Judicial activism in the People’s Court comes of age
Critics of the 2007 constitution argue that they are instruments for the resurgence of a bureaucratic polity — these independent public agencies such as the Administrative Court, the Constitution Court and the National Anti-Corruption Commission. From an opposite perspective, one measure of their effectiveness might be the degree to which they are loathed by corrupt politicians, arrogant civil servants and avaricious corporate despoilers of our environment.
In early 2012, while discussing the government’s eventually ill-fated attempt to amend the constitution, Pheu Thai Party MP Watthana Muangsuk suggested the number of independent organisations should be kept to a minimum, and the People’s Court and the Constitution Court were no longer required.
Much more recently, on Jan 30, newspapers reported that caretaker Interior Minister Charupong Ruangsuwan issued a not-very-veiled threat — “and those independent agencies who are prepared to 'mess' with the government, I can tell you it’s not over”.
Caretaker Deputy Prime Minister Plodprasop Suraswadi, mastermind of the 350-billion-baht flood protection fantasy plan, probably has nightmares about one of them. This one in particular is one of the few bright spots in the Thai legal system, otherwise described by the Asian Human Right’s Commission as a mess, in need of a drastic overhaul.
Officially, it’s the Administrative Court of First Instance and the Supreme Administrative Court, inspired by a right granted in 1874 allowing citizens to petition the King if they have been injured by a state agency or official, and spawned by the 1997 People’s Constitution. Unofficially it’s increasingly being referred to as the People’s Court, defender of last resort of the people’s rights and protector of our under-siege environment.
Following the promulgation of the 1997 constitution, widely regarded as the most progressive of our numerous basic laws, an enabling act was passed in 1999 and the Administrative Court started operations in March 2001. Since then it has progressively strengthened its operations with the establishment of seven regional administrative courts, making it easier for poorer citizens to lodge their complaints.
The court’s lofty vision is “to adjudicate administrative disputes, to render justice with a view to maintain equilibrium between the people’s rights and liberties and the public interest”. This vision is delivered by the Administrative Court’s use of an inquisitorial system, under which it is empowered to ascertain facts and evidence on its own, as opposed to the accusatorial system used in the Courts of Justice.
Since individual citizens are usually seriously disadvantaged compared with state agencies in terms of their ability to gather evidence and prepare for litigation, the use of the inquisitional system is vital for making justice more accessible to all.
Although in no way limited to matters related to the environment, it is in this area that the Administrative Court has chalked up its greatest successes on behalf of citizens hurt by sins of omission or commission by state agencies — typically involving private sector operators’ callous disregard for the environment. For example:
In 2009 the Central Administrative Court issued an injunction freezing billions of dollars of petrochemical investments at Map Ta Phut industrial estate following a petition lodged by a coalition of community and environmental activists led by the Stop Global Warming Association Thailand. The petition pointed out the government had simply ignored a constitutional requirement to establish an independent agency to review projects that might be harmful to health and the environment.
In January, 2013 the Supreme Administrative Court finally delivered some measure of justice to the long-suffering villagers of Klity Creek in Kanchanaburi province, victims of lead poisoning caused by discharges from a nearby processing plant operated by Lead Concentrate Co. The court ordered the Pollution Control Department to pay compensation to the villagers and find ways to clean up the lead contamination.
But perhaps the most telling case to date started last June when the Central Administrative Court ordered the government to conduct public hearings on the controversial 350-billion-baht flood protection plan, effectively freezing the plan’s implementation.
Involving the construction of more than 20 dams and two huge so-called floodways, the government was rushing to sign design and building contracts with little transparency and no input from the affected communities in 36 provinces.
Caretaker Deputy Prime Minister Plodprasop responded by trying to railroad the public hearings through, stage-managing them as PR events rather than utilising them as real opportunities for affected communities to express their views, only to be met by progressively stronger local community opposition.
Once again, the Administrative Court’s vital role in protecting our environment was underlined. That saga continues, with many experts suggesting the entire 350-billion-baht plan should be scrapped.
In an even more progressive move the Administrative Court now appears ready to consider the trans-border environmental impacts of projects. Speaking at last November’s 3rd Asean Chief Justices Roundtable on the Environment, deputy president of the Supreme Administrative Court Wichai Chunchomphunuch was reported as saying environmental problems have no boundaries, adding that an environmental disaster that happens in one country could have an impact on neighbouring countries.
This is particularly relevant as energy-hungry Thailand encourages Thai investors and banks to develop power projects in neighbouring countries with potentially disastrous environmental impacts in those countries, as well as in Thailand.
Villagers in Nan province are already fearful of pollution coming from the giant lignite-fired Hongsa power plant across the border in Laos, when it starts operation in 2015. And a coalition of affected Thai communities has already taken the Thai government agencies backing the US$3.5 billion Xayaburi hydropower project in Laos to the Administrative Court, arguing that this first dam on the mainstream of the lower Mekong River will cause irreparable damage to their livelihoods, food security and the stability of the river’s entire ecosystem, not counting the potentially even more disastrous impacts in Cambodia and Vietnam.
International observers are hoping our Administrative Court will respond positively to the challenges of trans-border environmental impacts, setting new standards for environmental responsibility prior to the launch of the Asean Economic Community at the end of 2015.
In the case of the Mekong River, the imposition of protective measures is urgently required since the Lao government has unilaterally broken the 1995 Mekong Agreement, the only institutional framework empowered to manage the sustainable development of the lower Mekong River basin, by allowing the Xayaburi project to start construction despite strong objections from Cambodia and Vietnam.
This is like another hapless Earthling versus "Lord Vader" battle, with juggernaut Thai corporates Ch Karnchang, PTT and EGCO, backed by loans from Siam Commercial Bank, Bangkok Bank, Krung Thai Bank and Kasikorn Bank, pitted against some 60 million affected Thai, Lao, Cambodia and Vietnamese villagers.
In 2013, I attended an international conference on dams and the threat to food security in the Mekong basin. I was perturbed when participants trained their question in my direction — "would their Thai counterparts be able to stop the dam?" My response was: "I believe, unfortunately, ordinary people can no longer look to our elected government and parliament to defend their livelihood. We have grown to depend on the courts."
Let’s just hope the "judicial activism" of the so-called People’s Court continues to deliver justice for those who to date have been voiceless.
Kraisak Choonhavan is former senator and former MP.