Supreme Court upholds legalisation of recreational use of marijuana

The Supreme Court of Justice of the Nation (SCJN) approved by qualified majority the declaration of unconstitutionality regarding the prohibition of the recreational use of cannabis and the psychotropic drug THC (compounds known collectively as marijuana).

The approval, with 8 votes in favour and 3 against, was enough to annul the five articles of the General Health Law that prevent the recreational use of the plant, but it does not mean that the entire cannabis market is legal, nor that consumers are exempt from limitations.

Monday’s decision comes after Congress failed to pass a law to regulate recreational cannabis. On 30 April, the deadline that the SCJN had set for Congress to regulate the recreational use of marijuana in the country had expired for the third time, but legislators failed to reach an agreement.

In 2015, the SCJN ruled for the first time in favour of granting an amparo to four people so that they could obtain permits from the Federal Commission for Protection against Health Risks to carry out activities necessary for the recreational use of marijuana.

In their amparo lawsuit, the individuals claimed the unconstitutionality of articles 235 (last paragraph), 237, 245 (section I), 247 (last paragraph) and 248 of the General Health Law concerning the production, use and self-consumption of cannabis and THC.

The presiding minister of the SCJN, Arturo Zaldívar, said on Monday that this is a historic day for freedoms in the country.

“After a long road, the Supreme Court has consolidated the right to the free development of personality for the recreational use of marijuana and confirmed that the instruments that the Constitution has for the defence of rights are effective and that a court is essential for the development of these rights, for their defence and for social changes that are difficult to achieve in a legislative setting alone,” he said at the end of the session.

The ministers who voted in favour of the declaration were the rapporteur Norma Lucía Piña Hernández, Margarita Ríos Farjat, Javier Laynez, Alfredo Gutiérrez, Juan Luis González Alcántara, Fernando Franco, Arturo Zaldívar and Luis María Aguilar.

The ministers Alberto Pérez Dayan, Jorge Mario Pardo and Yasmín Esquivel Mossa voted against, who argued, among other things, that after the jurisprudence reached in 2019, there had been a reform to two of the five articles indicated in the general declaration of unconstitutionality, so that the Supreme Court was unable to issue such a declaration.

They also warned of the possibility that, with this declaration, a systemic problem could be generated that could lead individuals who obtain a permit from the Federal Commission for the Protection against Health Risks (Cofepris) for the recreational consumption of Cannabis and THC to incur criminal offences.

They recalled that the activities that will be authorised administratively, such as the trade, sowing, cultivation, harvesting, possession or transport of these substances, are criminally punishable under the Federal Criminal Code.

The declaration of invalidity will be effective from the moment the Congress and the Ministry of Health are notified.