Thailand Law Journal 2010 Spring Issue 1 Volume 13

As the Cold War ended, many other aid and advocacy organizations entered the scene of what was a predominantly American-influenced development. The attention of governments and philanthropies turned to "capacity building," civil society, and rule of law aid intended to stimulate development of private institutions and governance. [FN171] Aid and other forms of intervention no longer flowed almost exclusively to government institutions (including educational institutions), but found partners outside government bureaucracies. While the most dramatic shift in dollars flowing to Thailand has been the reduction of American military aid after the 1980s, equally significant has been a shift from funding government to funding activities in the private sector. [FN172] Paralleling this rise in civil society funding, networks of connection began to form between Thai and foreign advocates and NGOs. Just as "third wave" globalization has involved influential exchanges of governance knowledge and resources from the top down, this phase of globalization has also involved influential exchanges of advocacy knowledge and resources from the bottom up. [FN173]

More important than the total aid flowing to Thailand is the manner in which interventions occurred: to whom, for what activities, and with what effect? Some changes in legal institutions have been significant and supported to some degree by funding from abroad, including the establishment of special courts for domestic relations, intellectual property, and labor; the drafting and ratification of the liberal 1997 Constitution; the adoption of an administrative court system; the promotion of a "green bench" to handle environmental cases; and the promotion and adoption of new organic laws for criminal cases, environmental law, and women's rights (all relevant areas of cause lawyering concern).

The effects of these globalization influences on cause lawyering are indirect and symbolic until put into practice, and their everyday meaning, or as Merry says, their meaning in the "vernacular," [FN174] may be better understood through the experiences of cause lawyers. Thongbai Thongbao's early career was seemingly influenced very little by globalization. His childhood preceded globally financed development of the Thai countryside, and his education was exclusively in Thai schools. Yet Thammasat University was indirectly a product of modernization, created by a Western-educated idealist who believed in constitutionalism and democracy, and who intended university education to inculcate values of public service and government under law. Thongbai was inclined at an early age to embrace both of these values, even if not precisely in the way envisioned by Pridi. Thongbai's early successful confrontations with military dictatorships which launched his career may have been subtly intertwined with the United States' efforts to moderate Sarit's brutality, but there is no direct evidence for this. [FN175] International human rights advocates did not express concern about Thailand until 1976. [FN176] And though Thongbai received much international recognition for his defense of human rights, and in 1984 was a recipient of the prestigious Magasaysay Award for Public Service, [FN177] at this stage in his career he had already gained knowledge, power, and legitimacy for his work. Yet Thongbai's early belief in government accountability and in the rule of law were clearly influenced both by twentieth-century westernization of Thailand's legal system and new political ideals, such as Communism, as well as by more traditional Thai values underlying Buddhism and reverence for the monarchy.

Somchai Homla-or, like Thongbai, was educated exclusively in Thailand, but Somchai attended school in the "American Era" of intellectual fervor and rising expectations. [FN178] Two of the most important Thai student leaders of the 1973 uprising had just returned from an American Friends Field Service fellowship in the United States. China's break with Russia in 1960, and the ensuing years of rapid economic growth, was capped by Mao Tse-tung's unleashing of the Great Proletarian Cultural Revolution in 1966, inspiring youthful idealists everywhere, especially in nearby Asian societies. [FN179] Nevertheless, Somchai did not have direct contact with, or receive support from, global resources until his exile from 1987 to 1989, when he began to form a network of contacts with human rights advocates and sources of future funding. Somchai's return in 1989 coincided with the growing power of the NGO movement and, soon after, the overthrow in 1992 of a military dictatorship and the national movement toward a more meaningful and liberal constitution. The 1997 Constitution, together with his networking through the Lawyers Council, provided a powerful cause lawyering mechanism. Somchai built a network of lawyers, urging them to use the new rights in litigation to push the courts to give them meaning. Further he has employed his international contacts to increase Thailand's connection to human rights movements elsewhere; for example, he became co-founder of Forum Asia and was its first Secretary General. From his international contacts he has drawn resources for his network, providing funding for the training of young lawyers, for advocacy projects on behalf of migrants and stateless people, and for the defense of libel cases against the media.

