Public Participation and Hearings in the New Thai Political Context

James R. Klein¹

Introduction

At the heart of Thailand's 1997 Constitution is a revolutionary new scope for public participation. First, it removes State control over the appointment of an Upper House dominated by civil and military bureaucrats in favor of directly elected Senators representing civil society. As a result of this reform, the bureaucracy will no longer be able to exercise a veto over decisions made by MPs in the lower house. At the same time, however, MPs will be held accountable to civil society for their decisions in the lower house. Second, the constitution eliminates the bureaucracy's monopoly over public policy formulation in favor of public participation. Theoretically, bureaucrats will no longer be able to develop and implement projects which serve bureaucratic rather than public interests. Citizen concerns and interests will have to be calculated into public policy decisions. Third, reforms erase the fiction of bureaucratic ownership of national resources in favor of citizen stewardship. No longer will bureaucrats determine how a community's resources are developed. Citizens will have the right to determine the status of their local environment. Fourth, the constitution establishes a process to diminish the central bureaucracy's domination over local affairs in favor of political, fiscal, and administrative decentralization. Theoretically, this means Bangkok-based agencies will no longer be able to impose their will on

¹ Dr. James R. Klein is the Thailand Country Representative of The Asia Foundation. The views expressed herein are those of the author and do not necessarily represent those of The Asia Foundation. To learn more about The Asia Foundation visit their website at <www.asiafoundation.org>.

the course of local development. Individual communities will develop at their own pace and in accordance with the wishes of the majority.

These reforms, and numerous other measures mandated by the constitution, were designed to promote public participation. However, these reforms merely reflect constitutional theory; they do not accurately describe current Thai political realities. Before these theories can be translated into reality, the nation must undergo a period of transition during which values, attitudes, systems, and structures are changed to support and uphold constitutional theory. This is because the interrelated constitutional reforms are designed to dismantle Thailand's traditional form of governance and replace it with a participatory representative democracy.

Specifically, in combination, all the reforms serve to:

1. Recast the role of the bureaucracy from command and control to
facilitation of public policy and the efficient provision of public goods
and services; and,

2.        Recast the role of citizens from passive subjugation to engaged
participation with access to redress.

There are those who do not wish to see this transformation occur. Some of these individuals are well-intended politicians, officials, and citizens who believe the majority of Thai citizens lack the knowledge and skills to make their own decisions. Yet, others simply do not wish to lose the power and wealth they have achieved under the traditional system. In the face of resistance from these two groups, which remain influential and powerful, the achievement of Thailand's constitutional reforms and this transformation in governance will ultimately fail if citizens are unable to secure for themselves the public participation rights granted by the 1997 Constitution.

Representative Governance vs Participatory Representative Governance

Many democracies throughout the world refer to themselves as democratically elected, representative governments. Some of these nations adhere to a representative form of governance, while others

could more accurately be referred to as participatory representative governments. This is a distinction between two forms of government that many Thai politicians, officials, and citizens fail to recognize. It is important to highlight the distinction between these two systems of governance because Thailand's 1997 constitutional reforms were designed to promote development of a participatory representative government; the reforms were not intended simply to repair or to preserve a representative government.

In its purest form, a representative government is one in which citizens cast truly free and fair ballots on a regularly scheduled basis to elect their representatives at various levels from local to national. These elected officials set policies, as promised in their electoral campaign, and implement these policies through the efforts of dedicated bureaucrats. If citizens become displeased with the performance of their elected officials, citizens vote them out of office at the next election.

Unfortunately, representative governance (RG) is a Utopian ideal that has proven to obscure many dangers to democracy. This is because it requires so many other ideals to be absolutely true for it to function effectively as a system of good governance. RG requires that all politicians, not just a few, be guided by public interest and not self interest. RG requires that all bureaucrats, not just a few, act as public servants rather than proponents of their own agenda. And, ultimately, RG requires that all elections be truly free and fair, where money politics and the abuse of power play no role. Nations that adopt a representative government as their ideal eventually experience a downward spiral toward widespread corruption, abuse of power, violation of civil rights, and ultimately, the denial of citizens to freely and fairly elect their representatives. Over time, unless significant reforms are undertaken, the ideal representative government transforms itself into dictatorship by an elite.

