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Media Misconceptions & Mask Mandates in Thailand

Transcript of the above video:

Hello my name is Benjamin Hart. I am an American Attorney and the Managing Director of Integrity Legal here in Bangkok Thailand. I am also a Thai citizen. I am a naturalized Thai citizen here in the Kingdom. This video is more of an opinion piece although we are going to be doing some rather deep legal analysis but mostly in the context of the way the media has described this so-called "mask mandate" regime or as it should specifically be put "mask mandates". These seem to have been promulgated initially, not fully promulgated but they were decreed if you will, by the local Governors of various provinces and as we will get into, there has been a lot of media misconception in my opinion regarding this overall topic and we are going to try and sort some of this out and deal with some of the things, and people seem to be getting in my opinion, rather hysterical frankly on many sides of this issue. 

This is not an anti-mask video; this is not a pro mask video. This is more of a "trying to have some common sense and take a deep breath and let's look at the situation for what it is" and also try and suss out the difference between sensationalism and the actual law and the actual regulations and what is going on here because frankly and I am saying this as a Thai, I am getting kind of tired of the hype surrounding this. The regulations such as they are, and we will get into that here in a minute, because I think the legal analysis that there is even an ability to mandate this is rather spurious. Now we will get into that here momentarily but yeah, there has just been a lot of I think tensions are high. People don't like that we are in this non-lockdown which it is not technically a lockdown but basically we are back at basically where we were at back in like February, early February or January where restaurants cannot have dine-in services here in Bangkok at least. Obviously there are no bars; there is no entertainment; there are no major group gatherings; there are no concerts. We are basically on all but lockdown. You basically go to work and even then there are certain restrictions associated with that. It is my understanding the parks are closed which I really do question the common sense behind allowing people to be out in the open air and we will get kind of into that. Now again, this isn't pro or con. I view myself as kind of middle of the road on the overall issue and where I would create kind of a spectrum here, I don't want to get into efficacy a great deal but I think you have to or at least you have to get into the mask efficacy debate for a moment, in order to discuss law and policy and this is in any context. So for example, coming out of the US or out of the West, and there seems to be this same kind of debate although I think it is a much more slanted debate in the sense that there are a lot more people and I think it is due to a lot more people not really understanding the issue as a whole but there are a lot more people seemingly here in Thailand that seem to be on one side of this issue as opposed to the other. In for example the US, it seems to be a little bit less lopsided debate I guess you could say. Now I understand there is a lot of politicization that has gone into this whole issue. I don't want to get into all of that. The only reason I am even bringing up efficacy is the way I view it is sort of there are two poles of this debate and then there is a gray middle. There is one pole, there are sort of two different polarity to this. There is a segment of one side of the overall notion of this that views "mask efficacy" as self-evident if you will, that they are clearly very, very, very effective at either mitigation or stopping the spread of COVID. I don't know. I don't know what the answer is to that. I am not a doctor; I am not epidemiologist; I am not a virologist. It is not even within the bailiwick of this. On the other side there is and I think this is overall a smaller group worldwide, but I don't think it is that much smaller necessarily compared to its relative counterpart, on the other extreme it is folks that just don't believe it works at all or don't believe in the efficacy of masks whatsoever. That is on the efficacy debate. Then in the middle, I think that there are quite a number of people that fall somewhere in there that kind of say "well I don't know" and they feel and I use this word specifically they sort of "feel" one way or the other about it from an efficacy analysis standpoint. Albeit they may not necessarily have a lot of data points, they just feel a certain way about it. I kind of think and this is my personal opinion, that where you are demographically probably factors in a lot to that. If you are an older person, above 60, who have certain preexisting conditions you may really feel, and you may be right frankly, the use of masks by those around you may have a profound effect on whether or not you may be infected with COVID. At the same time, if you are 24 and you are fit as a fiddle, you may not view it in the same light. So let's start there and understand that there is this efficacy thing. That is not the purpose of this video, I am just talking about that as a background. Full disclosure, where am I at? I am somewhere in the middle but I am in the middle on the standpoint of, I don't see that there is a lot of data points on either side to support the notion that it is this overarching exigent need that we must all be masked at all times. For that reason, for a lot of other reasons, but for that specific reason on the efficacy issue, just my personal opinion, I don't see where it needs to be mandated to the level, at least here in Thailand that it is currently being mandated where they are saying at least to even leave your house you have to wear a mask. I am sorry, I just don't agree with that based on the data, or perhaps I should say the lack thereof regarding exactly the efficacy of this etc. Do I understand the argument in favor of masks for example on a crowded sky train car? Sure. I can totally understand that argument. Do I necessarily want to wear a mask on a crowded Sky Train car myself and therefore do I not necessarily use the Sky Train? Not as much as I once did because understanding the regulations, that is a private enterprise there and they are saying "look in order to use this conveyance, you need to be masked up." I use it a lot less than I would say I used it in the past but I do a lot of things a lot less than I did in the past prior to this COVID response coming down. Those are my personal opinions and I put them on these videos, not to advocate them. I want to be clear. It is so people watching these videos can understand my bias so when we discuss this stuff, especially in the legal context that we are about to get into, you understand my bias so that you can make your own decisions about what you think regarding all of this. I do have some real issues with the way in which the media has been portraying the promulgation if you will or I should say the announcement of these decrease that "masks must be worn at all times out of your house in Thailand." The way that this is being reported in my opinion, I won't say it is disingenuous but I definitely think it has been sensationalized and I definitely think it glosses over a lot of the finer points that if people really thought about it, they would sort of say, "hey wait a minute, the entire legal basis for this is somewhat shaky and then on top of that, these presumptions we have about these requirements aren’t exactly what they seem at least based on what the media is having folks believe. Maybe I shouldn't say "having them believe", but it is just perhaps at times omitting or glossing over.

