Cannabis legalisation: There can be no way forward without a White Paper

Despite changes in 2014 that introduced a non-criminal tribunal for people caught with small amounts of drugs, the law still empowers police to arrest pot smokers

The Valentine’s Day arrest of a couple smoking a joint exposed the contrast between government’s intention to go soft on recreational use of cannabis and reality.

Despite changes in 2014 that introduced a non-criminal tribunal for people caught with small amounts of drugs, the law still empowers police to arrest pot smokers.

Government has now been consulting stakeholders since 2017 over a softer approach, but its intentions have never been spelt out clearly. The Prime Minister’s commitment last week to present a White Paper laying out the intended direction suggests a way forward out of this impasse.

It remains unclear, however, whether Robert Abela will go all the way in legalising the cannabis market.

In 2014, the simple possession of less than 3.5g of cannabis was partly decriminalised. Police can still arrest and interrogate smokers and while first-time offenders are liable to fines, repeat offenders still have to appear before a Drug Offenders Rehabilitation Board.

On Valentine’s Day, the police displayed zeal in publicising the arrest of the couple along with photos of a grinder, a small bag of cannabis, and a half-smoked joint. Although duty bound to act according to the present laws of the land, the police’s actions jarred with Labour’s socially liberal message, which includes a promise to regularise recreational cannabis use.

This unease has found a voice in Labour’s deputy leader for party affairs, Daniel Micallef, who has increasingly taken the role of guardian of the party’s social liberal identity that was groomed by former leader Joseph Muscat. Reacting to the weekend arrests, Micallef argued that cannabis users should be free to make their own choices in a safe and legalised environment. And in what appears to be a strategic electoral calculation, he also pointed out that if all regular cannabis users were to congregate, the Floriana granaries will not be enough to hold them.

“I am speaking on their behalf because I know these people are not criminal, and I believe they should have a right to make their choices in a safe and legal way,” Micallef said.

Even Home Affairs Minister Byron Camilleri, while insisting the police were obliged to act on reports they received, underlined the need for further legal changes “to ensure that cases like the one that happened over the weekend will not be possible to happen”.

And finally, it was the Prime Minister himself who reiterated the commitment to present a White Paper that has all the trappings of further decriminalisation of personal use rather than legalisation of supply.

Abela said government was considering allowing the growing of cannabis plants for personal use and increasing the limit on possession.

But if personal use and the growing of a limited number of plants is decriminalised, consumers who don’t grow their own plants, will still have to rely on the black market to buy their stuff. This raises the question: what sense would it make for the police to clamp down on the suppliers of a product whose consumption is no longer illegal?

Stalled reform

The other question is whether the process which has stalled over the past years can be finalised by the next general election.

So why has the government stalled on a reform which could see it curry favour among a portion of the population which uses cannabis, and one that is unlikely to be opposed by the Nationalist Party?

PN MEP Roberta Metsola’s recent statement decrying the couple’s hotel room arrest, confirms that even within Malta’s centre-right, a more socially liberal outlook is slowly prevailing. This was confirmed by a party spokesperson who said that the party is in favour of “considering” the further decriminalisation of the drug.     

In its bid to regulate cannabis, government will have to allay the fears not only of social conservatives but also of health professionals and NGOs dealing with the repercussions of drug use on social wellbeing and mental health.

Still from a political angle, while liberalising cannabis laws may turn off some voters without necessarily altering their voting patterns it could be a popular measure among strategic cohorts who may actually consider shifting their vote because of this particular change, as was the case with LGBTIQ rights in 2013.

Moreover, Labour has a mandate to come up with a clear legislative proposal, which remains lacking. And judging by the experience of other countries, any such framework will need months if not years of consultations to ensure that the law enacted is adequate.

A political mandate to legislate does not absolve a government from presenting evidence-based proposals, which address the concerns of parents, medical professionals and rehab NGOs.

Doing so on the eve of an election may be tricky even for the government as electoral campaigns are rarely conducive to a rational debate. The reality is that it would have made more sense to present the White Paper in the mid-term years.

Labour’s promise

Before the last election Labour promised it would initiate discussions on the use of recreational cannabis in what was interpreted as a commitment to legalise the drug as suggested by former prime minister Joseph Muscat during the electoral campaign.

Yet, four years on, no concrete plans have been presented and Malta is being overtaken by Luxembourg as the first EU country likely to have a legalised cannabis market.

