'Unconstitutional': Mexico supreme court moves further toward lifting ban on recreational marijuana use

David Agren
The Guardian
Wed, 30 Jun 2021 10:25 UTC

© Marco Ugarte/AP

A protester smokes marijuana during a demonstration outside the national senate in Mexico City.

Mexico's supreme court has struck down laws prohibiting the use of recreational marijuana, moving the country toward cannabis legalisation even as the country's congress drags its feet on a legalisation bill.

In an 8-3 decision on Monday, the court ruled that sections of the country's general health law prohibiting personal consumption and home cultivation of marijuana were unconstitutional.

Adults wanting to cultivate and consume their own cannabis will be able to apply for permits from the health secretariat. Criminal penalties for possessing more than five grammes of marijuana or selling the drug remain in place.

Prior to Monday's decision, adults could petition courts for individual injunctions to grow and consume cannabis. The supreme court first granted injunctions in 2015 in favour of four applicants seeking injunctions to consume and grow marijuana. As courts granted more injunctions, the court declared jurisprudence on the issue - and in 2017, the supreme court ordered congress to draft laws for creating a legal cannabis market.

But congress has asked the court for extensions, twice arguing that technical aspects of the bill required more time and once citing the pandemic. President Andrés Manuel López Obrador's ruling Morena party - which identifies as left-leaning - has held majorities in both houses since September 2018.

"There's a lack of political will," said Lisa Sánchez, director general of the non-governmental group México Unido Contra la Delincuencia.

"This is a step forward for the rights of cannabis users," said Zara Snapp, co-founder of Instituto RIA, a thinktank. "But there's still work to be done in congress to be able to regulate the market in a socially just way."

Proponents express hopes regulation could diminish some of the violence caused by Mexico's illegal drugs trade, although organised crime factions no longer focus on marijuana trade as they once did, having shifted their focus to cocaine, synthetic drugs, kidnapping and extortion.

Comment: Largest cocaine smuggler in the U.S. revealed: The DEA

Some observers expressed skepticism that the ruling will change much in the short-term. Raúl Bejarano, a graduate student studying cannabis regulation, says the cost of permits from the health secretary should cost less than hiring a lawyer to seek an injunction, but the health secretariat could still impose barriers in the application process.

"This is probably what the present government was looking for," says Bejarano. "It exempts them from their responsibility of creating a regulated market."

Comment: And over in the US, that is partly to blame for Mexico's problems with its 'war on drugs', a Supreme Court judge says that their federal laws on marijuana may also be out of date:

Clarence Thomas, one of the Supreme Court's most conservative justices, said Monday that because of the hodgepodge of federal policies on marijuana, federal laws against its use or cultivation may no longer make sense.

"A prohibition on interstate use or cultivation of marijuana may no longer be necessary or proper to support the federal government's piecemeal approach," he wrote.

His views came as the court declined to hear the appeal of a Colorado medical marijuana dispensary that was denied federal tax breaks that other businesses are allowed.

Thomas said the Supreme Court's ruling in 2005 upholding federal laws making marijuana possession illegal may now be out of date.

"Federal policies of the past 16 years have greatly undermined its reasoning," he said. "The federal government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana."

Thirty-six states now allow medical marijuana, and 18 also allow recreational use. But federal tax law does not allow marijuana businesses to deduct their business expenses.

"Under this rule, a business that is still in the red after it pays its workers and keeps the lights on might nonetheless owe substantial federal income tax," Thomas said.

The Department of Justice has instructed the nation's federal prosecutors not to pursue cases against marijuana businesses that follow state law. And since 2015, Congress has prohibited the Justice Department from spending federal money to prevent states from carrying out their own laws.

But the IRS continues to enforce its own rules against growers and dealers.

The federal government's "willingness to look the other way on marijuana is more episodic that coherent," Thomas said.

See also:

• "One of the most valuable medicines we possess": The Victorian doctor who promoted medical cannabis
• UK cannabis farm bought by US-based fund in $81 million deal
• Mexico: Judge approves recreational cocaine use in landmark ruling, 'war on drugs has failed'

And check out SOTT radio's: The Health & Wellness Show: The Highs and Lows of Cannabis as Medicine