However, the practical effect is that no court can continue to enforce the prohibition on the consumption of marijuana, even if no formal law has been passed to legalize it.
On October 31, 2018, the Supreme Court of Justice of Mexico (Suprema Corte de Justicia de la Nación) ruled in favor of two constitutional challenges (amparos) against the prohibition of the recreational consumption of marijuana. This now marks the fifth ruling on this subject and establishes jurisprudence. As a result, this precedent will now have to be followed by Mexican courts.
Although the consumption of marijuana remains illegal, the rulings under amparos 547/2018 and 548/2018 have effectively made laws prohibiting recreational use of marijuana unenforceable by Mexican courts.
The decision is based on the protection of the constitutional right to personal development. This right, held the court, permits adults to freely decide what recreational activities they wish to undertake and extends to protect any action that is necessary for the exercise of said freedom, without interference by the state. While the court recognized that there are necessary limits to this freedom, it nonetheless held that the effect of consumption of marijuana did not rise to the level of a justifiable interference with a constitutional right. Furthermore, this right does not extend to the commercialization of the drug, nor to the right to consume any other type of drug.
As noted above, this is not the first time the Supreme Court has upheld the constitutional right to consume marijuana. The Supreme Court had first handed down such a decision in 2015. In all these prior cases, the constitutional protection (i.e., the right to consume marijuana) has only been extended to the individuals who brought the case before the court. However, the legal and historic significance of the latest decisions is far broader than the plaintiffs in these cases.
In Mexico, binding precedent (jurisprudencia) is created, among other ways, by five consistent and consecutive decisions from a superior court. Once a tribunal has decided on a proposition of law in the same way for the fifth consecutive time, that decision becomes binding precedent on all subordinate courts. As the Supreme Court is the highest court in Mexico, its fifth decision has created a precedent, which every court in the country now must comply with. Thus, any individual seeking to use marijuana may simply file an amparo that will in turn be ruled upon using this new precedent of individuals having the right to consume marijuana.
That being said, the legal effect is not to decriminalize the commerce of marijuana, which remains illegal under statutory law. Furthermore, all five decisions remain limited to the plaintiffs who brought the respective claims. However, the practical effect is that no court can continue to enforce the prohibition on the consumption of marijuana, even if no formal law has been passed to legalize it.
Advocates of legalization, who include a vocal former president, have long argued that legalizing marijuana consumption and trade would be a positive move for a country that has suffered greatly from the illegal drug trade. Now, the Supreme Court’s decisions have been handed down at a time where statutory legalization of recreational marijuana use in Mexico appears to be a real possibility. The incoming president of Mexico, Andrés Manuel López Obrador, mooted the idea of legalizing the drug on the campaign trail. He then appeared to take a concrete step toward legalization when he sent a delegation to Canada to discuss the experience of that country with a nationwide legalization of the drug. Canadian leaders apparently made a strong economic case for legalization in their country, where now-legal demand quickly overcame the available supply.
As further evidence of the traction that marijuana legalization is having in Mexico, on November 6, 2018, the party of the incoming president, MORENA, submitted a bill before the Mexican Senate for the complete legalization of the marijuana for commercial, medicinal and scientific purposes. The bill allows individuals to use marijuana in public spaces with the exception of those areas where smoking tobacco is prohibited. Furthermore, the bill provides for the formation of the new Mexican Institute for the Regulation and Control of Cannabis (Instituto Mexicano de Regulación y Control del Cannabis), which would have the responsibility of granting licenses to plant, harvest, process, store, transport and sell marijuana. Those individuals that are older than 18 years old would be allowed to use marijuana under the proposed law.
It appears likely that this new bill will be approved since the MORENA party has the majority in both the Senate and the Chamber of Deputies. In addition, the incoming president, who will take office on December 1, is also a MORENA party member. It seems that in Mexico at least one old taboo is quickly going up in smoke and could give way to a new competitive business landscape.
For Further Information
If you have any questions about this Alert, please contact David N. Feldman, Eduardo Ramos-Gómez, Rosa M. Ertze or Miguel de Leon Perez; any of the attorneys in our Cannabis Industry Group, Mexico Business Group or International Practice Group; or the attorney in the firm with whom you are regularly in contact.
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