The principal democratic alternative to representative governance, and the best known remedy against the problems inherent in representative governance, is participatory representative governance (PRG). The fundamental distinctions between RG and

PRG are that PRG provides citizens with tools to maintain constant oversight of their elected representatives, the authority to effectively deter officials from pursuing policies or projects opposed by the majority, and mechanisms to remove recalcitrant officials from office without waiting for the next election. PRG assumes that power corrupts and therefore not all elected leaders or bureaucrats will have the best interests of the community in mind. PRG assumes that powerful individuals will abuse their power to win elections in order to pursue their own personal interests. PRG assumes that it is the duty of citizens to protect their democratic rights and promote good governance through citizen participation.

Participatory representative governance should not be confused with participatory governance (PG). The latter is a system in which all stakeholders make a collective decision on each, and every issue before the community. While PG may be an admirable ideal of democracy, it simply is not a feasible option for managing a nation-state or even a local community. Representatives, whose values and attitudes reflect those held by the majority of their constituents, are essential to adequately consider the complexities of the many decisions faced by modern communities. Under a PRG system, it is the role of a representative to govern on a daily basis, and even to occasionally tell their constituents bad news. For example, "I know you elected me to lower taxes but the economy has been hit by international factors beyond the government's control. Therefore, although I cannot cut your taxes this year I will do everything in my power to avoid increasing your tax burden." Under a PRG system, as long as a representative is transparent and accountable for every decision, the public will generally accept (but not necessarily like) every decision.

Another common misunderstanding about PRG is "who" participates. As will be outlined below, there are various levels of participation. At all of these levels, participation refers to the actions of individual citizens. Nevertheless, at two critical levels, policy input and policy oversight, participation is often a group activity managed under the umbrella of a business, professional, or civic group. One of

the major faults of the RG system is that as it becomes more corrupt and prone to abuse of power, only those individuals or groups with wealth and power are able to influence decision-making. Too often, they literally buy the decision they want from officials. The merit of the PRO system is that it provides an equal opportunity for any individual or group, regardless of wealth or influence, to participate in decision-making, as well as make it more difficult for anyone to buy a decision.

Major critics of the PRG system often point to "those meddling NGOs" trying to influence a decision. In reality, there is no difference between an individual lobbyist or a lobby group representing a business interest and one claiming to represent a civic interest. For example, an electrical power lobby fighting to build a new power plant is no different than an environmental NGO fighting to ensure the proposed plant does not adversely impact the local environment. Too often the critics have no problems being wined-and-dined by wealthy and influential lobbyists representing the construction of a power plant but they will not even listen to the arguments of the environmentalists. Indeed, they would argue that the environmental activists only represent themselves and not the community or the public interest. Who then does the power plant lobbyist represent?

The fact is, not everyone is going to be concerned with every decision being made. The typical citizen usually only participates when he or she is very knowledgeable about the issue in question or will be directly impacted by the issue. Again, this is no different than the typical business lobby. The folks operating a power plant could care less about participating in a hearing concerning the construction of an art museum-unless the museum was to be built at the site of their power plant. Similarly the artists who are demanding Governor Samak hold hearings about the new modern art museum are not the same people that are protesting in Hin Khrut.

The Five Levels of Participation

The fundamental element of a PRG system is participation. There are five basic levels of participation necessary for effective participatory representative governance. These are: cognizance; elections; input into public policy formulation and selection; oversight of public policy implementation; and hands-on, partisan involvement.

Each of these levels represents a progressively more complex type of participation, and therefore each successive level is more difficult for a nation to practice. Moreover, there are indicators which suggest solid practice at one level may be a precondition for successful achievement of the next level of participation. Nevertheless, a nation should endeavor toward excellence in all five levels at the same time. A polity that attempts to sequence the levels will ultimately retard the development of participation.

