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.

Bill’s distribution and seminars
More than 500 copies of the Bill had been downloaded from our websites. More than 20,000 hard copies had been disseminated countrywide. Many articles on the Bill had been published in at least 3 widespread circulation newspapers.
Many seminars had been organized in all region of the country. It should be noted that apart from university lecturers, NGOs took significant role in organizing and participating seminars. The Office asked representatives from environmental NGOs to join seminars. (The names of all Thai NGOs appears in the Directory of NGOs produced by Commission for Development Promotion) The number of participants for each seminar was not less than 50, 70% of them are NGOs representatives.

Outcome
As mentioned above, the Office of the Council of State employed varieties of methods in gathering public comments on the Public Consultation Bill. The Office expected at the beginning that we should have a large number of comments in return since (1) this bill related to basic right of people and (2) tons of hard copy of the bill has been disseminated throughout the Kingdom. Public hearing database has then been designed to maintain and analyze at least 10,000 data.
Unfortunately, the OCS received only 341 comments, 98% of them was made by letters. The Office found that such minimal number caused by 3 main factors:

1. Specific characteristic of Thais:
Most of Thais always keep silent in any situation. This is the outstanding characteristic of Thais. People don’t want other know what are they thinking about. This characteristic appears in all seminar organized in Thailand. Even there are a number of people attending the seminars, only a few people speak out. This characteristic could be changed, but it should take quite a long period of time;

2. Limitation of interactive internet:
Interactive internet is the cheapest technique for gathering public comments. This technique is suitable for the country in which there is a number of internet user. In Thailand, however, the use of interactive internet is limited to people in the big city. In addition, most of internet users are teenagers who pay a little bit attention to such serious matter as law, politic, civil right etc. This situation could be changed within 5 years due to the sharp growth of information technology in all part of Thailand and need for participation in decision making process as well;

3. Cost of reply:
Even 98% of the comments made by letter, it does not mean that letter is the best way for collecting public comments since the number of written comments is minimal. The Office found that people do not want to be responsible for all cost incurred sending comments by letter. The government agencies themselves should be responsible for stamps and envelops for sending comments.
As per comments from seminars, the Office with help of EPAF (Executive Public Administration Foundation and Program, Thammasat University) transferred them into writing and put them into our database. All comment made in the seminars are justifiable. An invaluable knowledge the Office learned from seminars is there is a number of people who do not rely on any act of the government. They were suffer from many acts of the government in the past because the government of those days did not allow people to participate in all decision making process. Top-down decisions cause many adverse effects to way of life and health of people and environment.

Attitude of other government agencies on public consultation

All government agencies at the present day anonymously agree that public consultation is necessary for public administration. However, they found that the Rule of the Office of the Prime Minister on Public Consultation by Public Hearings create undesirable climate between them and people, and there is no existing legislation on public consultation. They have rushed the OCS to complete the bill. The real and urgent need therefore is to have the new rule and procedure for organizing public consultation.

Conclusion

Even the bill is in drafting process and it might take months for debating in the Cabinet and the Parliaments, many government agencies tried to employ the new principle and techniques proposed in the bill to their public consultation. The Electricity Generating Authority of Thailand (EGAT) advertises its request for public comments on its new transmission line in widespread circulation newspaper. The PTT Company, State enterprise, is applying new techniques for public consultation prescribed in the bill on its new gas transmission line project. During legislative process, the government has established the Committee for Revising the Rule of the Office of the Prime Minister on Public Consultation by Public Hearings. This Committee is revising the Rule to comply with new principle and techniques proposed in the bill. It could be said that by now concrete representation on the right to participation of people has been established in Thailand.

Annex I

             Section 2. This Act shall come into force after the lapse of ninety days as from the date of its publication in the Government Gazette.

