Introduction

In Thailand, it is widely known and mentioned that there is an effort by the Thai government to legalize growing and using cannabis in Thailand, which makes it the first Asian country to do so. According to the Announcement of the Ministry of Public Health of 2022, extracts of cannabis that contain no more than 0.2% of Tetrahydrocannabinol (THC) are not under the control of The Narcotics Code of Thailand. Anutin Charnvirakul, the Minister of Public Health has stated that for now, the aim is to only allow growing and consuming cannabis for medical and health purposes, not for recreational use. However, there are concerns from medical experts that the legalization is not well-executed, and cannabis has been overtly accessible for recreational use, especially to vulnerable groups - with rushed enforcement without subordinate law, legal loopholes, and confusion among people and officials - the decriminalization attempt has now been considered worrisome and dangerous to the society, and it has been constantly demanded by several medical organizations that there should be an immediate action to resolve the ongoing problems and to end the vacuum state as soon as possible. Although Charnvirakul said that the government "did everything to make sure that inappropriate usage of cannabis is illegal and offenders will be prosecuted", there are still concerns about the legalization as the problems do not seem to be settled. 

        With the aforementioned situation, ALSA Thammasat decided to scope this issue in this month’s interview article. We had the greatest pleasure to interview Associate Professor Dr. Pokpong Srisanit. He is the Dean of the Faculty of Law, Thammasat University, and also an expert in Criminal Law and Law of Criminal Procedure.

( Image Credit: Reuters) 

Q:  “What are your opinions regarding the legal status of cannabis in Thailand? Where should be the balance point between the right to access cannabis and state control?”

Assoc. Prof. Dr. Pokpong: “Starting from the concept of the state’s role of controlling and categorizing the drugs and substances, normally there are 3 levels of control. The first category is the substances that are considered dangerous to society and people who make use of such substances called ‘narcotic drugs.’ There is an international convention that prevents the use and access to such kinds of drugs such as heroin or methamphetamine. So when we take a look at the first level, we will see that there is not much control regulated by the law. Hence, anybody who possesses or uses the level one narcotics drug shall be punished with criminal liability.  Cannabis used to be part of such category in Thailand. 

The second level is the less serious substances than those in the first level, these are considered as not being dangerous in themselves but may be harmful when being used excessively or inappropriately, such as tobacco, or alcohol. As we can see, tobacco or alcohol are not harmful by its nature but with an excessive or improper use of these substances, there could be harm to the society. Since these are not dangerous in itself, the law will take these substances less seriously than the narcotic drugs. It is obviously seen that there are laws governing the tobacco or alcohol products and many provisions controlling the use and distribution of alcohol or tobacco products. 

The third level covers the substance considered not dangerous to the users such as vegetables or flowers. The law allows every person to use, possess, distribute, or sell such substances as they would like to since such acts will not be regulated nor controlled by the law since they are not dangerous to the people or society. 

The issue is that cannabis used to be categorized in the first level of the control as a narcotic drug, but recently the government has just removed it from the first level of control. Easily said, cannabis will now only become a kind of vegetable or flower! I suggested to the public once that when the gov wanted to remove cannabis from the first level of control, at least there is a need for the second level of the law to control cannabis in many aspects such as limitation to selling cannabis to minors, or no use of cannabis in a public place. But in reality the gov did not prepare any further legislation to control cannabis when removing cannabis from the first level of control. This makes everything that is infused with cannabis become a non-dangerous substance in Thailand, making the status of cannabis seriously dangerous to the society and users of cannabis.”

Q: As of the current situation where we could see that there are legislation or policies passed by the related public agencies like the Ministry of Public Health, would these policies suffice for the cannabis control in reality?

Assoc. Prof. Dr. Pokpong:  “No. The Government is attempting to make sure that there is no problem with the control of cannabis since there are legislations like the Public Health Act or Herbal Product  Act B.E. 2562. However, based on the principle of criminal law, the Herbal Product Act that the Government was trying to implement, is criminal law— since whoever violates provisions under such Act shall be punished with criminal liabilities. The basic principle of criminal law is that no analogy nor extended interpretation is allowed to create any gray area in interpretation. Hence, it is impossible that extended interpretation of the Herbal Act is allowed for the case of cannabis, as it is contrary to the principle of criminal law. Consequently, when there is no part governing the cannabis usage, Thailand is in need of specific law for such case.” 

