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As the title of this video suggests, we are discussing the issue of guideline versus law. It pertains to Cannabis but we're going to get a little bit deep into some basic legal concepts here. I'm doing this from the standpoint of somebody who has some expertise in the Law, holding a Doctorate of Law, but also some expertise in terms of Comparative Law etc. As I've explained in other videos, and I don't know how many times I have got to re-explain this, but I'm an American Attorney. I'm a Thai national, I have Thai nationality, but I am an American Attorney, I'm licensed in the American Courts I'm not a Thai Attorney, I don't have anything to do with the Thai Court system, I do hold a Doctorate of Law. I have become Thai out here over my time and I do engage in what I can only describe as sort of exercises in Comparative Law regarding just basic legal concepts. But this issue of Cannabis is something that I've been watching since it bubbled up if you will out of the prior Government. Frankly initially it arose and got my attention when Prayut, then the Prime Minister of Thailand, utilized Section 44 powers pertaining to Cannabis and we saw really from that point there was a definite paradigm shift, but we also saw everything that we have seen play out really stem from that. So I've been watching this a long time, and on top of it, I like to think that I have at least some insight that can be brought to the overall issue of regulation, as well as promulgation of laws regarding Cannabis here in Thailand because as I have discussed in other videos, there has been no promulgation of actual law with regard to Thai Cannabis. We have seen changes in the way law enforcement functions for a variety of different reasons, and that stemmed from the fact that it's not so much that a law was made, but that something became legal in a plenary sense, which I will get into here in a moment in terms of the analysis when I get into this citation. 

That said, before jumping in, I've had folks over time ask us, "How can we support you? I may not need to use a law firm, is there anything else we can do to support you?" As I have discussed in other videos, my better half and I set up a restaurant here in downtown Bangkok, the name is Pancake Palace; as the name implies it's breakfast any time as well as other American Diner style food: hamburgers, cheeseburgers, hot dogs, chilli dog, buffalo wings; again breakfast anytime. We have also got grilled cheese sandwiches, glass bottled Cokes; we have got tacos now. If you're interested and you're in downtown Bangkok and you feel like having some American style food - we also have a British breakfast on the menu as well - please feel free to come on by, links are in the description below for the location. We would love to see you. Now that said, let's jump in here. 

I thought of making this video after reading a recent article that the Thai Enquirer posted on X so it's @ThaiEnquirer on X. Quoting directly: Cannabis Shops Face Immediate Licence Revocation for On-site Smoking, Online Sales. First thing I would say is Mr. Anutin said that look whatever was happening with regard to Cannabis, those who already had their licences could run out the time on their licence under the terms that those licenses were issued. So that would be the first thing I would be saying before jumping into any of the rest of this. How can we be bothering people that are operating under the pre-existing licencing criteria? And how is it considered fair to just sandbag them and start changing things?  And as I will explain here in a minute, without a lot of legal foundation to do any of this too. Quoting further: "Cannabis shops that allow on-site smoking or sell products online, face immediate license revocation under tougher penalties introduced by the Public Health Ministry." But here's the thing. The Public Health Ministry doesn't really have this authority, notwithstanding the fact they say they do as I'll get into, they don't, and it's even evidenced in this article itself. And tip of the hat to whoever wrote this because their writing elucidates and articulates the exact difference between a law and a rule, or guidelines it's actually the important part, and that's the reason for the thumbnail, and the reason I said rule right there, and conflated that and I needed to correct myself. But as in the scene in the film Pirates of the Caribbean, which the original Pirates of the Caribbean movie is a lot better movie than honestly, as a guy that watches a lot of movies especially during that time, it was a lot better movie than I would have expected it to have any right to be; it's actually quite a good movie. But there is a great scene where the gal played by Kiera Knightley is in a tête à tête with this pirate captain played by Geoffrey Rush I believe is his name, and she's using the terms of ‘parley’ which is an old pirate term - there were certain rules set forth by these Pirates and how they would operate when they interacted with each other - she sort of invokes these rules, and then she starts basically hammering away at some of the finer points of it. And finally - his name is Barbosa in the film - turns around, Captain Barbosa turns around and he says, "hey, they are more guidelines than rules", and his point was, it's not like this stuff has the strict power and authority of the law, they're just sort of guidelines, and that is the point here. Again quoting: "New enforcement guidelines allow authorities to suspend licenses for up to 90 days for violations including failing to submit required reports, advertising Cannabis products, selling Cannabis without a prescription, or exporting products without notifying regulators." Now, here is the rub from where I sit, from the standpoint of them trying to do this. One, when did guidelines ever become laws?

