PUBLIC PARTICIPATION
IN
ENVIRONMENTAL
PROTECTION AND THAI
FOLK WISDOM
By
Dr.Alexander Shytov
which
states than NGOs applying for registration need to have a juristic person
status. That provision has been criticized by Thai legal experts as discriminating
against grass-root NGOs who are not juristic persons. Moreover, it appears
that even registered NGOs have no secured place in the process of making
environmentally significant decisions. The wording of the statute is more
favorable for the conclusion that government assistance and support are
discretional, and the only remedy in case of the lack of such support
is an appeal to the National Environmental Board, who can then address
the issue to the Prime Minister. It was noted above that the Board, because
of its composition, is unlikely to meet urgent requests of the NGOs. The
benefit of the granted registration would be only if the registered NGOs
have a right to sue governmental and local officials for mal-administration.
Apparently, NGOs do not have such a right in Thailand. The nature of any
administrative process, at the same time, does not prevent any unregistered
NGO's to apply for any assistance, which lies within the discretionary
power of governmental or local administrative bodies. Nevertheless, the
acknowledgement of the role of NGOs in deciding environmental issues may
facilitate their influence in protection of the environment in Thailand.
The Constitution of Thailand, again, foresees a greater participation
for NGOs. Section 56 of the Constitution says:
"Any project or activity which may seriously affect the quality of
the environment shall not be permitted, unless its impacts on the quality
of the environment have been studied and evaluated and opinions of an
independent organisation, consisting of representatives from private environmental
organisations and from higher education institutions providing studies
in the environmental field, have been obtained prior to the operation
of such project or activity, as provided by law."(22)
Two things here deserve attention. Public participation in deciding environmental
issues include studies, evaluations and opinions of representatives from
private environmental organisations and from higher education institutions.
Although this constitutional provision is set apparently only for big
environmental projects, it may have far-reaching results for the administrative
process in Thailand.
The Act does not mention any participation of the higher education institutions
and NGO's in accordance with the Section 56 of the Thai Constitution.
Apart from this constitutional provision, there is another reason which
deserves to be taken seriously. If one has to consider participation in
protecting the environment not only as a right but also as a duty, then
it is reasonable to impose such duty in accordance with the ability to
contribute to the protection of the environment. Scientific expertise
is vital for the environmental protection. In Thailand, as in the USA
and the UK, the universities and other educational institutions take a
lion's share of the research related to environmental issues. Therefore,
taking into account the importance of scientific knowledge, it is natural
to oblige educational and other research institutions to provide scientific
expertise. The advantage of educational institutions over other research
institutions is that they stand in closer proximity to the needs of the
locality where those institutions are situated, while the centralized
research institutions are normally in a more detached position.
It is true that the provisions of the Enhancement and Conservation of
National Environmental Quality Act require scientific expertise as a part
of the Environmental Impact Assessment (EIA). An expert in Thai law on
public participation, Somchai Prichasilapogun shared in his discussion
with the author that the Thai public does not trust those assessments.
Some of them are written in the English language, and are too technical.
It is difficult for an interested person to get a copy of it. Moreover,
the EIA is often made when the political decision by the government or
an authoritative body is already taken. It was often asserted that EIAs
prepared for the pacification of the public contained a lot of false and
inaccurate information. Even though there is sanction for the submission
of such information, it was said that it has never been exercised. Perhaps,
the weakest point of the Environmental Impact Assessment (EIA) procedure
as described in Enhancement and Conservation of National Environmental
Quality Act, is a lack of safeguards of public participation.(23) In many
countries, it is a duty of the competent organs to place copies of the
EIA report on public display before a license or permission is granted,
and to invite the public to comment, before public hearings take place.(24)
Thus, the analysis of major Thai legislation on the environmental protection
and the role of public participation shows significant faults from a purely
legal point of view. In addition, the legislation lacks any affirmation
of moral values which can be seen in Thai folktales: the values of the
harmony with nature and the community, the duty of mutual care, and social
solidarity. It seems that the legislation is elaborated to suit the interests
of economic development and of those who profit from it.
A THAI WAY OF PUBLIC PARTICIPATION?
The
rest of the world moves rapidly on the way of granting complex procedural
protection to every individual in order to encourage his or her participation
in making decisions affecting the environment. Thailand, as many other
less developed countries, has a certain resistance to that, which is caused
mainly by economic considerations. To grant too many rights will cause
the administrative and judicial processes more expense, it would be prolonged
and less efficient. If public participation is viewed only as a right
of those who are affected, and not as the duty of every able person to
contribute to the protection of the environment, then the negative outcome
of such participation will be but a flood of litigation and/or administrative
bureaucracy.
One particular advantage of Thai social life is the strength of communities,
particularly in rural areas. This advantage may provide a more efficient
way of public participation. A shift of powers is needed, however, for
communities to take responsibility for the protection of the environment.
A decentralisation of the powers to decide environmental issues and give
the public an opportunity to be involved in such decisions is an alternative
to an extremely detailed and technically complicated process of taking
environmentally significant decisions. Again, the Thai Constitutional
framework provides a basis for such policy. In Section 78 of the Constitution
it is written:
"The State shall decentralise powers to localities for the purpose
of independence and self-determination of local affairs, develop local
economics, public utilities and facilities systems and information infrastructure
in the locality thoroughly and equally throughout the country as well
as develop into a large-sized local government organisation a province
ready for such purpose, having regard to the will of the people in that
province."(25)
Under such decentralization it is natural that public participation in
deciding environmental issues will take place through the mechanism of
a local government. The principle of autonomy of local government is guaranteed
by Section 282 of the Thai Constitution. However, the delineation of powers
and duties between State organs and a local government in deciding environmental
issues is definitely in favour of the State rather than a local government.
Nevertheless, the Constitution provides that a local government must have
certain powers and the opportunity to participate in deciding environmental
issues.(26) In fact, the process of decentralization has begn, at least
on the level of enacted legislation. The most important act
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(22)
http://www.krisdika.go.th/law/text/lawpub/e11102540/text.htm
(23)
Sections 46-51 of the Act.
(24) Environmental Impact Assessment: Basic Procedures for Developing
Countries. - UNEP, 1988. - P.14.
(25) http://www.krisdika.go.th/law/text/lawpub/e11102540/text.htm
(26) Section 290 of the Thai Constitution.
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