Mexico’s Supreme Court has taken a step toward ending marijuana prohibition nationally after the legislature failed to enact the policy change by a court-imposed deadline.
Minister Norma Lucía Piña Hernández, who serves on the high court, recently filed a general declaration of unconstitutionality with respect to Mexico’s cannabis laws. And the body is expected to take up the issue on Monday.
This comes nearly three years after the Supreme Court first deemed the prohibition on personal marijuana possession and cultivation unconstitutional, ordering lawmakers to institute a change. But while lawmakers have advanced legalization legislation in the years since, they have yet to approve a final bill.
Advocates are encouraged that the court is taking this action, which would nullify parts of the Mexico Constitution that criminalize people over cannabis. But they’ve emphasized that this does absolve legislators of their responsibility to develop regulations for a program of adult-use marijuana production and sales.
“The step the Court is taking increases the responsibility of the legislative branch in this matter,” #RegulationPorLaPaz said in a press release on Tuesday, according to a translation. “It is necessary to continue the legislative process so that the work that has been invested to date is consolidated in the modifications necessary to guarantee the rights of citizenship.”
Eight ministers on the Supreme Court will have to vote in favor of passing the declaration of unconstitutionality in order for prohibition to be overturned.
This is far from an abrupt move on the court’s end. When it ruled that marijuana criminalization unconstitutionally infringed on the rights of adults in October 2018, it set an initial deadline for lawmakers to change laws accordingly within a year. Then, at the request of lawmakers, it approve extensions, setting deadlines for April 2020, December 2020 and finally April 30, 2021.
The Congress was unable to settle the matter by that latest deadline, despite having made progress in drafting and advancing legalization legislation.
This latest session, it seemed like the reform would finally be achieved. The Senate approved a legalization bill late last year, and then the Chamber of Deputies made revisions and passed it in March, sending it back to the originating chamber. A couple of Senate committees then took up and cleared the amended measure, but leaders quickly started signaling that certain revisions made the proposal unworkable.
That’s where the situation stood for weeks as the court’s latest April 30 deadline approached. There was an expectation that the Senate would again ask the court for an extension, but that did not take place. Instead, lawmakers have begun floating the idea of holding a special legislative session in order to get the job done this year.
After the Chamber of Deputies approved the Senate-passed legalization bill, senators said that the revised proposal was critically internally conflicted—on provisions concerning legal possession limits, the definition of hemp and other issues—and lawmakers themselves could be subject to criminal liability if it went into effect as drafted.
But Senate Majority Leader Ricardo Monreal Avila said in April that if the court were to make a declaration of unconstitutionality before a measure to regulate cannabis was approved, it would result in “chaos.”
The top senator also talked about the importance of lawmakers taking their time to craft good policy and not rush amidst lobbying from tobacco and pharmaceutical industry interests.
“We must not allow ourselves to be pressured by interests,” he said. “The Senate must act with great prudence in this matter.”
Sen. Eduardo Ramírez Aguilar of the ruling MORENA party said in April that “at this time, it is important to legislate in the terms that are presented to us” and then consider additional revisions to cannabis laws through subsequent bills.
That’s the position many legalization advocates took as well, urging lawmakers to pass an imperfect bill immediately and then work on fixing it later.
Under the proposal, adults 18 and older would be allowed to purchase and possess up to 28 grams of marijuana and cultivate up to six plants for personal use. The deputies made changes that principally concern the regulatory structure, rules for the commercial market and licensing policies.
One of the most notable changes made by the Chamber of Deputies was that the revised bill would not establish a new independent regulatory body to oversee the licensing and implementation of the program as was approved by the Senate. Instead, it would give that authority to an existing agency, the National Commission Against Addictions.
Deputies also approved additional revisions to increase penalties for unauthorized possession of large amounts of cannabis, prevent forest land from being converted to marijuana growing areas and to require regulators to “coordinate campaigns against problematic cannabis use and…develop permanent actions to deter and prevent its use by minors and vulnerable groups.”
Advocates had hoped for more. Throughout this legislative process, they’ve called for changes to further promote social equity and eliminate strict penalties for violating the law.
While the bill would give priority for licenses to marginalized communities, advocates are worried that there might not be strict and specific enough criteria to actually ensure that ends up being the case. They also pushed for an amendment to make it so a specific percentage of licenses would be set aside for those communities, but that did not happen.
Monreal Avila, the Senate majority leader, said ahead of the Chamber of Deputies vote that there “is no problem if they modify the cannabis law, we have no problem.”
“That is their job and their function. And on the return we will review whether or not they are appropriate,” he said, according to a translation. “The idea is to regulate the use of cannabis and not ignore a prohibitionist approach that generated a great social problem in the country.”
President Andres Manuel Lopez Obrador, for his part, said in December that a vote on legalization legislation was delayed due to minor “mistakes” in the proposal.
The legalization bill cleared a joint group of Senate committees prior to the full floor vote in that chamber last year, with some amendments being made after members informally considered and debated the proposal during a virtual hearing.
Members of the Senate’s Justice, Health, and Legislative Studies Committees had approved a prior version of legal cannabis legislation last year as well, but the pandemic delayed consideration of the issue. Sen. Julio Ramón Menchaca Salazar of the MORENA party said in April that legalizing cannabis could fill treasury coffers at a time when the economy is recovering from the health crisis.
As lawmakers work to advance the reform legislation, there’s been a more lighthearted push to focus attention on the issue by certain members and activists. That push has mostly involved planting and gifting marijuana.
In September, a top administration official was gifted a cannabis plant by senator on the Senate floor, and she said she’d be making it a part of her personal garden.
A different lawmaker gave the same official, Interior Ministry Secretary Olga Sánchez Cordero, a marijuana joint on the floor of the Chamber of Deputies in 2019.
Cannabis made another appearance in the legislature in August, when Sen. Jesusa Rodríguez of the MORENA party decorated her desk with a marijuana plant.
Drug policy reform advocates have also been cultivating hundreds of marijuana plants in front of the Senate, putting pressure on legislators to make good on their pledge to advance legalization.
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