By Termsak Chalermpalanupap*
Thailand’s hasty legalisation of marijuana and hemp, mainly for medicinal use, has produced several adverse unintended consequences. Worst of all is a lack of necessary control measures to safeguard against illicit trade and abuse of marijuana.
Serious disagreement within the ruling coalition on how to impose necessary control of these two cannabis plants is endangering Thai society, and undermining unity of the fragile Prayut Administration. Major opposition parties want to roll back the legalisation of marijuana and hemp, and to return them to the official list of banned narcotics.
Since 9 June 2022, marijuana and hemp, and their resin extracts with less than 0.2% of the THC (Tetrahydrocannabinol, the substance that gets people “high”), have no longer been classified as narcotics in Thailand. Instead, they have become “controlled herbs” under the law of 1999 on protection and promotion of Thai folk wisdom in traditional medicine. Under this law, the minister of public health shall determine what are “controlled herbs” and how to regulate their use in traditional Thai medicine.
A great deal of the confusion stemmed from misinformation spread by Bhumjaithai (BJT) Party’s vigorous campaign for “free marijuana” (กัญชาเสรี, “ganja seri”) prior to the March 2019 general election. BJT leader Anutin Charnvirakul, who is now a deputy premier and minister of public health, could be seen in one video clip extolling the benefits of legalised marijuana – including smoking it for recreation at home.
Later on, during a no-confidence debate in the House of Representatives in July 2022, Anutin apologised for “joking” about smoking marijuana, insisting that he did not and will not advocate the recreational use of marijuana.
However, the continuing ambiguities about “free marijuana” remain a serious public health threat to Thai society. Talking about marijuana and hemp in the same breath also tends to create more confusion, because they are different things—marijuana has more of the intoxicating THC substance than hemp, whose fibres have wide industrial use.
Thailand’s hasty legalisation of the two cannabis plants also threatens to disrupt ASEAN’s regional effort to create a “drug-free” community; the other nine ASEAN members still treat marijuana as a banned narcotic. Thailand’s lack of control measures of the “free marijuana” may even violate UN conventions on narcotic control which Thailand has joined out of concern for “the health and welfare of mankind”.
SINGLE CONVENTION ON NARCOTIC DRUGS
Thailand signed the Single Convention on Narcotic Drugs of 1961 on 24 July 1961, and ratified it on 31 October 1961. It also ratified on 21 November 1975 and 3 May 2002, the Convention on Psychotropic Substances of 1971, and the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, respectively.
Cannabis plants were narcotic drugs in Schedule I and Schedule IV of the 1961 Single Convention. If a country permits the cultivation of these plants, Article 28 of the Single Convention requires the country to put in place a “system of controls” as had been done for the opium poppy, including setting up a national agency to regulate cultivation, designating cultivation areas, issuing licences to cultivators, and allowing the purchase of cannabis plants only from the licenced cultivators. The national agency shall also be in charge of importing, exporting, wholesale trading, and maintaining stocks.
In November 2018, the World Health Organisation (WHO) Expert Committee on Drug Dependence (ECDD) recommended, among other things, deleting cannabis and cannabis resin from Schedule IV of the 1961 Single Convention on Narcotic Drugs. The recommendation was subsequently conveyed to UN Secretary-General Antonio Guterres in January 2019, who requested the Commission on Narcotic Drugs (CND) to consider the deletion of cannabis and cannabis resin from Schedule IV.
WHO’s experts believe that cannabis and cannabis resin have medicinal potential. And in order to encourage worldwide research into their medicinal benefits, cannabis and cannabis resin should be removed from Schedule IV, a list of dangerous narcotic drugs with little or no medicinal properties, such as heroin, which are subject to very strict control measures.
Established under the 1961 Single Convention on Narcotic Drugs, the CND has 53 UN member states on a rotational membership. On 2 December 2020, a slim majority of the CND endorsed the recommendation of the ECDD in a vote of 27 in favour, 25 against, and one abstention (Ukraine). Thailand was among the 27 member states voting for the deletion of cannabis and cannabis resin from the Schedule IV.
