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Will Thailand Recover from COVID Better Than the West?

Transcript of the above video:

As the title of this video suggests, we are comparing Thailand hopefully post-COVID, or post-COVID response might be the better way to put it, Thailand to the West. I want to be clear on the context of this. I am not talking about anything from the standpoint of medically; I am talking about it more from the standpoint of socially and more importantly to some degree, legally. The reason for this is I have read a lot lately about various takes on the future of due process in the United States. For those who are unaware, the notion of due process of law that folks need to have due process if they are going to have life, liberty or property taken from them and COVID threw a lot of that out the window from my observation in the US and from what I have read from people who have actually lived over there where it was just sort of cast aside, the notion of due process in 2020 to a very real extent. 

In a very real sense, Thailand within the context of the legal system here, the way I understand it and the way I interact with it, Thailand actually did take due process into consideration. Now due process is a slightly different thing in that they did undertake to pass, promulgate and go ahead and pass the Emergency Decree back in March 2020, and it initially was a temporary measure. It was presumed that that was going to end. It has gone on until now when we are talking here August, September of 2021. I think reasonable people can argue that this has frankly, probably possibly gone on too long. We may be able to go ahead and go back to using standard practices to deal with this at this point but again not really the thrust of this video. Point being there was a mechanism, due process of law in Thailand to deal with this. It was the Emergency Decree and the Emergency Decree is not forever. It has to continue to be extended; it has continued to be extended but there is a certain point presumably where people are going to start asking: "Is this what we really want extended? Do we want to continue this?" So from the same point of due process, I actually hesitate to say like but I think Thailand has handled it relatively reasonably at least compared to the West especially certain jurisdictions in the US where it was just like "Well Governors can just do whatever they want. Rule by decree", and I am being a little bit sarcastic but not so much. I mean there were literally situations where different office holders in the US, different states in the US acted as if they had some sort of imperium which quite frankly they didn't have. 

The point of this video though is oddly an exercise in comparative law or just a brief discussion on it. One thing that frightens me about what has happened, at least in the United States; I will keep it confined to that. You can apply this to the rest of the commonwealth and to some degree Europe I think too because the notion of precedent is very deeply ingrained in the philosophy; in the western mindset and basically it is this notion that in a legal context under the Common Law, we use legal decisions made sometimes hundreds of years in the past as controlling for making decisions and adjudications in the present day. The argument being made there is by using precedent, it allows folks to predict how things would play out; it gives people a better understanding of where they stand vis a vis the law or the interpretation associated therewith and it also creates a uniformity throughout jurisdictions where if you move from one Common Law jurisdiction to the other, you can at least be reasonably assured that certain things will be similar from jurisdiction to jurisdiction in a Common Law context. 

Thailand doesn't use precedent this way. Again I am not a Thai Attorney, I am an American Attorney. I am a naturalized Thai citizen but I am not licensed to practice Thai Law in the Thai Courts. I assist as Managing Director here at the firm. I assist Thai Attorneys in liaising with respect to different aspects of legal work that we have to do on behalf of clients. But one thing I have been able to do over the years is, it has been like a constant exercise in comparative law and this mindset of precedent does not so much exist in Thai legal philosophy, Thai legal thinking. I am not saying it is totally absent; for example Supreme Court cases here in Thailand are given a lot of weight but they get distinguished and much more often in my opinion, just as an observer, they get distinguished much more often than for example Supreme Court decisions in the United States. 

So my point in making this video is some of the for lack of a better term, worst reactions that came about in the Government's responses to COVID in the Common Law world, what really scares me is that they can be enshrined as precedent to be used in the future whether it is for a genuinely good purpose or whether it is for a legitimate purpose or not. Precedent has a tendency, in the military where they have that term "Mission Creep"; you get into a situation and then the mission just seems to creep on. In a sense there is a precedent creep, that is the way I think about it where these precedents build on one another and when you look back on the original decision, it is one of the things that I over the years have found fascinating about, a major change in my paradigm with respect to the Common Law. When I first came out Southeast Asia, my presumption was always that the use of precedent so called "stare decisis" in Latin "let the decision stand" this notion of "it is an old decision, we are just going to go with that". I took that at face value. I just took that as a presumption, or as an assumption that that was the best way to do things. Over the years, the Civil Law System in Thailand has showed me that there is another way of dealing with that. That perhaps a decision made 350 years ago by some Law Lord in Great Britain might not be the best way to deal with an issue in the modern day. There are circumstances where you can argue it both ways. One thing that I am cautiously optimistic about with respect to the future is that Thailand doesn't have this inherent notion that precedent or having done something, then solidifies it if you will or legitimizes it for use in the future just by dint of the fact that it has already been done and the common law tradition does have that to some extent. There is to some extent, an assumption or presumption that if something has occurred, then "well it might be legitimate for it to occur again". The point being, some of the worst vagueries perhaps of some of the throwing out of due process especially in an American context, I worry could be congealed in folks minds and could set the precedent for future issues down the road.

The nice thing about Thailand is I do like that they take an Ad Hoc approach in a sense. They deal with the situation as it comes and then once that situation is resolved they don't necessarily say "well these solutions are what we need to be using forever". No, they actually, it has been my experience that once the issue is resolved they just put that back in its own compartment. They may look at it in the future but there isn't this inherent philosophical notion ingrained, this super respect for precedent and in many ways I hope that augers well for the situation here in Thailand.