A ATUAÇÃO DOS TRÊS PODERES NA (DES)REGULAMENTAÇÃO DA CANNABIS TERAPÊUTICA: REFLEXÕES À LUZ DA LEI DE DROGAS E DO DIREITO CONSTITUCIONAL À SAÚDE

Abstract

The present research, qualitative and exploratory in its nature, substantiated in bibliographic and documentary revision, investigates how the proceedings, or even the omissions, of the Executive, Legislative and Judiciary powers contribute to the conservation of a state of deregulation of therapeutic cannabis in Brazil. Despite the growing scientific understanding of the benefits of the plant for the treatment of various conditions, the current Brazilian Drug Law maintains a prohibitionist bias which collides with the fundamental right to health guaranteed by the 1988 Constitution, a reality that imposes legal, bureaucratic and political barriers to patients, associations and professionals that deal with the cannabis plant. The study shows that the three powers have contributed, each in their own way, to the maintenance of a scenario of legal uncertainty, through their fragmented and asymmetric decisions. The research showed that the Executive Power, represented by Anvisa, acts in a predominantly technical way, through administrative resolutions, prioritizing the importation of cannabis products to the detriment of national cultivation of the plant; the Legislative, the power with most competence to regulate the subject, remains omitted and resistant to making decisions on the topic, especially because of social, moral and economic disputes, which contributes to the stagnation of bills on the theme; the Judiciary Power comes through as a safe haven, by guaranteeing through habeas corpus the right to individual and associative cultivation of the cannabis plant for medical reasons, allowing the constitutional rights to be effective. However, its effects are still somewhat limited, lacking general normative power, which leads to precarious acting. The research concluded that the disconnected and contradictory proceedings of the three powers perpetuates a regulatory vacuum, leading to the maintenance of a repressive paradigm that puts all related parts at risk, reaffirming the urgent need for a specific national regulation of the cannabis , a legislation that aims to be democratic and aligned with the present scientific progress and the social reality, recognizing the cannabis plant as a legitimate therapeutic tool.