Thailand Law Journal 2010 Spring Issue 1 Volume 13

B. The October Revolution--From Private Practice to Institution Building

Although four years after the uprising the number of new lawyers entering the profession began to grow rapidly, many of the most idealistic law graduates from the October generation, like Somchai, left Bangkok to work directly with villagers in other capacities. Even though many activist law graduates of the October generation postponed their legal careers, radicalization of the profession began immediately. The previous generation of embattled private practitioners together with Western-influenced intellectuals formed two organizations to formalize, expand, and reproduce a more liberal role for law. A handful of practitioners from Thongbai's generation established the Legal Aid Center Institute, an organization dedicated to providing legal services to poor persons. [FN153] The Institute's lawyers focused on legal assistance, but, equally important, it became the training ground for many of the next generation's activist practitioners and founders of important NGOs. [FN154]

The UCL, the second institution organized by first generation cause lawyers and other activists, radicalized the bar in a different way. The UCL, also formed soon after the student uprising, was founded by a group of Western-trained faculty at Thammasat University and Chulalongkorn University. Its founders were not exclusively lawyers. One of the founders, Professor Saneh Chamarik, educated in Britain, became Thailand's most prominent human rights theorist and the first chairman of the National Human Rights Commission. [FN155] Another founder, Gothom Arya, a participant in a 1968 student movement in Paris, was a young member of the Chulalongkorn University Faculty of Electrical Engineering. A few years later, Gothom founded Thailand's first human rights organization. [FN156] Soon branches of the UCL were established by similar groups in other cities, including Chiangmai and Ubon Ratchitani. Thus, both the Institute and the UCL were organized by first generation Thai cause lawyers and activists as an expression of their idealism and aspirations for the rule of law. They provided direct support for marginalized and poor individuals as well as social movement organizations, and they provided apprenticeships for third and fourth generation cause lawyers.

To Americans, the English translation of the UCL name may suggest that it is Thailand's own American Civil Liberties Union, but the UCL's mission has been quite different. Unlike the ACLU, which has focused on protecting freedoms named in the American Bill of Rights, the UCL had no national legal charter to orient its work nor was the concept of human rights commonly used or generally understood. Instead, the UCL supported social movements by, for example, assisting labor organizations to organize, educating workers about their rights, disseminating information about new rights, and providing criminal defense. After 1976, its work frequently brought it into conflict with the government and under suspicion of communist influence. [FN157]

While the first generation established institutions, the October generation pursued a different path that, in the long run, led back to cause lawyering. Many lawyers of the October generation left the university and became organizers who sometimes used their legal skills. Other law graduates, some who had been in the jungle, founded NGOs of their own, supporting the rising tide of mobilization in poor urban and rural areas. Still others, particularly those who could attract foreign philanthropy, formed policy-directed NGOs, such as the Friends of Women Foundation and the Center for Protection of Children's Rights--and are now senior members of the "Thai-style" NGO movement. [FN158]

Somchai's career is quite distinct from careers of first generation activist lawyers. Influenced by his early experience in a powerful social movement, he has self-consciously grounded his work in a strategy for social change, namely attracting and training progressive lawyers to support social movements of the people. Since his exposure to an international community of human rights advocates in the late 1980s, he has been key in building a network of human rights lawyers in Thailand. He has divided his energy between mobilizing legal support for important cases, creating space for the defense of human and civil rights by networking with friends in government, and reproducing the current generation of activist lawyers through training and finding support for younger lawyers. [FN159]

C. The NGO Movement

Third generation law students drawn to cause lawyering, like Surachai, entered a field that had taken shape through the work of the October generation, especially Thammasat University's own graduates. Surachi's career provides an instructive illustration because the network of student and faculty ties formed during law school continued to influence Surachai's career long afterward, helping to direct him to jobs and to fund his practice.

Like many third generation cause lawyers, Surachai had an opportunity to begin working as a salaried staff member of an NGO. He worked first for a "community research" NGO in the north, and within a few years, through his network, he found a job with the well-established Friends of Women Foundation as a litigator. Through his network of friends he was also working with other NGOs, including Alternative Energy Projects for Sustainability (AEPS), [FN160] an NGO that helps communities threatened with environmental, social, and economic disruption by Thailand's program for building power plants. After working for the Friends of Women Foundation for a year, Surachai joined a small law firm whose partners had experience working for labor organizations, slum movement groups, and other social causes. His work for NGOs was a productive apprenticeship for developing basic skills and learning about the roles he could play as a cause lawyer in private practice.

