Transcript of the above video:

As the title of this video suggests, I have had a bunch of correspondence here recently where people have been telling me, I have heard the term specifically "gray area" like three or four times in the last week; I am kind of a believer in the notion of coincidence is God winking at you. A lot of people have been asking me about this and they keep framing it as this whole notion that the legality of Cannabis is in some sort of “gray area” or “limbo” if you will. That is just not the case. Okay, I understand why people might be thinking this and again as of the time of this video we haven't had any new laws promulgated in Thailand yet so we are still operating sort of status quo as to what we have been dealing with roughly the past, what are we at now, 16, 18 months somewhere around there, since these major changes occurred. I can understand why people think it is a gray area because they are conflating the rather anomalous way in which Cannabis came off the narcotics list with its overall legal status.

So let's start off with first of all you have to understand that there is a comparative law element to all of this especially when it comes to the foreigner perspective on this because many folks, especially Anglos, folks from the Anglosphere, English speakers, have these Common Law notions just sort of embedded in their psyche and I don't think people realize how embedded this stuff is until you start really unraveling that in the context of comparative law. And to be clear, I still find myself when I am engaging in exercises of comparative law, continuing to presume Common Law notions in a Civil Law context. Thailand is a Civil Law jurisdiction and part and parcel of that and I have done the videos on this before, there is a Doctrine sort of if you will, a philosophy of law undergirding if you will the entire Civil Law system and that Doctrine is what is called the Doctrine of Codification. Basically what that presumes is a substance or a service or an activity, whatever, if there is no codified law then whatever it is that is at issue, if there is not a codified law that speaks directly to it, it's legal; that's the presumption under the Civil Law. And that is how, I find this rather fascinating -  I remember being in law school and we would occasionally do things engaging in comparative law with the State of Louisiana which still operates to one degree or another under old French law, the Napoleonic Code which is a Civil Law structure. Now how that interacts via the Erie Doctrine and all of this with the Common Law notions is rather interesting and unique in an American context. Setting that aside though, you have to understand, this mechanism, this Doctrine of Codification is the way the Civil Law maintains a degree of liberty amongst its population whereas the Common Law operates in a different way insofar as if a case goes before a Judge for example in the Common Law tradition, via the doctrine of what is called 'stare decisis' or to translate from the Latin "let the decision stand", you end up with a situation where judicial opinions can then be binding on future events even where an adjudication is yet to take place. So a legal doctrine can be created on the bench via an opinion, and then that is binding on a given jurisdiction or the people in a given jurisdiction. This is not how the Civil Law works. Instead, the way that the Civil Law looks at it is they say look unless you, we also have elements in the Civil Law in the Common Law tradition, statutes can be passed, legislation can be made and some of this Doctrine of Codification is inherent in that, even in a Common Law context. But what I am talking about in terms of the Civil Law is they do not utilize stare decisis; they do not utilize precedent in the same way as the Common Law jurisdictions do. Thailand is a good example of this. Now Thailand has certain aspects where precedent may have some application, for example Supreme Court decisions here in Thailand may be binding on later cases to one degree or another but it's really not the same thing. The Common Law usage of stare decisis does not really exist fundamentally in Civil Law jurisdictions. So what am I trying to say here? In Thailand, unless there is a law specifically illegalizing something, a substance, for example Cannabis, if there's not a law illegalizing it then it's by definition legal. That is how it works. You have to use what my colleague Andrew over on Integrity Legal Network occasionally describes as Positive Law. You have to affirmatively pass statutes in order to illegalize something, okay? That is why I have stated multiple times that I don't like the use of the term "decriminalization" when talking about Cannabis because that is not what is going on. It's not a failure of the police to enforce an existing law, it is the fact that there is no law in existence illegalizing Cannabis and therefore pursuant to the Doctrine of Codification it's legal, okay? And you need to understand this because by saying things like "well it's in a gray area" it creates the premise that we somehow need a new law and I don't necessarily agree with that per se. 

Now as we have discussed in other videos, I think that there needs to be some rules regarding where you can use this product, especially not using it in public. I've also discussed in other videos, I think that there should be heavy penalties for selling to people who are underage, under the age of 20 here in Thailand. That is a different thing than the substance itself. And the other problem I have with this, this is not a pedantic argument, this really gets to the fundamentals of how the law works here is this notion "well it's a gray area". No it isn't, it's legal. There is no question about that. 

