It’s been well over two years since Mexico’s Supreme Court made its 5th consecutive ruling which knocked down cannabis prohibition. And yet, with no debate as to whether legislation must pass, it still has not, making cannabis remain in the legal gray area of Supreme Court legalization, and legislative illegality. So, what’s the current story with Mexican cannabis legalization?
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Why cannabis is already kind-of legal in Mexico
The most interesting aspect of the current Mexican cannabis legalization dilemma, is that there isn’t really a debate to be had over general legality. Though the public might be fooled by titles like this from last year: Mexican Senate Passes Bill To Legalize Marijuana Nationwide, which make it sound like the decision was only just made, this is not the case at all.
Back in October 2018, the Supreme Court of Mexico made its 5th of five consecutive rulings related to cannabis possession. The ruling was in favor of the defendants, and since it was the 5th consecutive ruling of its kind, it kicked in jurisprudencia. In Mexico, jurisprudencia takes effect if the Supreme Court makes five consecutive rulings on a specific matter, and when this happens, the ruling becomes binding for all lower courts, essentially creating judicial law.
What does this do? It puts the judiciary branch of government at odds with the legislative branch, which was not changed due to the Supreme Court rulings. The legislative branch of government is then required to update itself in order to stay in concert with the courts. As such, though the decision of legality has technically been made, how this will be done has not been hammered out fully, leading Mexico’s legislature to ask for extensions for 2.5 years running. For anyone confused, the extensions have no bearing on whether legislation will pass, as it has already been decided that it must. The only thing being argued about, are the exact provisions related to the upcoming Mexican cannabis legalization.
What does this mean for the ‘right now’? Good question. Right now, no lower court can punish a person for basic possession, cultivation, or use. This does not have any bearing on sale, supply, and trafficking crimes, all of which still come with heavy jailtime. The problem is that though this exists as a judicial fact, in a country like Mexico where law enforcement will often shake people down regardless of a real crime committed, having this disconnect between judicial law and legislative law, creates a weird gray area where cannabis now resides. And this allows for people to still be targeted and punished by law enforcement, even if they are never found guilty in court. On another practical level, it also stops a legal industry from being started.
One thing should be made clear, the Mexican Supreme Court rulings didn’t lead directly to cannabis legalization legislatively. That depends on Congress to pass. But it did back up that prohibition of cannabis is unconstitutional, which forces the legislature to change current laws.
The long list of extensions
The Mexican cannabis legalization quandary all started in 2015, with the first supreme court ruling in a case against four members of the Mexican Society for Tolerant Self-Consumption. In the ruling, the defendants won the right to grow, possess, and transport cannabis. In this 1st ruling, the Criminal Chamber made the decision that individuals could not be barred from growing and distributing cannabis for personal use. The process for jurisprudencia ended in 2018, with two final rulings, both of which involved recreational cannabis use by an adult. In both cases, the Supreme Court found that an individual must be allowed to use, possess, and cultivate cannabis without government interference.
According to the court, the right to human development is a tenant of the Mexican constitution, and as such, individuals must be allowed to lead their recreational lives as they please.
When the 5th ruling was made, and jurisprudencia kicked in, it created an automatic requirement for the legislative branch to come out with the governing legislation. This was supposed to be done by the end of 2019, giving the government a year to put something together. It was not done. The first extension was granted at the 2019 deadline, and gave the government until the end of April in 2020.
When April 2020 rolled around, and the government was still not ready, the Supreme Court allowed another extension for the Mexican legislature to come up with cannabis legalization laws, giving it until December 15th 2020 to get its stuff together. Did it? Nope. On December 15th 2020, yet another extension was handed down to the government, giving it until April 30th, 2021. April 30th, 2021 was last week, and if you’ll notice, no cannabis bill has been passed through yet. What happened this time around?
This time around, it was surprisingly more quiet, like Mexico was hoping no one would notice that the government dropped the ball again. Unlike previous extensions that got more coverage, less has been said about this last postponement, with almost no articles even clarifying why it happened. Most articles about the postponement were written before it happened, alluding to the idea that it might.
The latest postponement
In early April, well before the law was due to be passed, rumblings started in congress that another extension would be needed. The bill in question technically passed the Senate last November, then went to the Chamber of Deputies, which made its revisions, before being handed back to the Senate. It got handed back to the very committee that passed it the first time around, only now, the same committee can’t seem to pass it again. It’s been going back and forth with arguments over revisions, and what is workable and what is not.
The Senate never actually asked for an extension this time around, it simply didn’t meet its deadline. Right now, there is talk of a possible special session to be scheduled after elections in June, but this is not a guarantee. There is still another thing to consider. Congress doesn’t get to just ignore deadlines. Which is probably a good thing, at least in a scenario like this.
What Congress’s inability to meet deadlines means (without being granted an extension), is that it puts the onus back on the Supreme Court to make a declaration about the unconstitutionality of cannabis prohibition. This would effectively legalize it legislatively, but without a structured system of regulation. There are two main issues to this being done. The first is that the makeup of the court has changed since its last ruling in 2018 triggered jurisprudencia. This could create an issue with a majority statement, as the current majority might not have the same feelings on the issue. The second, way bigger issue, is that it would create a legalization with absolutely no rules.
If the court chooses to take this action, it would take place before the special legislative session, creating fears that complete chaos will ensue. Of course, that’s coming from the Senate, which did not fulfill its court-instructed duty to pass the legislation in the first place.
Why is this happening?
One of the more complicated questions, is why is this happening? Let’s be honest for a second, every legalized location, whether for medical or recreational, has had to institute a regulatory system. Some of them even took as long as Mexico to do it. A lot is involved with building a regulation system for a legal market, but we also know from all those other locations, it can be done, and in much less time. Since we’re dealing with Mexico, which has narco interests, this becomes a more complicated issue. And the answer might just be that the government never intended to pass anything, for fear of repercussions.
The main complaints coming out of the Senate, are that the government needs to take more time to make sure it constructs the right bill. This includes making sure tobacco and pharmaceutical industry interests don’t get in the way, and that its regulated by an existing body, rather than a new one. The government also points out that it wants to make sure that licenses go to marginalized communities first, though advocates are saying the criteria isn’t strict enough to make this happen.
There have also been revisions about penalties for having over the allowed quantity of cannabis, the prevention of forest land from becoming growing fields, definitions for ‘hemp’, and issues surrounding how to prevent minors and vulnerable groups from problematic use.
Everything that was just said sure does sound like standard operating procedure for government, but as mentioned before, this is Mexico. And Mexico is practically run by drug cartels, which have a massive influence in government, as any large-standing criminal organization tends to. Take this study from 2018, which investigated how the Italian mafia uses violence in pre-election times to control results. Or consider that back in 2018, articles were published about how over 100 politicians had been killed in Mexico by cartel members in the lead-up to the election that year. It should be remembered that this industry has been 100% ruled by cartels thus far, so expecting that they’ll just give it up, is kind of silly.
Even so, it’s the stated line by government, that making the cannabis industry legal, will somehow wrestle control of it from the only organizations actually running it. Kind of makes you wonder who would want to cast a vote in this at all! Apart from government lines, there seems to be a general feeling that cannabis legislation likely won’t impact cartels much. There have even been stories out about cartels – like the Sinaloa cartel, claiming they will control the industry once it opens. Whether these claims are real is certainly hard to say, but even if they aren’t, the idea still holds.
Conclusion
The whole issue of Mexican cannabis legalization has created a global story that everyone seems to be following. And the best we can do now is wait and see. The legislation does have to be passed, which means eventually, someone has to be unhappy. The question now remains, who will that unhappy party be.