The Alliance for Rights-Oriented Drug Policy (AROD) and the Patient Association for Safe Cannabis Use (PASCAN) invite to a celebration for human rights outside the Director of Public Prosecutions’ office on 20 April 2023 at 14-16.
There will be music, appeals, cannabis plants, and responsible citizens. The purpose for the rally is to ensure accountability in drug policy, because the Criminal Law Commission’s rejection of criminalization in 2002, the Royal Commission on Drug Reform’s detection of public panic in 2019, the Director of Public Prosecutions’ disclosure of systemic violations in minor drug cases in 2021, and the Committee for conduct, integrity, and conflict of interest in law enforcement’s call for leadership in 2023, indicates that the disproportionate use of force continues. The latter’s spotlight on a conflict between administrative law and rights law, where human rights have come out short, is characteristic of a toxic culture, and it is uncertain whether the rule of law accommodates a cannabis prohibition.
Safeguarding human rights
Instead of reducing supply and demand, drug prohibition has resulted in more crime, stigmatization, suffering, disease, and mortality. More and more countries are therefore regulating the cannabis market to protect public health, while Norway continues to ignore the demand for human rights analysis. Such an analysis weighs the relationship between ends and means and ensures that the law is suitable for pursuing a legitimate purpose, and since 2009 the Ministry of Justice and the Director of Public Prosecutions have been informed of rights violations but no clarification has been made. Rather than ensuring the quality of the use of force in the field of drugs, Norwegian politicians continue to punish on disproved premises, and this is particularly objectionable after the report of the Royal Commission, which showed that public panic has shaped the drug policy. To the extent that panic has been a factor, rights will not be sufficiently emphasised, and civil society has had several human rights rallies to promote effective minority protection. The demonstration outside the Director of Public Prosecutions’ office will be the third, and it is hoped that the director will accept responsibility.
The failure of the Ministry of Justice
The protest takes place outside the Director of Public Prosecutions’ office because the government and the Storting use “public health” as justification for a policy that is based on double standards and that makes things worse. Instead of being a professional secretariat for political leadership, the Ministry of Justice has taken on the role of a political secretariat, and human rights violations continue because the minister has not taken care of constitutional obligations. The commitment to professionalism means that the civil service must make known the necessary professional objections to all types of cases as early as possible, but for 14 years the ministry has turned a blind eye to allegations of a connection between the drug policy and the arbitrary persecution of the past and guarantees of legal certainty are neglected. Section 102 of the Norwegian Constitution puts a responsibility on the state to justify punishment, but the defense of drug prohibition is weak and the minister has not informed the Storting on the need to illuminate a blind spot.
In this way, the Ministry of Justice has contributed to political arguments being given a false professional tone, as well as political positions being presented as the best or the only acceptable solutions, even if other solutions are professionally acceptable. Rule of law guarantees dictate that the ministry must promote the least intrusive solution, and that there must be a credible relationship between ends and means, but for 20 years Norwegian expert committees have confirmed the lack of a basis for punishment in drug policy and for over 100 years international reports have done the same. In 2016, Minister of Justice Anders Anundsen attracted attention after an interview on NRK’s Folkeopplysningen, where all the Ministry of Justice could produce as support for its case was an unpublished master’s thesis from a Swedish medical student, and the commitment to professionalism has not been met.
The civil service must facilitate the efficient use of resources, and carry out its work as professionally as possible, but it is difficult to imagine a policy that has greater moral, human and financial costs – as well as less goal achievement – than the drug policy. After 60 years of punishment, the evidence shows that the more the police intervene in the drug market, the more violence, desperation, overdoses, and insecurity occur in the local environment, so how can the ministry be said to have taken care of professionalism and continuity over time? Why is panic and a policy that seizes a large part of the treasury’s funds continued, when the Ministry of Health’s review of the drug reform in Prop 92 L (2020-21) makes it clear that no research supports punishment? Should Norway have a more repressive criminal policy than former police states such as Portugal and Thailand?
