SCJN’s Big Step towards Legal Marijuana in Mexico

5 11 2015

SCJN’s First Chamber

Mexico’s First Chamber of the Supreme Court of Justice (SCJN) ruled yesterday, on an Amparo trial,[1] that an absolute prohibition on self–consumption of marijuana is unconstitutional. A majority of Ministros voted 4-1 to find for the four plaintiffs[2]—members of the NGO Sociedad Mexicana de Autoconsumo Responsable y Tolerante (SMART) created ex professo to move the Mexican government and courts to legalize self–consumption of marijuana—who now can use marijuana for recreational and ludic purposes, and also plant, cultivate, harvest, prepare, poses and transport marijuana, only for self–consumption—expressly excluding any act of commerce or profit.

Since 2009 possession of illegal drugs—including marijuana—in Mexico for self–consumption is not as crime,[3] but before the SCJN ruling, the law did not provide for a mechanism for allowing marijuana consumers to grow the drug they would consume. Also, commercialization of marijuana remains prohibited in Mexico.

Although the SCJN ruling only benefits the four plaintiffs in the case, it lays the path for future challenges. The majority of the First Chamber of the Highest Court held that an absolute prohibition on self–consumption of marijuana violates the right to free development of the personality.[4] The reasoning of the Court should be followed by lower courts with similar cases.

The impact of this and future similar rulings in Mexico’s society is uncertain. The apparent winners are progressives, recreational users and advocates for broader liberties. The issue, however, is more complex, and the legal component is just a small fraction of it.

The SCJN decision expressly excluded for–profit enterprises—kilometers away from the Colorado approach—yet undoubtedly opens an unexplored vein that may be beneficial or not to Mexico as a country.

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[1] Amparo trials are an avenue for challenging unconstitutional actions (or omissions) by the government and its agents. Amparo rulings, however, have a limited effect: they generally only benefit the parties involved in the dispute. Per Amparo trial’s principle of relativity—also known as Fórmula Otero, named after Amparo’s founder Mariano Otero—the Amparo court order does not have effects erga omnes.

[2] None of the four plaintiffs, Josefina Ricaño de Nava, Juan Francisco Torres Landa Pablo Girault Ruiz and Armando Santacruz Gonzalez, are marijuana users. The test case seeks to diminish the power of the drug cartels and improve overall public safety in Mexico, as the mission of México Unido contra la Delincuencia calls for. See http://goo.gl/DMLs0R.

[3] See Ley General de Salud, as amended, article 479, available at http://goo.gl/tCdH2z.

[4] See México legaliza la marihuana con fines recreativos, El Pais, November 5, 2015, available at http://goo.gl/L3pxuJ.