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PUBLIC PARTICIPATION IN
ENVIRONMENTAL PROTECTION AND THAI
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
(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.