Thailand Law Journal 2010 Spring Issue 1 Volume 13

5. Contingent Funding: Thai-Style NGOs

One of the puzzles of cause lawyering, indeed a question raised frequently about the rule of law, is whether law can truly limit the state's power. Duean works for an NGO that partners with government agencies to enforce the law and resolve important conflicts in the government's policies for dealing with trafficked women. We might ask then, why is Duean a cause lawyer at all, if she sees herself not an opponent of government power but its ally?

The term "Thai-style" NGO was entirely new to me when I began this project. A "Thai-style" NGO is typically a network which coordinates the efforts of professionals from public and private agencies to address a social problem. [FN192] Their uniqueness arises from an ambiguous relationship with the government: sometimes strenuously opposing and at other times helping to implement government policies, sometimes training government personnel, sometimes operating under a contract with a government ministry, and sometimes using Thai government or foreign aid in ways officially disapproved of, but tacitly condoned in order to make a policy more consistent with the needs of a vulnerable population. [FN193] Therefore, they are often concerned with social policies that are ill-served by existing government programs and which foreign governments and international philanthropies find appealing for their own political or humanitarian reasons.

Trafcord, Duean's employer, makes an illuminating case study. Trafcord was described by one Asia Foundation staff person as the best Thai-style NGO. The independent wealth of Trafcord's founder has allowed him to dedicate his career to social issues in Thailand, initially helping HIV/AIDs victims and, as an outgrowth, "rescuing" primarily women, and occasionally men, who have been trafficked for sex work and labor. [FN194] While Thai police tend to downplay the importance of trafficking in relation to "real" crime, other Thai ministries have been deeply concerned about the welfare of women. The Thai government has typically lacked the will and capacity to overcome these conflicts and to act effectively without external funding. In 2007, a high level Thai governmental commission addressed this policy incapacity by creating a mandate in the form of a Memorandum of Understanding (MOU) under which Thai police, military, and welfare agencies must cooperate in addressing the problem. Trafcord became the agency with sufficient credibility to attract foreign funding and sufficient expertise to direct government officials assigned to the problem.

Foreign governments and philanthropies have provided a great deal of aid for trafficking interventions. For example, the United States has provided funding to aid sex-trafficking intervention, but the funding came with strings attached reflecting the conservative values of the Congress and the Bush administration. [FN195] These strings limit the objectives and methods of intervention by criminalizing prostitution and punishing offenders rather than by addressing the underlying problems [FN196] by helping potential victims through better education, poverty relief, or pregnancy and disease prevention options before traffickers take them. [FN197]

While Trafcord is unique in having such a high-level mandate, other Thai-style NGOs have filled similar policy and enforcement gaps and added their own emphasis to government policies by providing expertise and advocacy, while avoiding rancorous conflict with government agencies. As a result, they are often among the most trusted outsiders, capable of intervening when Western-style hired gun advocates fail to gain an audience with officials. Thai-style NGOs blur the lines of public and private, insiders and outsiders, by acting under or against government authority. Unlike the bureaucratic polity at mid-century, which constituted a political space closed to all but powerful elites, NGOs like Trafcord define a different kind of political space in which exercise of governmental authority is textured by relationships with trusted outsiders who possess expertise or access or resources to make government policies work and, in many cases, to relieve external political pressure. [FN198]

In turn, the ambiguous political space occupied by NGOs, such as Trafcord, also creates ambiguous roles for lawyers who work for them. Duean's commitment to "king and the law" may be understood not only as her understanding of Trafcord's mission, but also as an expression of her belief in the morality of government and its leadership. Duean says she is the trafficking victim's legal advisor. She often is the only lawyer on the scene or at any subsequent proceeding unless she recruits another attorney to appear in court for the victim. Yet she says her duty "is with the law." Although Duean might not characterize her own conduct as coercive, she uses her position as Trafcord's lawyer and the victim's advisor to persuade reluctant women to testify against their former traffickers in spite of the risk of retaliation and in spite of the belief of some women that they are "voluntary" workers. That is precisely why she is an idealist and a cause lawyer. Her duty to the law is a moral mission, not technical assistance. She also coerces resistant police and military to obey the terms of the MOU. She and her co-workers have built a powerful network of higher ranking officials within each participating agency, and she deploys her insider connections and commitments to bring officials, as well as victims, into line with the law.

