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.”
Q: Coming to the sphere of international law, we have seen that this topic has been brought up in the censure debate that delisting of cannabis from the category of narcotic drugs would be a violation of international law, where under the SINGLE CONVENTION ON NARCOTIC DRUGS 1961, Article 2(1), cannabis is still categorized in Schedule I, where only medical use and scientific research are allowed. On the other hand, section 66 of the Constitution states that “...The State should cooperate with international organizations and protect national interests and interests of the Thai people in foreign countries.” Accordingly, would decriminalization of cannabis be considered unconstitutional? If so, what would be the consequences?
Assoc. Prof. Dr. Pokpong: “I don’t specialize in the area of the international convention on narcotic drugs, but I could give you some examples of countries that try to decriminalize the use of cannabis, such as Uruguay, the Netherlands, Canada. These three countries tried to decriminalize the use of cannabis or the possession of cannabis in some circumstances, for instance, personal consumption. But I must tell you that it is very hard to control these actions. It wastes the government budget to enforce the law. So, these countries tried to decriminalize the use of cannabis for personal consumption in small quantities, but in order to conform to the international convention, these countries still consider cannabis as a narcotic drug. Thailand had gone too far, very, very, far. We removed cannabis from narcotic drugs. Therefore, we decriminalize and legalize all consumption of cannabis regardless of how big the quantity is. You can use cannabis no matter how big or small the quantity is. That’s the problem in Thailand. I am uncertain about the consequences contrary to the international convention, what would happen, what would happen next. It would be an interesting topic to discuss further with an expert of international law.”
Regarding the question that decriminalization of cannabis is unconstitutional or not, when you think that the law is contrary to the constitution, you have the right to challenge the act to the administrative court or the constitutional court, depending on the matter of the case. In my opinion, the removal of the cannabis from the narcotic drugs has been done by ministerial regulation because the narcotic drug code was enacted last year. We just canceled the narcotic drug act and combined every act concerning narcotic drugs into one code, called “The Narcotic Drugs Code”. The code prohibited every narcotic drug, including cannabis. However, the ministerial regulation removed cannabis from that code. I think the action has been done by ministerial regulation, not by law, not by the act. Therefore, if one thinks that the ministerial regulation is unconstitutional, one has the right to challenge it to administrative court. But, whether the decriminalization of cannabis is contrary to the constitution or not is also an interesting topic to discuss further with an expert of constitutional law.”
Q: In comparison to the legalization of cannabis in other countries to the situation in Thailand, what is the difference in terms of the state's approach to regulate cannabis?
Assoc. Prof. Dr. Pokpong: “As I mentioned in the last question, these countries still consider cannabis as a narcotic drug and allow the use of cannabis in some circumstances, for instance, personal use in small quantities. But Thailand has gone too far, now, cannabis is not considered a narcotic drug and there is no specific law to control it. In other words, cannabis is free in Thailand. That’s the primary difference. Those countries, such as Uruguay, the Netherlands, Canada, since they still keep cannabis in the category of narcotic drugs, they still have the law of narcotic drugs to control the improper or excessive use of cannabis. The main objective of decriminalizing cannabis in those countries is decriminalizing the use in small consumption because it is very hard to control the personal consumption and it raises the budget. Therefore, they try to keep cannabis as a narcotic drug and only decriminalize personal consumption. As a result, the big production and sale of cannabis are still prohibited in those countries, but in Thailand, it is free cannabis.”
Q: In your opinion, what is the efficient solution for Thailand regarding passing the cannabis regulation law?
Assoc. Prof. Dr. Pokpong: “In my opinion, I think there are only two options from now on. The first option is enacting an effective specific cannabis law to control the use of cannabis, for example, prohibiting cannabis advertisement, prohibiting smoking cannabis, prohibiting the access of cannabis to minors, prohibiting the improper usage of cannabis. The specific law should only allow the usage of cannabis for medical treatment purposes. This is the first option. If we are able to get the first option, I think it will benefit Thai society because we will be able to control the use of cannabis as it should be. However, if we cannot achieve the first option whether because the specific cannabis law has many loopholes or is less controlling by allowing free use and production of cannabis, the second option would be considering cannabis as a narcotic drug as it used to be. It would be better to go back.”
Q: Based on the ongoing situation and recent decriminalization of cannabis, what are the future impacts on Thai society in several aspects, such as economy, safety, health, tourism, international relations, etc.?
Assoc. Prof. Dr. Pokpong: “There are many aspects to be considered. Surely, the decriminalization of cannabis will yield not only economic growth but also growth in tourism from tourists that are interested in cannabis. But we might see minors smoking cannabis in the daytime, skipping school, and being addicted to cannabis at a young age. We might see people driving while being high on marijuana, getting into traffic accidents from consuming marijuana. We might accidentally consume some cannabis in meals from restaurants without any notifications. In terms of policy, I think we need to consider the benefit and the cause to society. If the benefits outweighed the effects, it would be fine to legalize cannabis. But in reality, there are a number of dangers to society from legalizing cannabis in many aspects that outweigh the benefits. If there is a need to promote tourism in Thailand, you should provide specific zones for tourists to consume cannabis and control the accessibility of cannabis to minors, in order to protect the society. It will not be proper if people can smoke cannabis anywhere they want."
Q: I agree. In my opinion, it is not yet the time to enforce the law, because legalizing cannabis is a complicated issue and it needs to be done in proper order, or else it can cause legal loopholes that can be exploited.
Assoc. Prof. Dr. Pokpong: “If we cannot come up with a great legislation to control cannabis usage, it is better to go back to where we were in the first place.” *laughs* “Mentioning that, before delisting cannabis from the Narcotics Code, cannabis usage for medical purposes was already allowed. It is not necessary to delist cannabis from the Narcotics Code.”
Looking at the overall picture, the little Thai Government has prepared for decriminalizing cannabis, the bigger the consequences become. Starting from sudden delisting of cannabis from narcotic substances category to an uncontrollable public use of cannabis, this truly represents why decriminalization of cannabis shall not be done without sufficient preparation by the state. Therefore, the situation of cannabis in Thailand can hardly be directed in a proper way until the government decides to take the right step to control cannabis – either by proposing specific legislations or other necessary means.
Charlie Campbell, ‘Thailand Had Notoriously Harsh Drug Laws. Now Weed Is Legal—and That's Making Things Complicated’ (Time, 24 May 2022) <https://time.com/6208192/thailand-war-on-drugs-weed-legal/>
‘หยุดสุญญากาศ เรียกร้องรัฐบาล ชะลอ ‘กัญชาเสรี’ จนกว่า กม.ควบคุมจะเริ่มใช้’ (The Matter, 10 July 2022) <https://thematter.co/brief/180108/180108>
‘อนุทิน ยันกับสื่อต่างชาติ ลั่นเมืองไทยให้สูบกัญชาเสรีไม่เป็นความจริง’ (Thairath, 17 August 2022) <https://www.thairath.co.th/news/politic/2475220>
ประกาศกระทรวงสาธารณสุข เรื่อง ระบุชื่อยาเสพติดให้โทษในประเภท 5 พ.ศ. 2565, ราชกิจจานุเบกษา, เล่มที่ 139 ตอนที่ 35 ง (ฉบับพิเศษ), (วันที่ 9 กุมภาพันธ์ 2565), ข้อ 1