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What Is Happening to the Rule of Law in Thailand?

Transcript of the above video:

As the title of this video suggests, we are discussing the question of, "what is going on with the rule of law in Thailand?" I am not stating this euphemistically; I am not trying to be sensationalistic with this but I have a serious concern just as a lawyer and frankly as a Thai. Exactly what is going on?

There have been some things the last few weeks that I found deeply concerning and pertains to, it is generally in the orbit of the response to COVID-19. As we have discussed in other videos on this channel, we have discussed the so called "mask mandate". I find that to be a little disconcerting especially the notion you have to wear one and this is on a personal level. I don't like to inject personal opinion completely, I prefer to do the legal analysis and just look at things but I guess you could say that this is an opinion piece so I will put my cards on the table as to what I think, which is I find it concerning especially the notion you have to wear something from the moment you leave your home, especially outdoors. That seems to me to be a little bit over the top. However, recently it seems that we are just, the "slippery slope" argument if you will; we may already be on that slope, let's just put it that way.  

A recent article from the Pattaya News that is, the article is titled: Thais and Foreigners in Phuket Caught not Wearing Masks Punished by Exercising Instead of Fines. I just found this pretty concerning. Quoting directly from this article: "The measurement checkpoint, so they have set up these checkpoints to make these determinations, "the measurement checkpoint’s main focus was on 100% of wearing face masks properly." Properly!  So not just wearing a mask but then they determine what is proper, "including over the nose and not around one's chin in public according to checkpoint officers. The vast majority of foreigners and Thais were found wearing masks correctly however there were more than 10 people, both foreigners and Thais who were found not wearing face masks either at all or properly. They had all been warned and punished by doing some exercise as a "first soft warning". Their names and identification were also recorded however in case they were caught violating again in which case authorities would resort to fines. The Pattaya News notes that authorities have the ability to use their discretion on punishment and if they choose to give soft warnings over fines for the first time offenders." Well I would challenge that statement, "Authorities have the ability to use their discretion". We have discussed where they have cited, and I have two videos up that have gone into relatively substantial detail on this where they have cited section 51 of the Act; the Communicable Diseases Act, which then goes over to section 36 and the subsection which we note, I believe it is subsection 4, the main one that it looks like they are hanging their hat on for this is to me, first of all it notes that they can prohibit things which could be deemed unhygienic for lack of a better term. They don't actually mandate anything. It doesn't state that they can compel anyone. At least that is the version we have looked at and I have discussed it with legal professionals. That is the way it looks to me. Again interpretation, I am not going to get into all of that but long story short, at least the plain language of the Statute would seem to suggest they can prohibit things but compelling things, I don't know where they deem that. Also, the specific Act says "fines". It doesn't say anything other than fines. It says "fines"; it specifically says a fine of 20,000 Baht. Okay, that is what it is and setting that aside for a moment, it doesn't say that they can make people do exercises. I find this really concerning that this is out there and this is how it is being done and then the media just comes out and says the Pattaya News notes the authorities have the ability to use their discretion on punishment and if they choose to give soft warnings over fines for the first time offender. "Warnings", okay that makes sense but to make people do exercises, and also from the plain language of this, if you are deemed okay not just not wearing a mask, let's set aside "not" wearing one but okay you are wearing a mask and it is deemed to be improper they can say "drop and give me 20"? Again that seems pretty concerning from a rule of law standpoint.

