Necessary considerations

Over the last 20 years various amendments were introduced to our drug legislation. The reason behind such reforms emanated from the fact that, unfortunately, drug dependency had become a scourge in Malta especially with regard to our youths. On account of this, it was generally felt that we required stronger legislation in order to try and check and deter, as much as possible, the abuse of narcotics in Malta. We have, therefore, experienced one amendment after another, increasing the penalties for drug trafficking to the extreme that today, in all probability, our law contemplates the harshest punishments in Europe. In fact, a person found guilty of drug trafficking before the Criminal Court can face even a life sentence though, to date, our courts have not yet applied the extremity of the law in any case.

In our rush to push forward such legislation, however, we may have at times made a number of mistakes. Till a few years back, the importation of drugs, irrespective of the amount, was defined as drug trafficking and, therefore, the courts were forced to hand down a minimum prison term of six months, even if circumstances would indicate that the drug in question was intended for the personal use of the accused.

This anomaly caught the public attention and even created somewhat of an outcry after the famous Gisele Feuz case of 1997. This case involved a Swedish citizen who brought to Malta a minute amount of cannabis valued at under Lm10. This notwithstanding, the courts were forced to jail Ms Feuz for six months. This was regarded as being unreasonable.

On account of this particular case and similar ones, the government was inspired to amend the law. Today, the importation of drugs must not necessarily be interpreted as drug trafficking but as an offence sui generis. The courts have justly been given the discretion in order to analyse all the circumstances of a particular case and decide accordingly. This notwithstanding, further anomalies persisted. The courts had long been hinting that there could be certain cases where, notwithstanding that the crime would technically fit the description of drug trafficking, the adjudicator should have the discretion to lay down alternative punishments to that of imprisonment.

In fact, on November 3, 2004, a magistrate recommended relative amendments and ordered her judgment to be notified to the clerk of the House of Representatives. The court suggested that, in exceptional circumstances, especially cases where minors were involved, the court should be allowed to apply the provisions of the Probation of Offenders Act. In that particular case, the court lamented that it had to condemn an accused to a prison term even though it felt that such a sentence was not appropriate.

This general feeling however had already prevailed and in fact a few months earlier, on May 8, Labour MP Gavin Gulia had written to the Social Affairs Committee of the House of Representatives asking it to discuss further amendments to drug laws.

It must also be pointed out that on June 25, 2002, on the initiative of President Guido De Marco, in order to commemorate the United Nations World Day Against Narcotic Abuse, a forum was set up with the aim of suggesting further amendments and better ways of addressing the drug problem in Malta. The forum's report was published on June 23, 2004. Significantly, among the many recommendations made, the forum suggested a redefinition of the term "sharing and drug trafficking".

On January 9 this year, the Social Affairs Committee published its own report. Though this does not suggest a redefinition of drug trafficking, it did suggest that sharing of drugs should be considered as a less heinous offence. The reasoning of the committee was that this would reduce the amount of accidental overdoses. As the law stands today, people involved in the sharing of drugs could be discouraged from assisting a victim of an accidental overdose, fearing they could be implicated in trafficking and ending up in prison.

On a personal note, I must state that the position being taken by the committee is a catalyst for further discussion. Undoubtedly, I myself, over the years, have on various occasions in Parliament had the opportunity to recommend certain amendments in this sense. I always felt that the courts should be given greater latitude and discretion especially with regard to minors. Everyone is aware that, unfortunately, the taking of drugs is a social affair and at times it doesn't seem to make sense to condemn a youth, who would be a first-time offender, to a six-month prison term for merely sharing a single "joint". The negative effects of the prison term could be life-lasting.

I take the opportunity to congratulate the chairman of the Social Affairs Committee, Clyde Puli, and the other members from both sides of the House of Representatives for their endeavours in this respect.

Dr Herrera is a Labour member of Parliament.