Singapore, which was not on the CND, expressed its disappointment with the decision. Its Ministry of Home Affairs issued a statement warning that the move could “fuel public misperception, especially among youths, that cannabis is no longer considered to be as harmful as before, despite strong evidence showing otherwise. …” And the Ministry of Home Affairs also stressed that the CND’s move “will not impact Singapore’s zero-tolerance stance towards drugs. …”
In fact, cannabis and cannabis resin have remained on Schedule I of the Single Convention on Narcotic Drugs, a list of substances including LSD, methcathinone, and heroin, which are highly addictive and liable to abuse, and are therefore subject to national and international controls.
For Thailand, the CND’s decision created a new impetus to speed up legalisation of marijuana and hemp. Unfortunately, the haste to liberalise marijuana and hemp cultivation, and failure to institute necessary control measures have created legal ambiguities and loopholes. This has led to widespread concerns about illicit cultivation and trade, and abuse of marijuana among Thai youths.
CONTROLLED HERBS ARE NOT NARCOTICS
Marijuana can be found in rural Thailand, especially in the north-eastern region where locals have used it in cooking, treating certain illnesses, and undoubtedly smoking for recreation. But in fact, marijuana was outlawed since 1934 under the Marijuana Act of B.E. 2477. The law prohibited, among other things, the smoking of marijuana.
Subsequently, marijuana was classified as a narcotic in the Marijuana Act of B.E. 2522 (1979), which prohibited its cultivation, distribution, import, export, and possession, unless with the permission of the Minister of Public Health on a case-by-case basis. The 1979 law was superseded by the Narcotic Drugs Act (7th edition) B.E. 2562 (2019), which opened the door wider for the cultivation and the use of marijuana for medicinal purposes. And the Minister of Public Health has continued to be the authority for issuing licences, including the permit for marijuana cultivation.
Additional liberalisation of marijuana and hemp took place on 9 June 2022 when “every part” of the cannabis plants and their resin extracts with less than 0.2% of THC or CBD (Cannabidiol) were declassified as narcotic drugs.
As a consequence of the legalisation of marijuana, all those who had been convicted in marijuana cases were immediately released. A spokesman for the Ministry of Justice reported that 3,071 marijuana convicts were released on 9 June 2022. All pending marijuana cases in court or under police investigation are to be dropped; and confiscation of marijuana can no longer be done. Owners of marijuana and properties confiscated in arrests prior to 9 June 2022 may apply for their return.
Marijuana and hemp have been reclassified as “controlled herbs” under the Ministry of Public Health’s Announcement of 16 June 2022. They are no longer under the purview of the Office of the Narcotics Control Board (ONCB).
EVERY HOUSEHOLD CAN GROW MARIJUANA
All Thais who are 20 or older can possess, use, look after, transport, and sell marijuana legally. Those who need the cannabis for treatment of some illnesses may be in possession of the “controlled herb” or its resin up to 30 days for their medicinal needs.
However, still prohibited under the 16 June 2022 Announcement are: smoking in public places, the use of marijuana by women who are pregnant or breast-feeding, and the selling of marijuana to these women and to youths under 20 years of age.
Every Thai can freely cultivate marijuana and hemp for personal and medicinal use without any cultivation permit, except to register with the Foods and Drugs Administration (FDA) of the Ministry of Public Health through its “Plook Ganja” (marijuana cultivation) app.
As of 6 December 2022, the FDA had received about 1.12 million applications, to which 1.08 million permits had been issued. The FDA’s website for the registration had received more than 49 million hits.
However, cashing in on planting marijuana for sale is actually difficult. On the one hand, resin extracts of marijuana and marijuana products with more than 0.2% of THC are still regulated. Permits are needed to plant high-grade marijuana or to use it in products for sale. Commercial-grade marijuana with a high percentage of THC needs careful attention in a temperature-controlled greenhouse. Ordinary people may not have enough money or technical know-how to invest in the necessary facilities and to plant high-grade marijuana successfully.
Moreover, marijuana with high content of THC can be sold only to a government agency which is to be set up for marijuana trade. Export and import of marijuana are also highly regulated, and not open to ordinary people. International trade of marijuana and its products is also tightly control under the UN conventions.