Surachai has networked far less with international social cause advocates than Somchai, [FN180] but his Thai network with NGO staff and academics has provided important global resources. Service-oriented NGOs often receive funding from American and European sources, and indeed some of Surachai's NGOs were founded with such seed money. The Friends of Women Foundation, where Surachai made many contacts, was one such NGO. EnLaw, the NGO that definitively shaped his career, if not his identity, was created at the suggestion of an American foundation, which offered funding for environmental litigation. Typical of much international funding, the EnLaw grant was a one-time grant that has not been renewed. EnLaw has received no further funding from international sources and struggles to support its activities. Less apparent from funding patterns alone, Surachai has networked internationally with other environmental litigators, although his principal sources of legal expertise have been unusually creative Thai academics. Like Somchai, Surachai's focus on litigation has meant that changes in the law and constitution have potentially great significance for his practice. The litigation that he began before EnLaw was created is derived from a law adopted by Thailand in the early 1990s to comply with an international environmental accord. [FN181] Although the community rights and public participation provisions of the 1997 Constitution remain largely rhetorical, even after recent adoption of a community rights organic law, the creation of an administrative court system created a valuable resource for cause lawyers. Surachai filed the first case in administrative court, and subsequently has won decisions against agencies for failure to develop adequate standards for public protection against toxic waste and environmental hazards. [FN182] He has been among the first to push the administrative courts to articulate new standards in order to make existing law clearer and stronger.

Duean's career has been influenced more than the other three by international advocacy and funding. [FN183] Trafcord, her current employer, is a project initiated by the Thai government and a British-Thai philanthropist (who is the project's director but not a founder), and supported almost entirely through international organizations: United Nations Educational, Scientific and Cultural Organization (UNESCO), World Vision, and most importantly, the United States Embassy. Unlike the other three lawyers, Duean is an employee whose work is directed by others. Thus, priorities attached to funding for Trafcord have an important influence on her work and Trafcord priorities are particularly sensitive to U.S. funding for anti-trafficking and prostitution.

2. Dependence and Independence

The career narratives enable a careful reassessment of Dezalay and Garth's hypothesis that the viability of cause lawyering is highly dependent on global support to sustain and legitimize cause lawyers' careers. [FN184] The view from Thailand is more textured. Thongbai had little contact with global advocacy in the formative stages of his career, and his legitimacy seems to have come from other sources. Similarly, Somchai Homla-or's early career may have been influenced in its early stages by idealism inspired, in part, from movements outside of Thailand and the increasing availability and cosmopolitan influence of university education, supported in significant part by American philanthropy. But not until much later in his career did he receive direct support from international funding, networking, or legitimating recognition of his work. Duean's career is most thoroughly intertwined with global funding and international pressures to address the problems of human trafficking, and even her NGO, which through its funding is closely linked to American policies, receives essential network support and legitimacy from the Thai government.

Surachai's career is a particularly interesting case study for Dezalay and Garth's hypothesis. Surachai's experience supports their hypothesis that global support is important. His career also shows that notwithstanding a funder's goals, the recipient's own, somewhat different goals may continue to guide the use of the resources. Support from the Blacksmith Institute for environmental litigation has transformed his career, bringing him success as a lawyer and national recognition as an expert litigator and a people's lawyer. Surachai has become a litigator of environmental law cases, but protection of the environment is not the cause he represents. Nor is he dependent upon international resources. He has expanded the field of cause lawyering and its legitimacy in Thailand, and though still not adequate for his needs, he receives support from Thai sources, including support from the Lawyers Council and government support for research projects. His environmental litigation is opportunistic, but his perspective is broad and idealistic, and it is motivated by his understanding of poverty, exclusion, and communities as "environmental" issues.

3. Cooptation by TANs

Career narratives also suggest that the "spiral model" proposed by Sikkink and her colleagues does not fully appreciate the effectiveness of some types of rights-oriented, local advocacy in overcoming government resistance to the recognition of rights. Thongbai's defense of civil liberties and Somchai Homla-or's advocacy for human rights are quite consistent with global movements for human rights. But global pressure directed toward Thailand on human rights issues has had little apparent influence. Although Thailand's abuses of human rights are well-documented by Human Rights Watch, the Asian Human Rights Commission, and other watchdogs, neither the incidents identified nor the institutional weaknesses underlying them have become a major focus of global pressure. [FN185]

Where global concerns intersect with local advocacy, a further problem is apparent, namely a misalignment between global and local goals. Surachai's environmental law advocacy appears to parallel the goals of well-established environmental advocacy by large, international NGOs such as the International Union for Conservation of Nature and the Wildlife Fund. [FN186] These large NGOs specialize in establishing relationships with the highest level of government that can be used to mobilize action to remedy problems brought to light by grassroots advocates. [FN187] But Surachai's concerns are not their concerns. While they work on forest management, trafficking in animals, water and air pollution, Surachai has little concern for the larger pattern of environmental quality regulation. Instead, like many of the lawyers working at the grassroots in Thailand on human rights issues, he is concerned about popular democracy, and the results that count for him are gains in popular participation and government accountability. A potential alliance between cause lawyers for communities threatened by development and global defenders of the environment might be possible, but Surachai's career narrative suggests that a wide gap still exists in Thailand between local and global advocacy.

