PUBLIC PARTICIPATION
IN
ENVIRONMENTAL
PROTECTION AND THAI
FOLK WISDOM
By
Dr.Alexander Shytov
is
rooted in the Christian tradition. At least in relation to the moral duty
to protect one's environment, this presumption does not work; however,
the cultural expressions of that duty can be different. For example, the
Christian idea (shared to a significant degree by the Muslim world) of
a human being as a co-creature and as the one to whom God has entrusted
care for the rest of the earth, may find a different expression in the
Buddhist mentality which is predominant in Thailand. The Buddhist ideal
of ahimsa - not doing harm to any living organism, flows from the sense
of kinship with other living beings implicit in the doctrine of rebirth.
In other words, the duty of every individual to protect the environment
transcends any cultural, religious and ethical differences.
The idea of personal and social responsibility as expressed in Thai folktales
allows us to set public participation on a strong moral basis, which can
and should find its expression and support in legislative acts. It must
be stressed that public participation becomes not only a matter of individual
rights, but of a duty of the individual and the whole community, or the
public. In other words, the concept of "the public" can be presented
as a circle of all who are able to participate in making environmentally
significant decisions. This idea is reflected in the Thai Constitution:
"Every person shall have a duty to defend the country, serve in armed
forces, pay taxes and duties, render assistance to the official service,
receive education and training, protect and pass on to conserve and the
national arts and culture and local knowledge and conserve natural resources
and the environment, as provided by law."(9)
The fact that the protection of the environment is a duty of every person
according to the Thai Constitution leads to a principle, that public participation
is a duty, which the country must promote and encourage. This principle
is clearly reflected in Section 79 of the Thai Constitution quoted above.
Thus, both Thai folk wisdom and the Thai Constitution agree that the state
must promote public participation.
When one looks at the real legal policy carried out by the Thai government,
one will find the lack of a developed legal concept of public participation
in terms of a public duty, and not only of a right. Secondly, there is
a lack of an effective normative mechanism for public participation. The
root of those weaknesses lies in different moral values which the Thai
government pursues. The official Thai policy for environmental protection
is that it should not hinder economical development in Thailand, and should
not damage competitiveness of Thai exports.(10) Pragmatic-economic approach
may appear in the view of the majority of Thai as justifiable, since Thai
economy is in a deep crisis, and heavily relies on exports. It does not
appear, however, that this approach can be reconciled with Thai folk wisdom,
which offers a different ethical foundation for constructing national
environmental policy. Thai folk ethics is directed more toward virtue
rather than material affluence. It is directed towards harmony with the
environment rather than its ruthless exploitation.
It would appear that the Thai Constitution can satisfy both trends in
environmental policy: one supported by the government and directed to
the goals of material prosperity though continuing industrialization of
the country, and one supported by Thai folk wisdom directed to the harmonious
living with nature. In exploring further the rest of Thai legal materials
related to public participation in environmental protection, it can be
seen that there is very little place left for Thai folk values to play
any significant role. The main Thai statute on environmental protection:
Enhancement and Conservation of National Environmental Quality Act (1992)
can be taken as an example.
PUBLIC PARTICIPATION
AND MAJOR THAI ENVIRONMENTAL LEGISLATION
Enhancement
and Conservation of National Environmental Quality Act was adopted in
1992, five years before the new constitution of Thailand. Nevertheless,
the issues of public participation take a prominent position. Section
6 of the statute states:
"For the purpose of public participation in the enhancement and conservation
of national environmental quality, the following rights and duties may
be accorded to individual persons as provided by this Act or governing
laws related thereto:
To be informed and obtain information in matters concerning the enhancement
and conservation of environmental quality, except information of data
that are officially classified as secret intelligence pertaining to national
security, or secrets pertaining to the right of privacy, property rights,
or the rights in trade or business of any person which are duly protected
by law;
To be remedied or compensated by the State in case damage or injury is
sustained as a consequence of dangers arising from contamination by pollutants
or spread of pollution, and such incident is caused by any activity or
project initiated, supported, or undertaken by a government agency or
state enterprise:To petition or lodge a complaint against the offender
in case of being a witness to any act committed in violation or infringement
of the laws relating to pollution control or conservation of natural resources:
To co-operate and assist government officials in the performance of duties
relating to the enhancement and conservation of environmental quality;
To strictly observe the provisions of this Act or other laws concerning
the enhancement and conservation of environmental quality."(11)
There are two major weaknesses of the Act. The first is that these general
propositions on public participation have found very little, if any, development
in the rest of this important statute. The second weakness is rooted in
the wording of the general provisions on public participation, which may
be accorded to individual persons
but may not. In this respect,
the wording of the Act sounds as nothing more than a general policy statement.
Apart from these major weaknesses there are many other purely legal defects,
which can be seen for example in the rules on the disclosure of information.
The right to obtain information is more efficiently expressed in the Constitution
of Thailand, (Section 58 which was quoted above) and the Statute on the
Public Information adopted in 1997. What is needed, however, is a mechanism
and clear conditions under which the secrets pertaining to national security
or trade and business must be disclosed to the environmental authorities.
Only in Section 19 of the Act is it mentioned that the National Environmental
Board, the supreme body of Thailand in determining environmental policy
and setting environmental standards, may request such a disclosure. No
procedural safeguards are set. The weakness of the national Environmental
Board does not lie only in the lack of procedural clarity and transparency.
It is unlikely to be an efficient body, since its 14 members are Prime
Minister and other leading ministers of the Cabinet. These members would
hardly have enough time to go into complicated details of the environmental
issues. A half-quorum is required in order for any proceedings to take
place. Apart from the Secretary of the Board it would be difficult to
ensure that leading members in Thai politics would have the time to attend
the Environmental Board meetings. There is a provision that the Board
may draw members from the public - not more than eight, but probably less.(12)
The presence of few people from the public sector in the highest environmental
body is a good beginning. The Board itself has wide, but not specifically
defined, powers.(13) Apart from elaborating on environmental
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(9)
http://www.krisdika.go.th/law/text/lawpub/e11102540/text.htm
(10) Pornchai Danvivathana. "Thailand and International Environmental
Law.' In: Thammasat Law Journal. - Vol. 30. No. 1. 2000. - P. 46-47.
(11) . See English translation of the Act at: http://www. mekonglawcenter.org/download/0/thai.htm
(12) Section 45 of the Act
(13) Section 12 of the Act.
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