AROD has a list of such questions that must be answered for drug prohibition to continue. The response decides the merits of the prohibition quest, and yet the Minister of Justice does not follow up and the Supreme Court and the Storting protect the drug law from inquiry. The damage to the rule of law is profound, as all branches of the government has failed in their professional responsibilities. For 40 years, criminology and the sociology of law have noted the hunt for scapegoats as the engine of drug policy, and in the last 30 years, lawyers have increasingly understood the same. Several reports therefore testify to the failure of the legislative to protect the rights of drug users, but public panic and the deprioritising of rights law ensure that the Constitution is ignored.
All branches of the Norwegian Government ensure that an unlawful culture is perpetuated, and an analogy to the debate about banning fireworks may be useful. It is difficult to tell whether a ban will work as intended. Good intentions can therefore defend the introduction of a prohibition, but if for 60 years we criminalized fireworks to reduce harm, and this has not reduced use but has resulted in more crime, division, death and injuries: If reports for 20 years have pointed out the problems with prohibition, and the law has done so much damage that world leaders refer to it as “genocide” and “the end of democracy”, is it justifiable to rule out change? Can the Ministry of Justice and Storting take it for granted that a prohibition of fireworks is within the framework of human rights and can a demand for constitutional review of the law be ignored? If so, what is left of the Constitution’s framework and protection?
Disproportionate means of force
We ask because drug users have sought the protection of the rule of law for 15 years and because the issue is no different for sections 231 and 232 of the Penal Code. Section 94 of the Constitution states that “No one must be imprisoned or deprived of their liberty in any other way except in statutory cases and in the manner prescribed by the law. The deprivation of liberty must be necessary and not constitute a disproportionate intervention”, but the Criminal Law Commission stated in 2002 that over 6 years’ imprisonment for cannabis offenses was disproportionate. How can the current criminal framework be defended when more and more European countries regulate similar activities?
Solid reflection and good answers are required. Section 98 of the Constitution states that “All are equal before the law. No person must be subjected to unfair or disproportionate discrimination”, but double standards and extremism in the drug field are a fact. Supply and demand remains distorted into a victim and aggressor context, because only in this way can the state disempower users and punish sellers, but the integrity of the political process and the legal system suffer as a result of public panic and the undermining of rights law. Suffering is also frequent among the disenfranchised and punishes citizens, including their relatives, and Section 102 of the Constitution requires the state authorities to ensure protection of personal integrity.
This is the aim of our civil disobedience on 20 April. It was with good reason that Professor Nils Christie in 1996 referred to those responsible for drug policy as “fanatics” and maintained the importance of keeping them “under as strong humanistic control as possible”. It was also with good reason that the Criminal Law Commission questioned the legislator’s moral compass and recommended stronger judicial control, but due to public panic and the administrative law gone wrong, the legislative, judicial, and executive powers have failed in their duty to protect rights. In this context, the Director of Public Prosecutions has an independent responsibility, and AROD and PASCAN offer a new opportunity to ensure the rule of law.
No legal certainty
We say “new opportunity”, because the Director of Public Prosecutions has had several, such as AROD’s civil disobedience outside the Main Police station in 2021, and AROD and PASCAN’s cannabisfest on Eidsvolls plass on 22 September 2022. The purpose of these events was to ensure accountability in drug policy, but the political majority will not consider the advantages and disadvantages of a regulated market compared to a criminal market. Nevertheless, the country’s laws must be based on the principles of a rule of law. According to Section 89 of the Constitution, the courts have a duty to provide clarification, and the Director of Public Prosecutions can promote the issue by taking responsibility for the rule of law.
Since the Supreme Court rejected the drug users’ right to judicial review in 2010 by giving politicians free rein, it became clear in 2019, with the report of the Royal Commission, that the legislature had not earned the trust that the Supreme Court placed as a basis. The result is that around 500,000 criminal cases are constitutionally disputed, but despite the fact that it is the police’s responsibility “to be a part of society’s overall efforts to promote and strengthen citizens’ legal security, safety and general welfare”; that the Norwegian Police Directorate’s ethical guidelines emphasize that the role of “society’s power apparatus” makes it “especially important for employees in the police to have a conscious relationship with ethics, and what constitutes good morals and how one should act”; and that the ethical guidelines of the prosecuting authority are clear that every public prosecutor must promote the administration of justice in accordance with the values and principles on which the rule of law is based, “including legal certainty, equality before the law and the fundamental freedom and autonomy of the individual”, the police and prosecuting authority would not support rights when AROD’s civil disobedience went before the courts. Instead, the police prosecutor and state attorney claimed that “it is outside the court’s duties to assess whether Norwegian drug policy is correct or sensible on a more general level”, and on this basis, Norwegian law departed from 200 years of legal development.
