Transcript of the above video:

As the title of this video suggests, we are going to discuss the oft talked about in recent days "mask mandate" here in Bangkok specifically. There are a number of provinces at a provincial level that have imposed this so-called mandate and I have gotten a number of emails and correspondence from folks that have been asking me, can I do a video on this. I was actually rather hesitant to do this because I don't really like for my personal opinions to seep in to some of the analysis of this stuff. I recently made a video about the discussion of the "lockdown" and folks talking about the "Thais needed to do more" and this and that and I mostly brought this up from a business standpoint because we have been sitting here for a year dealing with this and I just felt it was uncalled for to say that there “haven't been a number of restrictions placed on folks” when in fact there have. My hesitance with making this is I have my own, we all do, we have our own biases; we have our own opinions; I have my own opinions regarding the notions of these "masked mandates". I want to be clear and nothing in this video is designed to talk about the efficacy of masks; the medical science behind masking any of that; that is way beyond the bailiwick of myself on any kind of level frankly and/or this channel in any way; we are talking about legality here. 

That stated, in the interest of full disclosure so that again I view my videos as being out there to try to provide information. I am primarily looking to inform people because I think a lot of people have a lot of misconceptions about certain aspects of the law regarding Immigration to the US; American Law generally; the way American law may interact here in Thailand with Thai Law for example with Treaty of Amity for example and then issues involving a lot of Thai Immigration. We discuss Thai Immigration pretty frequently on this channel because again I think there are a lot of misnomers out there and it is not really helped by folks that then sort of inject their own opinions into anything. So again, in the interest of full disclosure, I will provide where my bias is at so the viewer can adjust their own analysis accordingly on the subsequent information we are going to be imparting in this video. By the way, buckle up. This is going to be a long one compared to our usual videos because there is a lot to dive into on this particular topic, but again full disclosure on a personal level. Again I am not talking about the efficacy of masks; I am not talking about their medical validity that is not my point. I will say though that I have on a personal level and even the lawyer in me from a legalistic or from a legal theory framework, me personally, I have got real issues when Governments impose or mandate any kind of requirement on people to go about their day-to-day lives and that is across the board. I would have an issue if the Government came down and mandated people wear a certain type of shoe or that everyone has to carry an umbrella or something. Again, I am not trying to be funny or snarky in this video or create straw man arguments or something; that is not my purpose. What I am saying is, it is not the masks per se that bothers me on a certain level or that might bother me on a certain level or anything else for that matter, it is the mandate itself. When Governments step in and say "Hey you have to do this!" again a lot of red flags in my brain go off and upon further analysis I may decide "okay that may be warranted under this given set of circumstances". An example of this is for example in the United States there are certain health and safety requirements associated with things like OSHA where they say "hey if you are going to be on a certain premises you have to wear a hard hat." Well yeah my sort of allergic reaction personally might be "well you can't tell me to wear a hard hat" and then I kind of step back and say "actually it is a pretty reasonable regulation under the circumstances". Now one of the reasons I love the law and one of the reasons I love legal analysis is because a regulation, for example a hard hat regulation, it is not you have to wear a hard hat everywhere because a cinder block or something might fall from above at any given time but you have to wear it under certain circumstances because there is an exigent threat out there; there is a possible problem in a given area. But broad-based requirements out there, I will be honest, they make me rather uneasy on a personal level. Now that said, I try not to let that colour my own analysis of these things when I am looking at the legal basis for how something came into effect etc. For example there are a million policies in US Immigration Law or Thai Immigration Law that I have real issues with especially as a practical matter because often times you will see policy be promulgated and then law and regulation will come out and it sometimes ends up where the practical implications of a law or regulation is wildly different than the policy aim they were going for when they promulgated that law or regulation. Again, I see this a lot so I try to be as dispassionate as possible. I hope folks understand in this video I am trying to be as dispassionate as possible but understand my own biases so that you can form your own opinion based on the information we are going to import herein.

