To: Senior Attorney
From: Apirak P. ,4913753
Re: Map Ta Phut
Date: September 8,2008
Back Ground:
Industrial port
In September 2535 B.E., the Industrial Estate Authority of Thailand (IEAT) awarded a contract to the Thai Prosperity Terminal Company to operate the Map Ta Phut Industrial Port's multi-purpose terminal. The multi-purpose terminal is one of the port's three terminals. It services shipments of bulk cargo, commodities and ore.
Location
The Map Ta Phut Port is located in the Province of Rayong, and is situated on the Gulf of Thailand on stretch of east-west oriented coastline approximately midway between Sattahip to the west and Koh Samet Island to the east. The site is approximately 220 km. by road from Bangkok and effectively faces open sea to the south.
This seaport is located at the eastern part of the gulf of Thailand and it is sheltered of the gulf of Thailand and it is sheltered by breakwater.
Fact of the case
In 2524 B.E., the first time that Thailand was started to use a under source; gas, liquid petroleum, oil,… under the earth from gulf of Thailand. As same that time Map Ta Phut industry estate was born by this event.
A name “Map Ta Phut industry estate” was come back again. Behind every mass media were hitting a new “School was shut down and move cause of effect pollution from Map Ta Phut estate” that made a people alarmed ,but in a shot time therewith the story was disappeared as a government policy to control and fix a problem, In 2540 B.E.
Nowadays estates are dumped a toxic to many way; underground, air, water that made a pollution standard was strike in a flash. According to contemplate a number of victims admitted in Hospital by effect pollution who residents of Map Ta Phut,and report recently form Greenpeace Group for example
Some of the most shocking findings include:
- Vinyl Chloride -known human cancer causing agent- detected in 2 samples exceeded the EPA Annual Ambient Air Screening Level by as much as 86 times.
- 1,2-Dichloroethane (EDC) -known probable human cancer causing agent- detected in 2 samples exceeded the EPA Annual Ambient Air Screening Level by as much as 3,380 times.
- Chloroform -known probable human cancer causing agent- detected in a sample was in excess of the EPA Annual Ambient Air Screening Level by 119 times.
- A total of 20 different toxic chemicals were identified in the five air samples.
So the test results prove that residents downwind of the Map Ta Phut Industrial Estate are breathing high levels of health threatening chemicals under normal conditions.
And the most shocking findings include air test results that prove people in Rayong province are breathing toxic chemicals from industry that are 60 to over 3,000 times higher than health standards in developed nations. According to the air samples show that men, women and children are breathing a “cocktail” of many chemicals known to cause cancer, birth defects and serious illness.
Then the fact found PTT once of the factory in estate was dumped a toxic by air that made his employees amount 112 persons being to ER, and residents stayed around estate cover 4 kilometer were illness,2540 B.E. After that event was appear the residents join together in from a class action lawsuit, and sue NEB (National Environment Board) to Administrative court in charge of negligence of duty, recently.
Under the circumstances according to the fact can be separated the topic of indictment for sue the party of defendants at the court of law as follows…
1. Did Map Ta Phut industry estate violate the law while that time?
2. Have NEB done anything against the law during that time?
3. Did government negligence of duty under constitution law?
The first indictment
“Did Map Ta Phut industry estate violate the law while that time?”
By virtue of the topic abovementioned have a legal reason involve as follows…
Civil & Commercial Code
Wrongful acts; Liability for wrongful acts
Section 420: A person who, willfully or negligence, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefore.
Compensation for wrongful acts
Section 438: The court shall determine the manner and the extent of thecompensation according to the circumstances and the gravity of the wrongful act.
Compensation may include restitution of the property of which the injured person has been wrongfully deprived or its value as well as damages for any injury caused.
Section 443: In the cause of casing death, compensation shall include funeral and other necessary expenses.
If death did not ensue immediately, compensation shall include in particular expenses for medical treatment and damages for the loss of earning on account of disability to work.
If on account any person has been deprived of his legal support, he is entitled to compensation therefore
Section 444: In the case of an injury to the body or health, the injured person is entitled to receive reimbursement of his expenses and damages for total or partial disability to work, for the present as well as for the future…
Section 448: The claim for damage arising from wrongful act is barred by prescriptionafter one year from the day when the wrongful act and the person bound to make compensation become known to the injured person, or ten years from the day when the wrongful act was committed.
However if the damage are claimed on account of an act punishable under the criminal law for which a longer prescription is provided such longer prescription shall apply.
