Issue link: https://maltatoday.uberflip.com/i/1369939
14 maltatoday | SUNDAY • 9 MAY 2021 OPINION Andrew Bonello The White Paper proposed by the Mal- tese Government is an important develop- ment in this country's long road towards increased social justice and individual freedoms. The White Paper is also an in- novative initial approach to move towards a more humane, just and inclusive Mal- tese society. As has been attested numer- ous times, people who consume, cultivate and share cannabis are not criminals and legislative measures, whilst promoting the general well-being of society, need to address the injustices, discrimination and long standing unfounded stereotypes fre- quently associated with cannabis. In the year 2021, Malta is joining a num- ber of other European Union member states and world countries in recognising that the criminalisation of people who cultivate, consume and share a substance in a private and responsible manner goes against the fundamental rights and free- doms enshrined in the UN Declaration of Human Rights and the EU Charter of Fun- damental Rights. The present prohibition approach has also been directly linked to the failed and very costly attempt (both in terms of monetary and human cost) at curtailing substance use and continues to provide a fertile and very lucrative mar- ket for criminal organizations involved in the illicit cultivation, transportation and smuggling of substances. As has been attested by a number of ev- idence based researched documents ex- plaining the negative effects of the 'war on drugs'[1] the current approach has been directly attributed to exacerbating the health, psychological, economic, legal and social status for non-violent citizens. The recently published EU Drugs Strate- gy 2021-2025[2] is also inviting member states to take a more informed approach to drug policy and develop legislative measures that address this social phenom- enon within a framework that guarantees that: "The coherent, effective and efficient implementation of measures should both ensure a high level of human health pro- tection, social stability and security, and contribute to awareness raising. Any po- tential unintended negative consequences associated with the implementation of the actions should be minimised, and human rights and sustainable development pro- moted." As highlighted by the National Drug Sit- uation in Malta report 2019, "The majority of cases in the criminal court that were de- cided in 2016 revolved around drug pos- session, with the highest number of cases attributed to the possession of cannabis" and that with regard to the jail terms handed down for possession, 27 were re- lated to cannabis. The report also states that a similar reality was present in 2017, with statistical data provided by the police indicating that "most Drug Law Offence's in 2017 were related to possession, with the majority of these related to cannabis" Taking into consideration (i) the core principles of public health, social equity and justice, proportionality and the in- dividual's freedom to take responsible choices, (ii) sentiments expressed in the international documents quoted above, (iii) the human, social and collective cost of persecuting and incarcerating a non-vi- olent person whose only crime is that of cultivating, consuming and sharing the cannabis plant, and (iv) the provisions included in the White Paper on the re- sponsible use of Cannabis, ReLeaf Malta is hereby submitting a number of observa- tions and suggestions to further contrib- ute to the core sentiments of this proposed legislative change; Decriminalisation of up to 7 grams of can- nabis possession This is a positive development and high- lights the Government's commitment to shift a larger margin of people away from any administrative or criminal con- sequences for small amounts of cannabis possession. However, the white paper does not specify what happens to the can- nabis being found on the person. Is this confiscated by the police? Is the police required to give a receipt of the amounts confiscated? Another important question is the defi- nition and parameters used by the local police force and the AFM to stop and search a moving vehicle (roadblock) or a person (stop and search in the street) and what parameters will be used to consider a case as having 'reasonable suspicion' of trafficking, sale, import or export. Reference is made to Article 5 and Ar- ticle 8 of the European Convention of Human Rights (ECHR), more specifically the right to liberty and security and the right to respect for private and family life. Furthermore, quoting various court cases Article 5, part B point 13 of the ECHR pro- vides that: "An element of coercion in the exercise of police powers of stop and search is in- dicative of a deprivation of liberty, not- withstanding the short duration of the measure (Krupko and Others v. Russia, § 36; Foka v. Turkey, § 78; Gillan and Quin- ton v. the United Kingdom, § 57; Shimo- volos v. Russia, § 50; Brega and Others v. Moldova. § 43)." The European Convention on Human Rights and Policing Guidelines published by the European Union and the Council of Europe, reporting the ECHR Judgment Gilland and Quinton v. the United King- dom, explains that: "The Court readily found that the use of coercive powers to require an individual to submit to a detailed search amounted to a clear interference with the right to respect for private life. In reaching its decision, the Court considering that the element of hu- miliation and embarrassment involved in the public nature of a search may have, in certain cases, the potential to compound the seriousness of the interference." Looking at the powers and force permit- ted to be used by police officers, particu- larly the decision to consider a particular person or case as constituting 'reasonable suspicion' of foul play, the Guidelines ex- plain that: "widely-framed powers could be misused, not only against demonstra- tors and protestors, but also against (as suggested by statistics) ethnic minorities" It will be important for legislatures to properly define what is intended, thus ensuring all stakeholders are made aware what continues to constitute a criminal offence. A simple example is the presence of scales, frequently used by the police to justify trafficking. However, this is not al- ways the case and instead the use of scales should be promoted on harm reduction grounds inviting the person to take a more conscious approach to the amounts con- sumed and keep track of consumption levels. The increased margin for possession subject to proceedings before the Com- missioner for Justice, now proposed at 28 grams is a very positive initiative and high- lights the importance to ensure persons who consume cannabis on a regular basis are not subject to criminal consequenc- es. However, it is unclear if this amount is being considered to be depenalized on the person in public or if it also includes amounts found at home? A better under- standing of the role and powers of the po- lice in this section would provide increased clarity and transparency to the bill. Proposals • Information on new procedure adopt- ed by the local police when finding 7grams. • Define what constitutes 'reasonable suspicion' by local police force. • Define powers retained by the police to obtain a private house-hold search warrant. • Define and lay down parameters for stop and search (vehicle and person) • Immediate halt to the use of AFM and police canine section to stop and search vehicles Personal Cultivation and Private con- sumption This is an important and brave step the Maltese Government is taking to counter the market monopoly of the illicit market and inviting cannabis consumers to take a responsible approach to their cannabis consumption. The possibility to cultivate cannabis for personal consumption, apart from separating consumers from the illicit market, also contributes to promote re- sponsible and an evidence based approach Cannabis: a very costly prohibition ReLeaf Malta's contribution to the consultative process launched by the Government of Malta on the White Paper, Towards the Strengthening of the Legal Framework on the Responsible Use of Cannabis