A recent article from the Bangkok Post print edition, this was from Saturday May 8th, 2021. This is one of the latest things I have seen on this. When I read it, I got a little bit for lack of a better term annoyed, because there was a lot in there that again was being stated as legally a foregone conclusion for lack of a better term. The article is: Government to Cut Fine on Face Masks. Bangkok Post print edition, Saturday May 8th 2021. I am going to quote more than I usually quote out of this stuff. Usually I like to take little excerpts but there was a lot in this one and buckle up, this is a bit of a longer video then some of the videos we usually do. Quoting directly: "The Government is set to reduce the fine imposed on people who fail to wear face masks in public from 6,000 Baht to 1,000 Baht for their first offense." To be clear, this isn't in the criminal law so to call it an offense I think is a little bit, I don't think that that is the right terminology, first incident maybe. Quoting further: "Those who break this law," (now I am going to get into this here in a minute) "those who break this law can currently be fined up to 20,000 Baht with the first time offenders being fined at least 6,000 Baht."

Let's be clear. To proceed further because there is a bunch of other things I am going to cite where they say "law" or "regulation". This is not a law or a regulation in the sense, let me be clear on this, that there has been a piece of legislation which has been promulgated through Parliament and gone through the Cabinet and then has been published in The Royal Gazette which explicitly states "people shall wear a face mask upon leaving their home, the penalty for such is a 20,000 Baht fine." There is not any Statute that states it like that. I think people have a misconception on this because of the media, because the media is saying "this law" okay?  Yes there is law and in the description to this video below, we are going to put up a link to another video I did on this which is another half hour long video, where I went through the Communicable Diseases Act of 2015 and we broke out the basis that is being cited for making these for lack of a better term, "decrees" if you want to call them that or making these "citations" okay? As I noted in that video and we will note further here because I will go back through the analysis again, there is a Communicable Diseases Act of 2015 and in fact let's just go ahead and get into it right this second. I am going to go ahead and have our editor put up the relevant section; I did a whole video on this. I will put it in the description below. We did a whole video on this. It is like 30 minutes long where we broke out but basically to summarize, they were citing section 51 of the Communicable Diseases Act of 2015. Section 51 is the enabling language which takes you to section 34, specifically subsection 6. They note a bunch of subsections under there most of those and I urge you to go check out that video because it goes into great detail, but long story short the only provision I could find which directly seems to be able to be what they are hanging their hat on with respect to these mask mandates, and let's call them that. They are mandates, okay? This isn't a law, this is a mandate that has just been announced by the Government and then they are citing this piece of legislation but again and I want to be clear on this there is no Statute that is just written specifically which says "if you don't wear a mask outside your house you are fined 20,000 Baht." That is not what is happening here. These officers of the Government, for example these Governors, are interpreting the Communicable Diseases Act to say folks that don't comply with this "mask mandate" have to pay this fine. The section that I could best come up with, and we did all the disclaimers on this in the other video, I will quickly do it briefly again: I am an American Attorney. I have dealt with Thai Law for a number of years. I am not a Thai attorney I am a Thai citizen. This is also in the English language and as they discuss in the copy, we will go ahead and put the disclaimer up too from this same page of the Communicable Diseases Act from the Office of the Council of State. The Thai is compelling; the Thai language of this legislation is compelling. That is the controlling language. We are using this for informational purposes but I have discussed this with Thai lawyers, folks who are fluent in Thai not only Thai but Thai legal language, I have a working command of Thai, definitely not good enough for videos and such, well I guess it could be but I just prefer not to do it but I have reviewed this and my theory of this is pretty sound based on the actual verbiage, the plain language of the Statute. So again, we are going here to 34 subsection 6 of the Communicable Diseases Act which is what section 51cites which is the enabling for the fine and it simply says "to prohibit any person from carrying out or performing any act which make cause unhygienic conditions that may result in the transmission of the dangerous communicable disease or epidemic." My thing with this whole mandate is this mandate is not prohibiting, in my analysis, prohibiting anyone from doing anything. What it is doing is actively and affirmatively compelling someone to do something. It is compelling people to wear a mask. I mean the only other way to look at it from my perspective on this or at least in my opinion, then it is a prohibition on breathing is the only thing that I can surmise from the analysis of this specific subsection which I can't find any other subsection of the Act which clearly provides this power. Again, this is not a Statute that says you must wear a mask or you are fined this amount. Based on the announcements made at least from the Phuket Governor which cited section 51 of the Communicable Diseases Act, this goes back to this: subsection 6 "to prohibit", and conceptually it is the same in Thai, to prohibit to forestall. Well they are not stopping you from doing anything, they are requiring you to do something with this mask mandate. For that reason, it causes me to question on a legal level the authority there because the law here is saying they can prohibit. What is the prohibition exactly? Is the prohibition on breathing outside your home? I thought that we as Thais had certain inalienable rights, most notably the right to breathe so a prohibition of that seems kind of at odds with the Constitution but that is kind of beyond the scope of this video. Okay, so going back. The first thing I wanted to note on this is this constant reference to this as a law. In one sense yes, they are citing a law but it is very different and I think this is a nuance that is not semantics here, okay? The difference between an actual promulgated Statute that said "you have to wear masks or you face a fine of 20,000 Baht" is a very different thing than them kind of interpreting in to the Communicable Diseases Act, this ability to fine people based on this notion that they can prohibit things that could be deemed unhygienic, I think that analysis is attenuated at best. Probably in my opinion, the better description is spurious, but okay let's set that aside. 

Another thing to keep in mind, the Communicable Diseases Act was promulgated in 2015. This was not promulgated under a legislative structure that was democratically elected. Let's also note that. I don't want to get too deep into that. This definitely isn't a political thing but we are talking policy, we are talking law. People are saying that this is based on a law. Well okay if you are going to say that, then let's look at the law and let's look at the policy behind it and let's look at how that law was created. The fact is that this law was not created post 2019 under the current Government. This was done back in 2015 under the National Legislative Assembly. It was a very different body than what we are dealing with today. You can go and look at that but historically that is the case. So, moving forward that is just sort of on the issue of the law. Then at the same time, the media in my opinion, again a lot of things in this just I hesitate to say they rankle me, but they are cause for concern, at least in my brain. 

