Articles Legal News Thailand Lawyer Links Home
PUBLIC PARTICIPATION IN
ENVIRONMENTAL PROTECTION AND THAI
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
(23) Sections 46-51 of the Act.
(24) Environmental Impact Assessment: Basic Procedures for Developing Countries. - UNEP, 1988. - P.14.
(26) Section 290 of the Thai Constitution.