Mexico: SCJN jurisprudence in relation to cannabis

By Jorge Hernández Tinajero

Last October 31st, the Supreme Court of Justice of the Nation (SCJN for its Spanish acronym) resolved positively two amparos on the cannabis issue, and with them was reached the necessary jurisprudence to force the laws on cannabis to be modified by Congress. In Mexico the jurisprudence is created when a same court resolves in the same sense, on the same subject, in 5 consecutive occasions, and once this is established, any other court in the country must resolve in the same way, any similar case that falls within the scope of its jurisdiction.

The jurisprudence achieved in the SCJN has several aspects. First, it stipulates a specific legal act: it orders an authority, in this case the Comisión Federal de Riesgos Sanitarios (COFEPRIS), to grant permission to complainants to grow cannabis under certain conditions; then it establishes that some sections of the national laws dealing with cannabis are unconstitutional, and finally it enunciates the limits of the State’s legal action against any private decision of adults, as long as these do not affect third parties.

The new jurisprudence protects all those adults who decide to consume cannabis privately, regardless of the purpose for which they do so. Given that the demanders explicitly asked to cultivate their own plants, arguing that they refused to obtain cannabis in the illegal market, the Court determined that they will be able to cultivate their own plants in private spaces, and as long as this cultivation does not have commercial purposes, is carried out between adults and does not affect third parties.

There is currently a discussion – and many doubts – about how these judgments are going to change the way in which we as a society relate to cannabis. For example, I have received several questions about whether it is necessary to apply for a permit to cultivate. I cannot say for sure, but in my opinion it is absurd to ask for a permit that by law has to be denied, to perform an act that finally before a judge, cannot be judged as a crime. From my point of view, the sentences and the created jurisprudence guarantee rights, and recognize in the private cultivation without ends of commerce a way to exercise them. Under this logic, any adult who cultivates his own plants (either personally or in association, given the sentences do not specify that it has to be one way or another) could today be arrested by the authorities, since under current law he would be committing a crime. However, once before the judge, he would have to rule in the same way as the jurisprudence, as long as the crop is kept within the limits established by the Court.

That is, I would be inclined not to ask for any permission, and grow responsibly, while legislators modify all the unconstitutional provisions of the current law.

In a very schematic way, I summarize the most important points of these resolutions:

  1. The Court clearly states that the absolute prohibition of cannabis in Mexico is unconstitutional.
  2. It recognizes that the Mexican State guarantees – and must protect – the free development of personality and personal autonomy as inalienable rights of adults. This means that we are free to decide for ourselves what we consider necessary or desirable to achieve our personal development in life. The limits of both rights are that the exercise of these rights does not affect third parties.
  3. Despite the Court’s rulings, the laws on cannabis in Mexico have NOT changed. (Separate mention should be made of all the political forces, which have failed to legislate, whether by political calculation, conservatism, prejudice or lack of vision and commitment to human rights on the issue, for decades). This means that any act related to cannabis in Mexico remains illegal and constitutes a crime, including simple possession even if it is less than 5 grams. Thus, consumption is not prohibited, but any act consubstantial with it does constitute a crime. (The eternal trap, which encourages extortion of users).
  4. In spite of this, the new jurisprudence means that if one cultivates for oneself, and within the established limits (adults, who do not affect third parties and do not trade with the product of their harvest) but for some reason is surprised by the authorities, the judge will have to rule in the same sense that the Court has indicated: that is, he will have to rule in favor of the cultivator and leave him free with everything and his plants, since the State protects the mentioned juridical goods: the right to personal autonomy and the free development of the personality.
  5. In this way, the Court opens the door for us, as users, to have some alternative to the black market. It is of paramount importance, and the law will have to change in this particular aspect: currently, it is more serious to cultivate even for oneself, to buy in illicit circuits. (That is to say, the law itself encourages what it claims to combat).
  6. The jurisprudence does not establish that this crop has to be personal. This opens up the possibility of forming cultivation associations that avoid their members having to resort to the black market. At the time, we would have to create regulations on the matter, because currently, when there are three or more adults committing a crime, it can be considered organized crime.
  7. Finally. What follows now is to amend laws to end the absolute ban, and to regulate private cultivation. But as long as this does not happen, it is important to know that the law is on our side, and that if one cultivates within the established limits, one cannot be condemned for it.

 

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