Q: In your opinion, what is the proper and practical way to enforce cannabis-related legislation? And are there any loopholes in the interpretation of the legislation that you have observed?

[ Despite Thailand’s ease of cannabis laws, currently (25 August 2022), the new Cannabis-Hemp Act is still in the legislative drafting process in Parliament. Moreover, the bill proposed by Anutin Charnvirakul, along with the House of Representatives of the Bhumjaithai Party, seemingly contains several loopholes. 

One prominent example concerns the advertisement of cannabis-infused products. Under section 28 of the bill, any person who desires to advertise cannabis-infused products must get permission from the authority by complying with the stipulated conditions. In case of the advertisement of cannabis-infused products without permission, section 29 states that the authority ‘shall have the power’ to issue an order editing the text, prohibiting the text, or suspending the advertisement. 

Notably, the phrase ‘shall have the power’ confers the authority’s discretion to deal with the advertisement that fails to comply with the stipulated conditions, meaning that there may be an order or no order against illegal advertising. Imagine if the authority does not issue an order against illegal advertisements, leaving them visible to the public. The consumer will misunderstand the quality of the advertised products, and the consumption of which will negatively impact them and society as a whole. ]

Assoc. Prof. Dr. Pokpong : “The drafted specific law concerning cannabis, which is now in Parliament, has many loopholes because it is not the real proper law to control cannabis as it should be. Apart from a loophole regarding advertising that you have noticed, other loopholes include but are limited to the absence of provision prohibiting the smoking of cannabis. The use of cannabis is only proper for medical purposes. I have proposed this idea to the Smoke Committee that there should be a provision in a specific law that “anyone who smokes cannabis shall be punished, regardless of his or her age” as a way to protect the society. If the government desires to utilize cannabis for economic growth, they can say that the use of cannabis is for medical treatment. However, they must have a specific law that prohibits the smoking of cannabis. Anyone who smokes cigarettes has a long-term danger to the lung, but the smoking of cannabis causes an immediate danger to the brian. So, this is why we need this kind of provision in the drafted law. One of the famous doctors told me that the majority of cannabis users consume cannabis by smoking, while the percentage of people using medical treatment is very low. Therefore, if you prohibit the smoking of cannabis, it will mean that you prohibit almost every use of cannabis. 

There should also be a regulation to control the cultivation of cannabis. Compared to tobacco control in Thailand, if you would like to cultivate tobacco leaves, you need a license from the government. However, although cannabis is more dangerous than tobacco,  the drafted cannabis law does not regulate this activity. If we allow people to access cannabis and grow cannabis in their own house, it is very dangerous. Moreover, by acting this way, it would be impossible to control the use of cannabis properly.

Another loophole I would like to share with you is inspired by the ‘Drink Don’t Drive’ concept, which is a measure to cope with road accidents.  According to this measure, if you drink alcohol of more than 50 mg and drive, you shall be punished with a Road Traffic Act with one-year imprisonment even if you do not cause an accident. Now that cannabis has been removed from the narcotics list, it is a very big loophole because people can smoke cannabis, get drunk, and drive without undergoing any legal sanctions. Therefore, there should be a provision in the specific law to cover this issue as well. A provision should be proposed in a way like “whoever consumes cannabis and drives shall be punished with criminal offense”, because this loophole is dangerous to the society.”

Q: And getting into the details of the legislation, what do you think are the problems with the structure of cannabis-related legislation? For example, the immediate enforcement of primary legislation without sufficiently passing necessary subordinate legislation.  

Assoc. Prof. Dr. Pokpong: “When the government removed cannabis from the first level of control, they should have already had the second level of law —a proper specific law— to control cannabis use in place. However, that did not happen. By implementing such removal without having the specific law and regulation, you may see people including minors smoke cannabis in public areas and et cetera.”

Q: In your opinion, how and when should we pass the second level of law? Should we prepare it before we pass the new narcotics act?

Assoc. Prof. Dr. Pokpong:  “ Yes. A proper way to pass the second level of law in this case is to enact a specific act on cannabis control before removing cannabis from the narcotics list. Nowadays, it is already late because we removed cannabis without any specific law.”