Natural resources and the environment have been given more importance in the recent constitutions, but there are still a number of challenges when it comes to rights to these resources as well as rights to manage them through the so-called community rights. These issues were discussed at Dialogue Forum 8: The Environmental Challenges under Thailand’s Constitutions during the beginning of the attempt to amend the latest 2017 Constitution in late last year, which still continues through up until the present
Natural resources and the environment have long been one of the key pillars supporting Thai society, and in recent times, they have been addressed more significantly in the recent constitutions, as seen in various parts including people’s rights and freedom, Community Rights, and the State Policies sections.
As the constitutions have developed over time, rights to these resources as well as rights to manage them have also been shared to the people, as observed in the 1997 Constitution, where community rights to natural resources and the environment were first addressed.
Still, noted legal experts and environmental law advocates have viewed that there are still a number of challenges in dealing with these issues. They have shared their views and insights during the time when the latest 2017 Constitution has been going through a major amendment at the Dialogue Forum 8, organized by Bangkok Tribune and its alliances with the support of Konrad-Adenauer-Stiftung (Thailand Office).
According to Associate Professor Dr. Jade Donavanik, a former advisor to the 2017 Constitution Drafting Committee (CDC), and a drafter of the 1997 Constitution, who provided an overview at the forum, natural resources and the environment have been addressed in various parts of the country’s recent constitutions and they also concern community rights, especially since 1997.
This relationship between natural resources and the environment and community rights was first addressed in the 1997 Constitution and carried on in the next two Constitutions of 2007 and 2017.
From the first appearance in the 1997 version (Article 46 and 56), community rights regarding natural resources and the environment were highlighted and detailed more in the 2007 Constitution, Dr. Jade said. While the 2007 Constitution addressed community rights to manage, preserve, and utilize natural resources and the environment like the 1997 Constitution (Article 66 and 67), it went further with more defining terms such as communities, local communities, and traditional communities to try to cover them all.
Individuals’ rights to join the state and communities in managing, preserving, and utilizing natural resources and the environment were also addressed. And people or communities also had the rights to lodge a complaint against projects harmful to public health and the environment, he added. The 2007 Constitution, he further added, also introduced the environmental and health impact assessment as part of rights to natural resources and the environment.
The latest 2017 Constitution, similarly, has addressed these key elements (Article 43), Dr. Jade noted.
Additionally, it has come with the section called the State Duty, under which these tasks are also shifted and committed by the state, while people have the rights to lodge a complaint against it if it fails to fulfil the tasks (Article 57, 58, and 51).
In the past, the state would only oblige to “promote” these tasks under the section called the State’s Fundamental Policies (through law enactment to translate the contents in the constitutions), Dr. Jade noted.
Article 51, for instance, commits the state to the tasks and if it fails to fulfil them, people can lodge a complaint against it.
Other aspects regarding natural resources and the environment are also placed under the section called the State Policies, under which the state is required to address policies or enact laws to fulfil them, Dr. Jade pointed.
Constitutions to laws
From the principles addressed under the constitutions, they have been translated into laws, as the 1997 and the 2017 constitutions have required this with additional phases, “as addressed by related laws or their approaches”.
Professor Narong Jaiharn from Thammasat University’s Faculty of Law, who helps to enact a number of environmental laws and environmental justice reform, said from 1997 to 2017, the constitutions have not left behind community rights.
The 1997 version did not go into detail about community rights like the 2007 version as at that time it was relatively new to Thai society and people did not know to what extent it should be addressed in the constitution. But eventually, the constitution drafters had reviewed the supreme laws in various countries and learned that they did not write their constitutions in detail as well.
So, they decided to address community rights only in principle and leave the details to be addressed in related laws that followed. That’s the reason why a number of related laws and policies have been enacted to translate the principle into action since 1997, Prof. Narong said.
“We did not write community rights in detail in the 1997 Constitution because it was something new (being introduced in a legal context) at that time, so we decided to rather further enact related laws where more details were written.
“The 2017 Constitution had also seen several new laws in place before it was promulgated (following the coup appointed lawmaking mechanisms), so it does not need much detail as well. Such rights have been known and become part of our political culture,” said Prof. Narong.
However, Dr. Narong said the challenge about community rights to natural resources and the environment involves how to establish the relationship between communities and the state or local organisations over the resources.