The precondition for effective participation is citizen cognizance of their right to participate. Few citizens will attempt to participate in their government unless they are aware that they have the authority to do so. Thailand's 1997 Constitution mandates such authority to citizens yet the vast majority remain unaware of their rights to participate in various ways and at diverse levels. Thai citizens do not know how to be informed participants in public policy and politics because they were never provided an opportunity to learn. At the same time, few politicians, bureaucrats, or local administrators understand the implications of public participation. Moreover, they must change their fundamental values and attitudes toward the concept of public administration. Officials must forfeit their attitude of command and control for one of facilitation. For example, the Thai legal term for "safeguarding the public interest" is khumkhrong satharanaprayot. While khumkhrong may translate as "to protect", every school child knows the root word khwn means "to control". Officials need to learn to raksa, "to take care of rather than khum. The long-term solution to this double dilemma is a restructuring of the school curriculum and the decentralization of administration to local communities. In the interim, it is incumbent on the government to

provide training to both citizens and officials and to demonstrate its support for public participation through best practices.

Free and fair elections constitute the most fundamental form of public participation. All governments, with the exception of the most authoritarian, allow their citizens to vote. It is also the fundamental building block for all other forms of participation because unless a nation has a strong electoral system, its citizens will not be offered the opportunity to engage in higher levels of participation. Although elections are fundamental, no matter how free and fair an election might be, citizen selection of their representatives from a list of candidates proposed by either the government or contending political parties is insufficient in itself to secure democratic governance, and typically leads to the dangers inherent in representative governance. For most of the past 70 years, for example, Thai citizens have had the right to vote but elections did not translate into democratic governance because citizens had little control over their representatives or the bureaucracy which made decisions on their behalf.

As a result of the government focus on elections, rather than other levels of participation, Thailand witnessed the evolution of a supply-driven government in which the political and administrative elite supplied institutions and services which were not necessarily demanded by, nor designed to serve the public. It must be acknowledged that many of these projects did cumulatively serve to build the Thai nation, as well as reduce poverty levels and create new centers of wealth. At the same time, however, they were an excellent source of graft that fueled the continued development of a bureaucratic polity accountable only to itself. Secondly, in many cases these projects destroyed the local environment, displaced communities, and promoted the destruction of traditional Thai social and family values in the name of "development".

To prevent these problems, it is necessary for citizens to participate at a more complex level than simply casting a ballot. Specifically, they need to exercise their right to participate in a process by which public concerns, needs, and values are incorporated

into the government's decision-making process. This must be a process in which the public is heard before a decision has been made, and in which citizens have a viable opportunity to influence the decision from the beginning to the end of the process. The purpose of this level of participation is to inform the public, get the public's reactions regarding proposed actions or policies, and engage the public in problem solving to design the best solution for everyone. A solution or decision made through this manner generally will be seen as legitimate when it is perceived by citizens that the process was fair, open, and democratic.

Such public participation has a number of benefits. These include

improving the quality of decisions by anticipating public concerns and attitudes, and thereby offering governments the opportunity to use consensus building to avoid confrontations. That is, when properly used, it is a method to avoid conflict. It should not be viewed, however, as a method for resolving a conflict that has arisen over a project that is nearing completion, or that was completed a number of years ago. Participation in public policy design and implementation also helps to minimize costs and delays while increasing the ease of implementation by building credibility and legitimacy. Just as important, participation supports development of public expertise and creativity while training future leaders.

Public participation in the selection and design of public policies and projects does not guarantee, however, that policies or projects will be faithfully implemented. A fourth level of participation is required to promote compliance by officials with the public will. This level is most often referred to as oversight. Holding officials accountable is perhaps the most difficult level of participation for the ordinary citizen because it can be the most dangerous. Therefore, it is most effectively pursued by civil society organizations that use their numbers to protect their individual members.

There are only three principle reasons why an official is not faithfully implementing a public policy or project: the official is incompetent, lazy, or pursuing personal interests rather than public interests. Typically, the official striving for personal interests will use

every tactic available within their power to prevent exposure by citizens exercising their constitutional right of oversight. The most aggressive use murder to stop oversight, although there are hundreds of less violent ways of intimidating citizens. Moreover, some citizens are themselves corrupt and will accept a handsome financial reward to curb their oversight.