4. Winners and Losers

These four careers illustrate many types of global influence but leave open the question of its impact. By century's end, not only had the number of cause lawyers increased, but their careers were more varied, including small private law firms, university faculty, and a wide variety of NGOs, which ranged from "Thai-style" partnerships with government to NGOs emphasizing social movement support. The increasing number of cause lawyers is associated mostly, but not exclusively, with the growing number of lawyers working for NGOs rather than an increase in the number of lawyers in self-sustaining private practices. An impact of global funding might be described as picking "winners" and "losers" among potential cause lawyers. Funding and legitimation may be provided at critical moments when a cause lawyer or project would not otherwise survive, or be initiated at all. Surachai's EnLaw project is one example of funding that has reshaped a cause lawyer's career. Duean's employment by Trafcord is the clearest example. But the narratives also illustrate the independence of much cause lawyering work, its local support, legitimacy, and impact apart from global resources.

[FN171]. Hess, supra note 35, at 329-32; Carothers, supra note 34. "Capacity building" is a new catch-all term referring to improvement in the institutional capacity of organizations in developing countries, from government agencies, to trade organizations, to human rights or environmental NGOs. See, e.g., United Nations, Capacity Building for Local Governance, http:// esa.un.org/techcoop/flagship.asp?Code=SAF99001 (last visited Mar. 3, 2009) (describing the UN's call for improved local governance capacity in South Africa). The concept responds generally to Nobel Prize winning economist Douglass North's call for emphasis on institutional development and increased rule of law capacity as a foundation for economic development. See Douglass C. North, Economic Performance Through Time, Speech upon receipt of The Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel (Dec. 9, 1993), available at http://nobelprize.org/nobel_prizes/economics/laureates/1993/north-lecture.html.

[FN172]. See Hess, supra note 35. Data from websites and archives of the following agencies were compiled to obtain a half-century perspective on American funding for Thailand: USAID, Ford Foundation, Rockefeller Foundation, The Asia Foundation, The Foundation Center (including grants by the Open Society Institute and the Carnegie Foundation). See, e.g., Ford Foundation Grants, http://www.fordfound.org/searchresults?thailand (last visited Mar. 1, 2009) (providing list of grants, including amount of funding and specific programs made to Thailand); Rockefeller Foundation Grant Search Results, http://www.rockfound.org/grants/GrantSearch.aspx?keywords=thailand (last visited, Mar. 1, 2009) (providing list of approved grants and a synopsis of the program); USAID Regional Development Mission for Asia: Thailand, http:// www.usaid.gov/rdma/countries/thailand.html (last visited Mar. 1, 2009). Some agencies, notably The Asia Foundation, the United States Embassy, Ford Foundation, and Rockefeller Foundation, have local staff members who are friendly with and even integrated into local advocacy and NGO communities. Some have had long term relationships with the community of potential beneficiaries. This is true of government agencies as well, like the staff of the United States Embassy, which sometimes holds points of view that are closer to the Thai NGO community than to Washington policy makers. Interview with Ben Svasdi, Dir., Trafcord, in Chiangmai, Thailand (July 6, 2008) [hereinafter Interview with Trafcord Director]; Interview with staff member, United States Embassy, in Bangkok, Thailand (Jan. 29, 2008).

[FN173]. See supra note 35 and accompanying text.

[FN174]. See supra note 39 and accompanying text.

[FN175]. Sarit, the dictator who arrested Thongbai, was usually particularly brutal toward opponents. BAKER & PHONGPAICHIT, supra note 4, at 169, 173. Yet Thongbai and other political prisoners were treated relatively well in prison. Thongbai may have been genuinely respected by the military and the police, as he claims, or as a journalist he may have worked for a publisher with some influence in Sarit's regime. If American influence was also being exercised behind the scenes to moderate Sarit's bloodthirsty rule, we have no evidence that the United States was concerned about Thongbai.

[FN176]. American philanthropy never involved funding the defense of human rights in Thailand as it had in Latin America. See Dezalay & Garth, supra note 9, at 357 (describing the purpose of American philanthropy in Latin America).

[FN177]. See supra note 111.