Moving forward. Quoting directly again from: Government to Cut Fine on Face Masks, again this is Bangkok Post print edition May 8th, 2021. Quoting further: "More Police Officers and staff from the Department of Corrections," (so the Department of Corrections, the prison? The prison officers are going to be helping with this?) "are expected to be tasked with enforcing "the face mask policy". Well what is it? Is it a face mask law or is it a face mask policy? Because those are two very different things and if it is not a law then it doesn't have enforceability. In my opinion, that is a different thing but okay we will give them some poetic license; it's a newspaper report. Quoting further and quoting directly from Anutin Charnvirakul who is the Public Health Minister, quoting: "Apart from the face covering policy, social distancing and hand washing are still important measures to help us overcome the COVID-19 crisis Mr. Anutin said." Okay, and this is a good question, why aren't they law? Why isn't hand washing, Law? Why isn't social distancing, Law? Why were masks picked to be made Law? Why was this "Law" created for these masks and not social distancing and hand washing if they are just as important? I would posit that question out there. Quoting further: "Opas Karnkawinpong, Director General of the Department of Disease Control said first time offenders would be fined up to 1,000 Baht while second time and third time offenders would be fined up to 20,000 Baht." okay? This quote I thought was odd: "The policy was designed to make people aware of the COVID-19 situation, Dr. Opas said." Now first part; the policy or the law? Is it a policy or is it a law? Is it the policy of the Government to recommend this or is it a law? What is it? If it is a law I mean again it is not some regulation that has been specifically spelled out. They are using again the Communicable Diseases Act which does not in and of itself specifically state that this has to happen and that you can fine people arising from that specifically. It doesn't spell that out. Again I find that concerning. More than that, quoting again: "The policy was designed to make people aware of the COVID-19 situation." Really? We are pretty aware. It has been a year. As I have said in another video, this is this is now May 2021; this is not May 2020. Believe me, the small business owner who lost his business is well aware of COVID-19. The people that can't come to Thailand and have effectively been kept from reuniting with their families, they are well aware of COVID-19; people in the business world, people in the tourism sector, they are all aware of COVID-19 so if this thing was promulgated specifically to be out there as advertising for COVID-19, believe me that was not necessary, okay. 

