Thailand Law Journal 2018 Spring Issue 1 Volume 19

3.4      Thailand

Thailand’s Minister of Justice, General Paiboon Koomchaya, ignited a heated debate when he proposed taking methamphetamine off the schedule of narcotic drugs.40 One of the Minister’s objectives is to ensure that ‘people who use drugs… do not end up in prison…’41After about two years of debate on drug policy reform in Thailand, the first amendments to the drug law were adopted and took effect on 16 January 2017.  The reform momentum was driven largely by the serious problems with prison overcrowding and a burgeoning prison population discussed earlier. The legislative amendments include changes to how culpability is determined, replacing mandatory sentences with a rebuttable presumption of the intention to sell controlled drugs. Under this new framework, the role of lawyers, and indeed the entire criminal process, could become more important, as the accused is given an opportunity to put forward evidence and arguments to contest the presumed supply offence. Much like in Singapore, one commentator noted how these reforms ‘appear subtle at first’ but that the ‘wording of the code means that drug users will no longer be automatically prosecuted as drug dealers.’42 The new law also removes the mandatory death penalty for supply offences involving large quantities of drugs. The sentencing discretion now afforded to judges will allow them to take the offender's role, along with other relevant factors, into account when sentencing. In other words, while the law demonstrates that Thailand is not planning to abandon its high deterrence policy in relation to drug offences, it also signals a recognition that culpability cannot be determined exclusively with reference the quantity of drugs a person is in possession of. In response to the new law, Dr Alex Wodak tweeted: ‘Movement to drug law reform in Thailand. Important. Will affect other countries in the region.’ This remains to be seen.

3.5      An alternative to the liberalisation agenda

Many countries in Asia wish to maintain their high deterrence stance, and for cultural, social or political reasons both policymakers and the general public remain deeply sceptical to what is commonly described as ‘liberalising' drug laws.43 Gloria Lai (2015) explains that ‘both the use and supply of controlled drugs are regarded in Southeast Asia as a threat to state security that must be eradicated, justifying the implementation of severely punitive drug policies.’ There are currently no indications that this position might shift in any fundamental way. As the Minister of Home Affairs from Singapore said in his speech at the UNGASS summit: ‘Our approach has been successful for us.’44 This sentiment was echoed by the Malaysian Government, which urged countries to ‘remain resolute against calls to legalise drugs,’ while Thailand stated that ‘we do not agree with legalisation of illicit drugs and decriminalization for serious offences.’ (Kline 2016) At the Fifth ASEAN Ministerial Meeting on Drug Matters on the fitting theme of ‘Securing Drug-free Communities for our Future’ member states rejected calls for drug policy reform. An official statement deemed those ‘calling for legal regulation and decriminalisation as irresponsible people who care little about the consequences of their actions.’ At the meeting, Singapore warned ASEAN countries against allowing the medical use of certain drugs, and called on them to ensure the region maintains its zero-tolerance approach (Fordham 2016).  Reform that looks too much like ‘liberalising’ will require the sacrifice of so much political capital that it is probably unrealistic at this point in time. The Economist recently observed that ‘drug wars are good politics [in Asia]’ eluding to the public demand for a continuation of current polices, and that ‘the sorts of alternatives now favoured in the West [therefore] are virtually non-existent.’45

The Straits Times correspondent Tan Hui Yee reported from Thailand that ‘For entire generations brought up on the "zero tolerance" rhetoric on drugs, anything other than harsh penalties may appear alien.’ Justice Jaran Pukditanakul, who sits on the Constitutional Court in Thailand recalls how ‘we told them that narcotic drugs are bad, get rid of them all [so] it’s not easy to educate society now, particularly when you have to go against the concept that has been planted in their heads…It’s like telling people in Thailand not to eat rice.’46

At the same time, high deterrence policies, combined with possession based drug laws, have led to ever-increasing criminal caseloads and overcrowding in prisons and detention facilities. The increasing social and financial costs of enforcing possession based drug laws is probably unsustainable in many countries, in particular in the countries with more limited budgets for law enforcement, administration of criminal justice, and prison services.

The alternative, for countries that can no longer afford to be on the current trajectory, is to consider the possibility of abandoning possession based drug offences and replacing them with role-based drug offences. This would not amount to ‘liberalising' the law. It would simply be a matter of changing the law to better reflect the reality that people may be in possession of drugs for a whole host of reasons, and that the law will be more equitable and fair if it judges people on their roles and motivations for engaging in the drug industry, as opposed to the weight of whatever drug they happen to be carrying. The role-based model thus presents an opportunity to maintain high deterrence policies in relation to offenders who have leading or significant roles in the drug industry. Courts would be sentencing the people who orchestrate, manage, and who reap tremendous profits from the drug industry to those severe sentences, people who probably never touch drugs, let alone carry dozens of kilos around. That would be radically different from today when almost the only people who end up being punished are people who are poor, desperate, and often trapped in drug dependency. This would entail reduced transaction costs in relation to those very large numbers of drug offenders who may have been in possession of drugs, but who serve only rather peripheral functions in the drug industry.