Debate on Cannabis Regulation in El Salvador. A few observations.

By Ricardo Langlois, Special Advisor of the Knowmad Institut

On Thursday, April 11, two thousand nineteen, a proposal was presented for the reform of the control policy of Cannabis L., popularly known as marijuana, which seeks to reform Art. 3 literal E of the Regulatory Law on Drugs (LERARD, for its Spanish acronym), and seeks to make the following changes:

• That cannabis may be extracted, in strictly necessary quantities, for purposes of scientific research, drug development, and medical treatment, with the authorization of the National Directorate of Medicines (DNM, for its Spanish acronym).
• Import, manufacture, and distribution of medicines containing cannabis will be supervised by the DNM.
• Registration of cannabis users and products with the Ministry of Health (MINSAL, for its Spanish acronym), which will register patients, natural and legal persons who manufacture cannabis or import it, and also research entities authorized to conduct research on cannabis; pharmaceutical laboratories or drugstores produce or manufacture products related to cannabis.
• Proportional application of an administrative sanction for all persons listed in the register who do not provide information and documentation to MINSAL, being applicable the imposition of a fine of up to thirty-six minimum wages in the trade and services sector, the disqualification for the exercise of such activity and closure of establishment (without prejudice to the criminal liability incurred).

Although it is the first time that Cannabis L. is tried to be regulated in El Salvador, this initiative suffers from certain omissions focused on the human person and aims to leave a legal vacuum in other aspects that can be resolved through this initiative.

By omitting the regulation of the possession of legal minimums of cannabis for medicinal or recreational purposes, it is inferred that this initiative is intended exclusively to favor “drugstores” or pharmaceutical laboratories.

For this reason, the following criticisms of the specific proposal are listed:

1. Violation of the principle of legality by not determining the minimum amount of cannabis possession for individuals

By stipulating the term strictly necessary quantities for extracts, preparations, and derivatives of cannabis for medicinal or scientific research purposes, it causes the legislator to omit its obligation to indicate which quantum of Cannabis L. is relevant for medical purposes, which has no criminal relevance or for administrative-sanctioning purposes.

For example, in the State of Oregon in the United States of America, section 475.320 of the Oregon Medical Marijuana Act states that the minimum possession of cannabis use for medicinal purposes is 24 ounces (0.91 kg), which is equivalent to 672 grams.¹

In the Republic of Colombia, according to Art. 2 Literal J Incise 2 of the Colombian Law 30 of 1986, are established as a minimum quantity of 20 grams of marijuana and 5 grams of hashish.²

It should be remembered that the principle of legality, according to the Constitutional Chamber of El Salvador, comes from Legal Security, since the purpose of this is “that the members of the social collectivity be governed by the rational and just will of the laws and not by the arbitrary will of men“. ³

The determination of a minimum amount of cannabis possession for the private individual is necessary, since, if the medicinal use of cannabis is not sufficient, the private individual may have access to specialized medications offered by the health network in El Salvador.

2. Indetermination of the principle of legality in the administrative sanction

In an extremely ambiguous manner, three types of sanctions are determined in the reform initiative:

I) Up to thirty-six current minimum salaries of the trade and services sector;

II) Inhibition of the exercise of an activity; 

III) Closure of establishment.

It is not clear on the initiative in which circumstance or to which person (natural or legal) the sanction would be applied of fine, dishabilitation or closure of the establishment. It should be noted that the principle of legality in the sanctioning-administrative process has the same characteristics as the principle of criminal legality: lex praevia, prohibition of retroactivity; lex scripta, prohibition of application of any right other than the written one; lex stricta, prohibition of extension of the right in analogous situations; and lex certa, prohibition of application of indeterminate legal circumstances.⁴

Therefore, the bill will have to determine how the administrative sanctions would be imposed, since the act to be sanctioned and the person to be punished must be clearly stipulated.

Conclusion

While this initiative may be well-intentioned and in line with other legal systems in the world, it is incomplete and leaves suspicion in favor of pharmaceutical companies. This inference is not whimsical, since any stipulation concerning the minimum amount of cannabis possession, which is regulated in different countries and States, is omitted.

Not to legislate on that aspect is to accept that the human person cannot be determined and needs his personal decisions to be subrogated to the pharmaceutical companies. This designation is not capricious since registered patients who have access to medicines have the right to have a certain amount of cannabis for medicinal purposes, under penalty of preventing criminal prosecution.

The Colombian and Oregonian models accept the two forms of the medicinal use of cannabis: self-cultivation for therapeutic use and manufactured medicines. Although the designation of the cannabis will be of retained special prescription, this one would have to fulfill the requirements that are stipulated in the Arts. 21 and 22 of the Law of Medicines and the Art. 49 of the Regulation of Narcotics, Psychotropics, Precursors, Substances and Chemical Products and Aggregates. ⁵

The initiative does not take into account the possible homologation of cannabis permits issued abroad. This is despite the fact that in El Salvador patients treated with cannabis have already been prosecuted, leaving them in detention while facing their criminal trial. ⁶

By not regulating the minimum quantities of possession of medicinal cannabis and stipulating that cannabis would be a type of controlled medicine, it is shown that it seeks to encourage the hoarding of pharmaceutical companies on cannabis, thus belittling the self-determination of the person, because as established in Article 1 of the Constitution of the Republic, the end of the State is the human person.

Added to this is the lack of participation of the Salvadoran State to provide medicines based on Cannabis L. for the Salvadoran population, in accordance with Arts. 65 and 66 of the Constitution of the Republic. This would result in licenses only for large pharmaceutical companies, losing the opportunity of State production, with all that this implies.

In this regard, it should be noted that the State could produce these medicines efficiently since in this region of the tropics the cultivation of this plant is favored by climatic and geographical factors. It would be a good strategy to consider local production by the state to provide citizens with medicines that are extracted from this plant and that are cheaper than other medicines.

Finally, to mention that the debate that is taking place at the legislative level is of great importance in view of the local and international situation. However, it is necessary that it divest itself of the legitimate sophistries, that it adopts the recommendations of the WHO regarding the control of this substance and adhere to the Constitution of the Republic.

1. State of Oregon, United States of America, Oregon Medical Marijuana Act, section 475,320, page 8, link: https://medicalmarijuana.procon.org/sourcefiles/ORS.pdf
2. Republic of Colombia, Law 30 of 1986, page 2, link: http://www.acnur.org/t3/fileadmin/Documentos/BDL/2008/6460.pdf?view=1
3. Constitutional Chamber, Supreme Court of El Salvador, Judgment of August 31, 1995, reference Inc. 115-2012.
4. Enrique Bacigalupo. Constitutional Principles of Criminal Law. Buenos Aires, Argentina. Editorial Hammurabi, fourth edition, year 1999. Pp. 44-49
5. National Direction of Medicines, Instructive for the Management of Controlled Medicines in Health Establishments Subject to the Law of Medicines. Code DNM-PC-02-I-01. Art. 3, literal M.
6. Today’s Diary. U.S. activist imprisoned in Mariona for carrying $43 in marijuana. December 2017. Link: https://historico.elsalvador.com/427278/activista-preso-en-mariona-por-llevar-43-en-marihuana.html