Mexico: High Court Upholds Individual Right to Cannabis

In a 4-to-1 decision on Nov. 4, the Criminal Chamber of Mexico’s Supreme Court of Justice ruled that the prohibition of consumption and cultivation of cannabis for personal use is unconstitutional, voiding five articles of the country’s principal narcotics statute, the General Health Law. The court found that prohibition of cannabis consumption—or of cultivation for non-commercial purposes—violates the right to “free development of the personality,” enshrined in Article 19 of the Mexican Constitution. The landmark decision only applies to the actual plaintiffs who challenged the prohibition provisions of the General Health Law, but gives weight to legalization proposals being prepared in Mexico’s Congress. “They’re noting this case and using it in their favor to present a law that will be in agreement and will protect people’s rights,” Moy Schwartzman, attorney for the plaintiffs, was quoted by AP.

The case was brought by advocacy group Mexico United Against Crime on behalf of the Mexican Association for Responsible Self-Consumption and Tolerance (SMART), which petitioned the Federal Commission for the Prevention of Health Risks (COFEPRIS) for the right to form a cannabis club. The petition was rejected, and they challenged the refusal in the courts. Said Justice Arturo Zaldivar, who wrote the majority opinion: “No one has said at all that marijuana is harmless. It is a drug and, as such, it causes damage. What is being resolved here is that total prohibition is a disproportionate measure.”

The high court just ruled on one of three challenges, that on grounds of individual liberties. Two more remain: on medical grounds and on social—arguing that prohibition leads to violence and thereby threatens the right to personal security. These are increasingly viewed as legitimate. Last year, eight-year-old Graciela Elizalde of Monterrey became Mexico’s first legal medical marijuana patient, when a judge overruled the government’s refusal of her family’s request for permission to obtain CDB oil to treat her epilepsy. And Mexicans are disillusioned in growing numbers with the “Drug War” policies that seem to have only led to a nightmare of violence, with some 80,000 killed over the past years.

The new ruling is definitely groundbreaking. “It is unprecedented for the Supreme Court to introduce a human rights dimension to the debate on drug policy,” said Lisa Sánchez of Mexico United Against Crime. But under Mexico’s legal system, for the decision to be binding across the board—not just on the five actual plaintiffs—the justices of the Criminal Chamber will have to rule the same way five times, or eight of the 11 members of the full court will have to vote similarly.

This was the process that led to the Supreme Court effectively legalizing same-sex marriage in Mexico in June, with the Criminal Chamber (also known as the First Chamber) weighing in a fifth time after previous rulings against state laws barring gay marriage.

However, the odds are better that Congress will act first—and the new ruling effectively pre-empts any court challenge to a legalization measure.

Mexico passed a decriminalization law in 2009, which progressive lawmakers have been attempting to expand since then, introducing new measures to increase the current recognized five-gram “personal use” quantity. But pressure is mounting for general legalization—an idea that has won the support of ex-president Vicente Fox.