Also, quoting directly from the Phuket News, that is, the article is titled: Thais, Foreigners Arrested for Drinking at Patong Beach. Quoting directly: Vice Governor Vikrom explained that the Provincial Government has set the number of people allowed to sit together drinking alcohol to just two. Phuket City Police Chief, Colonel Theerawat Liamsuwan said that the Phuket Provincial Police had emphasized that all police officers on the island are too strictly enforce anti-COVID measures to help reduce the number of infections in Phuket." It is not so much the enforcement. That seems to logically flow from this but more to the point is, again quoting directly: "Vice Governor Vikrom explain that the provincial government had set the number of people allowed to sit together drinking alcohol to just two." It just seems, well scary that the government is dictating how many people can sit and drink alcohol. There is a notion, and you can't apply foreign legal concepts on to a different jurisdiction but I am talking about this conceptually from a commonsensical standpoint. There is a notion in American Law, and I do understand I am in Thailand but just let's just view this as an exercise in comparative law there is a notion of, if something is deemed arbitrary and capricious that it is presumptively invalid. If a Government regulation for example is deemed arbitrary and capricious it is presumptively invalid. I am not saying that concept necessarily applies here but it is I think useful from a commonsensical standpoint to step back from this; my big question here is "Is it really a good idea to have law enforcement making calls on the street level as to whether or not people are wearing their masks properly and then allowing them to compel people to do exercises on the street?" We have got the photos and the article. I am not going to put them up. I would urge folks go check out that article. Again, it is, the article is titled: Thais and Foreigners in Phuket Caught not Wearing Face Masks Punished by Exercising Instead of Fine. There is a video on there too. I mean I would question whether those resources are being put to good use and I also just think it seems a little Draconian to set up checkpoints and then try to make determinations about wearing masks properly and then compel people to go through the motions of these exercises. It is unsettling to me on a personal level. Then at the same time now you have got provincial authorities dictating how many people can sit and have a drink, just sort of out, presumably in the open air it would seem to be from that article. Again that article is: Thais, Foreigners Arrested for Drinking at Patong Beach, that is the Phuket News,  

Again the only reason I bring this up is the rule of law exists in any country and in Thailand frankly I have a great deal of respect for Thai Law. One of the notions in the Civil Law which is somewhat different than the Common Law, but one of the notions in the Civil Law is the notion of codification. I am talking about this as a relative outside observer because I am a trained Common Law Attorney but I have done a lot of comparative law over the years and I have done a lot of research on Thai Law just being around Thai Law in a Law Firm here. This notion of codification is very different than the Common Law because the Common Law takes the law and then interprets it and then creates a body of the interpretive text if you will and that is jurisprudence that is basically the body of law as it exists, as it is alive. It is like “living law” is the interpretation. In the Civil Law system, codification is more the primary means of expounding on the law as it sits. By codification, what are we talking about? Well the specific outlining in the text, the plain language of statues what is deemed illegal conduct in the case of criminal law, what is deemed illegal conduct in a civil setting. And these two things, again it is codification. It is not done through the interpretive process the way that Common Law jurisdictions do it through opinions over time. The thinking is it is better if it is just codified so that everybody knows what is legal and what is illegal; Society is on notice on what they can and cannot do. Now, as a practical matter it might be difficult to be on notice of every little thing out there but the principle is sound. This notion of codification that things need to be codified so that people are least on constructive notice of what is legal and what is illegal. As I have noted in other videos, the statutory language on which a lot of these restrictions and provincial orders are based, it seems to be based on an interpretation that in my opinion, for me it was quite a stretch under the best of circumstances for me to see the logic behind the interpretation, but okay different people have different opinions. Now we are getting to the point where we have sort of accreted to on top of that so the mass mandate for example accreted on top of that is now this notion that people on the street can determine whether or not people are wearing masks properly and then compel them to do exercises in punishment for not wearing masks properly? That seems to be a bit of a stretch based on the plain language, at least of the Communicable Diseases Act that we have discussed on this channel before. 

Again how this is all going to play out I don't know. Is this just a one-off? Are people maybe a little bit overexcited, and maybe a little bit I hesitate to use the word hysterical but maybe people are getting a little too overwrought about this, folks in government included. I think perhaps that might be the case and maybe we all should take a big deep breath and step back and say "hey what is the purpose, what is the policy behind for example the "Mask mandate"? And as we have discussed in other videos, the WHO themselves have said people who are outside and they are not around anybody they don't really need to be wearing, I shouldn’t say they don't really need to be wearing masks, WHO has said or at least by omission they have made it clear and we have cited this in another video that unless it is like gathering of people or transportation or something like this, a large concert for example or something, places where there is a lot of people outdoors milling around together that a mask mandate outside is NOT a major priority and yet here we are seeing people getting detained at checkpoints and made to do exercise says for not presumably not only not wearing masks but not properly wearing masks.

So again I just think all of this, I kind of wish everybody, especially at a policy level just take a deep breath and rethink what is the spirit behind what we are trying to do here because just stopping people and making them do exercises seems like a waste of a lot of people's time including the resources of law enforcement here. I do still believe everybody is acting in good faith. They are trying to do what they think is best but sometimes “the road to hell is paved with good intentions” and we can end up with a bad circumstances even where people are trying to do what they think is right.