North America seems to be marching toward an end to prohibition. In Canada, legal cannabis sales will begin next week. And though the US federal government still considers cannabis a Schedule I drug with no medical value, nine states have legalized adult use, along with Washington, D.C. and the Northern Mariana Islands, a US commonwealth in the northwestern Pacific. And thirty have legalized medical cannabis, along with D.C. and Puerto Rico.
In Mexico, medicine derived from cannabis was authorized nationwide last year. And now, following a series of lawsuits brought against the federal government, recreational use could soon follow suit. Unlike in the US, where the Supreme Court only needs to rule once to establish the constitutionality of a law one way or the other, the Mexican Supreme Court must issue five similar rulings for it to stick—and cannabis advocates and their lawyers have already won three.
One of those attorneys, Andrés Aguinaco Gómez Mont, chose to use constitutional litigation to challenge cannabis prohibition in Mexico back in 2012 because, he said, the situation around drugs in the country had become untenable.
At the time, President Felipe Calderón had doubled down on the drug war, sending the military to the fields and to the streets. Aguinaco Gómez Mont and his colleagues, Paula Méndez and Moy Schwartzman, grappled with the human cost of the war on drugs—60,000 dead, in addition to those disappeared or displaced— and determined that they had to intervene.
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The young lawyers teamed up with Mexico United Against Crime, a nonprofit organization that has advocated on behalf of victims of extortion, homicide, kidnapping, and rape for more than two decades. Together, they decided to take the cannabis prohibition debate to the courts, and designed a strategy that emphasized identifying plaintiffs with whom the Supreme Court might empathize. In September 2015, Aguinaco Gómez Mont and his team won their first case: Graciela “Grace” Elizalde Benavides, an eight-year-old child who suffered from intense epileptic seizures, became the first person in the country to obtain permission to import and consume medical cannabis.
Prior to that landmark case, Aguinaco Gómez Mont and his colleagues also assisted four plaintiffs, all members of the upper middle class with no criminal record, in filing a legal petition demanding the right to sow, cultivate, harvest, prepare, possess and transport cannabis. The plaintiffs were members of the Mexican Society for Responsible and Tolerant Consumption (or SMART, in Spanish), whose stated objective was the permission to produce and consume cannabis recreationally. Their petition, filed in 2013, was denied but later appealed to the Supreme Court.
Once there, the legal team argued that the Mexican government was infringing on the constitutional doctrine of the “free development of personality.” In a court document posted on its now defunct website, SMART said that using marijuana is a way for individuals to distinguish themselves from the rest of society, and that since the Mexican Constitution protects the individual’s right to be unique and independent, the state cannot breach that right when the consequences of cannabis consumption, be they positive or negative, only affect the individual who uses the drug.
The Supreme Court agreed, and in November 2015 those four plaintiffs became the only people besides Grace authorized to consume cannabis—in a country that then had a population of about 125 million. The rulings, Aguinaco Gómez Mont explained, will only apply to everyone in Mexico when, after the fifth similar ruling, the Court issues a general ruling called a “jurisprudential thesis,” which becomes the supreme law of the land. (This, for instance, was how marriage equality was established in Mexico.)
But in Mexico, such a ruling is not the end of the story. Even this “jurisprudential thesis” would not obligate any authority other than judges to heed the decision. In concrete terms, this means that people could still be arrested for consuming cannabis, and only after appearing in court would the law serve to protect them. Often, those in jail for possession wait up to two years for their day in court.
“If the court continues acting alone,” Aguinaco Gómez Mont said in an interview, “but Congress contributes nothing, nor does the Executive branch, if the media does not generate pressure, if activists don’t take to the street, there isn’t going to be any change.”
To date, the First Chamber of the Mexican Supreme Court has ruled that prohibition is unconstitutional three out of the needed five times. In an interview with Cannabis Wire, Aguinaco Gómez Mont said he expects at least one more ruling to be issued before the end of this year. (Also, back in July, the Second Chamber of the Supreme Court ruled in favor of three plaintiffs with permission to consume cannabis recreationally who sought access to seeds in order to grow their own plants. Because it occurred in a different chamber, however, this does not count toward the five rulings.)
Recent events make Aguinaco Gómez Mont’s call to public servants seem prescient. President-elect Andrés Manuel López Obrador—who was elected in July and takes office in December—has chosen Olga Sánchez Cordero to be the country’s Interior Minister. Sánchez Cordero, a former Supreme Court Justice, was among those who voted in favor of the SMART plaintiffs. Since the election, she and López Obrador have spoken widely about decriminalizing, albeit not legalizing, recreational cannabis and poppy for medical purposes. During a forum in Mexico City in August, Sánchez Cordero said that the incoming administration will develop a new security strategy for peace in the country, to be proposed before the UN, which will include the decriminalization of drugs.
Other lawmakers are less concerned with breaching UN treaties. Last Tuesday, Verónica Juárez Piña, a federal legislator representing the Party of the Democratic Revolution (PRD, in Spanish) presented an initiative to decriminalize recreational cannabis. The measure seeks to reform Mexico’s General Health Law and Federal Criminal Code to allow recreational use and personal cultivation.
“Our initiative,” said Juárez Piña, “proposes a paradigm shift in the prohibitionist model that has generated violence, truncated the lives of many families and . . . imposed disproportionate sentences on consumers that they must complete in penitentiaries in terrible conditions.”
Prohibition, she went on, “has also overburdened the judicial system, exceeded the prison capacity, and absorbed an enormous amount of resources that could have been allocated to a more effective social policy.”
The measure, added the congresswoman, will allow up to three plants for domestic cultivation, “without the need to obtain any permit.” It would also eliminate the established five-gram limit for personal consumption and task the federal government with overseeing the cultivation, processing, distribution, transportation and wholesale of marijuana. Cannabis clubs, said the legislator, could also be an option. Minors would be barred from entering, as would the sale of other psychoactive substances. Additionally, the initiative would establish a national program to prevent adolescent consumption and guarantee “therapeutic justice for problematic users.”
But just how far the PRD’s initiative will go remains to be seen. Once among the top three parties in the country, the leftist PRD’s influence in Congress greatly diminished following an ill-fated alliance with the conservative National Action Party.