Again, as pointed out in the thumbnail, guidelines themselves are already a losing goosey term. It's not, and again, as I've discussed in other videos regarding Cannabis, let's just go ahead and rehash this right here. Mr. Anutin, brilliantly by the way, I have described this before as levels of politicking on par with, read the book Master of the Senate about Lyndon Banks Johnson when he was in the Senate as I believe the majority leader and the minority leader if I remember correctly, I think it was majority leader at one point. In any event, he basically, there's all kinds of legal minutia that is pointed out in that book and very much akin to that kind of thinking, Mr. Anutin when he was the Public Health Minister and this is key, under the Emergency Decree that had been decreed in March of 2020 pertaining to COVID, and we were still operating under that when we got to 2022 when Anutin did this, he pulled Cannabis off the narcotics list, he just pulled it, and then the Emergency Decree ended. Now he pulled it and he set some rules associated with it while still operating under the Emergency Decree. Namely, you could only sell it to folks who were over 20 and you couldn't sell it to pregnant women; those were the original rules. You also had to have a Controlled Herb Licence in order to do it. Now why is this important? Because that initial action was done under the Emergency Decree of the Communicable Diseases Act promulgated previously, now reasonable people can disagree, but it was promulgated under the National Legislative Assembly, but it was promulgated under a Parliamentary body that created an actual law, i.e. the Communicable Diseases Act. Utilizing the Emergency Powers stipulated under that Act, Mr. Anutin pulled Cannabis off the narcotics list. In that moment, he made Cannabis into effectively any other type of agricultural product if you will. It's like a pot of plants. Cannabis flowers could be viewed in the same way that tulips could be viewed, the moment that he legalized it that way - and that is the correct term - not decriminalized, legalized. Why is that? Because in doing it, he legalized something, not illegalized something, which we will get to here in a moment. 

Illegalization of something under a Civil Law System as operates in Thailand, requires that folks adhere to the Doctrine of Codification. What does that mean? In a Civil Law System, to make something affirmatively illegal, you have to promulgate a law. Now oddly, that sort of concept is turned on its head when Mr. Anutin legalized Cannabis by pulling it off the Narcotics list unilaterally, when he created the legal framework under which we are operating now. But when the Emergency Decree ended, anyone's ability to do that in what would otherwise be described as an arbitrary and capricious manner and a not legitimate manner for purposes of legislating, everybody that came after that, including Mr. Anutin himself, is operating outside the parameters of the Doctrine of Codification. What does that mean? They need to pass a law through Parliament and then regulations can stem therefrom. They can't just run around saying, "oh, well we have new guidelines. If you don't adhere to these guidelines, we are going to shut you down." Based on what authority? What legal authority is that based on? We know the legal authority that legalized Cannabis and at the moment the Emergency Decree ended, there was no way to unilaterally change what had been created in that moment without promulgated legislation, which we do not have. So I question what is even happening with this notion of new enforcement guidelines. I had problems with it in the last Government. I was hoping this Government was going to create an actual body of law - they don't seem to be interested in doing that yet - I don't know what's going on. I still don't understand what Parliament is doing a lot of the time with respect to this. This is a perfect example. All we need here is a Parliamentary Act that regulates issues pertaining to Cannabis and we are not getting it. What we are getting is a bunch of people saying, "oh, I can just issue guidelines and revoke your licence." Well folks that obtained these licences detrimentally relied on the privileges granted by these licences under the terms under which they were granted.

