STJ runs over Legislature and takes over decision on marijuana planting

The economic pressure to allow the planting of marijuana (cannabis sativa) for different purposes grows in Brazil and runs the risk of happening without the consent of the National Congress, without consulting the representatives elected by the population to analyze issues like this. Last week, the Superior Court of Justice (STJ) assumed the power to decide on the release of cannabis plantations in the country, in a lawsuit filed by the company DNA Soluções em Biotecnologia, interested in the commercial use of the plant.

To assume the power to decide on the matter, the court proceeded with a proposal for an Incident of Assumption of Competence (IAC). An IAC is the statement that a certain topic, relevant and of social repercussion, would need analysis by the STJ collegiate to support decisions in other courts in the country.

Jurists recall, however, that the cultivation of any variant of cannabis is prohibited in Brazil by the Drug Law (Law 11,343 of 2006). Therefore, the only behavior expected from the court, according to the law, would be to confirm the ban on cultivation. The analysis of the case through an IAC opens the way for the possible granting of what the company asks at the end of the trial, which would mean disobeying Brazilian legislation and trampling the Legislative Power, configuring judicial activism.

If the STJ released the planting, it would also be disregarding all the arguments under discussion in Congress about the health and public safety risks of allowing the planting of cannabis in Brazil. Among them are the lack of scientific evidence on the medicinal benefits of products with elements of marijuana (with the exception of some indications for certain diseases), the difficulty of inspection by the public authorities of clandestine plantations, among others.

In 2019, Anvisa released the import of elements, cannabidiol and THC extracts, taken from cannabis, for the manufacture of products in Brazil. At the time, the agency defined that these compounds would be marked with a black box due to the risk of addiction, increased tolerance (need to ingest ever-increasing amounts to have the minimum desired effect) and intoxication.

Justifications of the STJ for taking the decision

In the special appeal under analysis at the STJ, DNA Soluções em Biotecnologia requests authorization to plant the hemp variant of marijuana. To justify the request, which violates the Drugs Act, the company claims that this type of cannabis produces THC at low levels and CBD in large quantities. THC is the chemical substance that causes psychotropic effects, while CBD would bring the hope of possible medicinal effects, not yet consolidated.

Before reaching the STJ, the Federal Regional Court of the 4th Region (TRF4), when analyzing the case, ruled in accordance with the Drug Law. TRF4 reminded the company that Brazilian law prohibits the planting of cannabis. In the judgment, the judges stated that the broad authorization of the planting of marijuana in these cases would be an eminently political matter, and it is not up to the Judiciary to intervene in this sphere to meet business interests.

The company then appealed to the STJ and had the support of the designated rapporteur for the action, minister Regina Helena Costa, whose vote was used as the basis for the IAC proposal. For her, the high cost of importing the active principle of cannabis would justify the authorization of planting for companies. At the same time, she opined that this measure would not pose a risk of using cannabis elements for the production of narcotics. In other words, for her, the government would be able to supervise plantations in order to curb clandestine cultivation of other variants and the diversion of activity for criminal purposes.

In favor of the IAC, she stated that it would be “relevant to assess whether the ban on the cultivation and exploitation of plants and substrates from which drugs can be extracted or produced (article 2 of Law 11.343/2006) also affects crops that produce a low concentration of THC and, therefore, are not used in the creation of narcotics”. This evaluation, according to the provisions of the Constitution, must be made by the other powers, Executive and Legislative.

judicial activism

When analyzing the decision of the STF, lawyers and political scientists fear the interference of the Judiciary in matters that should be defined and discussed by the National Congress. Instead of respecting the progress of Congress, which can maintain the prohibition of cannabis cultivation based on arguments of reasonableness and public safety, the Judiciary forces the Legislature to decide or it itself tries to change the law during trials, without competence to that.

Lawyer Roberto Lásserre, national coordinator of the Brazil without Drugs Movement, recalls that there are already projects in Congress that deal with the planting of hemp and marijuana for medicinal purposes, such as PL 399/2015, and that it is not the role of the Judiciary to assume the role of the legislature. “This is very serious. And for the STJ to allocate the decision to itself, from the moment there are projects being processed about it, it is a negative judicial activism, and should not be done out of respect for the Legislative Power, ”he said.

In the opinion of lawyer Janaina Paschoal, a former state deputy for São Paulo, the Judiciary is used to adopting as an argument the supposed inertia of Congress to “justify its super performance”. The STJ wanting to make the decision on the planting of marijuana in Brazil, he says, “completely exceeds the constitutional attributions of the Court”.

“The Court could even, in a specific case, where someone is accused of the crime of trafficking, for planting medicine, rule out the criminal nature of the behavior, making a systematic analysis in a concrete situation. Now the Court intends to create a rule authorizing something that the Legislative Power did not authorize and neither did the Executive Power, it seems to me that it completely exceeds the constitutional attributions of justice ”, he explained.

With the PT’s return to power, the former deputy mentions that this type of initiative related to marijuana may even start to appear, but it would be deliberated in the form of an ordinance or decree and not by a decision of the Judiciary.

Pressure for the National Congress to decide in favor of planting

The marijuana lobby behind this pressure for the release of planting is large, as well as the attempt to guarantee the legalization of the drug, with medicinal arguments – contested by bodies such as the Federal Council of Medicine itself and the Brazilian Association of Psychiatry.

In 2021, a special commission of the Chamber of Deputies approved a substitute presented by deputy Luciano Ducci (PSB-PR) to bill 399/2015. While the original proposal was composed of two articles that dealt specifically with the commercialization of medicines that have extracts, substrates or parts of the cannabis sativa plant in their formulation, the new proposal has 60 articles and seeks to enable the “cultivation, processing, research, storage, transport, production, industrialization, handling, commercialization, importation and exportation of cannabis-based products”.

The radical transformation of the original project, approved with little time for discussion, led deputies to ask for the issue to be evaluated by the plenary of the House, and not just by a commission with 34 deputies. The request, made by deputies in 2021, has not yet been analyzed.

Despite the delay, political analyst Alexandre Bandeira is concerned about the fact that the STJ is taking advantage of the “power vacuum” to “politicize justice” and go beyond the limits of other spheres of power. “It is up to the Legislature to determine the regulations that will allow or definitively prohibit these activities on national soil”, he adds.

Lawyer Acácio Miranda, PhD in Constitutional Law, argues that “judicial activism is a Brazilian phenomenon”, which is justified by the omission of the National Congress, in the face of “more complex and thorny agendas”. “Omission is a weakness on the part of the Legislature in relation to certain issues, and the Judiciary ends up feeling obliged to act in this sense and the main way for the Legislature to curb activism would be to work in favor of its constitutional missions”, said Miranda.

According to Roger Leal, professor of Constitutional Law at the University of São Paulo (USP), “the Legislature needs to improve the quality of legislation” to prevent the Judiciary from trampling the creation of laws. “The more ambiguities and inaccuracies the legislative texts present, the greater the space given to the interpretive creativity of judges and courts. In controversial issues, it is not uncommon to pass laws with dubious, enigmatic and contradictory precepts”, he said.