A few years after joining the firm, Surachai's network, specifically his contacts at AEPS, brought him another opportunity: coordinator for EnLaw, the environmental NGO established by the New York-based Blacksmith Institute. He was selected because of his prior work with AEPS and his reputation as a litigator. Cases which he had worked on for AEPS with the support of Somchai's Human Rights Committee became the first projects handled by the new NGO, EnLaw. Over time, Somchai drew Surachai more deeply into the work of the environmental subcommittee of the Lawyers Council. Gradually Surachai became well known in the cause lawyering community, and to the public at large, based on his litigation victories [FN161] and the close relationship between the Human Rights Committee and the NGO community. He has become the "go to" lawyer for anti-development suits based on environmental laws. [FN162]

Duean's career, representative of fourth generation cause lawyers, exemplifies the new opportunities the NGO movement has created. She is a female, salaried NGO staff attorney. While an elite Women's Bar Association [FN163] has existed for many years, there were few female cause lawyers before the 1980s. This is hardly surprising in a male dominated society. Perhaps what is more surprising is the emergence of women in generations three and four (since 1980) as NGO directors and lawyers pursuing careers that combine both cause-clients referred by NGOs and private for-profit practice. One explanation for this may be that women's interests are more aligned with the those of a well-established sector of the NGO community--the Foundation for Women, the Friends of Women Foundation, the Center for Protection of Children's Rights, as well as NGOs that focus on women workers, prostitution, or sex-work. [FN164]

The progress of the NGO movement also reflects a change in the fourth generations' perception of their role in political movements. Duean is not motivated by the anti-authoritarian political ideology that motivated the first generation of cause lawyers, the lawyers from the October generation, and the third generation, those like Surachai who embraced the October generation's legacy. Surachai (the third generation environmental lawyer), like Somchai (the October generation institution builder), was motivated by political idealism. Surachai explained the purposes of litigation as a form of support for community movements, not as environmental protection. Environmental law is simply a tool for achieving an essentially political objective. At the opposite extreme, the desirability of salaried apprenticeships for NGOs also draws recruits with less desire to be a cause lawyer than a desire to gain experience and move on. [FN165] Duean says her responsibilities are to the "king and the law." She is among the first to view cause lawyering as fully inside the mandate of the profession rather than at its margin or in opposition to the government. Cause lawyering, for Duean, if she is indeed a cause lawyer, is a "normal" career.

D. Globalization and Hegemony

Among the sources of influence on cause lawyers, the hegemony of Western ideas and resources has been the most intensely observed and theorized by progressive scholars. As described in Part II, some theories place globalization and hegemony in a more positive perspective than others. Risse and Sikkink are among those who view hegemonic standards and economic leverage as the engines that move advocacy along the spiral path toward human rights compliance. [FN166] Dezalay and Garth, and many others, likewise view international resources and pressure as critical leverage in human rights empowerment. [FN167] Comparing career narratives permits an examination of a wide range of global connections and resources and their direct or indirect influence on the indigenous network of advocates. Consideration of the changing paths of careers highlights the critical importance of increasing access to higher education. Comparing careers influenced by a range of funding programs, together with their embedded contingencies (such as cooperation with government), restricted objectives (forbidding pursuit of other objectives), or an assumption that a few months or years of "capacity building" will lead to a self-sustaining "deliverable," allows us to assess the influence of foreign investments on survival of particular advocates, goals, and methods of advocacy. [FN168]

1. Global Resources

Globalization is a shifting array of mutual influences among societies. [FN169] In this article, the focus will be on policies of governments, philanthropies, and international actors (including both networks and organizations) intended to affect the institutional performance or development within Thailand. Aid, expertise, diplomatic pressure, and philanthropy flowing from the United States and the World Bank have predominated since mid-century, but European countries, Canada, Australia, and especially Japan have also played increasingly important roles. [FN170]

Global resources play important and varied roles in cause lawyer careers. Scholars Dezalay and Garth suggested that Latin American human rights lawyers required global funding and legitimation to survive because law had little legitimacy and little independence within the institutional frameworks of the countries they studied. From another perspective, Risse and Sikkink, and their collaborators, derived a spiral model of global influence from case studies, according to which international sanctions work in tandem with domestic human rights advocates to "spiral" up pressure to increase the space for both rights and advocacy. While a broader canvassing of cause lawyering in Thailand may support these hypotheses to a degree, the four narratives examined here suggest important qualifications for both theories.

[FN153]. See id. My interview with the son of one of the founders also suggests that the Institute was focused on law practice rather than on community education, policy development, and other activities that have characterized many of the "Thai-style" NGOs founded during this period. The Institute has disappeared with the last of its founders in the 1990s. See id. at 147. Interestingly, Thongbai was never a part of the Institute but attempted to operate his own training program for younger attorneys and even sought funding from The Asia Foundation for this purpose in the 1990s.