Now a couple of things. Again just to get some stuff out of the way, I am going to be quoting later on in the video directly from the Communicable Diseases Act of 2015. This comes from and we will put a link to this in the description, but this comes from ddc.moph.go.th. This is from the Ministry of Public Health, their website and this translation and I am going to be doing this in English for obvious purposes; the vast majority of our audience wants to discuss this stuff in English. The translation appears to be from the Office of the Council of State and there is this disclaimer on the translation. Quoting directly: "This text has been provided for educational/comprehension purposes and contains no legal authority. The Office of the Council of State shall assume no responsibility for any liabilities arising from use and/or reference of this text." So understand, that is where we are coming from. This whole video is for informational purposes only. It is basically to provide some insight into the legal framework that is being cited for this "mask mandate". Again, and let's note, I am a naturalized Thai citizen. I am an American Attorney. I am educated under a Common Law System. I have a Juris Doctorate. I am not a Thai Attorney and we have had legal professionals here in our firm have reviewed this but as they have said and they have been very clear to me in getting this across in this video and many others, again broad legal analysis, informational legal analysis, is very different than the application of law to facts in an actual adjudication. So, you should not be viewing for example this video or any video when we are talking about any legal concept, as dispositive for a future adjudication. Judges have a job. Their job is to interpret the law and to apply it to the facts of a given case and each case especially under a Civil Law System can be decided in a very different manner depending on the unique set of facts in that given case and the unique interpretation necessary in that particular case. So understand, this is for informational purposes; educational purposes and not as some sort of dispositive treatise on the notion of masks in Thailand in general or anything of that nature. It is simply a deep dive if you will into the legal authority behind this because I have had a lot of people that have contacted us and said where is this coming from? Also, I am not really pointing any fingers on this. I am not even really saying "the media" but media in general I have noticed, this is both in America a lot of the media coverage I have watched regarding certain restrictions, certain actions taken with respect to the response to COVID-19, they tend to speak in broad strokes when I would argue they shouldn't. They should be more specific. They also tend to just gloss over things without really taking a measured analytical look at what exactly we are talking about with respect to certain regulations. For example I have noticed a lot of news outlets have made hay if you will of the fact that the Bangkok Governor cited the Prime Minister for apparently not wearing a mask in some sort of proceeding. And it is almost to me when I have been reading this, the implication as well clearly it is legitimate because it is being imposed upon the Prime Minister I guess; that was kind of an implication I took. Now again, understand I may have my own biases and that is just sort of the way I see things but that was the implication I read into it which was it "oh this is obviously valid if the Prime Minister has to deal with it." Well that is not legal analysis. That is just reporting on circumstances and again the implication that I got from that was it was sort of an implied well "this is clearly valid because it applies to everyone". Well just because a bad law may apply to everyone doesn't necessarily make it valid. I am not saying this one is. At the same time, a good law could apply to no one and be valid. So again, we are looking at this purely from a legalistic standpoint and we are providing this purely for informational purposes because there has been a lot of like I said, in the media especially, a lot of just glossing over the legal authority that this seems to stem from. Now that stated, and I didn't really mean to do that, throwing the media under the bus, I am going to go ahead and cite the media. This is from the Phuket News, that is the phuketnews.com, and I do have to say just sort of hats off. The Phuket News, when they do stories on legal changes in Thailand, Immigration changes in Thailand specific to Phuket generally, they tend to go out of their way to be thorough. I am not knocking anybody else, there is a lot of thoroughness in other publications but I first noticed this some years ago when we were talking about a decree that came out regarding Work Permits and things in Thailand and I noticed the Phuket News put out an exhaustive piece that really got into the nitty-gritty of the Work Permit situation.