Criminal Code
Section 157: Whoever, being an official, wrongfully exercises or does not exercise any of his functions to the injury of any person, or dishonestly exercises or omits to exercise any of his functions, shall be punished with imprisonment of one to ten years or fined of two thousand to twenty thousand Baht, or both.
Section 291: Whoever, doing the act by negligence and that act causing the other person to death, shall be imprisoned not out of ten years or fined not out of twenty thousand Baht.
Section 380: Whoever, cruelly ill-treats or kills an animal with unnecessary sufferings, shall be punished with imprisonment.
NEQA
Section 96 If leakage or contamination caused by or originated from any point source of pollution is the cause of death, bodily harm or health injury of any person or has caused damage in any manner to the property of any private person or of the State, the owner or possessor of such point source shall be liable to pay compensation or damages therefore…
Section 97 Any person who commits an unlawful act or omission by whatever means resulting in the destruction, loss or damage to natural resources owned by the State or belonging to the public domain shall be liable to make compensation to the State representing the total value of natural resources so destroyed, lost or damaged by such an unlawful act or omission.
According to the first indictment can take into consideration as follow…
”Did Map Ta Phut industry estate violate the law while that time...”first of all before we will adjudicate an indictment. We should consider in liability “who must responsible in that problem...” and “ Why they need to responsible...”
Under the agency acts in Civil and commercial code was enact about agency who representatives for company. If you want to sue that company when you need a claim, you can not sue them linear in a court of law. But you need to sue a company pass agency who whoever representatives for company over again.
When we really to know who was responsible in that a problem, next we step to take into consideration continually.
According to the fact as the legal reason we can adjudicate and explain how Map Ta Phut industry estate was breaking the law hereinafter.
Part of Civil and Commercial code
As aforesaid of the fact seen clearly about Map Ta Phut industry estate that found the estate was negligence, unlawfully injures the body, health (which we have a evident to prove form hospital report behind we found many residents around Map Ta phut were sick) of another person; resident, students and teacher around there, is said to estate commit a wrongful act under the law section 420 of civil and commercial code.
Estate bound to make compensation for a damage that there created follow Section 420 as well.
Most the law was separate a compensation for wrongful acts from general provision in specifically.
According to the fact an estate made residents were an injury to the body and health they should to reimbursement of his expenses and damages for total or partial disability to work, for the present as well as for the future from the estate. As follow the wrong acts.
And if residents were death under circumstances according behind that even, interested person; daughter, wife, kindred have a rights to receive a compensation shall include funeral and other necessary expenses
If residents death did not ensue immediately, they will receive compensation shall include in particular expenses for medical treatment and damages for the loss of earning on account of disability to work by the law section 443 of wrongful acts
But the compensation according to the circumstances and the gravity of the wrongful act will be determine the manner and the extent of the courtin section 438
By the way Map Ta phut industry estate really to violate the law in the wrongful acts section 420 according to section 438, 443, 444 especially we should to mind in status of limitation as well.
In general provision every code in Thailand if which on other period is provided by law is ten years as follow section 193/30 under the prescription acts. But some code especially to separate the period of prescription provided as follow the specific period.
According to the wrongful acts has a specific period in
Section 448: The claim for damage arising from wrongful act is barred by prescription after one year from the day when the wrongful act and the person bound to make compensation become known to the injured person, or ten years from the day when the wrongful act was committed.
However if the damage are claimed on account of an act punishable under the criminal law for which a longer prescription is provided such longer prescription shall apply.
Then shall we take into consideration that case again the plaintiff or injured person have a lawful to sue the defendant or Map Ta Phut estate with status of limitation as the wrongful acts.
In 2540 B.E. the fact a story was begin when we met a hospital report and list of number about people were sick by toxic most of them residents of Map Ta Phut estate.
When the victim claimed an estate follow the fact for damage arising from wrongful act. The victim have a rights to claim together after one year from the day when the wrongful act and the person bound to make compensation become known to the injured person, or ten years from the day when the wrongful act was committed under the wrongful acts section 448.
So the victims were delict from estate dumped a toxic since 2540 lower. Con not sue estate in the wrongful acts as follow the period of time fixed by law, section 448.
In part of Civil and commercial code we claim a compensation for actual damage and punitive damage are said to commit a wrongful act.
Ps. In this indictment, please careful to sue the defendant don’t sue to Map Ta Phut industry estate linear because is a company which didn’t person. So we cannot arrest it, but we can claim to compensation only.