             Section 3. In this Act:
             “State Agency” means central administration, provincial administration, local administration, State enterprise under the law on budgetary procedure and public entity established under the law on public entity;
             “Affected person” means a person who is affected directly by the granting of permission to, or the making of decision on, any project or activity;
             “Committee” means the Public Consultation Advisory Committee.

             Section 4. The Prime Minister shall have charge and control of the execution of this Act, and shall have the power to issue Ministerial Regulations for the execution of this Act.
             Such Ministerial Regulations shall come into force upon their publication in the Government Gazette.

             Section 5. There shall be the “Public Consultation Advisory Committee” consisting of the Deputy Prime Minister entrusted by the Prime Minister as Chairperson, Secretary-General of the Council of State, Secretary-General of the Council of Ministers, Secretary-General of the National Economic and Social Development Board and not more than ten qualified persons appointed by the Council of Ministers as members.
             The Secretary-General to the Prime Minister shall be a member and secretary of the Committee.

             Section 6. A person appointed to be qualified member shall have knowledge in public consultation method or shall be expert in the field of national security, law, political science, social science, economics, science, management or environment, and shall not be a political official, person holding political position, director or person responsible for the administration of the political party.

             Section 7. A qualified member shall hold office for a term of four years.
             In the case where a qualified member vacates office before the expiration of his or her term or an additional qualified member is appointed while the previously appointed qualified members are still in office, the term for interim appointee shall be equal to the remaining term of the previously appointed qualified members.
             A qualified member who vacates office upon the termination of the term under paragraph one shall remain in office to perform his or her duty until the newly appointed qualified member takes office.
             A qualified member who vacates office upon the termination of the term may be re-appointed for not more than two consecutive terms.

             Section 8. In addition to vacating office at the end of the term, a qualified member shall vacate office upon:
             (1) death;
             (2) resignation;
             (3) being a bankrupt;
             (4) being an incompetent or quasi-incompetent;
             (5) being imprisoned by a final judgement of imprisonment, except for a petty case or an offence committed through negligence.

             Section 9. At the meeting, the presence of not less than one-half of the total number of members is required to constitute a quorum.
             In the case where the chairperson does not present at meeting or is unable to perform his or her duty, the presence members shall elect one among themselves to preside over the meeting.
             The decision of the meeting shall be by a majority of votes. In casting votes, each member shall have one vote. In case of an equality of votes, the person who presides over the meeting shall have an additional vote as casting vote.
             The member having interest in the matter under consideration shall not attend the meeting or vote for such matter.

             Section 10. The Committee shall have the following power and duties:
             (1) to give recommendation on the issuance of the Ministerial Regulations under this Act;
             (2) to specify rule on public consultation in accordance with the provisions of this Act;
             (3) to inspect the performance of duty under this Act of a State agency;
             (4) to give advice and provide training to both State agency and private sector for the execution of this Act;
             (5) to make known of public consultation to both State agency and people;
             (6) to summit a report on the execution of this Act to the Council of Ministers at lease once a year;
             (7) to study or make a research for developing public consultation techniques;
             (8) to carry out other duties entrusted by the Council of Ministers or the Prime Minister.

             Section 11. In the performance of duty, the Committee shall have the power to summon any person to give a statement of facts, explanation, recommendation, and opinion in any matter or to submit relevant documents for its consideration as it deems appropriate.

             Section 12. The Committee shall have the power to establish a subcommittee to be responsible for works under its duties.
             The subcommittee may be established by the field of expertise or by responsible area.
             The provisions of Section 9 shall apply to the meeting of the subcommittee mutatis mutandis.

             Section 13. For the purpose of organizing public consultation, the Committee shall make the list of experts to be appointed as a Consultation Tribunal.
             The list of experts under paragraph one shall be made under the rule and procedure as specified by the Ministerial Regulations.

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11. Tentative translation by Pakorn Nilprapunt, Chonnanan Srithongsuk and Thananya Hnumas, Law Reform Division, Office of the Council of State, Thailand. www.lawreform.go.th