VI. CONCLUSION: POLITICAL SPACE AND NETWORKS OF LAW

Until recently, courts in Thailand rarely opened space for social change. [FN199] All four of the cause lawyers discussed in this article said that the government's failure to follow law is an important reason for their work. Thai cause lawyers, including the four discussed in this article, often devote as much effort to changing the government from the inside as they do to assisting confrontation between the government and outsiders or to "playing for rules." Yet they approach collaboration and confrontation in different ways.

In contrast to Duean Wongsa, Somchai Homla-or and Surachai Trong-ngam describe their work as support for people's movements. Their strategy is long term. In practice, much of what they do supports NGOs, attempts to enforce laws that are on the books, or pressures the judiciary to make constitutional rights more than principled rhetoric. They have advised groups locked in confrontations with the government, but they also have worked with government through Thai-style NGOs, like the Friends of Women Foundation, which employed Surachai, received government funding to train government officials in human rights, and advised ministries about policy. Their justifications for cause lawyering are political, yet their work is complex and involves some of the same puzzles as Duean's work.

Pongsapich argues that opening space for change has been the first priority of social movement. Historically, political space for popular participation has been limited, [FN200] and progress toward more open political space has occurred through a "bottom up" process of popular political involvement, which breaks the pattern of limited participation. Expansion of political space has been achieved during three periods of collective popular resistance to authoritarian rule and subsequent negotiations for changes in norms of governance by "civil society" organizations--the overthrow of the monarchy in 1932, the October revolution of 1973, and the uprising that ended the military dictatorship in 1992. [FN201] Successful confrontations have been characterized by increasingly outspoken criticism of authority; mass demonstrations, often bloody reprisals by the military, police, and right wing groups; and the moral collapse of an authoritarian government. Courts, and rule of law, have played only a marginal role in opening political space at these times. In the aftermath, a new constitution may reflect the "constitutional moment," but new rights depend on real gains in power by organizations representing the people.

According to Pongsapich's theory, the power of ordinary people, and a key to opening political space, lies in "thickening" networks of civil society organizations. [FN202] Somchai Homla-or and Surachai Trong-ngam embrace a similar evolutionary theory of political development, viewing the rule of law as an important tool to open political space for communities and popular movements to negotiate with the government. But Professor Pongsapich believes that the civil society organizations that count are those that oppose the government, not those that cooperate. Thai-style NGOs, including most NGOs funded by international agencies, have contributed only marginally, if at all, to opening political space. She views their work as a classic case of cooptation by the government, rendering them unable to influence the framework of governance in the long run. Pongsapich's theory of political change through social movement activity has important implications for the role of cause lawyers. [FN203]

Pongsapich's theory may indeed provide insight into both everyday negotiations between cause lawyers and powerful agencies and the momentous negotiations that transform the constitutions governing civil society. [FN204] The results of everyday collaboration with the government may be more complex and more significant than she anticipates; the dependency between the government and Thai-style collaborators is often two-way. The opening for constitutionalism in the 1990s was in part a result of stronger NGOs and more confident popular leaders. As a consequence, Thongbai Thongbao, the combative human rights litigator, became a member of a constitutional drafting assembly in 1996 and was elected to be a senator in 2000, career capstones no one could have predicted when he began his career in Lad Praow prison in the 1950s.

All of the cause lawyers described in this article have worked for Thai-style NGOs and the government. They have worked not only as trainers and teachers, but as legal advisors, defenders of the rights of staff, organizers, and the people they serve, and, as Duean's work for Trafcord illustrates, missionaries spreading respect for law and public morality among lower level government officials. Against the backdrop of institutional resistance, "civil society" organizations have grown in number and legitimacy, and therefore have an increasing ability to mobilize dissent. While a careful examination of the growth of civil society in Thailand is beyond the scope of my present discussion, it is not hard to imagine that small gains won by cause lawyers and other advocates might help provide the foundation for mass mobilizations of the kind that led to important constitutional moments in Thai legal development. [FN205]

Thongbai Thongbao, Somchai Homla-or, Surachai Trong-ngam, and Duean Wongsa have different ways of reconciling a social vision with the limited capabilities of Thai law. Duean acts for "king and the law," Somchai and Surachai act "for the people" and communities, and Thongbai Thongbao's law practice enforces moral limits that even authoritarian rulers, and their police and military, respect. The viable forms of cause lawyering have multiplied as social change has created new career opportunities, and, with the broadening opportunities for practice with a social vision, the variety of visions of the transformative possibility for law have increased. In different measures, these visions blend traditional and legal authority, formal and substantive goals, and change and continuity of Thailand's traditions of governance.

