Mexico’s Lost Opportunity Toward Drug Legalization

Congress Passed a Flawed Bill, and then Fox - Pressured by the U.S. - Said He Would Veto His Own Proposal

By Ricardo Sala
Drogas México

May 4, 2006

NOTE: As this story was going to press news came out of President Fox’s reversal on this issue, bowing to U.S. pressure. Read here for more.

MEXICO CITY, MAY 2, 2006: Do we have reason to celebrate in Mexico? Is there a legal reform on the way, an step forward toward policies, institutions and communities that regulate drugs effectively and humanely in a country “so close to the United States?”

In a press conference this morning, President Fox confirmed his intention to approve a decree that decriminalizes the possession of marijuana, cocaine, heroin and other illegal drugs for personal consumption. Last week both houses of Congress passed the decree that, upon its acceptance by the executive, will represent the possibility to legally possess defined amounts of illegal drugs. This all goes back to the much-discussed “Initiative Against Narcomenudeo (sale or possession of small quantities of drugs)” proposed by the president’s office in January 2004, and whose intention was to reinforce the war on the small-scale drug trade. Contrary to the law that is about to be passed, the original text proposed criminalizing possession of any quantity of illegal drugs.

This version that Vicente Fox originally presented proposed revoking a paragraph of legislation that has been in effect since 1994 and established that there would be no prosecution in the case of possession for “personal consumption.” The reason given for striking the paragraph – and thus criminalizing the consumer – was that it “contradicts the penal code of the Mexican state, and is self-contradictory, taking into account that the person carrying drugs is not necessarily an addict and therefore there is no legal or ethical reason why the state should facilitate the consumption of psychoactive substances that could generate addiction.”

In January of this year, the legislative process passed the proposal into the hands of the Chamber of Deputies’ (the lower house of Congress) Joint Commissions on Health, Justice and Human Rights. With the “purpose of enriching its meaning and reach,” this committee of specialized legislators held various different forums and meetings “to take down the experiences and opinions of the Attorney General’s Office, the superior courts and secretaries of public safety from the states and the Mexico City federal district, as well as society in general.” The result of this work was a decree with modifications and additions that include the decriminalization of certain quantities.

We can “celebrate that the committee that considered this initiative was not the Public Safety Commission but the Joint Commissions on Health, Justice and Human Rights. We can celebrate that we did not wake up to a law that criminalizes ALL possession (as the original law seemed to be leaning toward), celebrate that it is a tacit recognition that the problem lies not in the consumers but somewhere else,” said Leopoldo Rivera, president of the Mexican Association for the Study of Cannabis (AMECA, in its Spanish initials; see this 2003 report in Narco News) in a public online forum. AMECA is coordinating the celebration of World Marijuana Liberation Day on May 6 around a park in Mexico City.

The national media have reported that this reform represents the legalization of consumption. But since 1994 Mexican law has not penalized drug consumption, at least in certain cases. Article #194 of the Federal Penal Code punishes production, transportation, traffic, trade, distribution even if free of charge, and prescription of illegal drugs with “ten to twenty-five years in prison.” Article #195 outlaws possession for these ends, and clarifies in the second paragraph:

No charges will be brought against anyone who, not being a drug addict, is found in possession of one of the narcotics mentioned in Article #193, as a first offense and in a quantity which can be assumed is destined for personal consumption.

A similar paragraph in Article #199 excludes the drug addict from prosecution “who possesses strictly for personal consumption.”

The law approved by deputies and senators transfers these minutiae to the General Law on Health. Article #478 of that law would contain a pair of important innovations: exemption from prosecution for the possession of drugs up to a maximum amount, as well as licensed possession for traditional indigenous uses,

Article #478: There will be no criminal prosecution against:

1. The person who possesses medications that contain substances classified as narcotics, whose sale to the public is subordinated to special acquisition requirements, when by their nature and quantity said medications are necessary for the treatment of the person or other persons in subject to the custody or care of the person in possession of them;
2. The drug addict or consumer who is found in possession of a narcotic for his or her personal consumption. This does not exclude responsibility when such an infraction occurs inside or around elementary or high schools on the second or third offense, or
3. The person who consumes drugs rederred to in numbers 4 and 5 of the Appendix B of the present article, when such person is licensed to use them for the ceremonial or traditional purposes of indigenous peoples recognized as such.

