Mexican Supreme Court Issues Vague Support for Ending Prohibition

On May 11, the Mexican Supreme Court ruled in favor of “Édgar,” a young man facing prosecution for the last four years for cannabis possession. While he was absolved of his “crime,” the court failed to completely eliminate the criminalization of simple possession, ruling that it was not the police, but rather prosecutors and judges who should decide if possession is for personal use or not.

According to at least some of the judges, this was a victory. “The fact that the Public Prosecutor’s Office is allowed to initiate criminal proceedings against a person who possesses more than 5 grams of cannabis for personal consumption amounts to punishing moral qualities [and] personal behavior, which has no constitutional basis,” wrote Supreme Court Justice Juan Luis González Alcántara. “Criminal prosecution of the person who possesses cannabis in his or her private sphere, without affecting third parties or provoking a criminal incident, is not justified.”

Advocates, however, believe that this is a muddy, inconsequential decision by the Court (after years of behaving otherwise). Namely, they say the ruling is contradictory because it does not totally eliminate criminal charges for personal possession. Further it gives the public prosecutor too much leeway in deciding whether to pursue charges. People are still liable to be held by the police for up to 48 hours if arrested for possession, and of course, the resources taken up by this activity are still consequentially large. In 2020, more investigation files and preliminary investigations were initiated for simple cannabis possession than homicide (country wide).

Setting The Pace of Reform?

The decision is also clearly a surprise to court-watchers. Almost alone in the world at this point (apart from decisions in South Africa and Georgia), the Mexican Supreme Court has taken bold stands on the connection between cannabis possession, use, and fundamental human liberties and rights for the last seven years. And of these three countries, the Mexican court has been not only the most vocal, but at this point, has issued the most rulings.

The decision also came shortly after the Oaxaca City Council voted to stop police from arresting cannabis users as long as they were behaving respectfully. It also comes as the Mexican legislature is still plodding along on a cannabis bill, which was required by the court to pass last year.

The court’s decision, in other words, could be a reluctance on the part of the country’s top judges to dictate the amount that qualifies for personal possession—in this case 30 grams—to lawmakers as they consider how to proceed with a cannabis legalization bill.

The legislature, also despite court order, has only advanced the issue at a snail’s pace. They were supposed to finalize this last December. Instead, the federal process has repeatedly stalled at a federal level. That said, the Mexican Congress could vote to legalize this year.

The Mexican President, Andres Manuel Lopez Obrador remains ambiguously hesitant about the entire issue.

An Ongoing Clash Between the Courts and the Legislature

The battle in Mexico at the highest legal level has been going on since 2015, when the court ruled that sections of the country’s health law were invalid, by de facto legalizing the cultivation, possession, and use of cannabis. Last year the court also ruled that bans on personal consumption were a guaranteed personal liberty. However the earlier decision did not consider the 5 gram decriminalization measure in place since 2009. People in possession of larger quantities still face a prison sentence of up to three years.

That is what Mexican advocates hoped this decision would solve as the legislature slowly moves forward on passing legislation.

Could the Mexican Government Approve Recreational Use This Year?

The decision comes at an interesting time, literally five weeks after Israel decriminalized use. Mexico has been on the “cusp of legalization” at this point for seven years. Presumably, however, if either the United States or Germany passes legalization measures, it will also galvanize Mexico to finally decide its cannabis users’ fate by formal law rather than judicial decisions at the highest level.

This means that 2022 could be a record year for legalizing countries—and as a result, become a tipping point for global recreational reform.

It is certainly going to be an interesting and intriguing 8 months on a global basis.