The Mexican Supreme Court has once again ruled that personal possession of marijuana is legal

Legal limits on the amount of cannabis that can be possessed for personal use in Mexico are unconstitutional, the country’s Supreme Court ruled in a decision announced Wednesday. It’s the latest in a string of rulings overturning the marijuana ban, dating back to 2015.

In practice, Wednesday’s decision does not immediately reduce the risk of arrest or harassment by the police for cannabis users. (Read why in this Leafly article.) It comes after the court ruled last year that bans on home use and home growing are unconstitutional.

However, that earlier decision did not affect the decriminalized 5 gram limit on possession that has been in place since 2009, as those found in possession of larger amounts risk a potential prison sentence of up to three years.

“The fact that prosecutors can prosecute a person who possesses more than 5 grams of cannabis for personal use actually punishes moral qualities [and] personal conduct; which has no constitutional support,” wrote Supreme Court Justice Juan Luis González Alcántara.

“The prosecution of the person who possesses cannabis within their privacy is not justified without affecting third parties or causing a criminal outcome,” he added.

More pressure on Congress to legalize

While the ruling only directly benefits the plaintiff – Édgar “N,” who was arrested in 2018 with 30 grams – it sets another important precedent that establishes the rights of cannabis users through case law. It shows once again how the judiciary is marching lawmakers into legalization, even when lawmakers hesitate on the issue.

Previous Supreme Court rulings have made it clear that cannabis prohibition is unconstitutional, but Mexico’s Congress has yet to pass new legislation establishing the plant’s full legality. This has left millions of cannabis users in legal limbo.

A negative result hidden in the case

The result in this week’s case left pro-legalization advocates bitterly disappointed. The judges ruled that only judges or prosecutors – not the police – can determine whether or not a given amount of cannabis is for personal use. This leaves the possibility that officers can arrest smokers and force them to spend up to 48 hours in a prosecutor’s office while awaiting a decision from a prosecutor or judge.

“With this result, the project is approved, but does not create a compelling precedent for the remaining cases. Only in this case does a collegiate tribunal have to decide whether or not the accused possessed cannabis for personal use,” tweeted Mexico United Against Crime, a legal NGO whose team defended the plaintiff.

“We regret that the Supreme Court has approved this. It is contradictory that although the bill contains all the arguments to put an end to this crime, the Court chooses to continue criminalizing consumers. We will continue to work to protect the rights of consumers and citizens. We are sure that a safer and more peaceful Mexico needs drug decriminalization.”

Possession can still arrest you

Although the court recognized the right to use cannabis as constitutional, the organization complained that the ruling did not eliminate the crime of mere cannabis possession.

The ruling comes after the Oaxaca City Council last month ordered police to stop harassing and arresting marijuana smokers in public. It issued a city policy statement that gave Pachecos the freedom to smoke on the streets of the culinary capital, so long as they behaved respectfully.

The legislature is slow to deal with the issue

Over the past six months, Mexican lawmakers have circulated new draft legislation to legalize cannabis, but it has not been formally returned to the Union Congress. Senate Majority Leader Ricardo Monreal, of the ruling Morena Party, said in November that a constitutionally sound, “high-level, progressive” cannabis law would soon be finalized by the Senate Health and Judiciary Committees.

But shortly thereafter he hinted that officials revising an earlier version were unable to prepare it in a timely manner in a form that was likely to be adopted. “Spring, [cannabis] The ban is a hundred years old so what if it lasts a few more months,” he said when asked about the postponement.

The delays may reflect high levels of political expediency. President Andres Manual Lopez Obrador floated the idea of ​​a national referendum on legalizing cannabis last year, but recently he said there was no consensus on legalizing drugs, including cannabis.

“Overcoming the formalistic obstacles of the past is not an easy task, but I have every confidence that we can achieve it in this legislature,” said House Speaker Olga Sánchez Cordero in late March.

Matthew Busby

Mattha Busby is a freelance writer based in Mexico. His work has appeared in the Guardian, The Observer, Vice, GQ and other publications.

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