Thailand’s
Public Consultation Law:
Opening the Door to Public Information Access and Participation
Pakorn
Nilprapunt
Director of Law Reform Division, Office of the Council of State, Thailand.
Introduction
At the old days, Thai people took no part in decision making process.
Thailand administration at that time was absolute monarchy regime in which
the King, with advice of his noblemen, was the only person of the realm
who made decision in all matters. Even though the bloodless revolution
in 1932 turned Thailand to be democratic regime of government, right to
participation of people had not been represented yet. Most of people however
did not realize whether they have such right. This might be the result
of very long acceptance of the absolute monarchy concept that the administrator,
irrespective of who he is, had supreme power.
However, there was a small group of people who fought for their basic
rights which include the right to public participation. Most of people
in this group graduated from western countries. Some were university professors,
some were government officers. They sow their seeds of thought on rights
of people in democratic administration they learnt to their students and
colleagues. As a result of great expansion of education during 1950s -
1970s, the number of people who appreciated their rights under constitution
had increased sharply. On the other sides of the coin, the government
of that day took absolute control over life of people and did not leave
room for public consultation in whatever matter. People then had a great
concern about such limitation and urged the government to do something
to represent their right.
First
test
The first representation on public consultation in decision making process
had emerged after People’s Rallies in October 14, 1974 when the Parliament
passed the City Planning Act in 1975. Even this Act of Parliaments authorizes
the City Planning Bureau, after taking future development of the city
into its consideration, to make city plan and prescribe the limitation
on the use of lands in each zone as it think appropriate, Section 23 provides
that the draft city plan as well as land use limitations have to be put
up in the public place for public checking. If interested parties do not
agree with the plan or the prescription on lands use, they may lodge their
comments, with reasons, to the City Planning Board. In the case where
the Board so agree, such plan or prescription, as the case may be, has
to be revised. 2
This process has favorable outcome even serious confrontation between
concerned government agencies and affected people has emerged at the outset.
The government agencies learned that if they provided their justification
and clear cut information to people and, in the meantime, find the best
solution for any concerns of people, public consultation process was the
best way to find out the suitable solution and to promote good understanding
between government agencies and interested parties. By now, Bangkok Metropolitan
Administration (BMA) is reviewing Bangkok City Planning. It published
both draft city plan and the prescription on land use limitations in the
newspaper many consecutive days and has asked for written comments from
people in Bangkok. BMA has opened forums for Bangkok people to express
their views and reasons in this matter as well.
Second
test
After the first and successful test, the second test on public consultation
in decision making process appears in the Promotion and Conservation of
Environmental Quality Act of 1992. This Act prescribes rule for subsidizing
registered NGOs, both Thai and non-Thai NGOs, in order to help government
agencies to prevent and conserve environmental quality. Section 8 (4)
provides that the registered NGO shall be subsidized by the government
if it makes research related to the protection of environment and the
conservation of natural resources and “gives recommendations on such
matters to the government or concerned government agencies.” The
others public consultation method employed by this Act is the requirement
for environmental impact assessment report (EIA) for a project or activity
which may have environmental impact. Subject to Section 46, the report
shall be submitted to the National Environmental Board for approval before
giving permission to operate the project or activity. In addition to impact
to environment aspect, the Board, with consent of the Minister of National
Resources and Environment, requires the independent specialists who provide
the EIA report to assess impact of the project or activity on quality
of life of people as well. 3
Rule
on Public Hearings
As result of the Rallies in May 1992, the call for new Constitution, and
the government’s policy to improving civil service system, the outstanding
method for public consultation emerged in January 1996 when the Cabinet
approved the Rule of the Office of the Prime Minister on Public Consultation
by Public Hearings. According to the Rule, if the Minister or Provincial
Governor, as the case may be, is of opinion that an implementation of
any project under his/her power and duty may cause adverse impact to environment,
culture, occupation, safety, way of life of individual, community or society
and may cause serious arguments among interested parties, the Minister
may organize public hearings. 4 On the other hands,
if any interested party is of opinion that an implementation of any government
project may cause such adverse impact, he/she may submit written complaint
to concerned government agencies. In the case where no response is given
or he/she is not satisfied with such response, he/she may ask the Minister
or Provincial Governor to organize public hearings on the project. The
decision of the Minister or Provincial Governor is deemed final. 5
It should be noted that public hearings under the Rule may be made during
the study for feasibility of the project, the study for alternatives,
the study for impacts of the project, or any step prior to the decision
on the project is made. 6 Public hearings shall be organized
by ad hoc Committee nominated by the Minister or Provincial Governor,
as the case may be, from a person who has not interest in the project
and one-third of the members shall not be government officer, member of
the Parliaments, member of City council, or City administration. 7
Transparent
decision Making process and right to information
The Rule unfortunately was not success in practicing. The formal public
hearings was the only one technique for gathering public comments. The
government agencies, as a result, paid no attention to develop any other
suitable techniques. They always finish such fundamental works of the
project as starting procurement process and signing contract with the
contractors, during public hearings process. This is because the Rule,
paragraph two of Article 11, permits government agencies to do anything
about the project during the process except for making decision to continue
the project. Such inflexible method and unsuitable exemption clause called
for confrontation and collision between pro & con groups rather than
compromise.
Apart from defect of the Rule as aforesaid, the government has learnt
much from many hearings that concerned government agencies provided little
information about the project to people and some of such few were not
up-to-date and clear information. No two-ways communication between government
agencies and interested party had been established as well. Further, people
take no part in decision making process of government agency since there
is no standard rules and procedure thereon.
In order to solve those problems, the Office of the Council of State (OCS),
as central legal agency for the Royal Thai Government, then proposed the
Administrative Procedure Bill and the Official Information Bill to the
government. The purpose of first bill was to establish general and transparent
rules and procedure in decision making process for all government agencies,
while that of the second bill was to establish the method for people to
access to official information. The government agreed with the bills and
then proposed them to the Parliaments. The Administrative Procedure Act,
which similar to the US and German Administrative Procedure Act, was approved
by the Parliaments and has come into force in late 1996 while the Official
Information Act has come into force one year later.
Even the two legislations8 enhance individual to participate
in decision making process and to access to official information, the
matter on limited technique for public consultation still exist.
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1. Director of Law Reform Division, Office
of the Council of State, Thailand. www.lawreform.go.th
2. City Planning Act, B.E. 2518 (1975),
Section 24.
3. Notification of the Minister of National
Resources and Environment on Rules and procedure for the Making of Environmental
Impact Assessment (Government Gazette Vol. 109, Part 130, dated October
8, 1982)
4. Article 7
5. Article 8
6. Article 11
7. Article 12
8. Full text of the Administrative
Procedure Act 1996 and the Official Information Act 1997 (English version)
could be downloaded from www.krisdika.go.th and www.lawreform.go.th |