According to Dr. Narong, the state tends to look at natural resources and environment as public resources, so in its view they should then fall onto its shoulder.
But the fact is the state cannot be responsible for them all, that’s why the state also opts to open to participation from communities somehow, as addressed in its policies and related laws, Dr. Narong noted.
The problem, he said, is public participation as addressed is broad. He tried dividing up public participation into five degrees and learned that participation in decision making is the most difficult part for people to join.
“If you look at the light green block, that is the most difficult part to participate in; decision-making. If it’s a small project, that would be possible, but if it’s a big project or the state’s policies or schemes, which have huge costs and benefits involved, it would be hard for this process,” said Dr. Narong.
The other point that concerns him is recognition of community rights among state agencies and the public at large, as well as the extent it will be adopted in society.
Exercise of power
Supaporn Malailoy, Manager of EnLAW (Environmental Litigation and Advocacy for the Wants), who has been working on environmental law advocacy and legal cases for a number of communities, shared her views on the issue.
After studying the constitutions, she said what EnLaw has learned from this Constitution in particular (The Constitution is dubbed by rights advocates as a successor of the dictatorship rules following the coup in 2014), is that there are some other parts, which apparently overrule the people’s and communities’ rights to natural resources and the environment.
For instance, Article 25 secures the rights and freedom of citizens, but there are conditions place after them, such as “that do not affect national security”.
Ms. Supaporn said this term is often claimed in the state’s policies and schemes, and it prompts suppression against proper environmental protection measures.
For instance, the waste disposal roadmap addressed by the coup order, of which its effects continue through in the 2017 Constitution under the provisional chapter, allows exemption of city planning or environmental impact assessments, she said.
“This shows us contradiction between state policies and environmental safeguards,” said Ms. Supaporn.
Article 58, which assigns the state to fulfil the duty on natural resources and environmental management, in addition, often skips the process of environmental and health impact assessments, while immediately shifting the process to public hearings through exemption adopted via new legislation or extra exercise of power, Ms. Supaporn pointed.
Two mega projects by the government; the EEC (Eastern Economic Corridor), for instance, has skipped the EHIA even though the advocates called on the strategic environmental assessment to be undertaken for such a mega-project.
The Chana Industrial Estate project, similarly, has no EHIA conducted but was skipped to public hearings as well, she further pointed.
“What is essentially crucial in natural resources and environmental management is information and facts, and they need proper assessments before we go through hearings. These should come before we make a decision together.
“So, community rights may be there, but following the current structure of power and decision making, which often lays claims over “national security”, we see a number of policies and measures (National Strategy included), which have instead deprived people’s rights to natural resources and the environment. This is a problem,” said Ms. Supaporn.
For the lawmaker like Chair of the House’s Standing Committee on Land, Natural Resources, and Environment, Apichat Sirisoontorn, he insisted that a good constitution is from the people.
Mr. Apichat said a constitution, which people participate in drafting, will reflect their wills. On a contrary, the one which those in power draft up will reflect theirs, not the people’s.
“People would say the 2017 constitution is better than the previous versions as it has tied up the state to the tasks of natural resources and environmental management for the people. But if we look at it carefully, we will see conditions placed along, such as “as addressed in related laws”.
Rights to lodge a complaint against the state are also written similarly, coming up with such a condition (which means we need to have laws in place first).
“These prompt uncertainty for the people because often we see that enacting laws would then rather follow the state’s wills, not the people’s,” said Mr. Apichat, adding that without a clear scope of contents that people wish to address in the constitutions, these rights are rather preserved for the state somehow, not reflecting the rights of the people as wished.
Mr. Apichat said to make an understanding of the constitutions is not enough. The public need to study and understand the thinking of the state and society (which are largely present thorough the laws).
“We may see that the 1997 Constitution or the 2007 version were good, or even 2017 one, which has not left community rights behind.
“But why do we still have the problem with our rights to natural resources and the environment? Why are many people who fight for land rights still under arrest?
“There are up to 80,000 cases that we have learned from complaints to parliament. Why do the rights addressed in the constitutions not help?, even those addressed in the 1997 constitution that we regard it as a model.