This particular article is titled: Phuket 20K Mask Fine Warning Issued as Officials Target "Problem Foreigners". Sunday this was published Sunday 25th April 2021. Again that is the Phuket News. I am going to go ahead and quote the relevant section here because again this is our jumping off point if you will into the underlying legal framework that is being cited as the basis for this "Mask Mandate". Quoting directly: "The Phuket Provincial Office will ask for cooperation with people for them to wear masks." According to the Phuket news we are quoting Vice Governor Pichit. Quoting further: "The Phuket Provincial Office issued Phuket Provincial Order no. 62 / 2021 in January. People must wear a mask every time when leaving their accommodations. Violations of the order may be an offense under section 51 of the Communicable Disease Act which incurs a fine not exceeding 20,000 Baht he said." Okay, I am going to go back to section 51 of the Communicable Diseases Act. There is another quote we are going to get to and then we will keep moving forward. So quoting further: "And may be punished under Section 18 of the Act, (presumably the Communicable Diseases Act) and violators shall be liable to imprisonment for a term not exceeding 2 years or a fine not exceeding 40,000 Baht or both."  So first things first because I have already sussed out how I am going to lay this out. To get into section 51 that is a real deep dive and we are going to get there but let's start off with this quote: "and may be punished under Section 18 of the Act and violators shall be liable to imprisonment for a term not exceeding 2 years or a fine not exceeding 40,000 Baht or both." So Section 18 of the Communicable Diseases Act. Let's go ahead and I have got that here. So here we are going to Section 18 of the Communicable Diseases Act and for those who are sort of aware of Thai legislative history, especially recent Thai legislative history, this Act was promulgated in 2015. So if you go back and look, you can get an idea of the situation at the time of the promulgation of this Act, again 2015, but that is sort of beyond the scope of this video. So, here we go. We are going to section 18 of the Act. Section 18 states and I quote: "In performing the duties under this Act, the Committee and the Technical Committee and the sub-committee shall have the power to issue an order in writing to summon any person to come to give statements of fact or express opinions or furnish any necessary information or documents or suggestions in support of consideration." So again, going back to the Phuket news, they are citing a statement made by the Vice Governor in Phuket. This seems to state "and ma ybe punished under Section 18 of the act and violators shall be liable to imprison for a term not exceeding 2 years or a fine not exceeding 40,000 baht." So punished under Section 18 of the Act, let me just reread this again. It is in English so take it for what it is worth. "In performing the duties under this Act, the Committee, the Technical Committee and the sub-committee shall have the power to issue an order in writing to summon any person to come to give statements of fact or express opinions or furnish any necessary information or documents or suggestions in support of consideration." And that is it. That is what that section says. I don't know exactly where the authority for the notion of "imprisonment for not exceeding 2 years or a fine not exceeding 40,000 Baht" comes from within the provisions of that as I am reading it in English. I may be missing something but as I am reading it in English, I am not seeing that in there or at least it is not jumping out at me. 

Now that said again I may be missing something. I am always happy to stand corrected so if there are folks in the comments that have some other commentary on this and I would be happy to make another video and correct that but that is the way I read it. There may be a typographical error somewhere in here but that is the Act, the Communicable Diseases Act of 2015 and that is section 18. So setting section 18 aside, going back in this quote: "violations of the order may be an offense under section 51 of the Communicable Diseases Act which incurs a fine not exceeding 20,000 Baht. So let's get into that. This is going to be a deep dive here. So we are going over to section 51 of the Act. Quoting directly: "Any person who violates or fails to comply with the order of a Communicable Disease Control Officer under Section 34 (1), (2), (5) or (6), Section 39 (1), (2), (3) or (5), Section 40 (5), or fails to provide convenience to a communicable disease control officer under Section 39 (4) shall be liable to a fine not exceeding 20,000 Baht.