[FN178]. Western-educated leaders and intellectuals like Puey Ungpakorn, then Chair of Thammasat University's Department of Economics and Rector of Thammasat University, believed in liberal government and greater democracy as well as in free market development. Student idealism was shaped by international events, including the rebellion by Parisian students in 1968, the U.S. anti-war movement driving American presidential politics, and the Great Proletarian Revolution in China in 1966.

[FN179]. See JONATHAN D. SPENCE, THE SEARCH FOR MODERN CHINA 440, 602 (1990).

[FN180]. Command of foreign language is an important key to networking internationally. Surachai speaks no foreign language, while Somchai is fluent in English.

[FN181]. Interview with Amnat Wongbandit, Professor, Thammasat University, in Bangkok, Thailand (June 19, 2008). For information on relating to the environmental law adopted by Thailand, see PCD: National Environmental Quality Act, B.E. 1992, http://www.pcd.go.th/info_serv/en_reg_envi.html (last visited Mar. 1, 2009).

[FN182]. See, e.g., Pennapha Hongtong, Pollution Control Department Ordered to Pay Compensation for Klity Villagers, THE NATION, July 5, 2008, available at http://www.nationmultimedia.com/2008/05/07/national/national_30072401.php; Apinya Wipatayotin, Klity Creek Karan Awarded B743,000, BANGKOK POST, May 7, 2008, available at http:// archives.mybangkokpost.com/bkkarchives/frontstore/search_result.html? type=a&key=Klity&year=2008.

[FN183]. Her first job was with a Japanese business. Her second, and current, job is with an American-funded human trafficking NGO.

[FN184]. Dezalay & Garth, supra note 9, at 354-57. Dezalay and Garth found that cause lawyers in Latin America are highly dependent upon on global support. Id.

[FN185]. Activists in close touch with the realities of Thai institutional performance provide trenchant criticisms. For example, the performance of the police has repeatedly drawn criticism. Even United Nations recommendations have been ignored. Asian Human Rights Commission, Thailand: UN Recommendations Matter, July 24, 2006, http:// www.ahrchk.net/statements/mainfile.php/2006statements/653/; see also Awzar Thi (pen name for a staff member of the Asian Human Rights Commission), Thai Police Are Best Organized Criminals, UPI ASIA ONLINE, Mar. 27, 2008, available at http://www.ahrchk.net/ahrc-in-news/mainfile.php/2008ahrcinnews/1853/. Human Rights Watch has repeatedly criticized Thailand for human rights violations related to drug interdiction, treatment of refugees, and suppression of Muslim unrest in the south. HUMAN RIGHTS WATCH, WORLD REPORT 2007: EVENTS OF 2006, at 329-39 (2007), http://hrw.org/legacy/wr2k7/wr2007master.pdf.

[FN186]. See, e.g., IUCN Asia Regional Office, http:// www.iucn.org/about/union/secretariat/offices/asia/asia_where_ work/thailand/index.cfm (last visited Mar. 3, 2009); World Wildlife Fund Environmental Conservation Work in Thailand, http://www.panda.org/who_we_ are/wwf_offices/thailand/ (last visited Mar. 3, 2009).

[FN187]. Interview with an officer of the WWF Thailand, in Bangkok, Thailand (July 27, 2008). He described the general methods used by large environmental foundations.

[FN188]. Pongsapich, supra note 88, at 226.

[FN189]. While this has certainly been true for U.S. philanthropy and foreign aid, some European governments and foundations have been bolder. For example, it is well known that DANIDA, the Danish development agency, funded the organization that for a time blocked construction of the Thai-Malaysia pipeline. Penchom Interview, supra note 126.

[FN190]. See MUSCAT, supra note 96, at 11-13; ROBERT MUSCAT, THE FIFTH TIGER: A STUDY OF THAI DEVELOPMENT POLICY (1994). Funded projects include academic projects, legislation development, and informing citizens of their rights, but not social movements, direct political action (such as lobbying) or political organizing. See generally The Asia Foundation: Projects, http:// asiafoundation.org/project/projectsearch.php?country=thailand (last visited Mar. 2, 2009).

[FN191]. See Hess, supra note 35, at 323-24. Targets for funding in the mid-1980s were selected in part based on whether they had a record of cooperating with government. The UCL was considered a questionable target because of its history of conflict with government. Although not mentioned in the report, the consultant's assessment may well have been influenced by the suspicion of "communist" leanings attached to leaders like Somchai Homla-or. FORD FOUNDATION REPORT, supra note 157, at 39-42.

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) .