Except for an excellently balanced debate organised by the OASI rehabilitation centre in Gozo on the advantages and disadvantages of decriminalising drug use in Malta, the parliamentary and other public exchanges on the subject have, on the whole, generated more heat than light.

When Owen Bonnici, who has the makings of a first class, reforming Minister for Justice, presented his outline proposals in Parliament for a White Paper on Drug Law Reform (this article is being written before its launch), in which he took the unusual step of reading out a letter by a former drug addict, the reaction from his opposite number, Jason Azzopardi, was splenetic.

For observers of the political scene in Malta, this signalled a dismal start to the public debate. In fairness, the Opposition’s position has been slightly redeemed by an interesting intervention by Beppe Fenech Adami, who is seeking a half-way house between initial treatment for first offences and subsequent criminal proceedings for further transgressions.

It is vitally important that, on a subject as sensitive as reform of Malta’s drug legislation, our law makers should focus on the key factors and be as well advised as possible. Malta’s draconian drug laws have been shaped as much by emotion and ignorance as by law makers’ knee-jerk reactions to events 20 years ago and the then Nationalist government’s botched response to the case of a Brazilian drug trafficker who was caught smuggling three kilograms of cocaine into Malta, and his subsequent Presidential pardon.

It is time for the adoption of a calm and more reasoned approach to this problem. The last two or three decades have seen countries around the world struggle to find a solution on how to cope with it. The debate has swung between the headline-catching, but now discredited, policy of “war on drugs” to decriminalisation and legalisation. The war on drugs failed abysmally in its objective of preventing or reducing drug use, and succeeded instead in enriching the criminals who produced, sold and trafficked it.

That decriminalisation of drugs is now largely seen as the practical way forward – and the path on which the government has embarked – is the new orthodoxy. But in considering the issue, our legislators in Parliament cannot escape the logic of their actions. Decriminalisation, it could be argued, is only half the answer. If supplying drugs is to remain illegal, as is proposed, the thriving drug business in Malta will remain a criminal monopoly activity.

While the victims of drug abuse will be spared social retribution in prison and a criminal record, thugs will still rake in the cash. Criminals will continue to push their drugs with youths and children and murder their rivals, as recent incidents in Malta have demonstrated.

In the states of Colorado and Washington in America, drug dealers have been by-passed by legalising cannabis cultivation and its sale on the open market. Business has been taken away from the criminals and given to law-abiding entrepreneurs who, like hard liquor store owners and alcoholic drinks makers, pay taxes and obey the rules on who may buy their products.

Our legislators need to consider the consequences of their actions. Logically, decriminalisation only makes sense as a step towards legalisation. But if it is not meant to be a step in this direction then Auxiliary Bishop Charles Scicluna’s questioning of whether the reform would simply play into the hands of the drug barons could prove to be fair comment.

In drawing up their consultations on the White Paper and in the subsequent legislation for the decriminalisation of drugs in Malta, the government will undoubtedly examine the experience of legislation in other countries. This should turn essentially on two issues.

Why does a person who, when caught for the first offence, is deemed to have ‘a medical problem’, but is suddenly turned into being treated like a potential criminal for a repeat offence?

First, what substances or amounts will be covered by decriminalisation? At which point and for what type of substance abuse will the law kick in? And secondly, what rehabilitation arrangements will be put in place as part of the decriminalisation package? Put another way, should there be – as the Nationalist Opposition has proposed – a graduated response to decriminalisation which treats first offenders differently from repeat offenders?

There are many ways of skinning this particular cat. Several countries in Europe and America have decriminalised drug use. The Netherlands have been the brave standard-bearers in adopting a more pragmatic approach to drug use. For the last four decades, the Dutch have allowed their police discretion not to prosecute those in possession of up to five grams of cannabis or one ‘dose’ of hard drugs for personal use, effectively decriminalising such acts.

Portugal decriminalised drugs 13 years ago. Drug users can be forced to attend classes to get them back on a proper path. Italy, imaginatively, confiscates the driving licences of cannabis smokers. In Belgium, adults found with less than three grams of cannabis for personal use are not prosecuted and the drug is not confiscated.

The deductions that can be drawn from this admittedly cursory account of other countries’ experiences are two-fold: first, there is an acceptance that the personal use of drugs should be treated as a social issue, not a judicial one. Secondly, there should be a clear distinction between the way the law treats users and traffickers.

The weight of opinion in Malta, both political and those who are in the frontline of treating drug users, now appears to favour some form of decriminalisation. The Nationalist Opposition has put forward the case for what might be termed “conditional decriminalisation”. Individuals caught in possession of drugs for personal use should not face court action, with no distinction being made between different drugs so long as they can be shown to be for personal use.

Drug users would appear in front of a board that includes medical professionals who will offer guidance (in other proposals broadly on the same lines the cry is for special “drug courts”). But – and this is the nub – repeat offenders would face criminal punishment.

It is this last injunction which may cause debate, especially since it raises more questions than answers. How do you define a “repeat offender” at law when it is known that being caught the first time does not necessarily mean the offender has taken drugs for the first time? Why does a person who, when caught for the first offence, is deemed to have “a medical problem”, but is suddenly turned into being treated like a potential criminal for a repeat offence?

The logic, compassion and enlightenment which had driven the approach to the problem for “first offenders” appears to have been abandoned for others. There are vestiges of the failed “war on drugs” here – retribution, punishment and self-righteousness – which don’t make entire sense.

If, as now appears to be widely recognised, drug users are regarded by society and world health authorities as sick people who need medical help, it follows that they should not face criminal punishment for their condition. But to make this work in practice the government needs to move not only towards the decriminalisation of drugs (and possibly also the legalisation of certain drugs, such as cannabis), but also to the creation of a judicial process (drug courts or medical boards, fines or community service) and a well-founded rehabilitation infrastructure to cope with the problem.

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