Unfortunately, marijuana has appeared in foods, ice cream, cookies, drinks, herbal medicines and ointments, and cosmetics in Thai markets and online platforms – sometimes without clear labelling and warning on its possible adverse side-effects. Existing laws and regulations seem inadequate to provide the necessary safeguard for public health and for protecting vulnerable young Thais.
The confusing and dangerous situation alarmed the Thai Medical Council (TMC) to such an extent that it had to mobilise all of its members to warn the Thai public of the dangers of marijuana, and to oppose all forms of recreational use of marijuana. The TMC also issued its proposals on Thailand’s marijuana policy, and reiterated its objection to recreational use of marijuana, even though it continued to support careful use of marijuana for medical purposes.
Buddhist, Islamic, and Christian bodies in Thailand all have voiced their objections to “free marijuana” and warned their followers to stay away from it. The Ministry of Education, the Ministry of Interior, and the Ministry of Defence have banned marijuana and hemp from all schools, provincial government offices, and military areas, respectively.
Sensing that the rampant abuse of “free marijuana” was getting out of hand, Public Health Minister Anutin issued on 11 November 2022 a new regulation to tighten control of topping buds and flowers of marijuana, which tend to contain a high percentage of the intoxicating THC substance.
However, several problems remain unresolved. For example: How to prevent children and youths from smoking home-grown marijuana? This failure to protect children from marijuana is a violation of the UN Convention on the Rights of the Child, Article 33; or how to determine which crop of marijuana, or which food products have how much of the THC substance? Furthermore, some available test kits cost 4,000 baht per set. Sending a sample to a government lab will incur a test fee of 5,000 baht.
Thai police and highway patrolmen cannot yet determine on the spot whether a motorist in a road accident is under the influence of THC or not. Foreign tourists smoking marijuana in Thailand or bringing marijuana or marijuana products back home may face arrest on arrival, even though those products are legally sold in Thailand.
NEW MARIJUANA LEGISLATION BLOCKED
The Prayut Administration’s government policy announced in the parliament on 25 July 2019 included, as one of 12 “urgent policy issues”, the promotion of research and development of marijuana and hemp as herbs for medicinal use and medical industry and for creating economic opportunities and income generation for the people. In order to follow up on the legalisation of the cannabis plants, Public Health Minister Anutin and his colleagues submitted a bill on marijuana and hemp on 27 January 2022.
On 8 June 2022, the House of Representative accepted the bill for further consideration. The approval vote was overwhelming: 373 for, 7 against, and 23 abstentions.
Subsequently, however, many MPs, including those in the Democrat Party, the third largest government party, have changed their minds. Others on an ad hoc House committee scrutinising the draft bill have proposed many new provisions to create additional control measures. Consequently, the revised draft bill has expanded to 95 articles from the 45 found in the initial draft.
The revised draft bill will, among other things, allow every household to grow up to 15 marijuana plants for personal use, and to cultivate hemp up to 5 rai (about 6,400 squares metre). Those who wish to sell marijuana or hemp must apply for permission from the FDA. And smoking the cannabis in public places will remain prohibited.
However, the proposed bill has no role for the ONCB, the main anti-narcotic agency of the Thai government.
The revised bill returned to the House for its second reading on 14 December amid threats of a sizeable number of MPs – including those from the Democrat Party on the government side – to scuttle it on the grounds that it will not prohibit recreational use of marijuana. MPs from the top two opposition parties, Pheu Thai, and Move Forward have vehemently criticised the proposed law, and have vowed to return marijuana to the list of controlled narcotic substances if they are in the new government after the next general election.
For Democrat Party, its ulterior motive in trying to undercut the BJT’s legalisation of marijuana is partly because the two parties are bitterly competing for support in Thailand’s southern provinces, where 55 House seats will be at stake in the next general election.
Some opposition MPs have raised the question whether Minister Anutin has some unlawful conflict of interest in pushing for the legalisation of marijuana and hemp, since his family’s business included a subsidiary involving in hemp cultivation. The head of the House ad hoc committee scrutinising the draft bill, Supachai Jaisamut of the BJT, deplored the lack of support from fellow government MPs, calling it a “political game” to undermine his party. He also emphasised that the draft bill is the government’s legislation effort – not just the BJT’s. He claimed that the proposed law will impose necessary control measures to regulate the marijuana business, which is estimated to be worth at over 70,000 million baht a year.
