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PUBLIC PARTICIPATION IN
ENVIRONMENTAL PROTECTION AND THAI
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.)
(16) See for more information on the functions of the Council of State: http://22.214.171.124/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
(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