Now if an intervening Parliamentary Act comes through then yes, it would supersede that detrimental reliance, but that's not what's happening here. It's just the Ministry of Public Health saying, "oh well, we have "new enforcement guidelines". What are those, because they're not laws. Regulations stem from promulgated law. There is no promulgated law regarding Cannabis in Thailand. And as I have discussed, limited to the restrictions placed on Cannabis at the moment Mr. Anutin pulled it off the Narcotics list and created the Controlled Herbs Licence and created the age of consent for it being 20 years old, and said no pregnant women could buy it, anything else, we would need to see promulgated law and regulation stemming therefrom in order to materially change that, because otherwise Thais are having their liberties abrogated in contravention of the Doctrine of Codification. Quoting further, and I'm just quoting this. "Licences will be revoked for operators found selling Cannabis to people under 20" - fair enough, fair enough. If you're under 20, that was part of the original restrictions. That said, this other stuff: "Students" - what if they're a 21-year-old student? It is possible to still be in college. Again, the original rules were just "no one under 20" and those are the only rules that to my mind are still legally legitimate. Quoting further: "Pregnant or breastfeeding women without a prescription." Well pregnant women it was always restricted. Quoting further: "Allowing smoking on the premises." Well look, you didn't make that rule. Anutin did not make that restriction at the time this was pulled off the Narcotics list utilizing Emergency Power. You want to make those changes to the rules, to the laws, you need to promulgate a law. It's not just "we get to say whatever we want to say" in an arbitrary and capricious manner. And I know that there are foreigners especially be like, "well, it's the Ministry of Public Health" I get it. It's the Ministry of Public Health. It doesn't mean they just get to do whatever they want. What stops them from just saying tomorrow, "oh you can't buy basil leaves or sage and thyme to make a soup". What's the difference? There isn't one. They want to change things this way. They want to change the rules regarding Cannabis sales, make a law. That said, quoting further: "Selling through vending machines or online platforms." Again where are the rules on that? Again was that stipulated at the time Mr. Anutin created this whole regime pursuant to the Emergency Decree, because I don't remember it. Quoting further: "or operating in prohibited locations such as temples, dormitories and public parks." Again, where is the law prohibiting things? Now when you get into temples and things that's a whole other area and body of sort of jurisprudence, and it's not appropriate on those premises to begin with for a variety of different reasons. Alcohol operates the same way. But that said, it short of that, regarding people that are operating behind closed doors, on their own lawful premises, we are dealing with of age people, consenting adults if you will, where does the authority come from to restrict them in this way? Florists or the apothecary, pharmacist - and I'm talking about the herbal pharmacist down in Old Chinatown and things over here - so what, just tomorrow they can start saying, "oh hey, that herb powder that you've been making for 300 years, yeah if you want to sell that, you have to have an entirely separate license and an entirely separate premises." Whatever, just some arbitrary and capricious stuff that they come up with, which fine, if you have a body of law that creates a regulator that can create those rules, I get it, but that's not what exists here. What happened back in 2022 when Anutin pulled this off the narcotics list, from that point forward, the only way to change the terms of that from the way I understand the way the legal system works, not only in this but any jurisdiction that has any level of Civil Law basically that enacts statutes, in order to do that, you have to codify the illegality. Otherwise people are just stuck with a constant arbitrary and capricious limbo, where they can't figure out what's right, what's wrong, what's up, what's down and they can't also rely on their own licences. What are these licences worth if tomorrow they can say, "Well there are new enforcement “guidelines”.  We didn't pass any laws, there was no sort of legislative due process associated with it, we just say so now. How do you operate a business that way? You can’t in a lot of meaningful senses of the term. 

So the reason I'm sort of upset about this is I'm tired of it. And I thought that this Government understood the difference that "hey, you want to change this, you want to really regulate it, pass a law through Parliament.