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.
New
Constitution and public consultation
In 1997, the Parliaments adopt the Draft Constitution proposed by the
Constitution Drafting Assembly and it came into force since October 11,
1997. As per public consultation, Section 59 provides that “A person
shall have the right to receive information explanation and reason from
a State agency, State enterprise or local government organization before
permission is given for the operation of any project or activity which
may affect the quality of the environment, health and sanitary conditions,
the quality of life or any other material interest concerning him or her
or a local community and shall have the right to express his or her opinions
on such matters in accordance with the public consultation procedure,
as provided by law.” 9 The government then ordered
the OCS to make research and draft the law on public consultation.
The
OCS and the Public Consultation Bill
The OCS is of opinion that public consultation should be done by concerned
government agencies at the stage of policy formulation, but there is no
requirement thereon. In practice, none of government agency do such that.
In legislative drafting process, there is no such requirement as well.
However, the OCS, as legislative drafting agency, realizes for very long
period that public comments are invaluable to our works. They are invisible
hands which help the OCS to draft law that meet social’s requirements.
The OCS always organize seminar to explain principal and mechanism of
the law we draft and then take any comments we have got for consideration
in improving the draft law. We open P.O. Box for any written comments
about the draft and the existing law for the purpose of law drafting and
law reform. We have provided the draft law which may have great impact
to our society on the Office’s websites (www.krisdika.go.th and www.lawreform.go.th).
People may download the draft law and its explanatory note for free. They
may send their comments on the draft law via forum provided in the website,
email and letter. The Office has our own view whether if any government
agencies realize the significant of public consultation and do their best
to gather public comments on what they have done, what they are doing,
and what they are going to do, it could help government agencies to provide
public service which accord to real needs of people.
Nevertheless, the limitation of the Rule of the Office of the Prime Minister
on Public Consultation by Public Hearings itself is strong impediment
for the development of public consultation in Thailand. The formal public
hearings under the Rule is, in most governmental agencies’ view,
the only method for public consultation. They do not pay attention to
develop and apply new techniques for this purpose because no law empower
them to do such that. The worst is they always, by Article 11 paragraph
two of the Rule, provide fundamental things for the project during public
hearings process. This situation seems that a formal public hearing has
no impact to the project at all.
Apart from the internal factor on the defects of the Rule as mentioned,
there has also been an external factor which impedes the development of
public consultation in Thailand. The OCS has found whether there is a
misleading on the notion of public consultation in Thai context. In Thais’
perception, public consultation and referendum are alike. This means the
result of public consultation is the decision on the project instead of
being “good evidences” for the government to have “suitable
decision” on the project which is an objective of public consultation.
With regards to the findings, the Office of the Council of State lay down
the principle of the Public Consultation Bill as follows:
The purpose of public consultation is to provide correct and clear information
about the project to interested party, and to collect and analyze comments
of interested party for government’s decision making;
The concerned government agencies shall organize public consultation on
the impacted project or activity before the permission to operate such
project or activity is given (It should be done at the initiation of the
project), except where there is an emergency case;
The projects or activities which shall be consulted with interested parties
are the project or activity which may affect the quality of the environment,
health and sanitary conditions, the quality of life or any other material
interest concerning him or her or a local community;
The concerned government agencies shall provide necessary, clear and correct
information on the project or activity to interested parties, and shall
take those comments into their consideration before the decision to operate
the project is given;
Public consultation method should be varied;
Formal public consultation, if any, shall be conducted by independent
ad hoc committee. Member of such ad hoc committee shall be appointed from
the list of impartial specialists by independent organization;
For good understanding between government agencies and interested parties,
response to public consultation should be made and publicized;
If the government agencies fail to organize public consultation, interested
parties may institute their cases to the Administrative Court.
Details of the Public Consultation Bill appear in Annex I.
Working process
The OCS finished the first draft of the Bill in June and disseminates
the bill throughout the Kingdom for public comments. Techniques for gathering
comments are as follows:
1. Interactive internet - OCS put the bill and its explanation on websites
of the Office for public comments for 2 months. People could download
the bill and its explanatory note from our websites free of charge; 10
2. Disseminates hard copy of the bill for free - OCS have disseminated
the bill throughout the country via all government agencies and local
authorities;
3. Advertising - Request for comments had been published in widespread
circulation newspaper and announced on hit radios;
4. Seminar - Many universities, both in Bangkok and in the region, devote
themselves to help the Office in organizing seminars on the bill. Participants
for each seminar were people from government agencies, university lecturers
and NGOs representatives.
People could send their comments to us via the phone call, facsimile,
letter and interactive internet. By now, all comments have been analyzed
and the Office plan to finish the revision version of the draft in December
2003.
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9.
Full text of the Constitution of the Kingdom of Thailand (English version)
could be downloaded from www.krisdika.go.th and www.lawreform.go.th
10.
Website of the Office of the Council of State is the most famous legal
website in Thailand |
