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PUBLIC PARTICIPATION IN
ENVIRONMENTAL PROTECTION AND THAI
By Dr.Alexander Shytov
One of the most serious problems which Thailand faces is the problem of environmental degradation. The effect of recent industrial development of the country on the environment is devastating. Deforestation and pollution affects the whole environment including climate, and also the health and well-being of the Thai nation. It is not surprising that the issue of public participation in environmental protection appears at the centre of Thai public attention. The task of environmental protection is not the responsibility of government, NGOs, or active middle class. Recent Thai political history witnessed the rise of environmental self-consciousness of the rural population in Thailand.(2) In recent years there has been a mass movement of villagers in different localities against the plans of industrial development in those localities. The description and the analysis of that movement would exceed the limits of this article. Instead this article, the existing law on public participation in the matter of environmental protection will be briefly outlined. It will be shown that Thai law, at least in this area, has need of Thai folk wisdom.
PUBLIC PARTICIPATION IN THE THAI CONSTITUTION
Thai legal concept of the right of the public to participate in environmental protection is within the international mainstream, to encourage states and governments to ensure that all interested groups are admitted to the process of making environmentally significant decisions. The tenth principle of the Rio Declaration on Environment and Development states as follows:
"Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided."(3)
The Rio Declaration formulates three cornerstones of public participation in environmental issues: the right to receive information, and a corresponding duty of the State to disseminate it actively; the right to participate in decision-making processes, and a corresponding duty of the State to facilitate and encourage it; and the right to judicial and administrative protection either in the form of a remedy or redress.
The same ideas are echoed in the Thai Constitution: Section 58 of the Constitution addresses the right to receive information in ways similar to the Rio Declaration:
"A person shall have the right to get access to public information in possession of a State agency, State enterprise or local government organisation, unless the disclosure of such information shall affect the security of the State, public safety or interests of other persons which shall be protected as provided by law."(4)
As for the right to participate in making environmentally significant decisions, Section 56 of the Constitution states:
"The right of a person to give to the State and communities participation in the preservation and exploitation of natural resources and biological diversity and in the protection, promotion and preservation of the quality of the environment for usual and consistent survival in the environment which is not hazardous to his or her health and sanitary condition, welfare or quality of life, shall be protected, as provided by law."(5)
The same section of the Constitution addresses the right to judicial protection:
"The right of a person to sue a State agency, State enterprise, local government organisation or other State authority to perform the duties as provided by law under paragraph one and paragraph two shall be protected."(6)
Section 79 of the Constitution obliges the State to facilitate and encourage public participation in protecting the environment:
"The State shall promote and encourage public participation in the preservation, maintenance and balanced exploitation of natural resources and biological diversity and in the promotion, maintenance and protection of the quality of the environment in accordance with the persistent development principle as well as the control and elimination of pollution affecting public health, sanitary conditions, welfare and quality of life."(7)
Sections 56 and 58 do not mention the word "public participation". However, the concept of participation and access to information are central in both documents. The right of a person instead of the public has an important legal implication. In order to assert his or her right to participate, the individual does not need to be a member of any legally recognized entity. He can act on his own behalf. In other words, the concept of the public is organically present in those sections of the Thai Constitution, but its content can be expressed in the terms of an aggregate of all interested persons. The public includes all those persons who may participate in the protection, promotion and preservation of the quality of the environment. The circle of such persons is not determined, and cannot be determined in advance. It will include anyone whose interests are at stake when making decisions in environmental issues, and because of the nature of such issues, it has the potential to include everyone.
This indeterminacy of the circle of interested persons poses a significant problem for law as well as administrative and judicial processes in environmental cases. If it were only about the rights to participate, the problem would not be of concern. In law, if the right (to participate) is not asserted then the corresponding duty (to provide such participation) can not be enforced. the basic principle, which gets its powerful grip on environmental issues, is that the public and every concerned person has a duty to protect the environment. At the same time, the State has a duty to encourage and facilitate such participation.
Thai folk wisdom does not sharply separate a right and a duty as law does. The idea that the exercise of one's owned right can be a duty was presented in a number of folktales commented on in the book Thai Folktales and Law.(8) For example, in the stories of Phigunthong and Twelve Women the son or sons of the victims had not only the right to seek redress, but also a moral duty to do that. Environmental law has the following implication: environmental issues are of such nature that the right of the public is not confronted by a duty of the State, but the duty of the public to participate is conditioned by the duty of the State to make such participation easy and effective. The basis of the individual's obligation to protect his or her environment can be inferred not only from positive law, but also from the folk moral idea of personal and social responsibility which springs from the nature of the individual and society.
The advantage of Thai folk thinking is that the duty to participate, and the responsibility for environmentally friendly or unfriendly actions can be imposed independently from positive law. In fact, the Thai folk idea is common to what is called natural law tradition and is reflected well in other ethical systems. It is a common stereotype to think of the West and the East as based on completely different moral and religious principles. In Thailand, it is commonly asserted that it is based on the Buddhist tradition, while the West
(1) The author is a law lecturer at School of Law, Faculty of Social Sciences, Chiang Mai University, Chiang Mai 50200 Thailand. He completed his PhD law research both in Moscow (Russia) and in Glasgow (the UK). For comments he can be contacted at: firstname.lastname@example.org
More details about legal themes in Thai folktales see the book of the author: Thai Folktales and Law. Chiang Mai, Acts: 2004.
(2) For general survey of interaction of politics and environmental protection in Thailand see: Bello W., Cunningham S., Poh L.Kh. A Siamese Tragedy. - London: Zed Books, 1998. And Pasuk Phongpachit, Baker Ch. Thailand's Boom and Bust. - Chiang Mai: Silkworm Books, 1998.
(4) See English translation of the Constitution on: http://www.krisdika.go.th/law/text/lawpub/e11102540/text.htm
(8) Shytov A. Thai Folktales and Law. Chiang Mai, Acts: 2004.