In recent years, cannabis use has been widely discussed in Mexico, both inside and outside the government.
The issue took on added relevance in 2015 when the Supreme Court of Justice of the Nation (SCJN) issued a landmark ruling, which confirmed that the prohibition on cannabis for personal use violated the right to the free development of personality recognised under the Constitution. This was the first legal precedent of five consecutive supporting decisions that formed case law in 2019 with two effects:
- All individuals who bring a suit against a negative decision in response to a petition of authorisation for the personal use of cannabis from the administrative authority will obtain the requested authorisation, following an order from the federal judges, even though said use is still legally prohibited.
- The legal prohibition on the personal use of cannabis was declared unconstitutional. This criterion triggered a general declaration of unconstitutionality.
A 'general declaration of unconstitutionality' is a statutory proceeding by which the judiciary notifies Congress, as the legislative body, that some articles of a law have been found to be unconstitutional. The unconstitutionality of the statutory prohibition on the personal use of cannabis has limited practical effects on the individuals bringing a suit. Therefore, for this criterion to have truly general effects, the law must be reformed.
This proceeding grants Congress 90 days to reform the law in order to overcome the problem. If after the granted term the articles remain unconstitutional, the judiciary can delete them because in Mexico only the president and Congress can propose laws. However, deleting portions of the law creates severe loopholes and is not the best course of action.
The SCJN served notice to the Senate granting 90 days to reform the relevant articles of the law on the personal use of cannabis. Such a complex task required the legislature to analyse the matter from many perspectives in order to create a legal and institutional framework to manage and reduce the potential risks that lifting the prohibition imply. For these reasons, the Senate asked the SCJN for an extension of the 90-day term, which expires on 30 April 2020.
In this context, the Senate is currently discussing a new bill that includes five titles, 74 articles and 11 transitional articles.
Conscious of the challenges that the implementation of a new regulation on cannabis represents, the Senate has concluded that any regulation should be implemented gradually. To this end, the bill under analysis foresees authorisations (ie, licences) for the personal use, growth, transformation, import and export of cannabis that are mutually exclusive. The bill also allows for scientific (ie, medical) and industrial uses; however, cosmetics and edible and drinkable products which contain cannabis are not authorised.
The bill foresees the creation of the Mexican Cannabis Institute by January 2021, which will be responsible for:
- determining the national policy on and supervisory bodies responsible for regulating the cannabis industry;
- collecting and analysing information on cannabis use; and
- coordinating the transition from an illegal to a legal market for cannabis.
One year after the bill's entry into force, the matter will be reviewed in order to identify, discuss and formulate any necessary legal reforms to facilitate and promote the proper implementation of the new regulation on cannabis.
Given Mexico's path towards cannabis regulation, it is remarkable how, through judicial system rulings, civil society has forced Congress to fully analyse and regulate an issue that had been delayed for years. Hopefully, an integral regulation on cannabis will be approved by the end of April 2020.
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