Okay. So now we get referred to another section of the Act. Let's go ahead and look at 34 (1) to begin. 34 states: "For the purpose of prevention and control of communicable diseases, when a dangerous communicable disease or an epidemic has occurred or is suspected of having occurred in any area, a Communicable Disease Control Officer in such area shall have the power to carry out, or issue a written order instructing any person to carry out the following: (Here is where we get to subsection 1): "to require persons who are infected or reasonably suspected of being infected with the dangerous communicable disease or epidemic or who are contacts or carriers to have a checkup or treatment or medical examination and for the purpose of safety, such persons may be isolated quarantined or control for observation at places specified by the Communicable Disease Control Officer until such persons have had a checkup and medical examination and it is confirmed that the period of communicability has passed or such suspicion has been dispelled. In the case of an animal, an owner or occupier of the animal shall take the animal to have a checkup or treatment or medical examination." So again requiring persons suspected of being infected to have a checkup, medical treatment; basically pretty straightforward there.

Okay so 34 subsection (2). "to require persons at risk of being infected with the disease to receive immunization on the date, time and place as prescribed by the Communicable Disease Control Officer in order to prevent the transmission or the dangerous communicable disease or epidemic. In the case of an animal, an owner or occupier of the animal shall take the animal to receive the protection against the disease." So that appears to be as it states, immunization. 

Subsection (5): "to require owners, occupiers or residents in the houses, tenements, places or conveyances where the dangerous communicable disease or epidemic occurs to prevent the transmission of the disease by eliminating the animals, insects or immature insects which are a cause of the occurrence of the dangerous communicable disease or epidemic." So owners, occupiers, residents of houses, tenements or conveyances where this occurs to prevent transmission of the disease by eliminating animals, insects or immature insects. So again that seems to pertain to something akin to animals.

This one seems to me to be the best candidate for the basis of this overall mandate.

Subsection (6): "to prohibit any person from carrying out or performing any act which may cause unhygienic conditions that may result in the transmission of the dangerous communicable disease or epidemic." So again that is number 6 and we will come back to that. I am going to do some more detailed analysis on that. So that was 34 subsections (1), (2), (5) or (6). That is what subsection 51 pertains to okay? So I will come back to (6) and we will do a deeper dive on the statutory construction there momentarily. Let's move on to 39 subsection (1), (2), (3) or (5).

So moving over to section 39. "In contacting prevention and control of global communicable diseases, when there are reasonable grounds or there is suspicion that a conveyance comes from any locality or port city outside the Kingdom where there is an epidemic, the Communicable Disease Control Officer stationed at an international communicable disease control checkpoint shall have the power and duties as follows: 

(1) “to require the conveyance owner or conveyance operator to notify a specified arrival date, time and place of the conveyance at the international communicable disease control checkpoint to a Communicable Disease Control Officer stationed at the international communicable disease control checkpoint." This is like in an international customs type context. 

(2) “to require the conveyance owner or the conveyance operator whose conveyance has entered the Kingdom to submit documents to a Communicable Disease Control Officer stationed at the international communicable disease control checkpoint.”

(3) “to prohibit any person from entering or leaving the conveyance traveling into the Kingdom which has not been inspected by a Communicable Disease Control Officer stationed at the international communicable disease control checkpoint, and to prohibit any person from bringing any other conveyance up alongside such conveyance, unless permission from a Communicable Disease Control Officer stationed at the international communicable disease control checkpoint has been obtained.” Again like a customs function there. So that was (1), (2) and (3) of that subsection and now we are moving over to (5).

(5) “to prohibit the conveyance owner or conveyance operator from bringing into the Kingdom travelers who have not received immunization as prescribed in the notifications by the Minister by and with the advice of the Committee. The notification and the submission of documents by the conveyance owner or convince operator under (1) and (2), and the prohibition for the conveyance owner or conveyance operator under (5) shall be in accordance with the criteria, procedures and conditions prescribed in the Ministerial Regulations.” So that subsection seems to pertain to international travel and we have discussed that at length in other videos but it doesn't seem to pertain directly to "mask mandates" directly. Then finally, they also mention section 40 (5) so let's go over to 40 (5). 40 states: “when the Minister has announced the designation of any locality or Port City outside the Kingdom as a disease infected zone under Section 8, a Communicable Disease Control Officer stationed at the international communicable disease control checkpoint shall have the power to carry out, or issue a written order instructing the conveyance owner or conveyance operator whose conveyance has entered the Kingdom from such locality or Port City to carry out the following”: and then subsection 5 is specific to the fine. 

