Sunday, December 13, 2009

Landmark judgment for people, environment, and the rule of law

The Supreme Administrative Court's ruling on Map Ta Phut is a landmark. It will be bad for the national economy. It will make some firms feel aggrieved. It may make Thailand less attractive to some foreign investors. But it is a milestone in the battle to protect people and environment, and to advance the rule of law. This is not because of the substantive decision - confirming a freeze on 65 projects - but because of the rationale which the judges wrote into their ruling. The key part translates as follows.

"People's rights are protected as stipulated in the 2007 Constitution. That no legislation has been passed laying down the principles, conditions and methods for applying these rights cannot be cited as the reason for any government agency to refuse to honour those rights, because on principle and legal interpretation, the intentions of the articles in the constitution, which is the highest law of the land, take effect as written immediately whether or not there is enabling legislation on the details."

A right is a right. The spirit or intention of the constitution is more important than the mechanics of judicial implementation. This is a landmark because of what has happened in the past.

After Thailand turned decisively towards industrialisation, its unusually pristine and fecund natural environment was trashed in a single generation. The major culprits were power projects, rock quarries, and large-scale industrial zones. In the 1990s, activists achieved three major reforms which they hoped would stem this destructive trend. The 1992 Environment Protection Act enshrined the principle that polluters should be made to pay in order to deter others. A 1996 Prime Minister's Office regulation introduced environmental impact assessments. Clause 46 of the 1997 constitution gave local communities the right to protect the natural environment on which they depend.

These three reforms were copied from best practice in the outside world, and heralded with great optimism. Local activists spray-painted "Article 46" at sites protesting against dams and industrial developments like a mantra to make the local environment invulnerable to outside threats.

Sadly these three reforms were a massive failure. One key reason was the abject failure of the judiciary to cooperate with their spirit.

Although the 1992 Environment Protection Act enshrined the "polluter pays" principle, not a single polluter has been penalised heavily enough to act as a deterrent. Courts were reluctant to accept cases. The process took too long. Fines and compensation payments were too small to be effective. In the famous case of Klity Creek, where the poisonous pollution from a lead mine trashed a whole sub-watershed, the case took nearly a decade, the compensation was a footling Bt4 million, and the ruling requiring a clean-up was simply ignored.

The introduction of environmental impact assessments has been more effective, but far less than hoped. Both government agencies and private firms undermined the process by hiring poodle companies to carry out research, evading public hearings, and splitting local opposition by intimidation and bribery. By the late 1990s, activists demanded that health and social impacts be assessed too, and that the process be made fairer, more transparent and less susceptible to manipulation. This pressure for reform led directly to the current Map Ta Phut case.

The rights in the 1997 constitution proved almost worthless. Every clause on rights in this charter ended with the phrase "as provided by law." This gave the judiciary an escape route. Judges argued that constitutional rights could become the basis for a judicial ruling only if they were substantiated by enabling legislation. They refused to accept suits which could function like a precedent-setting suit under a common-law system, or a class-action suit in the US. No community has been able to protect its own local environment under Clause 46.

The failure of these three reforms left people and environment vulnerable to continued destruction. The only recourse was protest. And protest was dangerous. Since the 1997 charter, environmental activists have been dying at a rate of two or three a year. Most are killed assassination style. About half were involved in protests against pollution. A couple were in Rayong. No masterminds have been punished.

The Map Ta Phut case has arisen because of four key changes over the last few years.
First, in the revision of the rights chapter in the 2007 constitution, the clause "as provided by law" was deleted throughout.

Second, activists pressing for reform of the project assessment process succeeded in getting their agenda written into Section 67 of the 2007 charter. This Section gives "an independent organisation, consisting of representatives from private environmental and health organisations and from higher education institutions providing studies in the field of environment, natural resources or health" a key role in the process of health and environment assessments. The Environment Ministry promptly drafted legislation to put this "independent organisation" firmly under bureaucratic control. Activists protested. Because of this tussle, implementation has been delayed.

Third, the activist community now includes researchers with two or three decades of battle experience and new local activists who are very well educated, especially in law. They have a lot of knowledge and very little fear.

Fourth, the Administrative Court introduced by the 1997 constitution has cancelled the bureaucracy's immunity to legal challenge. The court is developing a working culture very different from the mainstream judiciary. Most Thai judges see their role as interpreting the letter of the law. As this Map Ta Phut judgement shows, the Administrative Court thinks law has a spirit or intention which is more important than mere words.

The Map Ta Phut decision arose because new-generation activists used a new court to leverage new constitutional provisions in an attempt to get a new framework for environmental management.

Advancing the rule of law is about making law effective for ordinary people. Cases about politicians are froth. Elites will always treat law as something which should work in their own favour. When the judicial system can substantiate rights which protect ordinary people, then the rule of law advances. By Chang Noi, The Nation, Bangkok

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