives “gives the wrong message and could potentially put the lives of police officers and law enforcement officers at greater risk”, Aquilina said. 

And although the government backtracked on an earlier proposal that set higher drug quantities for determining whether the court will transform into a specialised Drugs Court, Aquilina said the minister will now have the power to amend them in the future without the need to go to parliament.

“The Labour government is in haste to ensure traffickers of large quantities of drugs get off lightly… and to consider a ‘victim’ someone caught with a weapon,” Aquilina wrote on his Facebook wall. 

An evolving attitude 

The attitude towards drugs and drug taking has evolved over the years with emphasis on rehabilitation and less draconian approaches being advocated. 

Indeed, one statistic does stand out in the explanatory document published by the government alongside the Bill – the maximum penalty for drug trafficking, life imprisonment, has never been handed down by the courts. 

Indeed, earlier this year the Chamber of Advocates called for the punishment of life imprisonment for those convicted of drug trafficking to be removed from the law. 

“The time has come for the parties represented in parliament to acknowledge that this punishment is draconian, it no longer exists in democratic countries and it should be removed from the Criminal Code in Malta,” the Chamber had said. 

The latest amendments do chip away at the hard view on drugs as they pursue the path of compassion for problem drug users who get entangled in the criminal web to financially sustain their habit. 

The Labour government has since 2013 introduced the concept of a Drugs Court that refers people accused of possession to a rehabilitation board and also partially legalised recreational cannabis use. Today, habitual cannabis users no longer face criminal persecution and can buy cannabis safely from regulated outlets. 

Nonetheless, organisations like Caritas and OASI Foundation, which provide drug rehabilitation services, have argued the softer approach risks normalising drug taking. In June this year, Caritas director Anthony Gatt lamented the lack of enforcement of cannabis use rules. 

The Opposition has latched on to this view – it opposed legislation that regulated cannabis use and is now arguing against any softening of laws that may suggest drug trafficking is not a serious crime. Indeed, the Opposition has gone one step further accusing the government of doing the bidding of drug traffickers. 

“The PN will continue to insist that the law courts, at their own discretion, remain tough on drug traffickers and offer support, love and compassion for drug victims,” Aquilina ended his Facebook post. 

Achieving the balance between being tough and showing compassion will remain a sharp dividing line between the two major political parties, it seems.

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10 changes to Malta’s drug laws

A Bill put forward by Justice Minister Jonathan Attard is proposing changes to several drug laws. The objectives listed in the Bill include granting wider discretion to the courts to favour rehabilitation even for drug crimes committed in prison and where the person also possessed a weapon or explosive. MaltaToday compares the proposed changes with the current situation.

Changes to Criminal Code 

1. Trial without jury 

Situation today: People accused of serious crimes can opt to undergo a trial without jury – trial by the Bench, where a judge alone hears the case. However, this option is excluded for crimes that carry a potential punishment of life imprisonment - murder and drug trafficking are such crimes. 

Proposed change: Accused drug traffickers will also be given the option to undergo a trial without jury. The maximum punishment for drug trafficking – a life sentence – will not change.

Changes to Medical and Kindred Professions Ordinance 

2. Higher ecstasy pills limit 

Situation today: Schedule 4 attached to the law contains guidelines that enable the prosecutors and the court to determine whether a person charged with possession should have their case heard by the Magistrates’ Court rather than go for a trial. The schedule lists the amounts of drugs to be taken into consideration when making such a deliberation. The amounts are: Ecstasy less than 300 tablets; LSD less than 300 squares; amphetamine less than 300g; ketamine less than 150g. 

Proposed change: The quantity of ecstasy tablets is being increased to less than 500 pills. All other limits will remain unchanged. This means that, unlike today, someone caught with 499 ecstasy pills can have their case decided by the Magistrates’ Court where the maximum prison sentence is 10 years as opposed to life.

Changes to Dangerous Drugs Ordinance 

3. Probation instead of jail 

Situation today: The courts are prohibited from imposing a probation order for drug crimes that carry a prison sentence. 

Proposed change: The courts will have discretion to impose a probation order instead of a jail sentence if the punishment would have been not more than two years’ jail and only for a first conviction.