Now getting into the nuts and bolts side of this, that is kind of the legal analysis and clearly a little bit of ranting on my part, I am sorry for the rant there but I have been kind of concerned about the way the media has covered some of this. Meanwhile, there have been news reports on the nitty gritty, the practical implications of this new law, policy, whatever you want to call it. Before we go there I thought it was worth noting. This is quoted from the WHO website, Coronavirus Disease (COVID-19): Masks, 1st December 2020: Q&A.  Quoting directly: "When outside, wear a mask if you cannot maintain physical distance from others. Some examples are: busy markets, crowded streets and bus stops." Now the reason I am citing the WHO here is 1) I think and there are people across the internet that have all kinds of opinions on the WHO, especially here recently, I still view them as being somewhat definitive on these topics. Not even somewhat, as a definitive resource in the discussion on these topics. Also and I want to be clear on this, I think the WHO always defaults to a more conservative position and when I say conservative, I am not talking politically or anything. I am talking they are just going to be more stringent in what they recommend because they know that their language is used by people to set their actions and reactions accordingly. So they know that if they say “face masks aren't that big a deal", people will just disdain them. A certain segment of population will disdain face masks entirely and that could cause a problem so they have to be very measured in what they say. But again, this is interesting because the Thai rule, as the media is out there proclaiming, is one of "you cannot leave your house without a mask or you get fined!" Well, is that warranted?  And again, quoting directly from the WHO, "When outside, wear a mask if you cannot maintain physical distance from others. Some examples are: busy markets, crowded streets and bus stops." Well in the absence of that, shouldn't the Rule of Reason apply? The thing that has concerned me about this and I am going to get into this here in a minute and this is on both sides, there have been folks that, I am not necessarily advocating an end to this mask mandate. What scares me is that this is a rule that says you have to wear something from the moment you leave your home. I find that concerning, just again personal disclosure here, I find that concerning just on a basic liberty level, both in an international context, basic human rights and as a Thai. There are inalienable rights associated with being a Thai, associated with being a human and my opinion is that breathing in an unfettered capacity, so long as it is not unreasonably harming to other people; you are not going to walk into a Cancer ward where you have got somebody who has undergone some kind of radical procedure that causes them to have no immune system, no I am not going to go walking in there and just bothering them. But when I walk outside my house and there is nobody around but I have to have a mask on, that seems a little over the top to me on a personal level. Again full disclosure; this is my personal opinion. Back to the overall analysis here which brings us into some of these news reports I have seen, and they are very concerning for both sides in my opinion. Again,, this one is titled: Pattaya - Time for the Police to Fine Tourists for Flouting Mask Rules, says Thai Media. Quoting directly: "Sophon Cable TV on Facebook, published pictures of white foreigners "brazenly," (I love the verbiage, the phraseology), "brazenly walking about the beach area without wearing masks!" Quoting further, again it really rankles me on this: "Strict regulations are now in place in Pattaya after establishments were ordered closed and other restrictions including compulsory face mask wearing outside were introduced as part of the deep red zone measures." Well regulations, again where? These mask mandates are not codified in specific language in the Communicable Diseases Act. Let's go ahead and put these photos up of these farang "brazenly" walking. I have to be honest with you. First of all "brazenly walking about the beach without wearing masks". That is correct but if you notice first of all they are carrying them, okay? Secondly, is anyone else around in these photos? This is my concern. Again, where is the Rule of Reason? Why has this become dogmatic?  