Sinembargo (Nevertheless): Jorge Javier Romero Vadillo*
April 29, 2021
Congress arrives at the end of its (winter-spring) session tomorrow but it has not complied with the order of the Supreme Court of Justice of the Nation (to legalize the production, sale, and consumption of marijuana). The Court's mandate has been disobeyed. This Congress will have concluded tomorrow without having managed to legislate to eliminate the unconstitutional prohibition of marijuana in accordance with the provisions of the Court's ruling issued on February 22, 2019.
After more than two years of a tortuous legislative process, with two extensions granted by the Court-- the first due to Congress' manifest incapacity and the second due to the pandemic--a monstrous piece of legislation that was difficult to digest was produced. But, after all, it was a step forward in the creation of a regulated market for cannabis for adult use. It paved the way for the emergence of a marijuana industry in Mexico. Then the Senate sent its bill to the Chamber of Deputies, only for the Chamber to finish by obnoxiously deforming it and, in the end, leave it stillborn.
The legislation that was aborted suffered from great congenital deformities:
- it did not decriminalize simple possession or cultivation because complicated requirements were established. These were largely conceived to benefit Canadian companies developed under the protection of the law that already exists in their country and which sought to expand their production in the benign Mexican climate.
- The bill sent by the senators to the deputies opened up business opportunities that seemed juicy, but it did not guarantee the rights of consumers who have been victims of an iniquitous prohibition.
- It barely opened a loophole to compensate for the damage inflicted on rural communities which, over decades, have been producers of cannabis for the clandestine market and, thereby, victims of drug trafficking organizations as well as of the Mexican State.
But the legislative process did not prosper because of the cost left in its wake by the lower house, which, among other niceties, strictly prohibited exports. The deputies did smooth out some of the punitive excesses added to the Federal Penal Code by the senators. Instead of completely decriminalizing the drug, they had added further to the tangle of sanctions applicable to trade in a substance that was supposedly being legalized. However, the deputies ended up significantly worsening the obviously failed project of comprehensive regulation.
When the bill was returned to the Senate, the majority of senators seemed inclined to approve what was sent by the deputies, as contradictory as it was. The committees that discussed it ruled that it remain as is, although the Health Committee never met to consider it.
Nevertheless, the leader of the chamber, (Senate Majority Leader Ricardo) Monreal (of the Morena, Movement for National Regeneration, party) began to give signs that the birth of the huge bill would not occur. He announced that he was thinking of requesting another extension from the Court. Finally, on Tuesday (April 27), he killed the process when he announced the epiphany that had emerged among Morena senators that the process should be returned to the full Supreme Court of Justice to make a final declaration of unconstitutionality of the five articles of the General Health Law that prohibit the consumption of recreational marijuana.
MV Note: The process of the Mexican Supreme Court declaring laws unconstitutional is complex and convoluted. The Court of eleven ministers (judges) is divided into two chambers of five members each. The President of the Court, who normally holds that position for four years, does not sit in either chamber. A single chamber can declare laws unconstitutional if it receives five distinct and identical requests for an ampáro, similar to an injunction, saying that certain laws violate a person's constitutional rights. The chamber must rule by the same number of votes to support each of the five ampáros.
In November, 2015, the First Chamber ruled on the first amparo seeking to grow marijuana only for personal use. It declared that the health laws prohibiting such growing and consumption violated a person's constitutionally guaranteed right "to the free development of their personality". Not until October of 2018 did the First Chamber make its fifth identical ruling.
At that point, it ordered Congress to write and pass a law legalizing the growing of marijuana for personal consumption and gave it a deadline of October 31, 2019 to complete such legislation. An initial draft of legislation to legalize not only personal but also commercial production and sale of marijuana was immediately submitted to Congress in November 2018. As the October 2019 deadline approached, the Congress petitioned the Court for an extention and it was granted until April 30, 2020, the end of the winter-spring session of Congress. A new extension was granted in 2020 until April 30, 2021 because of the COVID pandemia
If a chamber does not rule five times in favor of an amparo, it can be presented to the full court of eleven ministers and a super-majority of eight votes is required to determine whether an amparo is granted and the related laws are unconstitutional. This is what the Senate leadership is now proposing.