4. Higher drug limits 

Situation today: Schedule 4 attached to the law contains guidelines that enable the prosecutors and the court to determine whether a person charged with possession should have their case heard by the Magistrates’ Court rather than go for a trial. The schedule lists the quantity of drugs to be taken into consideration when making such a deliberation. The quantities are: Heroin and cocaine less than 100g; cannabis less than 300g. 

Proposed change: The quantities are being increased to less than 200g for heroin and cocaine, and less than 500g for cannabis. This widens the number of possession cases that could be heard by the Magistrates’ Court, where the maximum punishment could be 10 years in jail rather than life if the case goes to trial.

Changes to Drug Dependence (Treatment not Imprisonment) Act 

5. Drug Offenders Rehabilitation Board 

Situation today: The DORB currently consists of four members – one chair appointed by the minister and three members appointed by other ministers. 

Proposed change: The board will increase to seven members in total. The three additional members should be either retired public officers or persons with competence in the field of rehabilitation from drug dependence. The amendment also sets a quorum of four members for the DORB to be able to exercise its functions.

6. Weapons and explosives  

Situation today: The Court is precluded from turning itself into a specialised Drugs Court if the person charged with a drug offence carried out the crime while in possession of a weapon or explosive. 

Proposed change: The Court will be able to transform into a Drugs Court if the charged person was also in possession of a weapon or explosive but this would only apply if punishment in the case would not accede two years’ imprisonment and if the Court feels that granting an opportunity for rehabilitation from drug dependence outweighs the gravity of offence.

7. DORB report 

Situation today: The DORB may recommend that the Court revoke its decision to transform into a Drugs Court, and propose the case go to trial. 

Proposed change: An obligation is being introduced on the board to explain the reasons why it is making such a recommendation and present a report, which will also be inserted in the acts of the criminal case.

8. Power to the minister 

Situation today: Any amendment to schedules attached to the law can be changed through subsidiary legislation. 

Proposed change: The law will include a clause stating that the minister is being granted the power to “amend any schedule” to the Act thus circumventing the need to go to parliament for changes to the schedule. The minister has already committed himself to remove this to avoid any doubt.

9. Drug offence in prison 

Situation today: Certain drug crimes are precluded from being dealt with on the basis of this law. These include an offence committed in or in relation to “a correctional facility”.  

Proposed change: The word ‘correctional facility’ is being changed to ‘a prison or other place of detention’ and an exception is being introduced in relation to persons who would have committed the offence in prison but are no longer inmates. However, the exception only applies if the charge results from the possession of a small quantity of drugs for personal use; and if no drug trafficking charges are added; and if the offence was committed during a period of drug dependence and attributable to proven drug dependence. This change allows the Court to opt for rehabilitation in the case of a former inmate facing a drug offence committed while incarcerated.

10. New schedule with drug limits 

Situation today: This Act does not contain a schedule with guidelines for drug limits to guide the Court when determining whether it should transform into a Drugs Court. The guidelines used today are those available in other laws. 

Proposed change: A new schedule lists the quantity of drugs for the purpose of deciding whether the Court should turn itself into a Drugs Court. These are: Amphetamine less than 300g; cannabis less than 300g; ecstasy less than 300 pills; heroin and cocaine less than 100g; ketamine less than 150g; LSD less than 300 squares; any other prohibited drug less than 300 pills or 300 squares, or less than 100g.

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What happens when someone is charged with drug crimes? 

A person appears before the Magistrates’ Court. At this point it has to be determined whether the Court should transform itself into a specialised Drugs Court with a special focus on rehabilitation. If the court transforms into a Drugs Court, the accused will have to appear in front of the Drug Offenders Rehabilitation Board. 

If the Magistrates’ Court decides otherwise, a second consideration will be made as to whether the case will be decided by it or whether it should go to trial by jury. The salient difference between the two is the maximum applicable punishment that can be afflicted – 10 years’ imprisonment by the Magistrates’ Court and life imprisonment in a jury. 

The laws lay down parameters and guidelines that enable the Court to make such determinations.