Senate CCJ approves proposal that criminalizes possession and possession of drugs

The Senate Constitution and Justice Committee (CCJ) approved this Wednesday (13) the Proposed Amendment to the Constitution (PEC) 45/2023, which prohibits the possession and possession of any quantity of drugs in Brazilian territory.

The text is being supported by several senators, and its first signatory was the president of the National Congress and the Senate, Rodrigo Pacheco (PSD-MG). The PEC still needs to be analyzed and approved in the Senate plenary before going to the Chamber of Deputies for consideration.

The PEC amends article 5 of the Federal Constitution, to provide as a criminalization warrant the possession and possession of narcotics and similar drugs without authorization or in disagreement with legal or regulatory determination. An amendment by senator Rogério Marinho (PL-RN) was also approved, which indicates that the distinction between the drug dealer and the user will be observed “due to the factual circumstances of the specific case”, with alternative penalties to prison and addiction treatment being applied to the user.

The session in the Senate’s most important committee was marked by debates and fiery speeches by the opposition about what they consider an attempt by the Federal Supreme Court (STF) to legislate on matters that fall under the jurisdiction of the National Congress, as the Court is analyzing the possibility of decriminalizing the possession of marijuana for personal consumption.

Last week, the trial in the STF was suspended following a request from Minister Dias Toffoli, but there are already 5 votes in favor of the decriminalization of marijuana possession for personal use, with just one more vote remaining to consolidate the majority in plenary for this understanding. So far, three ministers have voted against. In addition to Toffoli, Luiz Fux and Cármen Lúcia still need to vote. The tendency is for the Court to set a quantity to differentiate the user from the trafficker, who will continue with the criminalized activity.

The criminalization of possession of any quantity of drugs is considered a priority in the so-called customs agenda, defended mainly by right-wing and center parties in Congress. The matter had already been discussed in parliament since last year, with a public hearing held at the CCJ and a general plenary committee, but the proposal gained strength after the issue reached the STF.

Rapporteur says that PEC on drug criminalization is “in line with what society thinks”

The PEC being discussed in the Senate was reported by senator Efraim Filho (União-PB), who stated that the topic is an outcry from society. He recalled that the appropriate forum for this discussion is parliament, in a direct message to the Supreme Court ministers, who, according to him, are trying to legislate on the topic.

Efraim also said that the proposal is “in line with what Brazilian society thinks”, which is against the decriminalization of drugs. In his opinion, “it is unquestionable” that releasing drugs will lead to an increase in consumption, dependence and trafficking, which finances organized crime in the country.

The leader of the government in the Senate, Jacques Wagner (PT-BA) tried to argue that the prohibition of drugs could harm families who today make medicinal use of cannabidiol oil, extracted from marijuana, to treat various diseases, but was refuted by the rapporteur, who stated that the debate on the topic was broad, with the participation of different segments, and that the text provides for medicinal use, as long as it is regulated.

Senator Eduardo Girão (Novo-CE) also defended the approval of the PEC, which according to him, is a “gift” for the Brazilian population. He also said that there is a tendency for some sectors to “glamorize” marijuana, “which hides a powerful lobby that aims to make money” with permission to possess a certain amount of marijuana.

In the opinion of senator Fabiano Contarato (PT-ES), however, the PEC does not innovate at all by criminalizing possession and possession of drugs, and changing the constitution in this sense “will only worsen the situation of poor and black people, who crowd the jails of Brazil, and are penalized much more than white and rich people for carrying the same amount of drugs”. For the senator, it is not fair for a person who has chemical dependency, for example, to be considered a criminal. Fabiano Contarato also disagreed with the view of other parliamentarians that the STF is legislating when dealing with the issue. According to the senator, the Supreme Court also fulfills its mission by analyzing the issue of decriminalizing marijuana.

Opposition senators criticize STF

Carlos Portinho (PL-RJ) sent a message to the ministers of the Federal Supreme Court, who assured that they adopted a “narrow-minded” view on the issue of drugs. “We will not omit ourselves, the STF will not usurp the competence of Congress. Do you want to legislate? Apply,” he concluded.

Senator Plinio Valério (PSDB-AM) was another who criticized the Supreme Court’s attempt to “meddle” in matters that are not its own, and stated that he hopes that ministers understand, following the approval of the PEC that criminalizes possession and possession of drugs, which “cannot legislate”.

The leader of the opposition in the Senate, Rogério Marinho (PL-RN), recalled a survey carried out by Datafolha last year which showed that more than 70% of Brazilians are against the release of drugs and that, therefore, “nothing is more natural” that parliamentarians come out “in defense of the population”.

The senator also highlighted the distinction between the dealer and the user by those who are on the front line of the issue, at the time of the arrest of those who are carrying the drug. Marinho also said that the law needs to be validated by parliament, and recalled the principle of separation of powers, which is essential for democracy. “We will do our part,” he added.

Approved by the Constitution and Justice Commission, PEC 45/2023 still needs to be analyzed by the plenary of the Federal Senate, in two rounds of voting. If approved, the proposal goes to the Chamber of Deputies.