With a stroke of the pen, without even keeping the forms of obligatory respect for the work of the committees, the leader of the Morena senators decreed the rejection of the changes made by the deputies and decided to wait for the expiration of the term set by the Court for the 30th of April. Thus, Monreal accepted the failure of the Legislature and his own inability to manage the legislative process.
However, there is something creaky in this outcome; something does not add up when the effectiveness of the majority leader is reviewed. His counter-reforms were loaded with punitive populism such as the excessive expansion of crimes that merit informal preventive detention (holding a person under arrest without criminal charges or indictment by a judge while evidence for commission of a crime is sought. It is an action internationally considered a violation of a person's legal rights). (There was also) the approval of a pretense of amnesty and a setback in the autonomy of the Prosecutor General Office.
When it comes to reactionary projects, this Legislature has been expeditious and effective, whether responding to presidential initiatives or its own, including putting together two-thirds majorities for constitutional amendments. On the other hand, on the subject of marijuana, the way in which it twisted and turned for more than two years makes one suspect that what happened was not a failure but a dissimulation, playacting to avoid the legislation ordered by the Court and return the ball to the Court.
And that can only be explained for one reason: the President (Andrés Manuel López Obrador, aks AMLO) opposes the regulation of marijuana. It goes against his ingrained conservatism, against his Christian puritanism. Stubborn as he is, he finally gave the order to put on the brakes and the subservient leader of his legislative army obeyed immediately.
Thus, the Supreme Court will have to discuss the issue again, although now in plenary session. Eight votes will be required for the general declaration to proceed, which is difficult given the balance of forces. As it happens, the initial promoter of the unconstitutionality of prohibition was Minister Arturo Zaldívar, (who is now president of the Court and Congress just extended his term by two years to 2024, when AMLO's administration ends). As president, he has shown his tendency to submit (to the will of AMLO) and he has done everything to ingratiate himself with that lord of great power.
Most likely, the declaration of unconstitutionality will not occur. The next Legislature will simply forget the process of writing and passing legislation and things will remain as they are. (Mid-term elections of the Chamber of Deputies occur this June. The new Congress will convene September 1.)
This implies that cannabis users, in order to exercise their right to the free development of their personality, must obtain individual ampáros (from courts of appeal). Those who cannot afford the cost of this legal process of obtaining judicial protection will continue to be victims of (police) extortion and criminal prosecution. Thousands will continue to be in prison for non-violent possession crimes, and poor peasants who cultivate marijuana will continue to be prosecuted.
The government that announced (at its inauguration in December 2018) a change in drug policy, which promised to end the war against drug trafficking and open a transitional justice process clings instead to prohibitionism, distorts any possibility of transformation of the justice system and militarizes to the extreme of the extreme
MV Note: In 2019, AMLO established a National Guard, composed mostly of soldiers and marines and led by a retired general, to replace the Federal Police and the official Army and Navy to fight the drug cartels.The government has re-established the pax narco and betrayed all its promises. Meanwhile, Olga Sánchez Cordero, for example, remains very comfortable on her pedestal (as Secretary of Internal Government Affairs), smiling, demonstrating the impudence of her contradictions by continuing in her position.
MV Note: Sánchez Cordero is a former minister of the Supreme Court who voted for the first amparo permitting marijuana growth for personal consumption. As a senator in the fall of 2018, she introduced the first draft of pro-legalization legislation and then, as Secretary for Internal Government Affairs, she took a very public lead in advocating legalization and amnesty for those imprisoned for non-violent crimes of sale or possession of marijuana. She has been silent since Congress began its legislative process.
But we already know how Mexican politicians wear themselves out, the same way as always, led by López Obrador. They say one thing one day and the next day they say something else while remaining very smug. Spanish original
*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