On Oct. 31, Mexico’s highest court ruled in favor of two litigants who asserted their right to grow and consume cannabis on grounds of individual liberty.
This was the fifth time that Mexico’s Supreme Court of Justice of the Nation has upheld the individual right to recreational cannabis. Under the Mexican constitution, this is the critical number that makes the decision binding case law throughout the country. Mexico’s Congress now has 90 days to bring the penal code into conformity with the ruling — that is, to effectively legalize cannabis for personal use.
As the court had three times before issued favorable rulings since the first such case was brought in 2015, the 4-to-1 decision in the two combined cases brought the number of such rulings to five.
In a statement, the Supreme Court said it had found for the “unconstitutionality of an absolute prohibition on recreational use of marijuana.” It stated that the right to recreational cannabis use “is not absolute,” and that the government has a legitimate regulatory interest. “But the effects caused by marijuana do not justify an absolute prohibition on its consumption,” the statement read.
— Suprema Corte (@SCJN) October 31, 2018
The ruling instructs Mexico’s Congress to amend the country’s Health Law to allow personal use, possession and cultivation of cannabis. Under Mexican constitutional law, Congress has 90 days to comply with the ruling.
The decision also orders Mexico’s Federal Commission for Protection against Health Risks (COFEPRIS) to amend its regulations, allowing citizens to apply for a license to cultivate cannabis for personal recreational use.
The Historical Precedent of Mexico’s Supreme Court Cannabis Rulings
The previous three Supreme Court rulings on cannabis in Mexico only applied to the litigants themselves — not to all Mexicans. The first one came almost exactly three years ago, on Nov. 4, 2015. That case was brought by an advocacy group with the disarming name of Mexico United Against Crime on behalf of members of the Mexican Society for Responsible Self-Consumption and Tolerance (SMART), who had been turned down when they applied to COFEPRIS for a license to cultivate cannabis. In ruling for the plaintiffs, the court cited the right to “free development of the personality,” enshrined in Article 19 of the Mexican Constitution.
As United Press International notes, in the years since then, four more groups of plaintiffs have followed the example of the SMART litigants — including the two that high court just ruled in favor of. Under the U.S. system, a single Supreme Court decision is immediately binding on all lower courts across the country. In Mexico, however, it takes five similar rulings to “create jurisprudence,” or binding case law. That threshold has now been reached. (This was the process that led to the Supreme Court effectively legalizing same-sex marriage in Mexico in June 2015.)
The ruling does not extend to commercial purposes, so it will not create the sort of legalized cannabis market now operating in Canada and many U.S. states. But it does go beyond mere decriminalization (already law in Mexico since 2009), by actually recognizing personal recreational use as a constitutional right.
Advocates React to Landmark Ruling
Mexico United Against Crime, of course, hailed the new high court ruling. The five Supreme Court decisions “confirm that the prohibitionist model is unconstitutional and that Mexico should transition toward regulation of drugs to improve the conditions of justice and peace in the country,” the organization’s attorney Andrés Aguinaco told BBC Mundo.
And, of course, the cultural-conservative organized opposition to legal cannabis is dismayed.
For example, the National Union of Family Fathers has been campaigning against the mounting initiatives to legalize cannabis in Mexico and they argued that such a move would not lead to a decrease in crime.
“The international experience demonstrates the contrary, because criminals will continue selling on the black market,” the group’s spokesman Marco Tulio Mendoza told BBC.
Will Cannabis Eradication Continue in Mexico?
And indeed it does remain to be seen whether the Supreme Court ruling will make any difference on the ground in remote rural areas — where campesinos and indigenous peoples, marginalized from Mexico’s political system and legal economy, are essentially forced to grow cannabis (and opium) for the local cartel enforcers in order to survive.
Just days before the Supreme Court issued its decision, state police in Chihuahua announced the latest massive eradication sweep. The state attorney general said police troops destroyed 80,000 cannabis plants that were discovered by a patrol in the community of El Nopal, Guadalupe y Calvo municipality. This is the heart of Mexico’s “Triangulo Dorado” — the Golden Triangle of cannabis and opium production, where peasants are caught between law enforcement and the caciques, brutal local overseers for the cartels who exact terror on any who would resist their rule.
Whether the high court ruling will bring any freedom or justice to those most impacted by Mexico’s long and bloody drug war will depend on how far-reaching the legal response is. The incoming administration of president-elect Andrés Manuel Lopez Obrador has floated proposals for a general legalization of cannabis — including commercial cultivation. Lopez Obrador is to take the oath of office on Dec. 1.
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