Public Participation in Environmental Management

“The Constitution must not be a constitution of only a handful of people, namely politicians, but the Constitution must be a constitution of the people, a constitution where the people have space, a constitution where the people can participate in determining their own destiny.”

Currently, Thailand has begun to place greater importance on the environment, as people have changed their way of life from an agricultural society to an industrial society, causing impacts on the environment and people’s livelihoods. The state has therefore begun to pay attention to the environment and place greater importance on it. The Constitution of the Kingdom of Thailand B.E. 2540 (1997) was the first constitution that opened opportunities for people to participate in the management and protection of natural resources and the environment, which was an important change in the principle of managing natural resources and the environment, from the previous system where the state was the sole authority in such matters to a system of joint management between the state and the people, where the people have the right to participate according to the principle of balanced and sustainable resource management.

When the Constitution of the Kingdom of Thailand B.E. 2540 (1997) came into effect, there was great expectation that the people would have greater participation with the state in the management of natural resources and the environment than before, unlike the past where the state was the sole manager. However, upon examining the provisions of the Constitution of the Kingdom of Thailand B.E. 2540 (1997), Sections 46, 56(1), and 59, it is found that they are only framework laws recognizing the people’s right to participate in such matters. The methods of participation and details must be in accordance with specific laws enacted to implement this constitution at another level, because all three aforementioned sections stipulate at the end that “as prescribed by law.” However, even after the Constitution of the Kingdom of Thailand B.E. 2540 (1997) was repealed, no laws were enacted or amended to support the people’s rights in such matters. Therefore, throughout the period when the Constitution of the Kingdom of Thailand B.E. 2540 (1997) was in effect, the people were still unable to exercise such rights, except for the participation of the people and private environmental organizations under the Enhancement and Conservation of National Environmental Quality Act B.E. 2535 (1992) only.

For the provisions of the Constitution of the Kingdom of Thailand B.E. 2550 (2007) that are direct provisions recognizing the people’s right to participate in environmental management and supervise the use of natural resources, as well as the control and elimination of pollution, namely Sections 66, 67, 73, 82, 85, 290, and 303. Therefore, the Constitution of the Kingdom of Thailand B.E. 2550 (2007) has important substance aimed at addressing such problems, implementing in four approaches:

1. Full protection, promotion, and expansion of the people’s rights and freedoms
2. Reducing state power monopoly and eliminating unfair exercise of power
3. Making politics transparent, with virtue and ethics
4. Strengthening the oversight system and making it work effectively

The Constitution protects, promotes, and fully expands the people’s rights and freedoms, including public participation, with processes where the people or interested parties have opportunities to express views and participate in various activities that affect people’s livelihoods. However, the Constitution must not be a constitution of only a handful of people, namely politicians, but the Constitution must be a constitution of the people, a constitution where the people have space, a constitution where the people can participate in determining their own destiny.

The Constitution of the Kingdom of Thailand B.E. 2550 (2007) provides more rights and freedoms than before, more than the Constitution B.E. 2540 (1997). The increased rights and freedoms include the expansion of community rights, by adding rights of communities and local communities to cover cases where people come together to form communities without necessarily having been together for a long time to be considered traditional local communities, according to Section 67(1). Additionally, projects or activities that may cause serious impacts on environmental quality or natural resources must provide a process for public and stakeholder consultation in advance under Section 67(2). Communities have the right to sue government agencies, state agencies, state enterprises, local administrations, or other state legal entities to perform their duties as prescribed by law recognizing community rights, under Section 67(3), making it inconsistent with Section 303 of the Constitution, which requires the Cabinet to prepare or improve laws related to the promotion and protection of the exercise of rights and freedoms in the expression of opinions of individuals and the media within one year from the date of policy statement to the Parliament. Currently, the Constitution of the Kingdom of Thailand B.E. 2550 (2007) has been in effect for more than two years, but there is still no clarity regarding laws related to public participation concerning the environment according to the Constitution that has been enacted, as no agency has taken serious responsibility. Each agency gives reasons that it is due to continuous government changes. Therefore, it is necessary to study approaches to enacting related laws to support the provisions of the Constitution, as well as to designate agencies responsible for supervising such laws to be consistent with the provisions of the Constitution.

From the issues and legal obstacles in public participation concerning the environment under the Constitution of the Kingdom of Thailand B.E. 2550 (2007) that have been analyzed above, the author proposes the following approaches to address such problems:

1. Law Improvement
   Since Section 46 of the Enhancement and Conservation of National Environmental Quality Act B.E. 2535 (1992) already grants the state the authority to issue announcements that can prescribe principles and procedures for public participation in environmental impact assessment, to specify various forms and procedures of public participation more clearly and concretely, but currently no announcements have been issued under such authority.

   Therefore, secondary legislation should be added to be consistent with the primary law that has granted such authority. It is considered that provisions should be made for the people to participate from the first stage of starting the environmental impact assessment, and to participate in every subsequent stage systematically. The people should have opportunities to participate in decision-making as well. Those with authority should compile the people’s opinions and suggestions as an appendix to the environmental impact assessment report, and issue orders or decisions in writing as an appendix to the report, and make documents available for public inspection. The reasons for the decision must be shown, and reasons for consideration must be shown as to whether they agree or disagree with the people’s opinions or suggestions.

2. Data Management Improvement
   The author considers that the organization of databases on environment, economy, and society should be corrected to be current and easily accessible to the people, which will truly benefit public participation. There should be data centers in every locality with nationwide data connectivity. Educational institutions in localities may be responsible for organizing this, to be beneficial for expressing opinions and providing useful suggestions.

   In data management, in addition to making it convenient and easy for the people to access data, good data management should also make it convenient and easy for the people to provide data, opinions, and various suggestions they have to project owners and relevant agencies, to create two-way information exchange, where in addition to the people receiving information, the people also provide information that are their opinions and suggestions.

3. Proposal for Recognition of Community Status
   The author considers that proposals should be made for registration of communities, local communities, and traditional local communities, to establish the Thailand Community Council as a legal entity, and to give the Community Council the right to file cases under Section 67(3) on behalf of member communities, as well as to propose that communities’ litigation under Section 67(3) be exempt from any court fees, and may authorize prosecutors to represent communities.
4. Improvement of Participation Forms
   The author considers that internal laws or secondary laws should be amended to be consistent with constitutional provisions regarding the opinions of independent organizations and public and stakeholder consultation. It must be clearly specified what the nature and components of such advisory opinions are, and whether they are binding on state agencies to comply with such opinions, or are merely information for use in considering permits. Similarly, for public and stakeholder consultation, the procedures, processes, and binding nature of such consultation must also be specified.
5. Public Education
   The author considers that the general public should be informed and aware of the importance of natural resources and the environment, how they are beneficial and necessary for daily life and in the future, and correct understanding should be promoted to the people, project owners, businesses, various agencies, or even all other relevant persons in preparing environmental impact assessment reports and public participation in preparing such reports, how it is beneficial, important, and necessary, so that all parties understand the benefits and importance correctly and consistently, to promote public awareness and understanding of their right to participate in preparing environmental impact assessment reports according to law to the greatest extent, what form it should take to be correct, and correct understanding must be created about the purpose of participatory management. Because if the people do not have correct understanding, they may think that merely opposing the environmental impact assessment report preparation is already correct participation. Therefore, this may cause problems that prevent successful management of public participation.