Yesterday (October 1) was a day to remember. The First Chamber of the Supreme Court completed a process of establishing jurisprudence [regarding the individual growth and consumption of marijuana] by making the fifth consecutive ruling supporting the argument that the fundamental right to the free development of one's personality [a right embodied in the Mexican Constitution] allows people of legal age to decide — without any interference — what kind of recreational activities they want to perform, and it protects all the actions necessary to carry out that choice. Therefore, although that right is not absolute, as the State can regulate the consumption of certain substances, the effects caused by the consumption of marijuana do not justify an absolute prohibition of its consumption.
This ruling came three years after the first ruling in this regard was issued on November 4, 2015, which was granted to the group calling itself SMART [Mexican Society for Responsible Consumption]. Finally, with the amparos [rulings of protection, similar to an injunction] granted yesterday, the unconstitutionality of the articles of the general health law which absolutely prohibit the cultivation and possession of cannabis for personal use is upheld.
MV Note: In November 2015, the First Chamber of the Mexican Supreme Court of Justice granted an amparo, injunction, to four persons who had applied, as a test case, to the Federal Commission for Protection Against Health Risks (COFEPRIS) for permits to grow marijuana for their personal consumption. The court ordered COFEPRIS to issue the permits on the grounds that prohibition of such violated the constitutional right to the free development of personality. For the decision to become jurisprudence, defining precedent for lower courts, the First Chamber needed to resolve consecutively four other similar amparos with four favorable votes.
With the fifth such decision by the Court this week, individuals wanting to grow marijuana for their personal consumption still have to apply to COFEPRIS for a permit. Since federal law prohibits such, COFEPRIS will continue to deny such applications and the person then will have to appeal to federal court for an amparo directing COFEPRIS to issue the permit. Given the jurisprudence now established by the Supreme Court, all lower courts will have to grant such amparos. Federal laws of prohibition remain legally in effect, even though the First Chamber of the Supreme Court has now ruled five times that they violate a constitutionally guaranteed right.
The Supreme Court consists of two Chambers of five member each. For any law to be declared absolutely unconstitutional, the full court of eleven members, which includes the President of the Court, must make such a ruling.
This is a Mexican contribution to the paradigm shift in drug policy, a path that began to be opened with the liberalization strategy of the Netherlands four decades ago, which continued through the regulation of medicinal use in California and, subsequently, in other states of the United States, followed by the regulation for personal use in Colorado and the state of Washington, and reaching a milestone with national regulations in Uruguay a few years ago, and in Canada a few weeks ago.
After almost a century of persecution, which has generated absurd violence and imprisoned thousands of consumers around the world, who are also often harassed and extorted, finally in the Americas, the prohibitionist nonsense has begun to collapse, while in Europe liberalization has also been constant, although more discreet.
For Mexican society, what happened yesterday is a milestone, because it demonstrates the error of the strategy of frontal combat against drug trafficking, imposed cyclically by the United States at least since Nixon declared war on drug trafficking in 1971. The Court has revealed the injustice suffered by cannabis users who have had their rights and their personhood violated for a crime without violence or victims. It is also clear that prohibition has been an aberration from the perspective of health, because it has caused much more damage than the one that it was intended to avoid.
MV Note: In the following three paragraphs, Dr. Romero Vadillo thanks the many who have contributed to this legal victory.
What happened at the SCJN yesterday is the product of a constant struggle of activists, academics, lobbyists and politicians who for the last two decades have insisted with evidence that the prohibition of marijuana is counterproductive and unjust. From the pioneering efforts of the Mexican Association of Studies on Cannabis, or that remarkable electoral platform of Social Democracy, in 2000, where we included the need to break the ban, when the subject was absolutely taboo — to the extent that it had to begin by decriminalizing the debate, as Patricia Mercado liked to say in her 2006 campaign — , gradually voices were added to a discussion that had been vetoed by decades of prohibitionist consensus.
