During a period when the supply of drugs in Southeast Asia, especially synthetic drugs produced in Myanmar and distributed through neighbouring countries, has reached record levels, it may be surprising that the Kingdom of Thailand amended its drug laws to reduce the numbers of people in prison. However with the largest prison population amongst ASEAN countries, and over 80% of people in prison held for drug offences, due mostly to legal changes in 2002 that increased penalties for possession of small amounts of methamphetamine (the substance for which most people are imprisoned for), reforms are urgently needed. Senior officials refer to the failure of suppression efforts to eradicate drugs, and need for proportionate sentencing of drug offences, as part of the rationale for the significant scope of amendments to Thailand’s drug laws, which came into effect this month. Notable changes include:
New category of a ‘serious drug offence’
The amendments establish a new category of offence as a ‘serious drug offence’ which includes production, import, export, distribution, and possession of drugs, except possession for personal use, as well as conspiring, supporting, assisting, or attempting to commit such offences.
Key changes include a reduction of penalties, and the removal of minimum sentences, for most drug offences. For example, for category I drugs such as heroin and methamphetamine, a ‘serious drug offence’ could lead to a maximum of 15 years imprisonment and THB1.5 million fine (instead of 10 years – life imprisonment and a THB1 million – 5 million fine for production, import and export, and; life imprisonment and THB 1 million – 5 million fine or the death penalty if the offence was for the purpose of distribution, under previous laws). There is no longer a minimum sentence prescribed and perhaps it is possible for a judge to decide that no sentence of imprisonment is warranted. However, minimum sentences are instituted for a serious drug offence where aggravating factors are present, such as where the offence was for the purpose of trading or widespread distribution, or involved the use of physical force or threats, ie. 2 – 20 years imprisonment and a THB200,000 – 2 million fine.
More severe penalties apply for individuals engaged in a ‘serious drug offence’ who are found to be a ‘person in command’ or with a management role in a criminal network, or whose actions affected national security or public safety, including the death penalty.
The distinction is made between a serious drug offence and personal use and possession for personal use offences, although the latter remain criminal offences.
Emphasis on alternatives to prison for personal use offences
Possession for personal use will be determined by a threshold quantity that defines a ‘small amount’, to be established by a ministerial order issued by the Ministry of Public Health (MoPH). Specifically:
- Personal use (of category I, II and V substances, e.g. heroin, opium, methamphetamine, cocaine) is liable for a term of imprisonment not exceeding 1 year and/or a fine not exceeding THB20,000. A person who has applied for treatment, complied with criteria and conditions set by the rehabilitation committee, and obtained a certificate from the head of the treatment facility is exempt from this provision.
- Possession for personal use (of category I, II and V substances) is liable for a term of imprisonment not exceeding 2 years and/or a fine not exceeding THB40,000. Under the previous legal provision, possession of category I narcotics could lead to 1 - 10 years imprisonment or fine of THB20,000 - 200,000.
When an authorised officer, including an ONCB official, administrative official, or police, suspects that a person has used, or is in possession, of a category I, II or V substance, the officer shall refer the person to a medical facility for treatment. However, the person must not be a suspect or on trial in another case that may result in an imprisonment sentence, have no dangerous behaviors that may cause harm to others, and voluntarily apply for treatment. Authorised officers may seize drugs in the person’s possession, examine or order an examination on a person to test for drug use, and hold a person in temporary custody for up to 24 hours after a drug test is conducted.
Sentencing guidelines have been outlined for Courts to prioritise rehabilitation over imprisonment, and to take account of a defendant’s individual circumstances, such as the nature of their use, the environment in which they use, care-taking responsibilities, physical and mental state or the need to use in order to carry out certain tasks, in determining their sentence. Where a defendant accused of drug use or possession for personal use is not on trial for another offence that is liable for a term of imprisonment, the Court may issue an alternative sentence, e.g. probation with conditions such as regular reporting to a government officer or completing a drug treatment programme, detention (including in a medical facility), parole, and prohibition from entering specified areas or undertaking certain work.
Establishment of social rehabilitation centres
The Ministry of Interior and Bangkok Metropolitan Administration will establish social rehabilitation centres based on criteria, procedures, and conditions determined by the Drug Rehabilitation Committee. ‘Social rehabilitation’ is defined as measures to support people who are drug dependent or who have completed drug treatment to achieve an improved quality of life in terms of housing, education, employment, including monitoring of progress, until they are able to reintegrate back into society. Social rehabilitation centres will support people who completed drug treatment to access social services and temporary accommodation, with the aim of enabling the person to live in society without reoffending (including relapsing in drug use).