The best way to address this problem is to remove from office those officials who, for whatever reason, refuse to implement the public will. The question is who will replace them. It is here that the fifth level of participation is important. It is a level which is limited to very few citizens who believe they can make a difference by becoming part of the partisan political process by seeking election to office. The problem is, if a system does not have healthy public participation at the input and oversight levels, there is a high degree of probability that local politics is controlled by one family or those associated with an influential patron/client clique. It is therefore difficult for the average citizen to displace these influential people from office due to their power over the system. Moreover, it is participation in local public policy debate which earns an individual a reputation in the community; such an individual does not have to tell voters what his or her views and policies are but rather simply remind citizens of where he or she stands on issues of importance to the community based on their record.

Thailand's new constitution has established a wide range of reforms to promote all five levels of public participation. None of these reforms is working perfectly and no one should expect them to because in the world of political reality change takes time. The reforms have, however, set in motion some favorable trends. For example, new electoral laws are forcing political parties to focus more on policies rather than personalities. They are also making it easier for someone with limited resources to contest and win an election. During the last general election, for example, some very influential families were soundly defeated at the polls while a number of new faces emerged on the national political scene. The new National Counter Corruption Commission Act and conflict of interest laws will

establish  a trend  for the  expeditious  removal  of self-interested officials from office, as well as the incompetent and lazy.

Participation and Public Hearings

For opponents of constitutional reform—the proponents of the status #«o-perhaps the most irksome reform is the requirement that officials facilitate citizen participation in public policy formulation, and that officials recognize the right of citizens to overrule policies designed by the government and bureaucracy without prior citizen consultation. As constitutionally-mandated administrative and fiscal decentralization proceed, more citizens will seek to be included in local policies which have a direct and immediate impact on their families. This will serve as a direct challenge to the wealth, power, and face of provincial power brokers and godfathers who have grown accustomed to imposing their will on local policies and engaging in corrupt practices with impunity in order to serve their own self-interests rather than the general good of the community. Central to long-term reconciliation of this conflict, which will be the source of numerous human rights violations, will be vigorous central government support for public participation in local governance and the political will to rein-in errant feudal lords.

Powerful business and state enterprise interests, that may champion constitutional reforms, are also likely to find public participation burdensome and irritating. For the last half century, lobbyists for the interests of this community have held a monopoly on public participation in public policy decision-making. These interests must now compete on an equal footing with lobbying by a vast array of public interest groups including environmental NGOs, public health NGOs, human rights NGOs, and numerous community groups specifically drawn together to contest against a specific policy or project promoted by a business or a state enterprise.

There are two standard responses from a business community unwilling to share public policy participation with members of the public. The first option is to create their own community group or

NGO to counter those resisting a proposed project. In this public relations war, the business interest points to community support for their project as evidenced by the existence of the civic group. Unfortunately, this tactic too often strains the social fabric of a community setting even brother against brother and leads to violence. Such tactics, such companies, must be shamed and condemned by the wider community. The second option is a SLAPP, or Strategic Lawsuit Against Public Participation. Interests use SLAPP to divert the attention and resources of an opponent, as well as sap their emotional and physical energy, by filing frivolous lawsuits to harass and to intimidate. The best defense against the SLAPP is a counter-SLAPP; however, Thai courts do not have an exemplary record when it comes to charges of abuse of process and harassment against wealthy, influential defendants.

A critical element of participation in policy formulation, and a key indicator of government support for public participation, is the public hearing process. Hearings, for the first time enshrined as a constitutional right, are unfortunately governed by 1996 legislation which debases the process to a public relations exercise controlled by the Office of the Prime Minister, with a narrow time-frame and devoid of all consensus building and conflict avoidance characteristics. Over the past few years many have criticized public hearings as an ineffective tool because they have failed to resolve disputes between local communities and the state. Indeed, in many cases, hearings have led to riots or to long-term protests outside Government House. Critics of public hearings point to the Yadda Gas Pipeline Project, the Thai-Malaysian Gas Project, the Pak Mool Dam, the Kaeng Sua Ten Dam, the Prachuab Khiri Khan Power Stations and the Klong Daan Waste Treatment Plant as proof public hearings do not work.

