The Ministry of Justice’s responsibility for drug reform and human rights
The Norwegian drug reform is coming to an end. The Ministry of Health will present its proposal to the Storting in February, but the drug policy has not yet been decided. If the Labour Party gets its way, punishment will continue while if the opposition parties get their way, there will be decriminalisation of drug use, but that’s not all. The Royal Commission’s report went much further than what the politicians expected and criticised the basis for the policy; further, several organisations claim that human rights have not been safeguarded. They insist that constitutional obligations require a complete revision of the use of punishment and, consequently, the Minister of Health has forwarded the case to the Ministry of Justice for a final decision. In other words, it will be up to this ministry to provide due process guarantees, and in this article, the Alliance for Rights-Oriented Drug Policy (AROD) elaborates on the proper way forward.
The Royal Commission on Drug Policy Reform has published a report that not only dedicates a chapter on human rights but also summarises the development of the drug policy as characterised by moral panic. This report concludes that punishment, on a principled basis, is not justifiable, and several NGOs have therefore held the state responsible for the part of the mandate that deals with the relationship between drug legislation and human rights. In the consultation hearings, the connection between public panic and human rights violations has been highlighted, all political parties have been informed of constitutional obligations, and the Minister of Health has been held responsible for the problem of arbitrary persecution.
Based on this, the Minister of Health accepted constitutional responsibility in September and transferred the matter to the Ministry of Justice as the appropriate ministry. Since then, we have been waiting for a response from the ministry as to what must be said to be the most important legal issue since the Second World War; AROD have further reminded the Minister of Justice of the responsibility for the rule of law. We hope that the ministry will treat the case with the weight that constitutional issues dictate, but there are, in reality, two ways forward – both equally controversial.
Two ways forward
To the extent that the ministry accepts international recommendations and the requirements of the rule of law, the persecuted groups as a whole will have an effective legal remedy. This means that an independent, impartial, and competent commission (which entails a new public investigation) will examine the data and determine to what extent principles such as equality, proportionality, autonomy, and the presumption of freedom are compatible with drug prohibition. These are at the heart of the human rights conventions and the Royal Commission concluded that they invalidate punishment against drug users. It remains to be seen whether those with more than a few grams of illicit drugs deserve punishment, as the Commission did not consider this. It is nevertheless a legal principle that the more severe the punishment, the stronger the demands on the quality of the legislation, and it is hard to imagine that the state can defend the Norwegian Penal Code’s toughest punishment for sales when it has problems defending penalty for use.
It should be interesting to see what a competent tribunal will say about this matter. What is certain is that the persecuted have rights that remain ignored and that many public officials want to continue to ignore the rule of law. Prohibitionists have, until today, not only ignored the Commission’s chapter on human rights, but also ignored constitutional obligations. Rather than giving the persecuted an effective legal remedy, politicians, the Director of Public Prosecutions, and the courts have opposed human rights requirements in the area of drug policy; there is also a possibility that the Ministry of Justice will let force prevail over justice. After 50 years of politics on totalitarian premises, a toxic culture has spread, consisting of officials who do not want to accept the consequences of arbitrary persecution, and if the prohibitionists have their way, the ministry will turn a blind eye to the problem of human rights violations. The hunt for scapegoats will be sustained regardless of constitutional considerations and the Norwegian drug policy will continue its crooked course until public officials recognise the importance of abiding by the rule of law.
In that case, the Norwegian state will consolidate its position as an opponent of human rights. Some 300,000 Norwegian drug users will continue to be fair game for the police state, and it will be up to the Norwegian people to raise a new class of officials who are able to protect the values we depend on to build a successful society. They must bring meaning to the concept of law, and it will be up to these officials to arrange for a truth and reconciliation commission.
Of all the controversies, this will be the worst. Let us, therefore, hope that the Ministry of Justice’s loyalty to human rights overcomes the fear of being exposed as emperors without clothes. Let’s hope that the Minister of Justice takes action before the political process completely fails. Let’s hope that this happens before February, so that our nation can rise from a very difficult position to become a model for more holistic thinking in drug policy.
Published in Vårt Land 2021