While the government’s exact plans for drug decriminalisation, as alluded to by the prime minister in the immediate wake of the passing of the Civil Unions Bills, are still being closely guarded, the concept provides a great  deal of food for thought.

There are several types of ‘decriminalisation’ and the path to be chosen by the government is still being ironed out.  There are risks and there are also opportunities. 

The main risk factor is the possibility of decriminalisation attracting more people to experiment with the particular drug or drugs that have been decriminalised.

On the upside, there are some very strong economic, social and judicial arguments in favour of at least some form of decriminalisation of certain drugs. 

For starters, as we report in an article in today’s issue, Malta is spending an awful lot on those imprisoned on drug offenses – more than anyone else in the EU in terms of a percentage of gross domestic product, with the exception of Italy.  Malta is, in fact, spending as much as €5.2 million a year, based on 2010 estimates, on drug offense prisoners, many of whom would be first time offenders.

But with the government, for the time being, keeping its drug policy rethink cards rather close to its chest, what we have to go on are past initiatives in the area, which the government has said would be expanded upon. 

One prime example is the Arrest Referral Scheme pitched by the previous Nationalist administration, although the Justice Minister has said quite clearly that what is being considered by Cabinet at present will reach far wider than that initiative.

But as a starting point, the Arrest Referral Scheme (ARS), which had been pioneered by former justice minister Carm Mifsud Bonnici, and which was stopped practically dead in its tracks after a confidence vote in him was, for various reasons not related at all to the ARS, lost by the government of the time, had proposed that first time drug users be given help instead of a criminal record.

The idea behind the ARS proposal was to help rather than punish the victims of drugs. And while the proposal was very worthy, there was no doubt that many more steps need to be taken before the country’s approach to the drug problem is well and truly modernised.

A classification system that differentiates between hard and soft drugs is one such instance that springs immediately to mind, as does a legal differentiation between personal use cultivation and trafficking – neither of which currently exist.

In short, the ARS proposed that those who have been arrested for the first time for the possession of drugs exclusively for their personal use, instead of facing charges in court and the prospect of landing themselves with a permanent criminal record, would undergo therapy prescribed by an Extra Judicial Body.

Such rehabilitation may have included, amongst other measures, crisis intervention, motivational interviewing and drug counselling, community service, supervision, leisure education, and urine tests for a stipulated number of months.

The proposal combined an ARS with a diversionary form of proceedings to an EJB.  To be eligible, an arrestee would have had to be a first time offender, be in simple possession of an illicit substance and admit to his or her guilt.

That proposal followed two recommendations from the 2008 National Drugs Policy - the setting up of a drugs court that streamlines drug offence cases, which has been done, and facilitating a restorative justice approach.

The 2010 National Youth Policy, which pertains to people aged between 12 and 30, meanwhile, calls for ‘diversionary tactics’ when it comes to young people and drug offenses.  In 2010, the proposal published this week points out, 85 per cent of all arrests made for simple possession were of people aged between 15 and 34, and 17 per cent of those were offenders between 30 and 34 years of age.

That means that the vast majority of arrests for drug possession involve offenders under the age of 30, people who certainly do not deserve a permanent criminal record for, as an example, smoking a joint at a reggae concert.

Other advantages cited by the proposal were: more cost effective procedures that relieve the burden of such cases both from police and the courts; a reduction in the time between arrest and contact with service providers, a contribution to a higher rate of success in relation to desistance from substance use; and provide assistance to the police in the related investigation and prosecution of third parties.

Apart from the economic aspect related to the imprisonment of drug law offenders, a steady increase in drug offenses is weighing down the courts and is undoubtedly hampering the ‘effective delivery of justice’, according to the ARS policy document. So much so that the ‘machinery of justice is being stretched and a diversionary scheme would prove to be a welcome development in the field’.

The number of pending drug offences before the Magistrate’s Court at the end of 1999 had stood at 70, while by the end of July 2011 that backlog had grown nearly ten times over to 655. Just last year, Former European Court of Human Rights Judge and head of the Commission for Law Reform Giovanni Bonello called for a distinction to be made between drug users and traffickers and for the personal use of drugs to no longer be treated as a judicial issue but rather, as a social problem.

As such, the ARS was a good starting point and from what the government is saying, its own proposals will go far beyond this. But just how far beyond is not yet known.

It is highly doubtful that the government will go for an Amsterdam or even a Lisbon type scenario, but a more rational approach to soft drugs and the additional provision of treatment for problem users would be entirely welcome.

Much will remain to be seen when the government pitches its proposals ahead of Parliament’s summer recess, but undoubtedly, as the Prime Minister recently said, the system, as matters stand, is failing our younger generation and many others as well, when cases of simple drug possession could very well lead to imprisonment and permanent criminal records. Malta should look to what other EU member states are doing in this respect and adapt its laws accordingly.