The jurisprudence of the Court is a triumph of the Collective for a Comprehensive Policy Toward Drugs, the endearing CUPIHD that we created in 2008, of Elsa Conde, who as a member of the Chamber of Deputies presented the first legislative proposals for regulation, of Mexico United Against Crime and the battle-seasoned Lisa Sánchez, Víctor Hugo Círigo, René Arce, Fernando Belaunzarán, Vidal Llerenas, Martha Tagle and Mario Delgado, who as legislators promoted initiatives to regulate marijuana, Aram Barra and the groups he headed, ReverdeSer [literally, "to make green again"; it is an NGO], Students for a Sensible Drug Policy, of intellectuals like Héctor Aguilar Camín and Jorge Castañeda who dedicated their efforts to combat prohibition.
There are the scientists like Herminia Pasantes, the neurobiologist who has dedicated herself to destroying the pseudo-scientific hoaxes that doctors like Gady Zabicky used to try to support prohibition, and, instead, sought to develop therapeutic strategies for addictions without moral prejudice, and Humberto Brocca, promoter for prevention of dangerous consumption, the Drug Policy Program of CIDE [Center for Research and Teaching of Economics, a university dedicated to the social sciences] led by Alejandro Madrazo, Catalina Pérez Correa and Laura Atuesta in the academic vanguard and in the promotion of a policy based on evidence and not on myths, and by Claudia Rodón and her pedagogical task.
It is a triumph for social activists such as Leopoldo Rivera and Julio Zenil, who from their position as consumers, have claimed their rights and the constant work of Sarah Aguilar and Zara Snapp, who built one public relations strategy after another to promote the cause. Undoubtedly, without the legal work of Luisa Conesa and the litigation headed by Andrés Aguinaco [lawyer who led the SMART case], this step would not have been possible. Of course, Armando Santa Cruz, Paco Torres Landa [members of SMART], Pablo Girault, Josefina Ricaño, Miguel Mancera and the others who sought to protect themselves to promote creation of the jurisprudence, were key in this story.
But the jurisprudence of the Court is just one step. Although now no federal judge can deny an amparo to those denied authorization [by COFEPRIS] to plant and transport marijuana for personal consumption, it is a cumbersome and burdensome procedure that can't be considered a permanent solution.
Now Congress has a legal obligation to change unconstitutional legislation, before the Supreme Court makes a general declaration of unconstitutionality. The legal change must create a regulatory framework that guarantees the rights protected by federal justice, but with rules that reduce the consumption risks for both users and their environment, prevent minors from gaining access to the substance, something that prohibition doesn't achieve, and that assure forms of supply other than self-cultivation, but without creating a competitive market with incentives to expand demand without restrictions. [The civic groups listed above have proposed creation of a system of government production and sale.]
Now Congress has a legal obligation to change unconstitutional legislation, before the Supreme Court makes a general declaration of unconstitutionality. The legal change must create a regulatory framework that guarantees the rights protected by federal justice, but with rules that reduce the consumption risks for both users and their environment, prevent minors from gaining access to the substance, something that prohibition doesn't achieve, and that assure forms of supply other than self-cultivation, but without creating a competitive market with incentives to expand demand without restrictions. [The civic groups listed above have proposed creation of a system of government production and sale.]
This legislature must begin with the regulation of marijuana, but must also expand the debate to how to end the prohibition of the rest of the [psychotropic] drugs, with differentiated regulations according to their different degrees of danger. The step taken by the Court is the first in what must be a long series of institutional changes that will lead us to a sensible drug policy, based on evidence, that reduces risks and removes the business from criminals. The health of Mexican society urgently requires it. All [psychotropic] drugs must be regulated in order for peace to come to Mexico. Spanish orginal
*Jorge Javier Romero Vadillo is a political scientist, professor and researcher in the Department of Politics and Culture at the Autonomous Metropolitan University, Xochimilco Campus. He holds a masters in Political Science from the National Autonomous University of Mexico (UNAM) and a doctorate from the Faculty of Political Science and Sociology at the University Complutense of Madrid. He is a regular contributing columnist for SinEmbargo. He has written frequently on drug policy @Giorgioromero