PUBLIC PARTICIPATION
IN
ENVIRONMENTAL
PROTECTION AND THAI
FOLK WISDOM
By
Dr.Alexander Shytov
policy
and setting environmental standards, the Board has the function of supervising
the application of environmental law by governmental agencies. It is clear,
however, that it does not have any judicial or quasi-judicial powers.
If any maladministration is found, the Board can only address the issue
to the Prime Minister, who is apparently also the chairman. It seems the
Board does not have an independent political standing.
In all the regulations concerning the functions of the Board, nothing
is said about the procedural safeguards of how ordinary citizens, and
the public in general, can bring their petitions to the Board, including
the right of hearing and the duty of giving reasons. When compared with
the constitutional provisions, the latter are much more advanced. Section
61 of the Constitution affirms:
"A person shall have the right to present a petition and to be informed
of the result of its consideration within the appropriate time, as provided
by law."(14)
Section 59 of the Constitution goes further:
"A person shall have the right to receive information, explanation
and reason from a State agency, State enterprise or local government organisation
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 hearing procedure, as provided
by law."(15)
There is no such law enacted by Thai legislature. However, the Council
of State (the highest advisory body in Thai governmental structure(16)
) has now prepared a draft law on public hearing. It has received a praise
of foreign legal experts.(17) A brief discussion of the draft is given
by Chaiwat Wongwattanasan, Secretary General of the Council of State at
his article Key Principles for Draft Public Consultation Act (Main Points).(18)
The only normative document which is enacted on public hearing thus far
is the Order of the Office of the Prime Minister for Considering Public
Opinions through the Process of Public Hearing.(19) This Order which is
directed to all governmental bodies cannot serve as a substitution of
the legislative act since it is not addressed to the public, and it does
not secure any public rights. It only obliges the governmental bodies
considering public opinions to furnish the reasons for their decisions
to the public (Article 18 of the Order). Conduct of public hearing according
to the Order is at the discretion of the political leadership of Thailand.(20)
Although it is true that an administrative process should have more discretion
than the judicial one, it is important to provide a legislative framework
within which administrative discretion can be exercised fairly and efficiently.
If this framework has not been enacted as yet, it is expected to be enacted
in the near future. The Enhancement and Conservation of National Environmental
Quality Act fails to specify the rights and the duties decreed in the
Constitution. Passing a law on public hearings will address only a part
of the complex problems related to public participation. Providing a clear
procedure for a public hearing will not automatically bring of active
participation. There must be people who have good will and knowledge to
take part in the process of making decisions on environmental issues.
In Thailand, as in other parts of the world, those people are found within
NGOs, academic institutions, and unlike other parts of the world, within
a few Buddhist monasteries.
The Act does not mention academic institutions and monasteries (despite
all Thai reverence to the latter and respect to the former), but it has
something to say about NGOs.
Section 7 of the Act states:
"In order to encourage public participation in the promotion and
conservation of environmental quality, non-governmental organisations
(NGOs) having the status of a juristic person under Thai or foreign law
which are directly engaged in activities concerning environmental protection
or conservation of natural resources without any objective to be involved
in politics or to make profits from engagement in such activities, shall
be entitled to register with the Ministry of Science, Technology and Environment
as NGO's for environmental protection and conservation of natural resource
in accordance with the rules, procedures, and conditions prescribed by
ministerial regulations."
The benefits of such registration are set forth in the next section of
the Act:
"The NGOs that have been registered pursuant to Section 7 may request
government assistance or support in the following matters:
(1) The organisation of volunteers to assist in the performance of duties
of government officials under this Act or other laws concerning the enhancement
and conservation of environmental quality;
(2) Public relations campaigns and dissemination of information or data
to promote public awareness and proper understanding and knowledge of
environmental protection and conservation of nature and natural resources;
(3) Providing assistance to people in certain areas of the country to
initiate projects or activities for environmental protection and conservation
of natural resources in such areas;
(4) Conducting study and research with respect to environmental protection
and conservation of natural resources and bringing to the attention of
the Government or agencies concerned on what are the viewpoints and suggestions
that are based upon the outcome of such study and research;
(5) Providing legal aid to people who are in jeopardy or afflicted by
pollution damage caused by leakage of pollutants or contamination, as
well as acting as the representative of such pollution victims to bring
lawsuits and litigate claims in court for compensation or damages to which
they are entitled as legal remedies.
In case any registered NGO, in the carrying out of activities indicated
in the first paragraph, encounters problems or difficulties and requests
help from the National Environment Board, the Prime Minister shall, with
the recommendation of the National Environment Board, have the power to
direct appropriate recourse or order the government agency or state enterprise
concerned to render assistance or facilitation as seen fit under the circumstances.
The Fund Committee, with the approval of the National Environment Board,
may consider allocation of grants or loans in support of any activity
of the registered NGOs as deemed appropriate.
The registered NGOs may propose for nomination of candidates as representatives
of the private sector to be appointed by the cabinet as qualified members
of the National Environment Board.
In case any registered NGO's activities are undertaken by causing disturbances
or contrary to public order or unsuitable, the Minister shall have the
power to revoke the registration of the NGO involved in such activities."(21)
On the basis of these statutory provisions, the Ministry of Science, Technology
and Environment issued a ministerial regulation No. 4 (2536B.E.)
Page
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(14)
http://www.krisdika.go.th/law/text/lawpub/e11102540/text.htm
(15) ibid.
(16) See for more information on the functions of the Council of State:
http://203.152.23.33/html/geninfo_e.htm
(17) See an article of J.E. Bonine "Democracy and Rights of Access
and Public Participation: Worldwide Trends" at http://www.krisdika.go.th/activityDetail.jsp?actType=I&actCode=24
(18) http://www.krisdika.go.th/activityDetail.jsp?actType=I&actCode=28
(19) Published in: Gaewsun Otiport. Public Hearing: Process of Conflict
Resolution in Protecting the Environment. - Bangkok: Winyuchon, 2000.
P. 88-94. (Text in Thai)
(20) Article 8 of the Order.
(21)
http://www. mekonglawcenter.org/download/0/thai.htm |