[FN154]. Id. at 147.

[FN155]. See Interview with Saneh Chamarick, Chairperson, Nat'l Human Rights Comm'n of Thailand, in Bangkok, Thailand (Dec. 22, 2006) [hereinafter Saneh Interview]. See generally Office of the National Human Rights Commission of Thailand Home Page, http://www.nhrc.or.th/index.php?lang=EN (last visited Mar. 1, 2009); Asia Pacific Forum website, http:// www.asiapacificforum.net/members/apf-member-categories/full-members/thailand (last visited Mar. 1, 2009).

[FN156]. Saneh Interview, supra note 155; Interview with Gothom Arya, Professor, Chulalongkorn Univ., in Bangkok, Thailand (Dec. 22, 2006). During the repression following reimposition of dictatorship in 1976, Professor Gothom formed, with American assistance, the Coordinating Group for Religion and Society (CGRS), which was apparently Thailand's first human rights organization. CGRS was the only domestic human rights organization permitted to function during the repressive post-1976 regime and became a training ground for future human rights lawyers. Interview with Sarawut Protoomraj, former CGRS volunteer and currently one of two UCL staff lawyers, in Thailand (June, 2007).

[FN157]. See, e.g., JOHN V. DENNIS, JR., THE FORD FOUND., A REPORT TO THE SOUTHEAST ASIA REGIONAL OFFICE OF THE FORD FOUNDATION ON POSSIBLE FUNDING OPPORTUNITIES IN THE FIELD OF HUMAN RIGHTS AND SOCIAL JUSTICE IN THAILAND (May 11, 1987) [hereinafter FORD FOUNDATION REPORT] (on file with author) (recommending funding the Women's Center at Chiangmai University but advising caution with respect to the UCL because its members were not known to work well with government).

[FN158]. For a discussion of "Thai-style" NGOs, see infra Part V.D.3-5.

[FN159]. Currently he is creating a new foundation which will supplement the salaries of young lawyers who cannot otherwise earn a satisfactory living as cause lawyers.

[FN160]. A former staff member suggested that funding for AEPS might have come initially from Sulak Sivaraksa's support for environmental causes through the Komol Khemtong Foundation. Interview with Ida Aroonwong, staff member, Alternative Energy Projects for Sustainability (AEPS), in Bangkok, Thailand (June 17, 2008).

[FN161]. See Blacksmith Institute: Projects, http:// www.blacksmithinstitute.org/projects/regions/se_asia (last visited Mar. 2, 2009).

[FN162]. Recently, the Thai government recognized his expertise in environmental law enforcement by offering him a grant to conduct research leading to law reform. Interview with Surachai Trong-ngam, in Bangkok, Thailand (June 16, 2007); Interview with Surachai Trong-ngam, in Bangkok, Thailand (Feb. 2, 2008); Interview with Surachai Trong-ngam, in Bangkok, Thailand (June 29, 2008).

[FN163]. Virada Somswasdi Interview, supra note 73.

[FN164]. This may also reflect the opportunities available to women. While the number of women enrolling in law schools has greatly increased--now approaching fifty percent--it is likely that as compared to men, women's opportunities to join private firms are more limited. However, there is no reliable data for this hypothesis.

[FN165]. There are, of course, many reasons why a younger staff lawyer would want to move on, such as the extraordinarily high work volume and low pay. These are familiar barriers to recruiting cause lawyers worldwide for all but the elite U.S. public interest law firms and foundations.

[FN166]. See supra text accompanying note 38.

[FN167]. See supra notes 47-48 and accompanying text. Dezalay and Garth have argued that Latin American political institutions remained relatively closed to independent legal advocacy for empowerment absent international connections. Id.

[FN168]. Still other important effects of global influence on progressive advocacy are beyond the scope of my research, for example, global support for international or private regulatory regimes, or the potential undermining of domestic governmental regulatory regimes through bilateral trade agreements enforcing the terms of private development by international corporations.

[FN169]. See supra text accompanying note 30. The evolutionary process is described as three waves occurring over many centuries.

[FN170]. See Hess, supra note 35 (discussing aid flowing to Thailand from the United States and World Bank); Worapol Promigabutr, The Logic of Foreign Aid: A Case Study of Its Impact on Thailand's Postwar Development (June 1987) (unpublished Ph.D. dissertation, Northwestern University) (on file with author)

Globalization, investing in law, and the careers of lawyers for social Causes: taking on rights in Thailand. Originally appeared in Volume 53 of the New York Law School Law Review (2009) .