In his introduction of the revised bill in the House on 14 December, Supachai emphasised the need to further support medicinal use of marijuana with the proposed comprehensive new law. He claimed that before the legalisation of marijuana, only about 16% of those who needed marijuana as medicine could get it from safe and legitimate sources. A large majority of them had to buy marijuana from unreliable sources on the black market at high prices.
Due to serious opposition from many MPs, the House Speaker initiated a new solution on 22 December, with concurrence of the chief government whip and the opposition whip, to postpone the further reading of the revised draft bill to January 2023. This will avoid wasting too much time on debating the controversial bill; and the House could then turn its attention to finalising five draft bills that have been revised by the Senate.
The current final regular session of the House ends on 28 February 2023. Should the revised draft bill fail to pass into law, BJT leader Anutin has vowed to continue to highlight legalisation of marijuana and hemp in its election campaign in the next general election. In his capacity as the public health minister, Anutin has assured the Thai public that adequate control measures have been put in place, and additional measures can be added to plug all remaining loopholes.
Efforts by Anutin and the BJT suffered a new setback on 21 November when the Central Administration Court accepted for further hearing a petition from a group of opposition MPs and critics of his “free marijuana” drive. The group is asking the court to put marijuana and hemp back to the official list of narcotic drugs.
ASEAN DRUG-FREE COMMUNITY?
As early as in July 1998, ASEAN foreign ministers put forth a lofty vision of a “Drug-Free ASEAN”. In their Joint Declaration for a Drug-Free ASEAN, they called for “all modalities to eradicate illicit drug production, processing, trafficking and use in ASEAN by the year 2020.
The 2020 target has been missed. But ASEAN cooperation to create the drug-free regional community remains on course (at least on paper) under the 2016-2025 ASEAN Work Plan on Securing Communities Against Illicit Drugs, and in the Blueprint of the ASEAN Political and Security Community (APSC) 2025.
In the chairman’s statement of the 40th and 41st ASEAN Summits in Phnom Penh, issued on 11 November 2022, ASEAN Leaders “reaffirmed our commitment towards a drug-free region. We also remained steadfast in realising this commitment amidst global attempts to reschedule certain types of illicit drugs. …”
However, Thailand has already ventured into its own way of marijuana legalisation, whereas the other nine ASEAN members still consider marijuana as a dangerous narcotic which must be eradicated from the ASEAN Community if it is to become “drug-free”. How ASEAN members are going to tackle this serious discrepancy is not yet clear.
As things stand now, the Prayut Administration’s approach seems to focus first on securing necessary control measures of marijuana and hemp domestically. Regional commitments to support the creation of the Drug-Free ASEAN, and to fulfil its international commitments to protect the “health and welfare of mankind” under the UN’s Single Convention on Narcotic Drugs will have to wait.
Anutin and his BJT have been blamed for recklessly promising too much regarding “free marijuana” during the 2019 election campaign. Serious confusion and legal ambiguities followed after marijuana and hemp stopped being considered narcotic drugs under Thai law, starting on 9 June 2022. Furthermore, mentioning marijuana and hemp together has tended to create more confusion; the two are in fact quite different things.
Illicit trade and recreation use of marijuana have created serious concerns not only in Thailand, but also among fellow ASEAN members for whom marijuana remains a banned narcotic.
Slow follow-up legislation on control measures on marijuana and hemp will continue to haunt Thai society, and aggravate rivalry between the BJT and Democrat Party in the unstable Prayut Administration.
Whether or not continued legalisation of marijuana and hemp will become a hot campaign issue in the next general election remains to be seen.
*About the author: Termsak Chalermpalanupap is a Visiting Fellow in the Thailand Studies Programme, ISEAS – Yusof Ishak Institute. Previously he was a researcher on ASEAN political and security cooperation at the Institute’s ASEAN Studies Centre.
Source: This article is published by ISEAS – Yusof Ishak Institute
For endnotes, please refer to the the pdf document here.