What are the implications of the Mexican Supreme Court’s historic decisions regarding marijuana?
In order to portray the limits and amplitude of the Mexican Supreme Court’s historic decisions concerning marijuana, we need to start by briefly explaining the Mexican legal process known as amparo, which made possible that decisions.
The amparo is legal process employed for the summary vindication of any constitutional guarantee or human right recognized by the Constitution of Mexico or the aplicable international treaties, that has as its main objective to make real, practical and effective the human rights recognized by the Mexican justice, by restoring one or more natural and/or legal persons, as a complainer or complainers, in the full enjoyment of the violated right, restabilising the situation as it was before the violation, or by forcing the executive, legislative or judicial authorities, to respect the right and comply with what it demands, when, by negative acts or omissions, are affecting it.
Therefore, the amparo is mainly an individualized process that will only have effects in the sphere of rights of whoever asks for it. Though, it is important to say that after certain rules the decisions may become mandatory jurisprudencia for all courts or it could even be generally declared that a norm is against the Constitution of Mexico. If this declaration occurs, the legislative must derogate or modify the norm, and, in such a case, it could even be ordered and empowered by the Mexican Supreme Court itself, sending it directly to the respective authorities for its publication.
Being that said, we can validly conclude that the actual regulations of the marijuana still apply to the rest of the people, and hence, the effects of the rulings will solely impact the sphere of rights of the persons who asked for the amparos.
The ludic and recreational use of marijuana in Mexico is banned, and the legal use of it is subject to an authorization from the sanitary authorities, which could only be given for medical or scientific purposes.
Consuming marijuana in Mexico is not a crime, unless it causes other crimes, as it could be, for example, provoking a car accident by driving under its effects. However, possessing marijuana without the authorization of the sanitary authorities is a crime, which will not be persecuted if the quantity possessed is of five grams or less. As if, and only if, you have the authorization from the sanitary authorities, and smoke in the street, will can then logically be an administrative fault, otherwise, the punished conduct, must be, and must only can be, possessing it, (as even if just a joint, is a crime).
These regulations have the Mexican prisons full of consumers that possessed more than five grams, although they are not members of the organized crime or intent to distribute it or affect the society in any form, more than the hypothetically damage caused to themselves.
Being this said, the decisions in the reviewed amparos 237/2014, 1115/2017, 623/2017, 547/2018 and 548/2018, differentiate two legal systems of norms, an administrative, where the ludic and recreational use of marijuana is banned, and a criminal, where the consumption is not a crime, but its possession is.
According to the decisions, the administrative legal system that limits the authorizations with respect to the use of marijuana, only for medical or scientific purposes, is against to the Constitution of Mexico, since it intensely affects the human right to the free development of the personality, in comparison to the minimum protection to the right to health and the preservation of the public order that it achieves. Therefore, although the legislators can limit the exercise of activities that may affect rights protected by the Constitution of Mexico, in the present case the restrictions to the right to free development of the personality are not justified, because the consequences caused by the marijuana are not that grave to legitimate the absolute prohibition for its ludic and recreational use. There are other authorized substances that can be more harmful and addictive like alcohol or tobacco, plus there is no evidence of severe and irreversible health damages, of grievous dependence or addiction by the consumers, of propitiating the commission of wrongdoings, especially violent crimes, or of being the direct cause for utilizing other drugs.
Thus, notwithstanding that the legal system of administrative prohibitions positively attempts to protect the right to health and the public order, it is not only “unnecessary”, since there are alternative, more effective measures that affect less the human right to free development of the personality, but “disproportionate”, since its protection to the health and the public order is minimum compared to its invasion in the right to free development of the personality and in the right of the people to decide which ludic and recreational activities they desire to do.
Through these arguments, the Mexican Supreme Court concluded that the alluded administrative legal system is contrary to the Constitution of Mexico by absolutely banning the ludic and recreational use of marijuana, and therefore the sanitary authorities must emit the authorizations for the personal ludic and recreational use of it, which includes the acts and activities inherit, such as plant it, cultivate it, harvest it, prepare it, possess it and transport it, all that in order to preserve the human right to free development of the personality of the complainers.
The material amplitude of the decisions will depend on its execution. This means that the sanitary authorities will emit the authorizations establishing the limits (quantity, time, etcetera) and the Mexican Supreme Court will validate if those terms satisfy the decisions, therefore if those conditions permit the complainers to exercise their human right to free development of the personality.
The seeds needed to exercise the rights protected by the decisions can legally be obtained by importing them from places where the marijuana is legal, by attaining them from those with the authorization for scientific or medical purposes use, or in the same way they acquired them.
Finally, the impact of these historic decisions, although in the present cases only apply to the complainers, is relevant, because it opens the door for other people to ask for amparos in the same or similar terms, specially since now is mandatory jurisprudencia for all Mexican courts. These hypothetical amparos will force what seems to be an imminent change in the legislation. That change will not necessarily impact the criminal legal system, but may impact the legal system of administrative prohibitions, which signifies that, in such a case, the sanitary authorities will be compelled to authorize the legal use of marijuana for ludic and recreational purposes, meaning that whoever is authorized will not be placed in a criminal hypothesis by possessing, planting, cultivating, harvesting, preparing or transporting marijuana for her or his ludic and recreational personal use.