–Mariana Velasco Rivera, LL.M. ’15 and J.S.D. Candidate, Yale Law School
On Wednesday, November 4, the First Chamber of the Mexican Supreme Court issued what has been described as an irreversible step towards the legalization of the recreational use of marijuana.
In an individual constitutional complaint (Juicio de Amparo), the First Chamber found in favor of four individuals from whom a license to grow and consume marijuana was denied by the Federal Commission for the Protection against Sanitary Risk (Cofepris). In the 4 to 1 decision, the First Chamber held that the legal framework on substance abuse on which the denial of the license was based was unconstitutional for disproportionately limiting the claimants’ right to autonomy.
The immediate legal effect of the decision is that the claimants will get the license previously denied and will now be able to grow marijuana for their own use. Even though one of the Court’s chambers issued the ruling, Mexico’s precedential system for individual constitutional complaints requires five rulings, all with the same outcome, to become binding on lower courts.
This was the first time in over 50 years that an official state body seriously questioned the prohibition paradigm. Undoubtedly, this decision has had an important political effect. For example, after three years of dodging the topic, right after the Court’s decision went public, the legal advisor of President Peña Nieto hosted a press conference to emphasize the decision’s limits and, most importantly, to stress that the decision did not in fact legalize the use of marijuana. This is significant in that it was the first official statement from the President’s Office on the issue. What is more, last week, the President himself declared that he personally opposes the legalization of marijuana but that he is open to a wide debate on the issue. The public at large has taken up his invitation.
But whether the Supreme Court decision represents an irreversible step towards the legalization of the use of marijuana is a different and much more complex question.
As mentioned above, at least four more decisions with the same outcome are needed to create a binding precedent for the lower courts. A week after the First Chamber’s decision, six more individuals filed a petition at Cofepris to get a license to grow and use marijuana plants. Shortly after, the head of the agency issued a public statement declaring that the substance abuse regulation is still applicable law and that the six new applications would therefore have to be denied. The additional cases needed to ultimately create a precedent are thus already underway. Problem solved? Not quite.
All things remaining equal, all we would have to do is just sit and wait for the cases to reach the First Chamber of Supreme Court. Unfortunately, it is not that simple. Two things might get in the way of establishing a precedent: first, the composition of the Court will soon change; and, second, there is in fact no way to ensure that it will indeed be the First Chamber that will decide these new upcoming cases.
At the end of this month, two out of the five Justices who most consistently vote liberal on rights issues will leave the Court. Under the Federal Constitution, it is the President and the Senate’s obligation to fill the upcoming vacancies. Last Friday, President Peña Nieto sent the two required shortlists of three candidates (one per position to be filled) to the Senate. Judging from the shortlists, the nominations clearly signal his wish to fill the positions with his allies.
Did the marijuana decision of November 5 shape the President’s nomination choices? In light of the official public statement made right after the decision and the President’s statement the week after, this does not seem altogether unlikely.
Regardless of how much of a fight the Senate is willing to put up, the President is in full control. If the Senate does not reach the necessary two-thirds vote to confirm two of the six candidates, the President gets to present two additional shortlists in which he could again include names from the previous lists. Should these candidates again be rejected, the President gets to directly appoint the two new Justices.
To make matters even more difficult, there is no way to ensure that it is indeed the First Chamber that will decide the upcoming cases. Both chambers of the Supreme Court share jurisdiction in administrative law matters, and it can very well happen that the next case ends up before the conservative Second Chamber.
Where there is a contradiction between chambers, this would have to be resolved in plenary session by the members of each chamber (5 members in each of two chambers) plus the Chief Justice. In this scenario, to predict the outcome is even more difficult.
But it seems very likely that the new appointees will enlarge the conservative wing from 5 to 7 (out of the total 11 votes), rendering even slimmer the prospect of meeting the conditions to create a precedent.
Seen from this angle, the timing of the recent decision might prove a boon in the short run, but a bane long-term. It is very likely that Justice Arturo Zaldívar, the author of the opinion, decided to present the case for discussion just before the retirement of his closest liberal ally, Justice Olga Sánchez Cordero, at the end of this month in order to secure the third vote needed to have majority. This was certainly a wise strategic decision for the case in question. However, given the upcoming changes in the Court, it is far from certain if it was also the right timing to achieve the precedent.
In this context, the steps towards the legalization of the use of marijuana seem rather uncertain. The only thing we can be sure about is that the Supreme Court will before long lose two liberal votes and that the new appointments are crucial for the direction the Court will take not only on this issue but also more generally in human rights matters. In other words, the next two appointments will be the true irreversible steps to defining the Supreme Court’s path on marijuana use.
Suggested Citation: Mariana Velasco Rivera, The (un)Certain Path Towards the Legalization of Marijuana in Mexico, Int’l J. Const. L. Blog, Nov. 16, 2015, at: http://www.iconnectblog.com/2015/11/the-uncertain-path-towards-the-legalization-of-marijuana-in-mexico