For the purposes of section 2, it is understood that the narcotic is destined for personal consumption when its amount does not exceeded those defined in the following list…

The list that follows suffers from errors that jump out at anyone literate on the subject. The maximum quantity for “erothryxolum coca” (the scientific name for the coca plant) is 500 milligrams. This is an acceptable amount by weight for one’s own consumption of cocaine hydrochloride (powder cocaine) or its smokable version (crack), but it would criminalize anyone carrying just a bag or two of coca tea. If my aunt brings me some tea from Peru, or I buy some coca leaves in a store that sells Andean products, I could end up in jail for a minimum of ten months. The popular drug MDMA is defined as just about everything except methylenedioxymethamphetamine, its true chemical name. Peyote is describe as Lophophota Willimas II; no one checked the correct botanical name to see that it is in fact “Williamsii,” not “Williams the Second.” The highest amount allowed for possession is awarded to this desert cactus: one kilogram. “Thank the PRI (Institutional Revolutionary Party) and all those congressmen when peyote becomes extinct,” writes sociologist Juan Pablo García, author of the landmark 1985 “Manifiesto Pacheco” (“Stoners’ Manifesto”), in the same online forum.

Despite all these objections, the law represents a step forward, even though only a symbolic one. The main harm caused by drug policies in Mexico has been the arbitrary arrests. One of the most common complaints before the Federal District (Mexico City) Human Rights Commission is that of arbitrary arrests. Many media reports and academic studies have pointed to the abuses committed by the Mexican police and legal system. On our websites, Vive Con Drogas (“Live With Drugs”) and Drogas México, we will continue to recommend that citizens demand their right not to be searched for drugs or anything else. Even if these reforms are passed, it would be best not to be forced to test them in court. Don’t let the police detain you. If they detain you, don’t let them search you. If they search you, don’t let them put you in the patrol car. If they get you into the car, don’t let them bring you before the judge. Get out of there as fast as you can. If you or your loved ones don’t have any money now, start doing what the professional criminals do: always have “an extra light on,” some emergency savings.

At the same time in 2004, Fox presented another proposal. The “Decree to reform Section XXI of Article 73 of the Political Constitution of the United Mexican States” was approved by the Chamber of Deputies in an extra-ordinary session on June 23, 2005. This law allows state and municipal authorities to participate in going after crimes that had once been the exclusive domain of federal agencies. Based on these legal and constitutional changes, drug policy is being reconfigured in Mexico. During 2005, amid all these reforms’ debate in the legislature, Fox declared “the mother of all battles” against drugs. That emphasis is sure to move beyond Mexico City and the center of the country. Now in municipalities like Cuatla, Morelos, inundated with yellow journalism on arrests of drug consumers; or Nuevo Laredo, Tamaulipas, stricken with drug violence; or Tlapa, Guerrero, whose peoples’ human rights are routinely violated by members of the army in the name of the War on Drugs — the local public prosecutors will be able to determine what action or inaction to take in each case. We hope that these instances of the administration of justice end up in the hands of officials who are also neighbors of those whose cases they will be hearing, and, like their neighbors, human beings who recognize the reality of their surroundings.

One issue of drugs and health that has been neglected, from the National Drug Strategy to today’s beloved new law, is inhalant abuse. This health problem, originally perceived as something exclusive to “street children,” seems to be growing among the middle class. “PCP solvent” can be obtained at any hardware store in its signature red and yellow bottle, perfect for “personal consumption.”

The positive part of the ruling is that it still awaits Fox’s signature. It was something that came from the legislators, who took human rights into account when writing up maximum quantities for personal consumption.

The negative: The list of drugs and quantities has mistakes. And marginalized people, on whom a police officer can “plant” any amount of drugs he wants, remain in danger. To “reduce this harm,” we would need to change the entire Mexican judicial system.

What do watch for: First, the executive signature. The legislation was approved hastily last Thursday during the last session of the extra ordinary period. Some senators proposed removing the word “consumer” from the legal exemptions in Article 478. Directing themselves to Senator Jesús Galván Muñoz (PAN), the group announced that it will present a new law in the Permanent Session to “vote on at the appropriate time.” We’ll need to keep our eyes open.

Meanwhile, sign it, Mr. Fox. And reader, remember. If you are in Mexico, keep a little “reserve fund” for emergencies. Don’t be one of the suckers that they plant 10 grams of marijuana on.

Lea Ud. el Artículo en Español

For more Narco News, click here.