Key Principles for Draft Public Consultation Act (Main Points)

Chaiwat Wongwattanasan, Secretary General, Council of State

I.  Methods and practices for public consultation II.  Scope for public consultation

III.            Procedures for public consultation

IV.          Agency roles and responsibilities responding to the result of
public consultation

I. Methods

Due to the wide range of the agency activities that can impact the public or large groups of people, for public consultation to be effective, it should not apply only one method. Therefore, there should be many methods for public consultation so that the agencies can choose appropriate methods for governmental activities or projects.

Public consultation could be done in several forms such as survey polls, question and answer, written comments, paper hearings, seminars, workshops, and public hearings.

Proposal

Methods for public consultation could be divided into two categories: 1. Formal Consultation (formal comment & public hearings)

•    Organize meetings between agencies and the public or a group
of   people   who   may   be   directly   impacted   from   project
implementation

•    Define  scope  and  issues  to  solicit  comments  from  both
supporters and opponents

• Clearly analyze reasoning from both sides

2. General Consultation

•   Consult between the public and agencies for small activities or
projects that are not complex

•   Methods could be divided into two types: (1) written comments
including questionnaires and (2) consultation  in the form of
meetings or seminars

Issues for Discussion

General consultation is effective since the process is informal, easy to implement, relatively quick, and not costly. General consultation provides opportunity for all stakeholders to understand the issues without creating "confrontation" between supporters and opponents.

Formal consultation may be appropriate for activities or a project that may significantly affect a large group of people and create many conflicts. Technical experts will also be required to support decision-making and achieve acceptance of the result. Doing so may create financial and technical burdens to agencies in implementing their plans for the public benefit. Therefore, the necessity and appropriateness of this type of consultation should be considered.

II. Scope of Activities for Applying Public Consultation Methods

Types of activities requiring public consultation should be defined for both formal and informal methods.

Proposal

1. Governmental   agency   activities   that   require   formal   public consultation include

•   Activities that may significantly impact environmental quality
and require by law that environmental impact assessment (EIA)
studies be conducted

•   Takings

•   Town planning

2. Government   agency   activities   that   require    general   public

consultation

• Other activities  which  may  create  minimal  environmental

impact

•    Agencies may select appropriate methods for general public
consultation

•    A Royal Decree should be passed to define scope of activities
that require public consultation to ensure implementation and
enforcement.

Issues for discussion

Completing formal consultation will enable the government to respond to the interests of the affected public. Formal consultation, however, will be time consuming and costly. Conducting Formal consultation may result in delaying the public benefit related to the proposed provision of service.

General consultation will be relatively rapid and easy to implement, but may not resolve potential conflict, leading to disruption of the actual implementation of the project.

In sum, the law must clearly determine which types of consultation should be applied under specific circumstances to both provide opportunity for consultation without harming the general pubic.

Exceptions

• Military activities, foreign policy, public safety and national

security

•  Emergency activities required under the law or international
agreements which if delayed will harm the country or the public,
as determined by the Cabinet.

HI. Procedures for Public Consultation Proposal

1.  Procedures for general consultation methods

a.  Inform the public on governmental projects through notice in the
community to inform them about government policy in implementing
the activities or projects by announcing them in the local newspaper,
radio or by sending a letter to affected persons in advance.

b.  Provide complete information related to the project that will be
implemented  in the community,  including the  necessity for its
implementation, etc.

c.   Procedures for public consultation include (1) the location
where the public may request additional information or send in
comments or conduct a seminar, and (2) time frame for the public to
send in their comments or to conduct seminar or meetings.

d.    Prepare   consultation   report   including   the   result   of   the
consultation, and announce the result to the public in a timely fashion.

2.  Procedures for formal public consultation

a. Notification of a state project can be done to the public by
sending out a letter regarding the    responsible state agencies to
concerned parties in the community

b. Disclosure of information regarding the activities or projects can
be done consistently.

•   Setting up a branch office at the local district office building in
the area where the project or activity is taking place.

•   Provision of an official (from the public or private sector) at the
branch office to give further details about the project or activity
for any one who wants to know.

•   Setting the date,  time,  and  place  of the  would-be  public
consultation session. This also includes duration for which people
may give their opinion verbally.

c. There shall be a meeting between state agency and the public or
other groups of concerned people in order to define the scope and
issues that need to be studied in further detail.

d. Determining the person who will conduct the study (consultant).
This should be done with collaboration between the state agency (or
the private sector) that proposed the project and the public or
organizations that are involved in such activity or project.

e. Provision of a specialist or an advisor for the people or groups
of people who are directly affected by the project or activity.

f.  There shall be a meeting to announce the results of the study
made by the consultant and to solicit more comments from the public.

g. Ways to listen to the opinions

•  There shall be an organization that is responsible for this
matter.  This could be  in the form of an  opinion gathering
committee that would include representatives from state agencies
involved, people or groups of people who are directly affected,
and qualified academics in different fields. However, the body of
the committee should be in good proportion so as to ensure
transparency and credibility of the committee.

h. The responsible state agency or private company shall be responsible for the costs of conducting the opinion gathering sessions, which include compensation for the committee members.

i. Preparation of the opinion gathering results.

•    The  state  agency  or  private  company  responsible  for the
project, activity, must do this. This could be a report submitted to
the responsible state agency.

•    The public may obtain details of this report, which may also be
used to request to the court for a review of such order made by the
state agency.

j. The responsible state agency must disclose the results of the public consultation sessions, including comments and suggestions to the public in due course.

Note: There shall be exceptions to the public consultation sessions, which include commercial confidentiality, industrial confidentiality, and all other confidentialities that are protected by law

Issues for Discussion

All processes of the public consultation may bring about costs and prolonged decision making by the state. Therefore, choosing the right method of consultation in respect to the project/activity concerned will cause good balance both for the society and the pubic interest.

Sometimes there may be a group of individuals who try to exploit the pubic consultation sessions for their own benefit. Therefore, choosing the right groups of representatives is very important here so as to ensure a smooth consultation process.

As for the agency that will be responsible for conducting the public consultation, if this can be done by the responsible agency (project proponent), it may save a significant amount of money, but may pose problems with the validity. However, if this would be done by a specific organization (e.g. an independent organization), there may be other issues of concern, such as higher operation costs, and roles and functions of the independent organization.

The setting of detailed procedures and mechanisms in the law may not be practical enough to adjust them for specific activity. Therefore, there should only be a set of principles in the law and let other details be covered by other specific laws in the future.

IV. Agency Response to Public Consultation

Proposal

1.       The responsible state agency must take into account all comments
and information obtained during the  public consultation  sessions
before a final decision would be made on the project/activity.

2.       The state agency is not obligated to follow the results from the
public consultation sessions, but it must be able to provide rational
explanations to the public regarding its decision.

3.       The adjudication process of the state agency involved will have a
direct obligation with other state agencies with which it must be
followed.

4. In the event where individual(s) feel that the adjudication was not made upon the results from the public consultation sessions(s), there shall be a request for a judicial review on such adjudication.

Issues for Discussion

The public consultation is only a process for which the government could obtain opinions from the public regarding certain activity/project, which will be used to help in the government decision making. But it is not obligatory that the government must decide upon the conclusions reached at the consultation session(s). However, the government must be able to provide explanations to the public on its decision.

The public consultation process is to give an opportunity to the public in the state decision-making. But the following question is that the demands from each individual or groups of individuals are usually different. How should we decide when the process should be ended so the government could begin proceeding with the project for the common benefit of the public.