Following recent calls made by Prime Minister Joseph Muscat for a national discussion on recreational cannabis, this issue has become a public talking point. As of April 2015, recreational use of cannabis is no longer considered to be a purely criminal offence but is instead seen as an ‘administrative/quasi-criminal’ offence.
Persons caught in possession of small amounts of the drug for personal use (up to 3.5 grams), will not be prosecuted in a court of law but will instead have to appear before a tribunal chaired by a Commissioner of Justice in the form of social worker Vicky Scicluna and be faced with a fine.
Repeat offenders may be sent before a Drug Offenders Rehabilitation Board to follow a rehabilitative process outside the criminal ambit of a court room.
The amendments brought in with the Drug Dependency Act did not change the fact that a person may be arrested, however the retention of the police power to arrest was done for investigative purposes in order to allow the police to efficiently carry out their investigation and catch the bigger fish (drug dealer).
Similarly, this does not change the fact that persons caught with higher amounts than the legal 3.5g threshold will be prosecuted in a court of law, and persons found guilty of sharing will face prosecution for trafficking by sharing.
Although the current legal system is better than that which existed prior to the 2015 amendments, this does not alleviate most of the preexisting problems. Despite the drug user not seen as a criminal, the substance is still illegal and therefore must still be purchased illegally from a drug dealer without any knowledge of where it came from and with no form of regulation or taxation on the income.
Effectively the Drug Dependency Act has not regulated cannabis but has simply swept the issue of minor possession under the carpet.
When analysing the legislation of various other countries one may see that no consistency on the issue exists. Countries like Portugal and the Czech Republic have not legalised cannabis but have instead opted to decriminalise possession for personal use.
On the other hand, the Netherlands, Canada, Uruguay and certain US states have legalised recreational marijuana use. Uniquely, Spain has seen the creation of cannabis clubs dispersed throughout the country which have the authority to cultivate cannabis and sell it to registered members.
The most worrying aspect of legalisation is failed regulation as is the existent case with cigarettes and alcohol
I believe the government should look towards the Spanish system of regulation as it provides a number of benefits and allows for registration of cannabis users with a regulated society and also allows for regulation of the cannabis itself.
This regulatory system provides a number of benefits as primarily it will effectively kill off the black market which could also bring an end to the recent mysterious arson-related offences which may well have been due to drug related issues.
Secondly, decriminalisation will free up a large number of government funds which are wasted on combatting simple drug possession and may instead become a source of income through taxation of the drug in a similar manner to how other drugs such as alcohol and cigarettes are taxed.
When considering the possibility of regularisation as proposed by the Prime Minister, the most important thing is to establish proper regulations relating to cannabis club cultivation, age of consumption, purity of drug and quantity of purchase and to ensure that this regulation is effective and efficiently enforced.
Non-compliance with these regulations should result in revocation of club licences and major administrative penalties for excessive possession or illicit sale of the substance.
The most crucial and worrying aspect of legalisation and regulation of marijuana is not the fact that the drug is becoming legal because this could be beneficial to various persons in society who could make use of the drug for its positive medical purposes or make use of other components of the plant.
Instead, the most worrying aspect of legalisation is failed regulation as is the existent case with cigarettes and alcohol.
In a recent ESPAD Survey carried out by Sedqa in 2015 it was seen that among students aged between 15 and 16 years, 86 per cent of them had already consumed alcohol and 47 per cent had engaged in heavy episodic drinking within the preceding 30 days despite being under the legal age allowed for purchase or consumption.
Similarly, 29 per cent of students had smoked in their lifetime with 13 per cent of students claiming to have smoked their first cigarette before the age of 14.
From the above statistical data it is evident that regulation of soft drugs is not sufficient and should require stricter punishments and enforcement by government authorities to encourage compliance.
Effective regulation and enforcement may be beneficial not only to ensure that vulnerable persons in society do not get their hands on cannabis, but also to encourage stricter compliance with respect to alcohol and cigarette regulations.
Alexander Scerri Herrera is a lawyer with a specialisation in international human rights law.