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Lawyers question community protection provisions in draft

Jul 31. 2016
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By PRATCH RUJIVANAROM
THE NATION

LEGAL EXPERTS have disagreed with charter drafters over the level of community-rights protections in the draft constitution.
The legal group Internet Law Reform Dialogue (iLaw) published an article that states the constitution does not guarantee people’s rights to live in a safe environment and be able to express dissatisfaction against harmful projects
The article also states that the charter excludes non-governmental organisations and academics from participating in the consideration of projects that could be harmful to communities or the environment.
Yingcheap Atchanont, an iLaw coordinator, said the charter had many worrying issues concerning community rights and people’s right to live in a healthy environment, which were not guaranteed by Article 43.
“In the 2007 Constitution, it was stated in Article 67 that people and the community have the right to protect and preserve the environment to ensure they live normally in a safe environment, but this clause has disappeared from the draft constitution,” Yingcheap said.
Article 43 in the draft constitution states that communities have the right to sustainably manage, preserve, and use natural resources, the environment and biodiversity according to the law.
Constitution Drafting Commission spokesman Norachit Sinhaseni said the draft constitution would not only preserve community rights, but increase people’s rights to protect art, culture, natural resources, the environment and biodiversity under the government’s care.
“I assure you that all rights will be preserved under the new constitutional draft, as Article 25 of the charter states that all rights and the liberty of all Thai citizens are protected under the constitution, unless they violate the law, even though they are not specified in the charter,” Norachit said.
“Therefore, this draft provides more rights to the people than any previous constitution, as it is clarified in the second paragraph of the article [25] that if there is no law to limit rights, people or communities can exercise all their rights according to the constitution.”
He said this was the first time a constitution contained this clause, with people do not have to search through previous charters to see which rights were guaranteed.
He said it was also stated in Article 25 that people whose rights are violated could cite the constitution to claim back those rights or use it as a tool in a lawsuit.
Yingcheap said Article 67 of the 2007 Constitution gave people, public organisations focused on the environment and health protection, and academics the right to be involved in the consideration of projects that might harm the environment, including the use of natural resources and the health of communities. 
This guarantee was not written into the rights and liberty section of the new constitutional draft, he added.
“The right to consider harmful projects has been transferred to become the government’s duty according to Article 58 of the draft charter, while people can only gather signatures and send a petition to the state, as written in the third paragraph of Article 43,” he said.
“It is also noted that the role of public organisations in relation to the environment and health, and the [role of] academics has entirely vanished from the draft constitution.”
Article 58 of the draft says the state must study environmental and health impact assessments on behalf of the public and arrange public hearings for affected communities concerning government or government-approved projects.
Norachit said the change had been made because it would be easier for the government to protect the rights of the public, while under the previous constitution people had to pressure the state to secure their rights.
“Moreover, the government also has the duty according to Article 57 [of the charter draft] to sustainably protect, maintain, restore and manage natural resources, the environment, and biodiversity with people and community participation,” he said.
Sor Rattanamanee Polkla, a lawyer with the Community Resource Centre, said Article 57 meant the community would not have the power to manage the environment and would have to follow the government’s lead.
She said the charter could also cause uncertainty over whether people’s rights would be protected by the state, as many rights would only be guaranteed by the government.
“What should the people do if the government does not perform its duty to protect their rights? If we go to court, we must have our rights written to cite to the court,” she said. 
“It will place more of a burden on affected people to fight the state in court, as they have to hire a lawyer. It still does not mention the lack of legal knowledge |among people.” 

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