These critics are 100% wrong because not one of these controversial projects is a demonstration of the failure of the public hearing process. They are 100% wrong due to the fact that no public hearings were ever held for any of these projects. They are 100% wrong because they believe the public relations exercises conducted

under the 1996 law on public hearings constituted public hearings. The 1996 law was invoked in each of these situations to address public objections to a project already under implementation, if not completed. The 1996 law has proven to be a failure but the 1996 law, in spite of its name and intent, is not about public hearings.

Public hearings are a process through which the public is heard before a decision has been made and in which citizens have a viable opportunity to influence the decision from the beginning to the end of the process. The purpose of hearings is to inform the public, get the public's reactions regarding proposed actions or policies, and engage the public in problem solving to design the best solution for everyone. Stated in another way, public hearings work for proposed projects; they do not work to resolve disputes over decisions already made and implemented. Other mechanisms must be used to resolve disputes like the Pak Mool Dam and the Thai-Malaysian Gas Project. Thailand may need to draft two laws: a Public Hearings Act to specify the procedures for all new, proposed government decisions, and a second law to specify procedures for addressing disagreements with past government decisions which did not have public hearings. A single law cannot address these two very different types of situations.

In drafting the new Public Hearings Act there are several critical issues that must be considered if the law is to be effective. These issues include: multiple formats for hearings, a comprehensive definition of hearings, hearings which address the big picture, hearings as a democratic process, and hearings which focus on analysis of the facts.

First, the new act must recognize that there are many different formats for public hearings. It is therefore important to avoid proscribing specific procedures which would preclude the flexibility to conduct alternate formats which might be more appropriate for a specific policy or project. Indeed, public hearings do not always have to be formal discussions in a conference room, community center, or school gymnasium. Hearings are a process and therefore they merely need to be a forum for discussing policy options. In a nation as fortunate as Thailand to have a free, vibrant, and independent media,

the media itself can be part of the public hearing process. For example, shortly after Samak Sundornvej was elected Governor of Bangkok, he proposed that the Dusit Zoo be moved from its location near Parliament. That zoo is not going to be moved during Samak's tenure as Governor because within the first week of his announcement, the media had reported every significant criticism of the move. The media had served as a public hearing mechanism to inform Samak that there was limited citizen support for his proposal and Samak backed off. It is very significant to note that Samak had not made a decision to move the zoo, he had signed no papers ordering such a move, he merely announced his conviction that the zoo should be moved. Public opinion polls are another example of an informal hearings mechanism which enables officials to gauge citizen reactions to government initiatives.

A second critical issue in drafting a new Public Hearings Act is to ensure that it is comprehensive in its definition. Section 59 of the constitution requires public hearings for any project or activity which may affect the quality of the environment, health, and sanitary conditions, the quality of life, or any other material interests of a citizen or community. The problem is there are two contenting interpretations of this article. The Srithanonchai believe hearings are limited to projects or activities of a State agency, State enterprise, or local government organization. That is, Section 59 is not applicable to private sector projects or activities. Under a common law interpretation, "any project or activity" means precisely "any project or activity". This is because at some point every project or activity of the private sector requires compliance with relevant laws protecting the community and individuals, as well as the concurrence of one or more government agencies.

To illustrate this point, take the hypothetical example of a pig farm. Suppose an entrepreneur bought the property next to the Jomtian Ambassador Hotel on a beach south of Pattaya. And suppose he decided to build a pig farm to grow thousands of pigs for sale in the Pattaya market. To the average person, it is obvious that this pig farm is going to smell and it is going to pollute the beach out in front

of the hotel. The question is, do the owners of the Jomtian, indeed, do all of the residents in the area, have the right to demand a public hearing before the pig farm is built? Under the Srithanonchai interpretation, the answer is sorry, this is a private sector action. Under the common sense interpretation, the answer is of course because some government agency is going to have to provide some type of zoning approval or a license to operate. Moreover, it is an activity which will affect the quality of the environment, health and sanitary conditions, the quality of life, and other material interests of the residents and guests of the community.