Okay, so why is there kind of this misconception? Well I think it's the anomalous way in which it became legal, so let's go back and look at our history here. As we discussed at the time and I made videos when this was happening, in fact I have been making videos on this topic going all the way back to when former Prime Minister Prayut Chan-o-cha was using Section 44 power to go ahead and get the whole Cannabis initiative going; we have got videos going quite a ways back talking about all this stuff. But going into what I am talking about specifically in this video is okay, Anutin, back during the Emergency Decree, an Emergency Decree was created which gave a lot of power to the Minister of Public Health during the so-called "pandemic crisis" whatever you want to call that. And as we have discussed, I felt like that was an overreaction, but long story short the Emergency Decree was duly promulgated pursuant to the Communicable Disease Act and the provisions thereto and that resulted in the Minister of Public Health having emergency powers. That meant that he in his capacity as Minister of Public Health, could take extraordinary actions during the time period that the Emergency Decree was enforced. Now I have stated my biases in the past that I do kind of have an affinity for Mr., Anutin on this topic because quite honestly this was a legislative feat that is really paralleled in an American context in my opinion with Lyndon Johnson during the time that he was the so-called “Master of the Senate” if you read Robert Caro's book by that same title Master of the Senate, you will read about how LBJ was truly a legislative genius in many ways, there's no other real word for it. And I have got to be honest with you, the mechanisms that Anutin used to trigger the legalization of Cannabis were pretty darn sublime. I mean it was really interesting to watch as someone who is kind of a student of political science and law and history and the legislative process and is a naturalized Thai who just kind of finds the mechanisms of the Thai Government rather fascinating at times in my capacity is sort of a newbie to all of this, I found it really interesting to watch. So what he did was when the Emergency Decree was still operational, he pulled Cannabis from the narcotics list. So in Thailand narcotics are illegal, and they have much like the United States, it actually looks very similar to the statutory structure of the United States where there are all these lists and different things that are on different lists have different criminal penalties associated with usage or trafficking or whatever, there are different rules regarding how punishments will be meted out regarding the possession for example of a narcotic. But Anutin using his emergency powers, removed Cannabis from the narcotics list. When the Emergency Decree came to an end back I believe in 2022, I think it was October, the result was we went back to status quo ante where the normal Parliamentary due process procedures applied. But Cannabis was now not on the narcotics list, which the narcotics list was the mechanism by which, pursuant to the Doctrine of Codification, it made Cannabis illegal but by Cannabis being pulled from that list and then the Parliament sort of going back to status quo ante before whatever it was March 20, of 2020 when the Emergency Decree was promulgated or thereabouts, it was around there, we are back to the standard way the law operates in Thailand and we are back to the standard way legislation is promulgated in Thailand. So Cannabis was then and is now legal because there is nothing on the books in Thailand, there is no statute presently that illegalizes it. Again, I can understand how people think there is a gray area conflating this anomalous and I state that again "anomalous" and really in many ways quite clever way in which Mr. Anutin removed Cannabis from the narcotics list but the fact remains, the result is under the fundamental notions of Civil Law and the Doctrine of Codification or the lack of codification of a statute illegalizing Cannabis, Cannabis is legal; that is just the way it works here.

So anybody that is talking about that "there's a gray area" and "this is in limbo", that is just an incorrect way of looking at it and quite honestly it is a bad premise from which to start even a discussion about any future legislation regarding Cannabis because at the end of the day any future legislation that could or would be promulgated is going to be a restriction from what we have right now which is simply Cannabis being legal. Now again, there are currently regulations, Ministry of Public Health rules regarding this as we have already discussed; you can't sell the folks under 20; you can't sell to pregnant women, that is governed by some internal regulations pertaining to controlled herbs at the Ministry of Public Health and it also gets into the Thai traditional medicine sort of rubric that we are dealing with as well here - I am not going to get into all the details of that - I just want to get from a comparative law standpoint so that Westerners better understand this. You can't think with a Common Law brain when you are looking at this, you have to look at it from a Civil Law standpoint. Now admittedly as I said, this occurred in an anomalous way because of a very clever legislative initiative or circumvention in a certain way if you want to look at it like that, but I don't even look at it like that, it was a clever way of utilizing the mechanisms and levers of legislative process here in Thailand to end up with a situation wherein Cannabis is now legal. That's where you have to start any analysis because this notion that it is a “gray area” then sort of implies that well we need further laws or things like that. I don't necessarily agree with that premise that we are in a gray area and therefore "oh where is the Government to save us?" I think it has proven roughly the past year that quite honestly the market can kind of take care of itself; society can generally overall handle this and again the sky hasn't fallen but again as I have discussed in other videos, I don't have any problem with enhanced penalties associated with sale to underage folks; I don't have any problem with legislation or regulation regarding where this stuff can be imbibed upon. That said I think it is very, very important that people understand the exact fundamentals regarding the legalities with respect to how Cannabis, its legal posture if you will, here in the Kingdom of Thailand.