Why is Labour – once so eager to push the boundaries on gender identity and same-sex families – more cautious on this liberal reform?

This is partly because it has to address the concerns of parents and an older generation shaped by anti-drug campaigns which did not distinguish between hard and soft drugs.

Taking ownership of a reform

But another reason is that so far nobody has taken political ownership of the reform.

Julia Farrugia Portelli, who as parliamentary secretary under Muscat was first entrusted with spearheading the reform, but was overly cautious and expressed her misgivings on acknowledging the drug’s recreational use, while still confirming the intention to regulate cannabis in what she described as a “harm reduction” measure.

Back in 2019 her statement on recreational use unleashed a storm in her own party, with activists like now-MEP Cyrus Engerer insisting on her honouring the manifesto commitment. Her caution and character may well have made her the ideal person to sell the reform to more conservative elements in both her party and in society at large. But instead of presenting a framework for the reform she insisted that any legislative act must be preceded by an educational campaign, something that was increasingly seen as a delaying tactic.

After a change in leadership in January 2020, responsibility on delivering the reform fell squarely on parliamentary secretary Rosianne Cutajar.

Her political standing has been negatively impacted by lingering controversies related to her relationship with 17 Black owner and murder suspect Yorgen Fenech and this may not make her the ideal candidate to push a controversial and sensitive reform.

Still, Cutajar, who in recent months has also distinguished herself by strong and informed statements on equality issues, may actually have the political drive to push the reform forward. Presenting a coherent legislative framework, which is also evidence-based, may actually enhance her political profile.

Still missing… a whitepaper

What is currently missing from the debate is a concrete legislative proposal, which could be the focus of a national discussion. Any legislative framework will have to address a number of logistical problems which merit a mature debate.

One major issue is whether the government intends to create a legal cannabis market or whether consumers will still have to buy the product from illegal suppliers.

The risk of decriminalisation without legalising supply is that consumers will still be forced to come in contact with traffickers.

This will create a legal grey area where police will still be expected to clamp down on the suppliers of a product which would inevitably become more socially acceptable.

Moreover, even legalisation can be achieved through different models, ranging from tight control of the entire supply chain by the state – as is the case in Uruguay where users have to register to collect their ration from pharmacies – and a more open market as is the case with Colorado and Canada, where cannabis can be bought from private but licenced providers.

Another major issue is whether tourists and non-residents will be allowed to buy from the legal market. For legalisation risks attracting tourists who would come here simply to get stoned.

Irrespective of the model chosen, the state will have to license growers to secure a legal supply.

One contentious issue is whether to allow cannabis smoking in public areas or whether to restrict use in private homes. Addressing these logistical issues is one more reason for the government to present a road map because it will take months if not years to come up with a concrete model.

But addressing these issues head-on may actually allay the concerns of those concerned by the impact of legalisation on social wellbeing. While many fear that the availability of legal cannabis may encourage law-abiding citizens to try a product which they normally shun because of its illegality, the current situation is putting otherwise law-abiding citizens in contact with the black market, where they may even be exposed to more dangerous substances.

In fact, one of the problems of keeping the supply of cannabis illegal is that there is no control on the product bought. This has led to a dramatic increase in THC levels in the past decade, with current strains being as much as 40 times more powerful than the stuff consumed in the 1960s.

The Luxembourgish way

In 2019 the government of Luxembourg announced its intention to legalise cannabis in two years’ time.

The timetable has been delayed by the pandemic and the country’s health ministry has recently declared that it has “no specific deadline for when the regulation should come into force.”

While the details have still to be worked out, the parameters of the reform were already announced. Adults aged 18 and over to possess up to 30 grams of cannabis while in public. Minors aged between 12 and 17 will not be criminalised for possessing up to five grams of the drug but will not have access to the legal market.

The THC content of cannabis will have an upper limit, which has yet to be fixed, and people who sell cannabis outside of the legal framework will face harsh punishments – possibly even harsher penalties than now.

Additionally, only Luxembourg residents will be permitted to purchase cannabis – a decision that may have been made following concern from authorities in neighbouring France and Germany.

The cultivation and sale of the drug will be highly regulated, overseen by a cannabis agency and all taxes generated from the sales will go into drug education and treatment for drug addiction. But it is still unclear how the product will actually be grown and sold.

It is this debate on substance that Malta requires and one that will hopefully kick off with the publication of the White Paper.