SCJN endorses decriminalization of recreational and recreational use of marijuana
With this ruling by the SCJN it is allowed that people can consume the drug at home, as well as its planting.
It will be the federal Ministry of Health, through Cofepris, in charge of permits for the recreational and commercial use of marijuana.
Cofepris will no longer be able to deny recreational use permits to people who request them.
The Congress of the Union must legislate on commercialization.
Experts considered that the approval in the Supreme Court of Justice of the Nation of the declaration of unconstitutional to invalidate articles of the General Health Law that prohibit the recreational use of marijuana in Mexico is a historical advance, however, there are legal loopholes that should be resolved by federal legislators.
Pablo Girault, the counselor of Mexico United Against Crime (MUCD), explained that the Supreme Court sent a clear message to the Congress of the Union regarding the issue, however, he indicated that despite the resolution, citizens who want to request permission will find themselves in legal limbo.
The foregoing, he explained, is due to the fact that the Federal Criminal Code establishes that the possession of narcotics may be investigated, prosecuted, and where appropriate, sanctioned by the authorities of the common jurisdiction.
“This resolution does not change the penal codes which makes it ridiculous. So if any normal person goes on the street with marijuana and is arrested, the criminal law continues to apply, “he said.
Girault explained that even if a person has a consumption permit, the authority will still present it to a judge by stating that the person involved has committed a crime, at that time the judge will have to say that it does not apply because he has a permit and will grant him freedom.
For his part, Iván Almodóvar, legal representative of Club Cannábico Xochipilli, indicated that there may be problems with the permits granted by the Cofepris (Federal Commission for the Protection against Sanitary Risks) for the recreational consumption of the drug since, with the approval, SCJN, would not have to substantiate the denial of permits.
“You have to see (…) what requirements Cofepris establishes and if human rights are not violated. It is where people can still complain about it and go to a federal judge so that according to constitutional law they are granted what the citizen needs.
“We are in a limbo, what is going to happen since there is still no law, what has to happen is that the Legislative branch already has to agree to draft a law,” he commented.
According to data from the National Institute of Statistics and Geography (Inegi) between 2017 and 2019, half of the crimes (50.1%) related to drugs were linked to the possession and trade of cannabis.
Historic day: Zaldívar
Because the Congress of the Union has not regulated the recreational use of marijuana, the plenary session of the SCJN approved by a qualified majority of eight votes, out of a total of 11, that it be the federal Ministry of Health that issues authorizations for the playful consumption of the drug.
“Ladies and gentlemen ministers, today is a historic day for freedoms. After a long journey, this Supreme Court consolidates the right to free development of the personality for the recreational use of marijuana.
“It is confirmed once again that the instruments that the Constitution has for the defense of rights work and that a Constitutional Court is essential for the development of these rights, for their defense, and for social changes that can hardly take place only in the legislature. . Today this Constitutional Court reiterates and reaffirms once again that its only commitment is to the Constitution and that it acts with full independence and autonomy, “said Arturo Zaldívar, President of the Court, after the declaration of unconstitutionality of various articles of the General Health Law.
And he clarified that the general declaration of unconstitutionality of the absolute prohibition of recreational-recreational self-consumption of marijuana does generate an expansive effect that also affects the applicability of criminal regulations.
Hence, “no one could be sanctioned, administratively or criminally, for consuming marijuana for recreational purposes,” he said.
The resolution included a new exhortation to the Mexican Congress, which to date and after three years has not done so, to legislate regarding the constitutional right to recreational self-consumption of cannabis and THC, in order to generate legal security for users and third parties. , and the information conditions necessary to exercise said right responsibly.
The declaration will have general effects from the notification of the operative points of the sentence to the Chambers of Deputies and Senators, without being able to have retroactive effects, and from the notification to the Federal Ministry of Health and Cofepris.
What was approved
Norma Lucía Piña Hernández, minister speaker of the approved project, detailed the effects of the declaration.
The reform suffered by articles 237; 245, the first section, and implicitly 248 of the General Health Law, he said, which expressly refers to the first section of article 245, did not eliminate the prohibition to authorize activities related to the self-consumption of cannabis and THC for recreational purposes, which they persist, specifically in articles 235, last paragraph, and 247 last paragraph, which were not modified.
“In this sense, the problem of unconstitutionality, I am proposing, will be overcome by limiting the general declaration to the norms in which this prohibition subsists, provided for in the normative portions of articles 235, last paragraph; 247, last paragraph (…) that establish that the actions related to these substances, I open quotation marks, ‘may only be carried out for medical and scientific purposes, and it is to remove, precisely, that exclusion, that condition, that it can only be done for medical and scientific purposes ”, he specified.
Minister Luis María Aguilar Morales explained that when the declaration is approved, federal deputies and senators with “greater reason” must regulate the recreational use of marijuana.
The ministers who voted in favor of the declaration were Arturo Zaldívar Lelo de Larrea, José Fernando Franco González-Salas, Alfredo Gutiérrez Ortiz Mena, Luis María Aguilar Morales, Javier Laynez Potisek, Norma Lucía Piña Hernández, Juan Luis González Alcántara Carrancá, and Ana Margarita Ríos Farjat.
The three who voted against were Alberto Gelacio Pérez Dayán, Jorge Mario Pardo Rebolledo and Yasmín Esquivel Mossa.
The SSA through Cofepris will establish:
• The guidelines and methods for acquiring marijuana seeds.
• Take all necessary measures to guarantee the right to recreational consumption.
• The authorization in no case will include permits to import, trade, supply, or any other act related to the sale and/or distribution of the narcotic.
• When issuing authorizations, it will be specified that the exercise of the right to consume cannabis and THC for recreational purposes must be done without affecting third parties.
• The consumption of the drug is not authorized in front of minors or in public places.
• Driving vehicles or operating dangerous machinery under the influence of marijuana is prohibited.