You know, "you have to wear a face mask when you leave the house" well yeah and as we will get into another video, I do see the argument and I understand why people say “look a crowded Sky Train, we have got this epidemic; we have got this pandemic; we want all folks getting on the sky train to wear a mask because it is crowded, you are up next to people." yeah okay I get it. Markets? Yeah, okay I get it. Supermarkets? Yeah, maybe depending on circumstances, but okay I understand the argument. Also, private enterprise, if private organizations want to say look in order to come into our place, this is our rule. Going back to the whole notion of "no shirt, no shoes, no service", people have a right to refuse service in their establishments. I can understand that. If they say look we are more comfortable with people wearing masks, I get that. I want to be clear I am not this ardent anti-masker. What I am ardently concerned about is when a Government, any Government, mandates that I have to wear something at all times. That scares me a lot and again going back to these photos putting these back up here. These two seem, it's all blurred out, these two, I think I know where they are at. It looks like they are over on Jomtien Beach. There is no one else around these two okay. There is two of them and they don't seem to be walking along hanging on each other or anything. They are walking all along like two normal people. Presumably they know each other so if they are going to spread this disease between each other, they probably are going to or already have done so. But more concerning to me, again going back to this WHO quote: "when outside wear a mask if you cannot maintain physical distance from others. Some examples are busy markets, crowded streets and bus stops." Well are they on a crowded street? No! Are they in a busy market? No! Are they at a bus stop which is crowded with people? No! No they are walking outside, there is no one else in the view okay?  Apparently according to this article from Thai Visa, again the article Pattaya - Time for the Police to Fine Tourists for Flouting Mask Rules, says Thai Media as they say in here you know apparently there is people that are saying: "they need to go after these folks" a kind of an almost digital lynch mob almost seems to have arisen around some of these photos of people where people are saying "you got to go after them and get them!"  Why? The reason behind the rule is, like the WHO said, “to mitigate spread in these crowded areas” but people are going nuts over this. Again, as I have said in a lot of these videos, can we take a breath and look at things reasonably. Again, I get it. Getting on the BTS Sky Train at rush hour yeah okay, it makes some sense under the current circumstances, and to be clear not for the rest of our born days. I hope everybody understands that but for now where we have this situation and we have got this thing and it is infecting people and it is certainly a real disease, there is no doubt about that. I get it. And we have yet to get the vaccines here in Thailand to really get people inoculated, those who want to be, yeah I get it. But again these photos and to see the sort of vitriol unleashed against these folks that are in these photos, I just don't get why. There is no one there. It is not even in line with the spirit of law let alone the policy which underlines the "law" because again this isn't a "codified rule" that says you must wear a mask outside or face a 20,000 Baht fine. No, it is based on this "they can prohibit things based on the Act. It is very vague, as we have discussed. Again, I am not really calling this guy out but just in the same vein I am going to go ahead and put this up. It was a tweet from Richard Barrow. I really like Richard Barrow. I like reading his tweets but again this is a misconception. I don't think in this case he was intentionally trying to mislead or anything it is just words have a power and they get into the zeitgeist on their own and they can gain a life of their own. The perfect example is this tweet. "A reminder that it is compulsory to wear a mask at all times whenever you leave your home. This is now law in every province of Thailand. If you don't want to do it for yourself, please do it for others, thank you". Again this is now "law" in every province in Thailand; no it is not. It is the interpretation of a law that is being decreed as a requirement, as a mandate in these provinces by these local Governors and that is a very different thing from codified Statute. Again the uses of these phrases are important. There is a big difference between a law and just what some Government Officer says is required. 

