With its two rulings on October 31, 2018, the Mexican Supreme Court has now ruled five times against the prohibition of recreational cannabis, according to the Washington Post. Five is a significant number as it takes five decisions to set a binding legal precedent under Mexican law.
As with the earlier rulings, from 2015 to 2017, the court found the ban on cannabis consumption to be unconstitutional as a violation of individual autonomy, given that cannabis presents so little risk to users or others. According to the court, the “effects caused by marijuana do not justify an absolute prohibition on its consumption.”
The decisions are based on the provision in Mexico’s constitution that provides the right to free development of the personality, thus ensuring autonomy and self-determination for individuals. As the court (according to a translation from Transform, a think tank that pushed for the end of the ban) stated, “the fundamental right to the free development of the personality allows the persons of legal age to decide — without any interference — what kind of recreational activities they wish to carry out and protect all the actions necessary to materialize that choice."
The rulings do not technically legalize cannabis and thus arrests for use are still a possibility. However, according to a press release from Transform: “This 5th judgement means that, while the cannabis prohibition law nominally remains in place for now (and arrests remain possible), all judges nationally are now bound by the Supreme Court judgement as a defense in the (now much less likely) scenario of prosecutions being brought. ”Thus, the courts must allow recreational use, but it is up to the arrested individual to press his or her case raising this defense.
It is up to Mexico’s Congress to change the law. While the Congress may take the chance to set up a process for taxation and commercial sales, it is also possible the Congress may legalize possession and use without legalizing sales, as Vermont and Washington D.C. have done. Officials from the government of President Andrés Manuel López Obrador have suggested they may support the legalization of cannabis. Obrador is a left-wing populist who has drawn comparisons to Bernie Sanders.
Mexico is now the third country in the world to roll back the prohibition on cannabis use. The other two are Uruguay and Canada. The decision also leaves the U.S. as the last nation in North America to maintain a ban on cannabis use although there is a continuous stretch of jurisdictions along the Pacific coast of North America in which cannabis is legal. One could travel from Central America to the Arctic Circle without setting foot in an area with a ban on cannabis use – federal laws notwithstanding. What started as a far-fetched experiment in Colorado and Washington has, within just a few years, expanded to encompass most of the North American continent. As public opinion has rapidly shifted, laws have followed closely behind, leaving the U.S. federal government as the last holdout.
Mexico’s shift will, however, increase pressure on federal regulators in the U.S., according to Morgan Fox, media director for NCIA, a cannabis trade organization and legalization advocacy group. As Fox stated:
“With Canada opening their legal adult market earlier this month and Mexico slated to begin regulating cannabis for adult and medical use, the U.S. is about to be left behind in the global marketplace if Congress doesn’t act quickly to end federal prohibition and start treating the cannabis industry fairly. … Nearly two-thirds of adults nationally think cannabis should be legal, and while most politicians agree, they are often afraid to touch the issue or it is not a priority for them, and we are working to change that.”