The Supreme Court did not question that Sturla Henriksbø, a state attorney and politician from the Christian Democratic Party (KrF), set aside the Constitution to protect the party’s drug policy from criticism. Instead, without justification, the Supreme Court’s appeals committee on 20 December 2022 overlooked a legal tradition dating back to 1822, and in this way the drug law was shielded from a human rights analysis. That the courts took this step, knowing that the defence’s appeal invalidated all the reasons for the conviction, testifies to the power of public panic. This phenomenon can only survive as long as there is no integrity in the justice system, and AROD has asked the Committee on Scrutiny and Constitutional Affairs to secure the rule of law. It was the legislator’s will when codifying the right of judicial review in Section 89 of the Constitution in 2015 to ensure minority protection, but the courts have overlooked guarantees of the rule of law, and it is important that the Director of Public Prosecutions takes action.
The responsibility of the Director of Public Prosecutions
Not only do cannabis users have the right not to be unfairly discriminated against from alcohol users, but the police have the right to provide better services, the prosecution and the courts have the right to build on sound ethics, families have the right not to be torn apart by dysfunctional and overly intrusive laws, and the nation has a right not to be divided by an enemy image that impairs sound judgment. It is becoming increasingly obvious that the hunt for scapegoats undermines the integrity of the legal system, and that society has the right to be free from a policy that depends on double standards to exist. For this reason, AROD and PASCAN offer another opportunity for legal development and value protection.
Previous actions have been devastating for the Norwegian authorities’ credibility. We have seen that the state would rather set aside our legal tradition than deliver on legal promises, and the police and prosecuting authorities should appreciate a new opportunity to stand up for the rule of law. It is in this context that the Director of Public Prosecutions is invited to legal proceedings. Before the prosecution objected to the clarification of human rights in 2022, AROD had three days in Oslo District Court to present relevant evidence of violations. It was the police’s reluctance to act on their duties that caused the prosecutor to request that all evidence be rejected, and the Director of Public Prosecutions must discipline his subordinates and do away with uncertainty. If the director is serious about his interest in handling criminal cases in line with humanistic considerations, the director must lead by example, and this means that the damage caused by the prosecution must be offset. A truth and reconciliation commission is recommended, but before this the Storting should promote impeachment. If the Supreme Court cannot explain why the Justices at the court prioritize the economic rights of shipowners and the property industry over the right to freedom and self-determination of those persecuted in the drug policy, the Supreme Court must take responsibility for opposing the legislator’s intention – and if the Minister of Justice cannot show that the professional responsibility for the law is being maintained, the Storting must ensure that the rule of law is secured.
As the Director of Public Prosecutions makes clear in the consultation input for drug reform, it is no longer possible to build drug policy on a drug-free ideal. Instead, as the Committee for conduct, integrity, and conflict of interest in law enforcement points out, we live in a time of transition, and human rights must be emphasized. What we have seen of legal development in previous civil disobedience cases has been frightening for supporters of a liberal rule of law, and on 20 April 2023, AROD will hand over sufficient cannabis to warrant court proceedings. The police themselves choose how the handover will take place, but we hope that the Director of Public Prosecutions will receive the seizure with an assurance that uncertainty about the use of force will be taken seriously. This means that the Director of Public Prosecutions undertakes to provide clarification on whether sections 231 and 232 of the Penal Code mark an unreasonable distinction between legal and illegal substances, whether this is a case of arbitrary persecution, and how the damage done to the rule of law can be remedied.
The event will take place in the park area outside Oslo Cathedral, closest to Stortorvet 2, where the Director of Public Prosecutions has his office. We remember a time in the 1980s, when committed professionals sat down in chains to protect a river, and we hope that the fight for rights in drug policy provides fertile ground for similar activism. Not only can several hundred lives be saved if society moves from a drug-free ideal to a zero-vision for overdose death, but we can halve the number of inmates in Norwegian prisons. We can honour our founding fathers in not accepting a mockery of law—and by lifting up the Constitution, we strengthen the nation’s only map and compass out of public panic.