On Tuesday (13), the Senate’s Constitution, Justice and Citizenship Committee (CCJ, in Portuguese) approved a report that supports the so-called “PEC das Drogas”, a Proposed Constitutional Amendment (PEC, in Portuguese) on illegal drugs proposed by Senator Efraim Filho (Union Brasil, Paraíba state). In all, 24 senators voted. Only three of them opposed the PEC, namely Fabiano Contarato (Workers’ Party, Espírito Santo state), Humberto Costa (Workers’ Party, Pernambuco state) and Marcelo Castro (MDB Party, Piauí state).
Now, the PEC will be analyzed by the Federal Senate. There, it needs to be approved in two rounds by three-fifths of senators (49). It will, then, be sent to the Chamber of Deputies.
The PEC aims to include an item in Article 5 of Brazil’s Constitution that treats the possession and carrying of illegal drugs as a crime, regardless of the amount. According to the report, “there is no illicit trafficking of narcotics without users acquiring them, and for this reason, the conduct of those who possess or carry drugs, even for personal consumption, must also be combated.”
The Brazilian Drug Law (11.343/2006) establishes crimes related to the possession and consumption of drugs. However, the law does not establish an amount of drug as the definition that separates drug consumption from dealing. In its second section, the law states that “to determine whether the drug was intended for personal consumption, the judge will take into account the nature and amount of the substance seized, the location and conditions under which the action took place, the social and personal circumstances, as well as the conduct and background of the agent.”
In this sense, the proposed amendment makes it explicit that “the law will consider it a crime to possess and carry, regardless of the amount, narcotics and related drugs without authorization or in disagreement with legal or regulatory determinations.”
Progressive senators criticized the report. Fabiano Contarato (Workers’ Party, Espírito Santo state) highlighted discrimination as a guiding factor in defining users and drug dealers. “We have research showing that, in Brazil, a white person must have 80% more of an illegal substance than a Black person to be considered a dealer. It's the state criminalizing poverty and people’s skin color," he said during the session.
“I'd like this house to debate [the issue] with serenity, balance and dignity, effectively discussing who is going to use it themselves. In my experience as a police officer, with a poor Black man in a place of poverty whose basic rights have been vilified, caught with a marijuana cigarette, the factual circumstances are going to be the place and the color of his skin. Now, in rich neighborhoods in the corners of Brazil, that same young man, with the same amount, will be treated as a user of narcotics,” said Contarato.
Amendments to the PEC
The report accepted an amendment by Senator Rogério Marinho (Liberal Party, Rio Grande do Norte state), which states that “the distinction between the trafficker and the user must be observed in the factual circumstances of each specific case, with alternative sentences to prison and addiction treatment applied to the user.”
In the document, Marinho defended the amendment “to solidify in the Federal Constitution the differentiation between drug users and traffickers, drawing clear and objective lines that differentiate the criminalization of possession for use from that intended for trafficking.”
In practice, both users and dealers, according to the amendment, should be treated as criminals. But if a person is considered a user, alternative sentences should be applied. The senator, however, does not outline what aspects should be taken into account to characterize a user. During the vote, he said: “Let's leave it up to the person who makes the seizure and the judge to assess it on a case-by-case basis.”
The Supreme Court’s judgment on the issue
Throughout the vote, other conservative senators criticized the judgment of Extraordinary Appeal (RE) 635.659 in Brazil’s Supreme Court (STF, in Portuguese), which deals with the definition of the amount of marijuana for personal possession and consumption. Senator Eduardo Girão (Novo Party, Ceará state) called the trial a “stealing of attribution” and an “invasion of the legislative prerogative.”
“Let's not shy away [from discussing the issue]. The Supreme Court is not going to steal an attribution from this National Congress. Do you want to legislate? Run for office. But don't be foolish and ignorant in dealing with this issue that is so dear to Brazilian society,” said Senator Carlos Portinho (Party Liberal, Rio de Janeiro state) in the same vein.
Contarato defended STF's legitimacy in the case. “We're not tackling the problem of what behavior is going to be typical for users and traffickers. If we don't tackle the issue, the Supreme Court is called upon to say so. This happened with same-sex marriage, for instance. It's happened with countless issues, but we prefer eternally lying in splendid cradles [a reference to the Brazilian national anthem]. So don't say that the Supreme Court is legislating."
The Court began to judge the issue in 2015 based on an appeal filed by the São Paulo Public Defender's Office after a man was sentenced to two months of community service for having been caught with three grams of marijuana inside his prison cell at the Diadema Provisional Detention Center.
According to the São Paulo Public Defender's Office, the current legislation violates the principles of intimacy and privacy. The argument is that Article 28 of the Drug Law (No. 11.343/2006), which provides for penalties for those who carry illegal substances for personal consumption, is unconstitutional, since, in addition to hurting the right to self-determination, it would be a crime whose only "victim" is the person who commits it.
Supreme Court Justices Gilmar Mendes, Alexandre de Moraes, Rosa Weber and Luís Roberto Barroso have already defended the unconstitutionality of the law and the amount of 60 grams of marijuana or six female cannabis plants as a quantitative criterion to characterize personal consumption. Justice Edson Fachin also defended the unconstitutionality of the law but argued that the legislature should set the limits and criteria.
Justices Cristiano Zanin, Kassio Nunes Marques and André Mendonça are in favor of the current legislation. The first two justices argue that the criterion for characterizing personal use should be the amount of 25 grams or six female cannabis plants. André Mendonça, on the other hand, advocates for 10 grams as being the limit.
The judgement was suspended on March 6 after Justice Dias Toffoli asked for a rehearing, i.e., more time to analyze the issue. Carmén Lúcia and Luiz Fux have yet to vote.
In an interview with CNN Brasil on March 4, Justice Luís Roberto Barroso said that the Supreme Court would not deal with the decriminalization of drugs. “What the Supreme Court will decide is what amount should be considered possession or trafficking,” said Barroso. “Without the Supreme Court having this definition, it's up to the police. And what we see is that there is extremely discriminatory criteria. Depending on the neighborhood, whether it's rich or poor areas, the same amount [of drug] is seen differently. What the Supreme Court intends is to set a rule that applies to everyone," he added.
On the one hand, the Supreme Court can rule on what does or does not conform to the Constitution. On the other hand, Congress has the power to approve laws.
If the PEC is enacted before the STF decision, it can only be applied to disputes arising after the legislation comes into force. Even then, its new version could be challenged before the Supreme Court.
But if it is declared unconstitutional before the legislation is enacted, Congress will no longer be able to make changes. This means that a law that violates the Federal Constitution is already unconstitutional.
Edited by: Matheus Alves de Almeida