(5) “to prohibit any person from taking objects, physical items or appliances, which are, or are suspected of being disease infected material, into or out of such conveyance, unless permission from a Communicable Disease Control Officer stationed at the international communicable disease control checkpoint has been obtained." So again this is a customs kind of function associated with quarantine, at for example a port of some sort.

That brings us to, they say “or fails to provide convenience to a communicable disease control officer under section 39 (4) shall be liable for the fine." So what does 39 (4) say? Let's backtrack to that real quick.

39 (4) reads as follows: "to enter the conveyance and examine travelers, physical items or animals in the conveyance and to inspect and control the conveyance owner or conveyance operator to improve sanitation of the conveyance to ensure hygienic conditions, as well as to eliminate materials in the conveyance which may be harmful to health. In this regard the conveyance owner or conveyance operator shall provide convenience to the Communicable Disease Control Officer stationed at the international communicable disease control checkpoint." Again so this is international context stuff here. This is if you are at an international checkpoint and they can enter a conveyance or if you fail to allow them to enter a conveyance or provide convenience if you will, in their duties, you may be fined. So that is pretty much exhaustive of the sections we are dealing with.

Now most of this was pretty self-explanatory. The one to me that stuck out, to read it again: "to prohibit any person from carrying out or performing any act which may cause unhygienic conditions that may result in the transmission of the dangerous communicable disease or epidemic." To me that looks to me to be like the one subsection on which you can hang your hat the best on these "mask mandates". The question arises in my mind, (6) says: "to prohibit any person from carrying out or performing any act which may cause unhygienic conditions." To prohibit. The interesting thing to me is it would seem that the requirement of a mask would not be a prohibition but it would be a compulsion. That is compelling and affirmative act on the part of someone. Again I am injecting my own observation, my own inside if you will my own opinion into that but requiring someone to wear a mask is not a prohibition, it is a requirement, it is a mandate. That said, again we are reading this from the English. It is not the final say. Again I have had legal professionals, I have discussed this with Thai legal professionals. We have discussed this, as they have said there is something to be said for the notion of a prohibition versus an affirmative requirement of something but the nuance of this would be interpreted by a court of law so you shouldn't really look into this as the dispositive end all be all analysis on the overall topic. It looks like number 6 here is the basis for the fine under section 51. Again: "to prohibit any person from carrying out or performing any act which may cause unhygienic conditions", perhaps just simply the act of breathing without a mask is considered unhygienic. Is that the analysis, maybe? Quoting further: '"that may result in the transmission of the dangerous communicable disease or epidemic." Again I am not going to go out and state exactly what I think because at the end of the day it doesn't really matter what my opinion on the relevant sections here would be because an adjudication regarding a possible fine under this Act would occur in a court of law in Thailand and the final decision obviously would have to be made by a judge.

So the point of this video was to provide the insight, provide the background if you will on the legal framework under which this was promulgated and again section 51, they refer to that but once you go and dig into section 51, that is a whole slew of things behind that that they base their fine issuing capacity on under the section 51. My personal opinion is I am having a hard time seeing exactly where they get the authority to issue such fines based on my basic reading of this Act. That said, different people have different opinions, different people have different interpretations and as I have said, if somebody has anything to say on this, pro-con, not even pro-con just weighing in on their opinions on the overall Act itself or whatever I am always happy to stand corrected. If there is something I have missed here; if there is analysis that maybe I haven't parsed out enough to fully understand, I am always happy to hear that kind of stuff in the comments below but folks have asked me pretty much continuously for the past couple of days for some analysis on the underlying legal framework that this "mask mandate" is based on. We have gone ahead and provided it in this video and we hope that it has been useful to folks and it is providing a level of information and we are hoping that folks got something out of this video.