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PUBLIC PARTICIPATION IN
ENVIRONMENTAL PROTECTION AND THAI
By Dr.Alexander Shytov
is the Act on Tambon Council and Service (2537 B.E.) which was promulgated three years before the new constitution of Thailand. This Act provides for more authority and functions for a local entity, called tambon, which unites several villages.(27) However, the process of decentralization is still far from completion, particularly in the area of enforcement of local community rights, and there is still much to do to provide a clear legal framework for public participation.
Generally speaking, public participation can take two basic forms: the first one is through the direct participation of every individual who is affected by the outcome of environmentally important decisions. The disadvantage of this type of participation is that it depends on the activity of private individuals. If this activity is low there may be no public participation at all. If this activity is too high the efficiency of administrative process is endangered.
The second type of public participation is through the mechanism of local government which, in a way, filters and consolidates the claims and the interests of all individuals in a particular locality. Such type of participation can be effective only if: firstly, the autonomy of a local government is guaranteed; secondly, there is a significant degree of proximity and accountability of the local governors to those people they represent; and thirdly, even though the most significant issues are decided by State organs the participation of the local government is ensured through clearly defined rights and duties of the participants. The second type has advantages since it makes the administrative process of deciding environmental issues much more orderly than it would be in the case of granting the rights to every interested person. The first type of the participation should still be maintained in case of default by a local government to take significant part in the process.
The reality of Thai administrative process is that both types of participation are asserted on the highest constitutional level, but they are not enforced and specified in detail on the lower levels of the regulatory mechanism of deciding environmental issues. The future will show what particular type of public participation Thai legal system will uphold. Dr. Kobkun Rayanakorn in her conversation with the author, indicated that the main problem now is that the Thai public still does not have a clear vision of what public participation is about. The perception of public participation can vary: it can be presented as a mere political manipulation to the identification of public hearing with a referendum, while in the Western legal systems it is conceived as a procedural safeguard. In Thailand, public hearing becomes a hot issue where different conflicting interests meet each other. There is always a desire of those in high position to retain for themselves as much power as possible, and if the local communities must acquire a greater power to manage and protect their environment, then it will only occur through the struggle for their autonomy.
In this context, Thai folk wisdom can provide certain guidance for public participation in environmental protection. Firstly, it contains certain values which must be accepted as primary in deciding the complicated issues of environmental protection. The values of harmony with nature and the community, as well as mutual care and brotherly love can be seen in many Thai folktales commented on in the book Thai Folktales and Law(28) . As said previously, the main conflict in Thai politics is between the desire of economic prosperity at the expense of the environment on the one hand, and the folk culture of dependence on the clean environment. Therefore, Thai folk wisdom favours conservation of the environment much more that the economic goals of receiving as much profit as possible.
Secondly, apart from substantial values related to the protection of the environment and the discouragement of greed, Thai folk wisdom contains certain moral principles which can help lawyers when developing the procedure of public participation. Firstly, public participation in environmental protection is not only a right, but also a duty of every individual. Therefore, the process of participation should be constructed in such a way as to encourage people to fulfill their duty. Secondly, taking into account the folk ideal of social solidarity, it appears that Thai ethics requires public consensus in the decisions affecting environment. That would affect and slow down many economic projects, and therefore would not have much popularity with the government. If the government is a democratic government which must adhere to the will of common people, and not satisfy narrow and selfish interests of a certain class, then it must choose either to be democratic and be with common people or to be authoritarian and be with the rich and greedy for profit.
The environment is usually understood as the natural conditions of land, air, and water in which people, animals and plants live. Then, all kinds of biological life are added, and finally, the cultural environment crowns the concept. However, since the era of industrialization in the West spread from the XIXth century onward, the Western mind-set has a tendency to draw a sharp line between culture and nature. In contrast, Thai folk culture does not appear to know the sharp distinction between natural and cultural environment or at least, not yet.(29) The majority of the Thai population is still living in the countryside, and the overwhelming number of those who are counted among city inhabitants are those who live in Bangkok. The rest of the country is very different. The fundamental question which the whole Thai society faces is whether this folk culture-in-nature way of living deserves the protection of law, and if so what legal instruments and procedures can be employed to achieve this goal.
The main conclusion of this article is that the Thai legal framework of public participation is not yet clearly established. Since fundamental changes which occur in Thailand as a result of population growth, urbanization, deforestation and consumerism are causing, or are about to cause deep social conflicts, there is an urgent need to find a working model of public participation which can assist in resolving environmental problems. It may be that the Western model of public hearings is not able to solve the problems which Thailand faces, and possibly Thailand needs to find other mechanisms of public participation. Thai folk moral principles can provide an alternative to the highly detailed and adversarial process of public participation in the West. Thai folk wisdom stands for the shift from an adversarial system of antagonistic rights and duties, to a system of cooperation of the State, local communities, educational and religious institutions, NGOs and private individuals as the only effective option to unite everyone in the cause of protecting the environment.
(27) For Thai text of the Act see: http://18.104.22.168/html/fslaw.htm
(28) Shytov A. Thai Folktales and Law. Chiang Mai, Acts: 2004.
(29) See: Culture and Environment in Thailand. - Bangkok: A Symposium of the Siam Society, 1989.