Not much has changed in practice as a result of the new drug laws when it comes to the rehabilitation of users, according to the Prime Minister’s consultant on justice reform, Franco Debono.
Under the new laws, passed in 2015, simple possession of small quantities of a drug is no longer punishable by imprisonment but by a fine.
The police have retained the power to arrest and interrogate anyone caught with illegal substances. In fact, statistics obtained by this paper show that since the new law came into force in April 2015, more than 1,200 arrests have been made of people caught with a small amount of a drug.
Those among them who are first-time offenders are made to appear before a tribunal, which can impose a fine on them. Those caught with drugs a second time within a two-year period are referred to a drug offenders’ rehabilitation board.
Dr Debono, a criminal defence lawyer who has defended thousands of drug-related cases over the past 17 years, feels this is where the new law has fallen short, with some even considering the reform as a step backwards, he said.
Under the new law the tribunal cannot impose a probation order on a first-time offender, but a fine. “It is obvious that a probation order is more conducive to rehabilitation than a fine,” Dr Debono said.
The magistrates’ courts, he pointed out, used to do their utmost, with the resources at their disposal, to try to cater for drug users’ rehabilitation.
Prior to the reform, most cases of simple possession usually resulted in a probation order or a conditional discharge being handed down by the courts, both of which, Dr Debono said, were intended to promote the rehabilitation of the accused.
He admitted it was still too early to gauge the success or otherwise of the reforms in terms of relapse rates and repeat offences. A minimum seven to 10-year period would need to pass before the impact of the reforms would need to be properly assessed in this regard.
Earlier this year, Magistrate Natasha Galea Sciberras called for the revision of certain “draconian” drug laws, saying the courts should have more discretion. Addressing a debate to mark the two-year anniversary of the introduction of the new law, Magistrate Galea Sciberras said current laws meant that first-time offenders who may have shared some drugs with their friends, to try them out, were treated as drug traffickers.
“In the eyes of the law, this does not constitute trafficking by sharing but proper trafficking. Despite the person having a clean criminal record, the court has no other option but to send the offender to jail,” she had noted.
Dr Debono also points out that the drug reform created a very serious and unjust anomaly with regard to cannabis cultivation, in that it makes no distinction between the sizes of different plants.
Those caught cultivating one cannabis plant are no longer subject to a mandatory jail term, but more than one – whatever its size – and the grower is in serious trouble.
“Someone cultivating a two-metre plant would benefit from a recent amendment and be given a small fine, while someone caught cultivating two two-centimetre plants would be liable to the mandatory minimum six-month jail term,” Dr Debono said.
He also calls for further amendments to the law in order to draw a distinction between whether cultivation is for exclusive use or trafficking. This would bring this disposition in line with the rest of the law and avoid creating anomalous situations arising out of the arbitrary ‘one plant’ rule introduced by the recent amendments.
He said decriminalisation of small amounts of drugs could only take place if the police were removed from the picture, which would involve entrusting investigation and prosecution to an administrative authority, which was not the case after the reform.
Both the government and Opposition have committed themselves to a national discussion about whether cannabis should be legalised.
jacob.borg@timesofmalta.com