So there are two sides to this whole argument of masks generally, not so much the law on masks. I have to bifurcate my thinking a little bit sometimes but just to show I am in the middle on this and I think that there are ways to be reasonable about non-mask wearing; I think the notion that you have to wear it outside at all times is pretty absurd but at the same time again Rule of Reason applies here and that Rule of Reason can cut many different ways. Quoting directly from another article from Thai Visa,, the article is titled: Non mask Wearing Foreigner Makes National News- Sticks his Middle finger up and Refuses Free Mask. Quoting directly: "A foreigner who couldn't care less about the strict mask regulations now in place in Thailand has made the National Channel 7 news with his actions. They included a video of him sticking his middle finger up when confronted by locals at the Hang Dong market in Chiang Mai about his bad attitude." this is what I thought was interesting. He was hanging around at this market apparently according to this. And quoting directly: "He was reportedly denied entry to the market but continued to mill about and displaying poor behavior to officials who confronted him." Well I will tell you, if somebody came up to me and I am on an empty street or a very uncrowded street in Thailand and I just don't happen to have a mask on, I am going to have some issues with that. Now if I am trying to walk into an establishment or I am trying to walk into a crowded market here in Thailand, a little different, and I wouldn't do that, let me just be clear personally. But if Thais asked me and said “look you can't come in here unless you are going to wear a mask", okay. To me there is a Rule of Reason there. I can understand the argument at least in favor of "look we have got a bunch of people. We are all crowded around each other. This thing is spreading; this is our concern," all right. I can understand that. To become hostile and to flip people off over this thing, that is just wrong. Again the Rule of Reason; that is not reasonable behaviour in my opinion. 

To sum this whole thing up it has really rankled me these last few weeks, and it has only been a few weeks that we have been having to deal with this. I find it very interesting that it seems in other countries the topic of masks, the narrative is starting to kind of thaw if you will because again I am not getting into the efficacy issue deeply but I don't think there is a great deal of data out there one way or the other on if masks do anything. In light of that and in light of the fact that whether or not they do anything this, is my concern is more from a liberty standpoint and a human rights standpoint, I have a real problem when anyone tells anyone they have to wear something. That is a very slippery slope. It can lead to some very dangerous things. There have been a number of regimes in the past, throughout the world by the way, and I am not just pinpointing Thailand on this, the US has had these and they have had them and repealed them and done all these kinds of things, just as concerned in that context as well but when a government can tell you what you can or must wear, you need to at least perk up and be concerned and want to know more deeply how exactly that works, at least in my opinion.

Long story short, in my opinion the thing to take away from this video when you are reading the media and they first of all refer to this as a law, I hope you understand there is a lot going on with that between this video and another one on this topic. I hope there is enough there that people can understand just exactly what the legal posture of this all really is. The other thing is, yes I understand people's concerns and while on the one hand I think that there are people that are kind of hysterically in favor, there are clearly people hysterically against them. There has to be a Rule of Reason here. There has to be some kind of way to meet in the middle and find a way to deal with this without bothering people who really aren't doing anything out on an empty street and also dealing with folks who are trying to go into crowded places and not really adhering to the current policy.