Mexico: prohibition of private and recreational use of cannabis is no longer officially recognized by the courts

Last Friday, the first chamber of the Mexican Supreme Court presented the first theses of jurisprudence which derive from the five lawsuits against the Federal Commission for Protection against Health Risks (Cofepris) for the right to personal, recreational consumption of cannabis. This does not amount to legalization, but it does have significant judicial repercussions. In particular, it initiates the process of declaration of unconstitutionality, which requires the relevant laws to be amended or annulled.

A matter of civil law

Between 2015 and 2018, five court cases challenged the constitutionality of Mexico's prohibition on personal and recreational cannabis consumption. The Mexican Supreme Court, the country's highest legal body, ruled five times in a row that the prohibition effectively violated the right to free development of personality enshrined in the Constitution. Mexican law stipulates that’after five identical trials, the cases set precedents.

The first division of the Supreme Court has just compiled the case law resulting from these trials. These will be officially published on Friday in the Semanario Judicial de la Federación and effective the following Monday. The prevalence of the right to free development of the personality implies that plaintiffs can engage in activities that involve only their person, i.e. recreational but only private consumption, as well as the cultivation, possession, processing and transport of cannabis but only for non-commercial and private purposes.

In reality, these activities are not legal, but judges are obliged to grant the suits sought against Cofepris to obtain the right to practice these activities legally. Individuals are thus able to assert their right to free development of their personality, and are certain to be heard and vindicated. Until now, the courts could refuse such cases on the grounds that the law prohibits the recreational use of cannabis.

Adios prohibition

The prohibition of the recreational use of cannabis is enshrined in articles 235, 237, 245, 247, 248 of the Criminal Code. the General Health Act. In accordance with the declaration of unconstitutionality process, the Senate now has 90 days from Monday 25 to amend these articles. If it fails to do so, then the Supreme Court will have to vote to overturn them in plenary session, this time with a minimum of 8 votes out of the 11 judges. At the end of this vote, the general declaration of unconstitutionality will be published and total decriminalization will be effective, since prohibition will no longer be enshrined in law.

It goes without saying that the government will prefer to legislate on the legalization of cannabis to impose limits and regulations, rather than simply abolish prohibition. The Minister of the Interior, Olga Sanchez Cordero, had already introduced a proposal to regulate recreational cannabis at the end of the fifth trial. Publication of the case law could well speed up the process. A former federal magistrate and then senator, Olga Sanchez Cordero was already campaigning for decriminalization before she was appointed to the government for stem the tide of drug trafficking that undermines the country.