“I think the core issue is about all related laws. For instance, laws concerning land rights management, several of them are very aged, promulgated since 1941, 1954, and 1964, as in the case of the forest reserve act. They are still in effect and state agencies adhere to them to implement state policies. All these rather address the state’s power, not people’s rights,” concluded Mr. Apichat.
The next Constitution and the rise of rights to natural resources and the environment?
Ms. Supaporn said to have a “living” constitution, which is truly in effect for the people, and which they sees its importance and use it, there must be their issues addressed in it.
Mr. Supaporn remarked that a constitution is very important to define rights to natural resources and the environment as it would help define tools for good governance, community rights for various groups, as well as sustainable and fair access to the resources.
No less critical is decentralization of power to “decide” on natural resources and environmental management, she further remarked, while adding the 1997 constitution addressed this principle, and there was an effort to enact the law to translate this principle.
“In my view, the power in decision making is equivalent to decentralization of power,” said Ms. Supaporn, suggesting this element be addressed in the next constitution.
Ms. Supaporn also suggested rights to a healthy environment be addressed clearly in the next constitution. She said this principle was indirectly addressed on the part concerning EHIAs under the 1997 and 2007, but it is absent in the 2017 version.
After all, natural resources and the environment cannot be addressed alone. The health of the environment is linked to other sectors in the society, such as social security, and so on, she said.
All concerned parties, therefore, should come together to help write a constitution, which is a “people’s dream” version, Ms. Supaporn invited.
Mr. Apichat pointed out that a good constitution should frame a scope of related contents on rights to natural resources and the environment clearly. This, he said, would be helpful when related laws are enacted. They would then not be translated in a way to centralize power and bestow it all to the state, he remarked.
Mr. Apichat said particularly about the decentralisation of power, saying it was addressed clearly in the 1997 and 2007 Constitutions. However, there is a little about it in the 2017 version.
“Power to manage natural resources and the environment must be decentralized and transferred to localities, not being all centralized or being with state agencies or the central units like at the moment. Otherwise, we will not be able to solve our environmental problems.
“The constitutions that we have may address this element but they have not truly transferred the power to localities as addressed. This is particularly true in natural resources and environmental management. Much of the work is still with the centralized state. This is the root of the problems that we have,” said Mr. Apichat.
Mr. Apichat said a major overhaul in the contents of the constitution is needed, alongside a major review on all related laws. Some laws, he said, have been in use for ages and do not correspond well to the principles addressed in the constitution.
If they are not fixed, and the state keeps hanging on them, Mr. Apichat remarked that people may not have to have the constitution in place (because it’s useless).
“I think the issue has reflected our undemocratic structure. Such a structure does not lead to the fulfilment of rights and freedom.
“We can see that in countries like Japan or the US, they stick to the principles of public participation, decentralization of power, and so on, and they have laws, which correspond to the principles that allow people to participate and make a decision regarding their natural resources and the environment.
“Our society is centralized, on a contrary, with power being centralized and belonged to the state. The power to enact laws or legislation is also with the state. It’s centralized,” said Mr. Apichat, but did not elaborate further to what extent decentralisation should be.
For Prof. Narong, he said the flaws he often sees from constitution drafting is it is written in a broad manner and lacks a framework to follow (open-ended).
Prof. Narong said a constitution is introduced to society to lay a foundation and principle, but for some issues, they need a framework to guide further action or implementation to fulfil the constitution.
The critical part concerning public participation, as he has observed, has nothing to follow to help guide further action. This is a loophole, he said
Prof. Narong said the next constitution should also be rewritten on the part that helps guarantee and protect people’s rights to natural resources and the environment.
With such a guarantee and protection, people would be automatically safeguarded from any legal threats when they fight for the environment, he pointed. And such the rights should be guaranteed automatically in the constitutions, without conditions on further legal enactment set, he added.
Last but not least, the professor cited community empowerment as another key to the future.
Prof. Narong said the state must come up with this principle or foundation to help communities to stand on their own feet. This will be the beginning of the shift of power in managing public resources from the state and bureaucrats to people and communities, he remarked.
This principle or foundation, he cited, is in line with Common Law adopted by the UK or the US as communities there are empowered and strong enough to handle the business.
“It is part of their systems and culture,” said Prof. Narong. “But for Thailand, we have been relying on the bureaucratic system for a very long time. That’s the reason why shifting to decentralization immediately is not viable. We just have not laid this foundation well in our society; community empowerment.”