The Ministry of Social Development and Human Security, Ministry of Labour, Ministry of Education, Ministry of Public Health, and ONCB will support the operation of the centres. The involved agencies may appoint officials or community volunteers, or delegate their roles to others including government agencies, local government agencies, private development organisations, and community-based organisations. Social rehabilitation programmes will be based on criteria, procedures, and conditions to be determined by the Minister of Public Health, with approval from Drug Rehabilitation Committee.
The messaging from the government on the need to reduce the numbers of people in prison, ensure proportionate sentencing, prioritise treatment over punishment and aim for improved social and health outcomes is a welcome development. It is positive to see reforms that reduce terms of imprisonment and fines while promoting the use of alternative measures to incarceration. However, after several years of considering decriminalisation of drug use and possession of drugs for personal use, and despite the rhetoric in support of health-based approaches to drug use, it is very disappointing to see that drug use and possession for personal use remain criminalised. Although the Narcotics Code refers to voluntary rather than mandatory treatment, people suspected of drug use must agree to ‘voluntary treatment’ otherwise they are liable to imprisonment and a fine. As a result, the Thai government’s claims that this change represents a shift from compulsory to voluntary treatment or rehabilitation are hollow.
Long-standing concerns with the state of drug treatment and rehabilitation provision in Thailand abounds, as highlighted again this year by the discovery of wide-ranging abuses against people detained as part of a drug rehabilitation programme in a temple in Kanchanaburi province. The case of a person suspected of drug possession tortured to death by police while held in their custody, captured in a video that was widely circulated in August, also raises serious concerns about provisions authorising the police detention of people suspected of drug offences, including up to 24 hours for people suspected of drug use. Steps have been taken by the government to criminalise torture and strengthen accountability mechanisms within the police force however it is crucial to also see more pro-active measures to prevent incidents of torture. To this end, the UN Working Group on Arbitrary Detention recommends against the detention of people only for drug use and possession for personal use, including compulsory requirements for drug treatment or rehabilitation, as well as non-custodial alternatives to prison for people suspected or convicted of minor, non-violent drug offences. Alongside the International Narcotics Control Board, the UN Working Group on Arbitrary Detention also recommends against use of the death penalty, and it is disappointing that Thailand has retained the death penalty in the Narcotics Code.
On proportionality of sentencing, the increased judicial discretion to determine a sentence, including to take account of an individual’s socio-economic circumstances and to order an alternative measure to incarceration, could be a positive development. It will be important to monitor the use of judicial discretion and sentencing outcomes, including the extent to which the objective to reduce the numbers of people in prison is being achieved. Given the extensive work by government and civil society organisations on improving the welfare of women incarcerated in Thailand, and reducing their incarceration (women are imprisoned at a higher rate than men for drug offences and Thailand has amongst the world’s highest rates of incarceration of women), the lack of gender-sensitive provisions in the Narcotics Code, e.g. prioritising non-custodial alternatives for women who are pregnant or sole carers of dependants, is unfortunately noted.
Lastly, there have been changes that indicate the increased leadership role of the Ministry of Public Health in managing the drug rehabilitation system. On the Drug Rehabilitation Committee, the role of Chair has transferred from the Ministry of Justice’s Permanent Secretary to the Deputy Prime Minister, and the role of Secretary has transferred from the Department of Probation’s Director-General to the Ministry of Public Health’s Deputy Permanent Secretary. However, the Military Commander-in-Chief and National Police Commissioner are included as members of the Committee. As the Ministry of Public Health now has responsibility for determining the threshold quantities for possession of personal use, as well as in shaping the establishment of social rehabilitation programmes, there may be potential to further ensure that Thailand’s drug laws will minimise the damaging impacts of the criminal justice system on individuals and communities, and improve health, human rights and social outcomes.
There appears to be no mention of harm reduction measures, such as overdose prevention, treatment programmes such as opioid substitution treatment and needle/syringe programmes, in the Narcotics Code. However perhaps there is scope for the Ministry of Public Health to include harm reduction measures in ministerial-specific orders relating to drug treatment and rehabilitation over the coming months. In the development of these vital, life-saving measures and other processes, such as the determination of threshold quantities for possession for personal use, civil society and affected communities, particularly people who use drugs, must be meaningfully included in decision-making and monitoring processes to ensure their effective implementation.