Spain When will cannabis regulation happen in Spain? Contrary to those who say that it will occur in 2017, we analyze why we are more likely to have to wait until 2020 or 2021. The change will come, but it is still far away.
In recent months, a slogan has become popular in the Spanish cannabis movement: #Regulacion2017 (#Regulation2017). With only a few months left before the end of the year, it does not seem like this will actually be the case. Regulation will wait. However, many factors indicate that we are at the verge of change. But how long will it take? Considering the political reality in Spain, when is it reasonable to expect a comprehensive cannabis regulation in place?
2017 has been quite an effervescent year in what concerns cannabis in Spain. Institutions and political parties have been openly entering the debate on a change of legislation that will overcome the current prohibitionist framework. A few months ago, in this blog, I analyzed the possibilities of this change, and I came to the conclusion that it was possible – although not certain – to happen within the current legislature, which ends in 2020. Unless, of course, that We Can (Podemos) and the PSOE agree to overthrow Rajoy and appoint a new president, something that at the moment seems unlikely.
However, many voices within the Spanish cannabis movement, some of them qualified, say to be convinced that it is possible to achieve victory in just a few months. #Regulacion2017 is the slogan in which this idea has settled, whose supporters are making enough noise. For this reason, it is important to observe at what speed things are happening, in order to avoid creating false expectations which, if frustrated –and this is likely- will undermine the morale of a cannabis movement that does not have an abundance of strength.
To begin with, there is something of what I had foreseen in the last article that has not happened: The government of the Popular Party (Partido Popular) has not withdrawn the action of unconstitutionality against the Law of Addictions of the Basque Country, that is to say, it has not allowed the Basques to legislate on the Cannabis Social Clubs. Nationalists simply had to receive other trade-offs in exchange for their vote on general budgets, and the issue of cannabis clubs was left for a different day. Maybe they get it in the next negotiation, since the Spanish government depends on their vote for many issues, but no one knows when, if it ever occurs. So, for the moment that path is closed.
There is also the possibility that, in the meantime, the medical use of cannabis will be regulated, something in which the PP, after many years of fierce resistance, begins to adopt a different position. Since the rest of the groups have long been in favor, it would not be surprising that, in the medium term, the range of authorized medical uses, currently limited to the use of Sativex as a last resource in multiple sclerosis, increases. But in order to do this there is no need change any law, as the spokeswoman for the Medical Cannabis Observatory has publicly recalled, who also made clear that their mission had nothing to do with the clubs or personal growing. That is, what is intended is that the pharmaceutical industry can sell cannabinoids, not stop pursuing those who grow cannabis on their own or create associations to consume. That is another battle.
The Courts Are Tired of Ambiguity
Interestingly, the possibility of regulating cannabis for non-medical use may have an unexpected ally in the same judges who have been in charge of closing the way to Cannabis Social Clubs. In the same sentence that condemned the members of the Ebers association on the grounds that clubs were responsible for drug trafficking (a sentence that, copied to the letter, then also served to convict the members of Three Monkeys and Pannagh) the Supreme Court said that the Spanish Criminal Code, in what concerns to trafficking of illegal drugs, has “unclear contours and outlines, almost out of control,” while calling on the legislature to legislate these issues more clearly recognizing that there is a situation of legal uncertainty.
On the other hand, the Constitutional Court not only accepted to process the appeals brought against its convictions for the three associations mentioned above, but in the case of Pannagh, of which I am part, it recognized that a “legal question of relevant and general social or economic repercussions” is being proposed. In other words, constitutional judges consider that, in analyzing Pannagh, they are touching on an issue that affects a large part of society, and not just the convicts or the members of Pannagh. This is undoubtedly an added pressure for Parliament. Judges expect politicians to legislate clearly but, if they don’t do it, they intend to do so themselves.
The Popular Party, for the moment, pretends to be unaware of anything, a tactic that President Rajoy (an artist at pretending to be silly) is yielding fantastic results. However, because the parties that want regulation will use this argument to support their theses, and meanwhile, similar sentences can be accumulated, the government party may finally be forced to recognize the need to draft the Penal Code more clearly. And since it has already been made explicit to the UN that the government does not intend to punish simple drug use as a crime, it is possible that the discussion about what and how much can be cultivated or owned without committing a crime, a new regulation will emerge that no matter how restrictive, will always be better than the current arbitrariness and uncertainty.