Part of criminal law
Abovementioned to the fact the estate negligence dumped a toxic to the pollution effected residents who stayed around estate were sick and die that committed was break the law section 291 which Mrs. Kasemsri Homchuen(Map Ta Phut industry state board was representative by Map Ta Phut industry state) doing the act by negligence as the fact who negligence not carefully, didn’t check and control factories then they dumped a toxic to pollution made a impact to a nearly person was die.
Mrs. Kasemsri Homchuen representative by Map Ta Phut industry state shall be imprisoned not out of ten years or fined not out of twenty thousand Baht by the criminal law section 291
As provided in paragraph Mrs. Kasemsri Homchuen shall be punished with imprisonment not out of one year or fined not out of one hundred bath, or both. Because Map Ta Phut industry state cruelly ill-treats or kills an animal with unnecessary sufferings as section 380.
In part of status of limitation normally criminal law provided in 10 years. And but your commit is high level up the limitation will long, too. such as
You kill a person shall be death sentence or jail sentence all your life.The limitation was provided 20 years
You act sth to negligence but impact to a person die shall be jail sentence sine 15 years to your life. The limitation was provided 15 years
Just like the case Map Ta Phut industry state dumped a toxic by negligence causing persons to death. So prosecutor has a time to sue the defendant since 2540-2555 B.E. only.
In part of Criminal Law we claim for punitive damage and jail sentence.
Part of NEQA
NEQA: ENHANCEMENT AND CONSERVATION OF NATIONAL ENVIRONMENTAL QUALITY ACT was enacting for control pollution, industry including to area that really is the specific acts for pollution
As you know under the circumstances according to pass that Map Ta Phut industry state dump a toxic into pollution. So they break many the laws and once the law is NEQA, too
Map Ta Phut industry state negligence dumped a toxic to pollution pollution is the cause of death, bodily harm or health injury of persons who around Map Ta Phut industry state shall be compensations to damage that his causing as NEQA section 96 according to section 97
Limitation use in general period lest 10 years
In part of NEQA we claim for compensations in punitive damage
The second indictment
“Have NEB done anything against the law during that time?”
By virtue of the topic abovementioned have a legal reason involve as follows…
NEQA
Section 59 In case it appears that any locality is affected by pollution problems and there is a tendency that such problems may be aggravated to cause health hazards to the public or adverse impact on the environmental quality, the National Environment Board shall have power to publish notification in the Government Gazette designating such locality as a pollution control area in order to control, reduce and eliminate pollution
Section 100 Any person who violates or refrains from observing the restrictions stipulated by ministerial regulation issued according to section 44 or by notification given by the Minister according to section 45 shall be punished by imprisonment not exceeding one year or fine not exceeding one hundred thousand baht, or both.
According to the second indictment can take into consideration as follow...
Have NEB done anything against the law during that time we will see first in duty... NEB has a duty?
For the fact NEB is the government institution have a duty by the law to work, control, check pollution as follow the law. But in 2540 B.E. had a evident to show the residents of Map Ta Phut were sick, die causing to dumped toxic from Map Ta Phut industry estate. By the law NEB have a rights to enter and fix a problem with lawful but they didn’t do this which break NEQA section 59 by negligence of duty causing a people was die and sick according to NEQA section 100 that break the ministerial regulation issued shall be punished by imprisonment not exceeding one year or fine not exceeding one hundred thousand baht, or both.
In this part I claim for a basic rights, jail sentence, Punitive damage.And In limitation is 10 years to fixed. This case can not to sue in the general court, but we need to sue to the Administrative court only.
The third indictment
“Did government negligence of duty under constitution law?”
By virtue of the topic abovementioned have a legal reason involve as follows…
Constituion Law
Section 56. A person shall have the right to receive and to get access to public information in possession of a government agency, State agency, State enterprise or local government organisation, unless the disclosure of such information shall affect the security of State, public safety, interests of other persons which shall be protected, or personal data of other persons as provided by law.
According to the third indictment can take into consideration as follow…
The greatest of institution is the government as same as every country have a government. Normally the state must has constitution law even communism country has the mean policy. In generally that said to basic human rights in own country... like Thailand realize the first in basic human right. So constitution of Thailand has many sections for support citizen rights
For example
Section 56: A person shall have the right to receive and to get access to public information in possession of a government agency, State agency, State enterprise or local government organization, unless the disclosure of such information shall affect the security of State, public safety, interests of other persons which shall be protected, or personal data of other persons as provided by law.
When the basic rights of state were disturb, ignore, abandon under the circumstances according to story. Citizen or persons who were disturbed can stand for his rights with lawful for extort from a government to do as the constitution.
Ps. this case can not to sue in the general court, but we need to sue to the constitution court only. And status of limitation not fixed in this issue.
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