Will the prosecution authority defend human rights or continue moral panic?
Public prosecutors Vilde Humlegård and Sturla Henriksbø are to determine the appropriate punishment for the leader of the Alliance for Rights-Oriented Drug Policies (AROD) after cannabis products were set up outside the Main police station on 11 September 2001. This was done to clarify a long-ignored issue, namely the relationship between drug prohibition and human rights. AROD claims that the persecuted groups have rights that remain overlooked and the Norwegian Constitution puts a responsibility on the court to judicially review legislation. The police investigator has heard all about this, and it is up to the prosecution whether it will support the demand for a human rights analysis or turn a blind eye to what may be the biggest judicial murder of the post-war era – hundreds of thousands of examples of excessive and unnecessary use of force, including deprivation of liberty.
Rule of law and public panic
We already know that politics is driven by panic. The Royal Commission on Drug Policy Reform documented how moral panic has shaped drug policy, and AROD has demonstrated a connection between this phenomenon and human rights violations. To the extent that public panic has governed development, there will be a disparity measured against principles such as equality, proportionality, self-determination, and the presumption of freedom, but the distance between healthy and unhealthy morality will not normally be seen because the masses are under the influence of an oversized enemy image.
That’s where we are today. A drug-free ideal and hypocritical double standards make Norwegians accept and continue a persecution that is not only immoral but also has clear parallels to the destructive mass movements of the past along with the most fear-oriented extremist movements of our time. The irrationality, self-righteousness, and belief in violence are equally striking, and an indiscriminate persecution is the result.
In such times, it is crucial that the individual steps out of the psychosis that has a collective grip, but the politicians have not managed to do that. Together with the Minister of Health and the Minister of Justice, they have been informed of their responsibilities, and that it is not possible to go from criminalisation to infantilisation of drug use without looking at its relationship with human rights. However, all have opposed this. Instead, because politicians do not want to consider regulation, they have continued the public panic documented by the Royal Commission, and AROD finally put its foot down.
With our civil disobedience, we took the drug reform out of the politicians’ hands. After AROD’s consultation input and over 30 newspaper articles about the state’s responsibility in times of public panic, which no one responded to, we realised that the political process was doomed to fail. We recognised that the police directorate and others with a bias for punishment had an unhealthy grip on politics, that neither the Ministry of Justice nor the Ministry of Health would accept responsibility for the victims of the drug reform, and that the public debate as a whole was stifled by NGOs that would rather be on good terms with politicians than emphasise human rights principles. We, therefore, looked to the courts and the Director of Public Prosecutions. The latter has shown far better judgement than the politicians, and it was in the spirit of the same principles that the Director supported in his consultation response, that we brought enough cannabis products to the police to qualify as sales – that is, above the limit values proposed by the politicians.
Crime and punishment
As a leader of AROD therefore, I belong to those who are to be blamed. I stand with those who receive several years in prison for what AROD just did, and it will primarily be up to the prosecution whether the system’s wrath or constitutional guarantees are triggered. AROD’s civil disobedience action was well-prepared and the right to subject the law to review is a recognised pillar of the rule of law. AROD therefore has submitted a claim of human rights violations on behalf of the persecuted which triggers obligations under international law, and if the prosecutor ignores them, it will be up to the Director of Public Prosecutions to take action. The Director has shown integrity in the drug reform and is well informed. He has supported the same principles as AROD, precisely ‘because these are principles that must weigh heavily if a liberal rule of law is to survive’, and we expect the Prosecution Authority to understand that it would be foolish to jump ship now.
In any case, it will be for the courts to provide an effective remedy. This is our right, and if the prosecution or the courts oppose a proper human rights analysis, individual responsibility prevails. The constitutional stakes are enormous, and civil society will pursue the case until an effective remedy is in place. In the end, this will have to be a truth and reconciliation commission, and those on the wrong side of history will have a problem – which is possible to avoid now.
Thus, justice should prevail. We have informed the Director of Public Prosecutions and the prosecutor about their responsibilities in times of public panic, and they have a duty to protect the underdog.
The connection between moral panic and human rights violations is clear, and to the extent that these officials ask for punishment without considering the relationship to human rights, they do so at their own risk. Internationally, regulation of the cannabis market is moving forward. More and more courts and countries are accepting the drug prohibition’s lack of legality, and hundreds of thousands of sentences have been forgiven. To the extent that a regulated drug market is better than a criminal drug market, the prohibition fails to pursue a legitimate purpose, and eventually, the European Court of Human Rights will have to look at the situation. In fact, the Pompidou group and the Parliamentary Assembly of the Council of Europe have called for action from this court, which has become used to dealing with human rights in Norway – just not on such a horrific scale.
The responsibility of the individual
With ARODs civil disobedience, the prosecutors and the Director of Public Prosecutions can make an important difference for the rule of law. As mentioned, the courts are obliged to control the political process, and in Norway, it is as much the district court’s task as the Supreme Court’s to provide an effective remedy. In other words, waiting for the Supreme Court is a waste of time; it only causes unnecessary suffering, and with the prosecution on board, the judge will quickly see the need for human rights analysis.
This is one way to go if the rule of law is to be safeguarded, and the sooner the better. If human rights violations are confirmed, a truth and reconciliation commission will be the natural way forward, and the prosecutors and the Director of Public Prosecutions must assess their place in history based on that.
If these three – or even just one – stand up to public panic and a system that actively opposes introspection, statues will be erected for them in the future. They will be praised for standing up to a destructive mass force that the contemporaries struggled to see and for having initiated the process that was needed for society to find its way out of distorted moral codes. There is no greater honour on the stage of history. AROD, therefore, hopes that this will be their fate, as we continue to believe in the ability of the individual to rise above moral panic and to redeem the nation’s psyche.
This article (which as been slightly altered) was published in Juristen 19 October, 2021