A third important element of a viable public hearing law is that it ensures hearings focus on primary issues rather than a series of interdependent secondary issues. That is, an effective law must not limit discussions to a specific activity or project when that activity or project is actually just one element of a much more comprehensive development program. The Thai-Malaysian Gas Project is a very good example of this problem. The alleged hearings on this activity have been limited to discussion of the gas pipeline. However, the emergence of a pipeline from the ocean is not really the ultimate concern of protesters. Their real concern is the development of industrial estates that will be built in the immediate region to take advantage of the gas, and the impact such industrial development may have on the local environment and their livelihoods. An effective public hearing law would force organizers in Songkhla to have hearings on the industrial development plan as a whole, rather than focusing on just one element.

Fourth, an effective public hearing law should promote a transparent, accountable, independent process. Unless citizens perceive the process to be totally democratic, the majority will never accept the recommendations arising from a hearing, and the hand of the minority will be strengthened to continue to battle the recommendations and subsequent decisions. That is, unless the process is democratic, a hearing will promote rather than reduce conflict. It will be a challenge for Thailand to ensure hearings are democratic because it will be necessary for civil servants, who

normally organize hearings, to adjust their attitude toward the public and rebuild their reputation for honesty and integrity. In the interim, those who appoint individuals to organize a hearing must maintain high standards in their selection process to ensure that any official with a conflict of interest is not involved with the hearing. This too, of course, will be a challenge because of the Thai tradition of granting accused officials with the benefit of the doubt. That is, unless there is documented proof of conflict of interest, an official can still be appointed in spite of allegations. While this is an admirable and necessary philosophy in a court of law, public hearings are not a court of law but rather a consensus building mechanism that requires a different set of rules. One of those rules is that the mere hint of a conflict of interest requires the removal of an official in question in order to maintain the integrity of the process.

Finally, a good public hearing law is one which will encourage analysis of the facts and promote decisions premised on the merits of an activity or project. This means that citizens and local communities must have equal access to information and technical expertise related to the activity or project. In alleged hearings held in Thailand over the past several years, the supporters of a project have typically arrived with a bevy of lawyers, scientists, technical experts, and government officials who submit reams of technical studies to support their position. Too often villagers arrive, with or without the moral support of activist NGOs, armed with arguments premised on social justice, fairness, and many tears. Unfortunately, without technical data in support of their arguments, they lose the debate. In the United States there are literally thousands of interest group organizations (NGOs) and professional associations who are able to offer their services to communities to challenge the data provided by project supporters and to develop alternatives. Since Thailand is not yet at this stage of civil society development, the hearings law may have to provide for the possibility of public financial support to enable communities to secure technical expertise on their behalf.

Conclusion

Thailand, as a nation, faces three fundamental problems as it attempts to promote public participation. First, Thai citizens don't know how to be informed participants in public policy and politics-they were never provided the opportunity to learn. The previous system not only discouraged public participation, it most cases it prevented participation with the exception of elections. With a centralized, top-down approach to almost all decisions, whether at the national, provincial, or local level, officials made it clear citizens were to be passive participants. Do not ask questions. Second, many bureaucrats and local power brokers do not wish to loose the power and influence they have built over the past decades. Not only is it in their interests to block political reform, they are certainly not accustomed to being questioned by citizens. As citizens ask more questions during this period of transition, there should be no surprise that there will be a significant increase in human rights abuses in provincial areas. Third, if citizens have had little experience with participation, few reform-oriented politicians, bureaucrats, or local administrators-the good guys-understand what public participation means. Their failure to implement a comprehensive and effective Public Hearings Act will preclude citizens from full participation and condemn Thailand to continue a history of civic conflict over both new mega-projects and community development projects.

In view of these three problems, the next critical step in the Thai political reform process is to assist Thai citizens to learn how to become active, informed participants in their political system; and to assist politicians, bureaucrats and local administrators to learn how to properly involve citizens in public policy decision-making. Essential to this process is a common understanding and recognition of human dignity, rights, equality and duty coupled with a critical awareness of the political process, wherein citizens view themselves as important actors and not simply as passive observers. In a nutshell, the key issue in securing the political reforms of the 1997 Constitution is to determine how to change citizen perceptions of their position in society from one of powerlessness, to a realization of empowerment

with the ability to analyze the systemic roots of a problem and the capacity to take the initiative for action to resolve the problem. Equally critical is to determine how to change government perceptions of best practices in public participation from one of essentially public relations required by law to a realization of the benefits of a participatory approach to national development.