What does the declaration of unconstitutionality approved by the SCJN mean?
June 28, 2021
7 minutes to read
Opinions expressed by Contractor the contributors are theirs.
This Monday June 28, around noon, the Supreme Court of Justice of the Nation (SCJN) approved on Declaration of unconstitutionality on the prohibition of adult marijuana use in Mexico , after which the Congress failed to reach a consensus on the approval of the Federal Cannabis Regulation Act .
With eight votes in favor of the eleven ministers who make up the plenary session of the Supreme Court, Minister Norma Lucía Piña Hernández’s proposal was approved. He pointed out that the The Union Congress failed to live up to the court’s mandate by failing to regulate the recreational use of marijuana. This declaration of unconstitutionality is expected to be published in the Official Journal of the Federation (DOF) this week.
What does the SCJN statement really mean?
In an interview with Entrepreneur in Spanish , Luis Armendariz , a corporate lawyer for the cannabis industry at Caam Legal and representative of Hoban Law Group, pointed out that this resolution raises more problems than solutions.
“This is a scenario where the judiciary legislates, because it cancels, modifies, a law. The problem is that, although this is a step forward, the legal vacuum is growing because you can already consume, but they don’t regulate the industry. Where do I buy it? Who can sell it? Can I grow it for sale or not? What are the limits ? In other words, a lot of legal uncertainty has been created, how are you going to know what you can and cannot do? “ explains the specialist.
With this decision, COFEPRIS will not be able to deny you your cannabis license, although this remains an essential condition for being able to consume legally. Cannabis-related crimes are still in effect if you don’t have it.
– United Mexico (@MUCD) June 28, 2021
Armendariz pointed out that this Declaration of unconstitutionality “decriminalizes but does not regulate” the cannabis industry and all the processes involved. Therefore, there will be both legal and illegal situations “because it will lend itself a lot to the interpretation and the perception of people . “
The lawyer for Caam Legal expressed concern about all the implications of declare unconstitutional the provisions of the General health law which prohibited the cannabis use among adults in Mexico .
“With that, they can’t put you in jail for doing a lot of cannabis-related things. But if you are not regulated, from an administrative law point of view, you can be fined, and you can apply for protection and be like that for a long time, ” Armendariz explained. “You may be able to sell derivatives or even start a business, but the authorities can shut you down because you are not protected by regulation. There is no legal certainty “ .
Why was the law on adult cannabis use in Mexico not clarified?
Since 2018, the approval of the law that regulates the recreational, recreational or better said, adult use of cannabis in Mexico has been postponed. The Supreme Court of Justice has ruled that it is unconstitutional to ban it and ordered the legislature to legalize it, as the provisions of the General Health Law that prohibit it go against the rights granted by the Mexican Constitution.
“The Legislative Power takes its initiative in law and, on many occasions, they have not respected the deadlines that the Supreme Court has given them to approve it. The last extension was granted on April 30 and that is why now they had to make the general declaration of unconstitutionality , ” Luis Armendariz Told Entrepreneur in Spanish .
Since 2017, pharmaceutical use has been approved, but it had not been possible to implement it because there was no secondary regulation until January 2021. Image: Depositphotos.com
Last November, the House of Senators approved the decision of the Federal Cannabis Regulation Act . Then he went to House of Representatives , where they made some modifications and sent it back to the House of Senators for a final committee vote.
“That’s why everyone thought it was legal for months, but technically the legislative process was not over,” said Armendariz.
If approved, the only thing missing would be the president’s approval Andrés Manuel López Obrador and that it be published in the Official Journal of the Federation to enter into force. however, “the decision of the law was stopped in the Senate, because although it was approved by two committees, it still lacks the vote of one more committee and transmits it to the president for his signature, although ‘he can still veto at this point. “ , explained the expert in cannabis legislation.
The ruling of the law which is still pending approval “Would legalize the use of cannabis by adults and regulate the entire industry: cultivation, production, transport, buying and selling, consumption, business licenses and other activities, as well as all part of public health” , said the lawyer.
What is legal and what is not marijuana in Mexico so far?
Since 2017, in Mexico, the legal use of cannabis can be done in the pharmaceutical industry , a law that could not be properly implemented until January 2021, when the regulation was finally published in order to be able to apply it.
“These regulations are strictly focused on pharmaceutical use, pharmacological derivatives and pharmaceutical grade products. This law regulates the entire chain, from cultivation, research and processing for primary production, to the manufacture, prescription and sale of drugs with components derived from cannabis ” , said Luis Armendáriz.
Now we just have to wait for Congress to approve final regulations for adult cannabis use in Mexico or we’ll be stuck in a limbo of uncertainty for as long as it takes to get there. to consensus.