Spain is Not Colorado
Undoubtedly, one of the most frequent errors among many who are pushing for a new regulation of cannabis in Spain is to be unaware that there are certain things in which Spanish politics greatly differ from the politics of other democratic countries. In Spain, we have an enormously restrictive model in everything that has to do with direct citizen participation. A referendum is something exotic in Spanish politics and different governments have done everything possible to prevent the adoption of the practice of consulting people directly. In fact, since the adoption of the democratic constitution in 1978, there have been only two referenda, one in 1986 about permanence in NATO, and another in 2005 about the European Constitution.
Currently, in Spain is impossible for a group of citizens to get their proposal, whatever the type, to be voted directly by the people. The only mechanism available to achieve this is the Popular Legislative Initiative (ILP), which requires collecting 500,000 validated signatures in order to be able to present to congress a proposal that parties, when it reaches their hands, can change until they make it unrecognizable. For that reason, the ILP presented by the cannabis party RCN-NOK to regulate auto-culturing and CSCs has little route. In addition, an ILP cannot touch the so-called “organic” laws, such as the Penal Code or the Citizen Security Law, which punishes possession and consumption. If we add that some of the measures they propose (such as the need to register in an official registry to be able to grow cannabis) provoke the rejection of much of the rest of the cannabis movement, it is clear that the change will not come around this way.
Like It or Not, It Is Up to The Parties
Another characteristic of the Spanish political system is that, more than a true democracy, it is rather a particracy. The political parties, beyond the discredit in which they have fallen among much of the Spanish public opinion, remain almost the only way to make politics. The system of closed lists, the absence of effective participation mechanisms and a counting system that, particularly in the Senate, blatantly favors large parties (the Popular Party has 77% of all the senators with barely 30% of the vote) makes parties the only ones able of leading any change. And when, as now, no one has an absolute majority in Congress, support from various parties is needed and in Spain, little accustomed to political pact, that takes time.
If we look at what happened in the Basque Country and Navarre first, and in Catalonia recently, it is clear that to pass a regulation on cannabis it is necessary to create a broad consensus that joins a few parties, some of which until yesterday were not for it and will unlikely be suddenly very enthusiastic about it. In the case of the Socialist Party, which after having been one of the supporters of prohibition in Spain for the last 40 years, it would be surprising if they suddenly became a fierce champion of the struggle for regulation. They and other parties still require further internal debate to assume the new reality.
In order to create this kind of broad and peaceful consensus on such a controversial topic, a quiet and patient work is essential to allow change supporters to win positions within and outside their parties. And for that it is not worth lobbying by means of photos and superficial proposals as some sectors have been doing. To get a party present here or there a Non-Legislative Motion is an interesting recourse to bring the issue to the foreground, but let no one think that there are any shortcuts: the process to be expected includes the creation of a drafting committee, which considers the opinions of all types of NGOs and experts on the subject, then writes their likely conflictual conclusions, and finally drafts the proposal of a new law involving the majority of the groups, if there is to be any guarantee of success.
And when can all that happen? Considering that drafting committees on cannabis in regional parliaments have been extended for years (Euskadi approved the creation of such committees in 2011 and their conclusions only appeared in 2016) and that the laws that generate more controversy are never approved after the first third of the legislature (in order to avoid electoral exhaustion), chances are that, as a friend with long political experience told me, it would at least take this legislature and part of the next one.
It is unrealistic to believe that in Spain there may be a new regulation before 2020 or 2021. A new cannabis pharmaceutical may be authorized, but neither auto-cultivation nor clubs, much less commercial distribution, will be regulated before that term. No matter how much will the parties have (and some do not yet have it), there is no more time to be able to do it sooner. To believe the opposite is to want to deceive oneself.
For me and others in my situation who are waiting for jail sentences and have our property seized, the wait will be long, very long. I am the first one who would like things to be different, but I think it is better to be realistic and, if we know that the race will be long, we can use our energy better. That energy that some waste now will be needed later. It is useless to rush and set the horizon too close. The race for the regulation of cannabis is a marathon and those who run too fast from the start make a mistake. Before anyone can claim victory, we still have to endure many kilometers.