A recent white paper proposing reforms to Malta’s drug laws caused controversy and political bickering, with some claiming that it is proposing an increase in the quantity of drugs a person can carry for personal use.
In one widely-shared video, a recovering drug addict spoke about the quantities addicts consume daily – which are only a fraction of the limits being proposed – using confectionery items in place of drugs to illustrate his point.
Several current and former political figures also entered the fray.
Opposition leader Bernard Grech made a similar argument in a video posted to his Facebook page, saying that “the government is pushing a white paper which allows you to carry 500 ecstasy pills”, a quantity that he argues is “surely not for personal use”.
Several others, including PN MPs Beppe Fenech Adami, Claudette Buttigieg and Ivan Castillo and former PN MP Jason Azzopardi also criticised the reforms, saying that anyone caught with those amounts would no longer be considered a drug trafficker but instead come to be seen as a victim.
What does the white paper say?
The white paper proposes several changes to drug laws, ranging from how drug courts are set up to how people who were caught with drugs in prison are treated. But it’s the proposed increase in drug limits that has sparked the debate.
These guidelines are intended to help courts decide how harshly the accused is to be treated, depending on several factors, such as whether they had a leading, significant or lesser role in the crime.
So, for instance, a person caught trafficking drugs would be treated less harshly if they are believed to have been acting under the direction of others or selling drugs to finance their own drug habit.
One of the factors that should be taken into consideration according to the guidelines (in fact, “a principal consideration”) is the amount of drugs that a person is caught carrying, setting out separate limits for different types of drugs.
This means that people caught with amounts below these limits should not be tried in criminal court (often to be tried by a jury), but should instead be directed towards the magistrates’ court.
So will anyone caught with amounts under these limits get off scot-free?
No, not automatically.
Even in cases where a person is caught with a quantity of drugs that is under the new limits, they could still be charged and sentenced as traffickers if the courts believe that they were acting on their own steam or played a central role in the crime.
However, on the other hand, the magistrate may decide to set up a drug court if they believe that the person’s actions were driven by their addiction or that they were simply a small cog in a larger operation.
In essence, being tried through a drug court means that a person is being directed towards rehabilitation services, rather than the criminal justice system.
If found guilty through a drug court, a person can be ordered to follow a rehabilitation programme in one of Malta’s drug rehabilitation centres, rather than being sent to prison.
Does this also apply to cases of personal use?
No, in reality, none of this applies in cases where a person is caught carrying a minimal amount of drugs for personal use (under two grams of ecstasy pills, for instance).
A 2015 bill called the Drug Dependence (Treatment Not Imprisonment) Act sets out the punishment to be dealt in these cases.
However, the new drug reform is not set to change this in any way. The reforms only apply to cases where a person is believed to be trafficking drugs or stands to be accused of aggravated possession.
Who decides whether a person should be tried criminally or not?
Just as has been the case for several years, the newly-proposed laws place the onus on the magistrate to decide which of the two routes – criminal court or drugs court – a person should face.
This decision depends on whether the magistrate believes that the accused’s actions were driven by their addiction and that they can genuinely benefit from rehabilitation.
If, on the other hand, the magistrate believes that the accused is trafficking drugs for reasons other than their own addiction, they may still be tried as drug traffickers in the same way as they are today.
The punishment for trafficking and possession with intent is also not set to change under these new provisions.
The war on drugs
More broadly, the proposed changes appear to follow a global trend away from the much-vaunted war on drugs policies that dominated the world’s approach to drugs throughout the end of the 20th century.
A seminal 2011 report by the Global Commission for Drug Policy argued that “the global war on drugs has failed”, calling on governments to focus on rehabilitation strategies rather than criminalisation of drug users. United Nations and the World Health Organisation soon followed tack, saying that drug policy should be based on prevention and treatment, rather than criminal action.
Malta’s national drug policy for the next decade argues that the government has been “assisting” rather than punishing users in cases “related to possession of small amounts of illicit drugs for personal use”.
Drug experts’ reactions to the proposed reforms have been mixed so far. Anthony Gatt, director of Caritas, a foundation that runs several drug rehabilitation centres around the islands, told Times of Malta that the introduction of drug courts in past years has been a positive step, but expressed concern that the reform could give rise to abuse.
Meanwhile, Noel Xerri, CEO of Oasi Foundation, an organisation working with people with addiction issues, said that courts need to adopt a case-by-case approach, saying ““We don’t believe that the limits should go up, per se, but there should be more leeway for addicts who deal in drugs to be processed and get help first”.
The proposed reform does not increase the quantity of drugs that a person can carry for personal use.
The reforms will amend guidelines that the court uses to decide whether a person should be tried criminally or through a drug court (which typically leads to a person undergoing rehabilitation).
The decision will remain in the magistrate’s hands. Even a person caught with quantities within the new limits can be tried criminally if the magistrate does not believe that their actions were driven by their drug habit.
The reform is not proposing any change to the way a person believed to be maliciously trafficking drugs is handled.
The claim is therefore misleading as although the claim may, in itself, be partly or entirely true, it is presented in a manner that is not representative of the facts within a broader context.
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