Pubdate: Thu, 01 Jul 2004
Source: Times Of Malta (Malta)
Copyright: 2004 Allied Newspapers Limited
Author: Jose A. Herrera


Curiously, never has there been a piece of legislation which was subject to
as many amendments over the years as our Drug Ordinance and rightly so too.
Public law evolves according to the social exigencies of the moment.

There was a time when narcotic abuse was hardly a problem at all in this
country. Naturally, therefore, our drugs legislation, which dates back to
the turn of the last century, was extremely mild and clearly ineffective to
cater for the problem that would soon scourge our community from the early
1980s onwards.

As the problem worsened, Parliament introduced one reform after the other
until, finally, our drug laws evolved into the most stringent and tough from
among other European states. It suffices to consider in this regard that
drug trafficking is the only other crime besides wilful homicide that
carries a life sentence.

This notwithstanding, however, in our rashness to create an active deterrent
against drug trafficking, we might have overlooked certain basic safeguards
of criminal law and perhaps in some instances we might even have gone too
far, as experience has shown us. For this reason once again our drug
legislation has fallen under scrutiny and has been the subject of criticism
from various sectors of society.

The problem seems to emanate from a too wide definition given at law to what
constitutes trafficking and the fact that our courts have been precluded
completely from giving a more acceptable interpretation of this crime.
Furthermore, unlike the norm, in cases of trafficking a prison term is
always mandatory. The question that is again being asked is whether this is
always the right form of approach and punishment in all circumstances.

Our law does not make a distinction between the procuring of narcotics and
the mere sharing of the drug. The debate going on today is whether our
courts should be given the discretion to evaluate a particular case on its
particular merits and whether they should be given the power in cases of
mere sharing to hand down alternative punishment to that of a prison term.
The Minister of Home Affairs and Justice has gone on record stating that he
intends to introduce legislation awarding such discretion to our court.

The issue of drug trafficking however remains a very sensitive one since,
undoubtedly, its widespread occurrence is undermining the very basis of our
society. It is therefore only right and fitting that future reforms in our
drug laws should be the result of as wide a consensus as possible.

In the spirit of all this, the opposition's spokesman on home affairs, Gavin
Gulia in my opinion has been taking the right approach. The Labour Party has
avoided polarising the issue and has gone so far as to suggest that the
matter should be referred to the Social Affairs Committee of the House of
Representatives. Sadly, however, this suggestion was not taken up by the
government. For a time, in fact, it seemed that notwithstanding the offer of
collaboration from the opposition, the minister was head-strong introducing
unilaterally relative legislation. This however gave rise to a hue and cry
from one and all, not least the opposition. In the light of this, however,
it seems that the minister concerned was struck by a bolt of rationality and
has decided to refer the issue to an ad hoc committee spearheaded by the
President. Though, in my opinion, this is not the ideal forum, it is still
far better than for the government to impose legislative amendments in an
arbitrary fashion.

Society must even in this instance find the fine balance between the
interests of society at large and individual justice and even here without

* Dr Herrera is a Labour MP.
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