Underlying each vision is a conflict between the pull of authority under a European-style social compact reflected in law and respect for traditional authority symbolized by the monarchy and a Buddhist regard for others. Opening political space and strengthening the rule of law have often involved collaborating with traditional authorities, and strengthening them as well, sometimes on the cause lawyers' terms. Mass protests that led to three "constitutional moments" were not aimed at bringing down the structure of the traditional Thai state. During the three significant moments of expansion of political space a sense of proportion quickly returned without revolution and bloody reprisals against elites. Political change came about through negotiations that simultaneously established the responsibilities of the government and the legitimacy of the government--its authority was restored on new terms. [FN206]

By viewing cause lawyers solely through their collaboration with government and Thai-style NGOs, we may be inclined to conclude that they participate in a system of small gains while failing to address major defects in the rule of law because of the law's lack of legitimacy or the absence of a powerful court system. Such criticism may misunderstand their vision of a good society because, as citizens of the Global North, our own consciousness of constitutional limits and law is different. Rule by powerful, and ideally, moral elites is deeply ingrained in Thai culture. The rule of law has been embraced as a corrective mechanism for some of the system's worst abuses, but "top-down" change cannot remake the meaning of authority, leadership, or legitimacy embedded in everyday life without a deeper transformation that Thailand has never attempted or desired. Social hierarchy still plays an important role in governance. Ambiguous, Thai-style collaboration with government may make sense to cause lawyers under many circumstances because it blends the rule of law with the social relationships they value, creating a new culture of governance and opportunities for change. Further research about cause lawyers, their social vision, and the Thai institutions they seek to transform will reveal more about the validity of the suggestive implications drawn from these career narratives.

[FN192]. "Thai-style" is not an official term. It describes NGOs that have a certain collaborative style while adhering to a social cause; they are usually aware of the risks of compromise.

[FN193]. Thai-style NGOs serve many of the covert policy functions that U.S. fiscal federalism is said to serve in the administration of its social welfare policies: helping to reconcile conflicting mandates, making discretionary choices that would be difficult to make at a higher, more public level of decision making, or by simply ignoring formal constraints that make a policy unworkable--with all of the accompanying hazards. For discussion of U.S. programs exhibiting this pattern of delegation, see John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233 (1990); Joel F. Handler, "Constructing the Political Spectacle": The Interpretation of Entitlements, Legalization, and Obligation in Social Welfare History, 56 BROOK. L. REV. 899, 942-43 (1990).

[FN194]. Interview with Trafcord Director, supra note 172. Initially, the problem of prostitution involved two flows of migrants, one from poor rural families to the brothels of Bangkok during the Vietnam War, and a second flow from Thailand to Europe, America, and elsewhere to work in the sex trade or low wage sweatshops. Both problems continue, but now new sources of trafficking have become a major concern in Thailand, namely the flow of poor Burmese and Laotian women into the sex trade. Id.

[FN195]. Consistent with President Bush's conservative social agenda, the Bush administration obtained legislation to condition anti-sex trafficking aid to developing countries on compliance with conditions requiring, among other things, criminalization of prostitution but offering no assistance to relieve poverty, which is often a root cause of women's involvement in sex-trafficking. See supra note 135. See generally Edi C. M. Kinney, Appropriations for the Abolitionists: Undermining Effects of the U.S. Mandatory Anti-prostitution Pledge in the Fight Against Human Trafficking and HIV/AIDS, 21 BERKELEY J. GENDER L. & JUST. 158 (2006).

[FN196]. Because trafficked women typically come from very poor families, some sex workers "voluntarily" enter the trade to earn wages. Most, it has been argued by foreign funders, are coerced, and many feminists claim that sex work by desperately poor women, and perhaps any woman, can never be voluntary.

[FN197]. The emphasis of the Bush administration's so-called "ABC" policy has been quite the opposite. "ABC" stands for "Abstain, Be faithful, use Condoms." Yifat Susskind, African Women Confront Bush's AIDS Policy, FOREIGN POLICY IN FOCUS, Dec. 7, 2005, http://www.commondreams.org/views05/1207-30.htm.

[FN198]. Although I noted the analogy between devolution in Thailand and the symbolic politics of devolution of difficult policy choices within the American federal system, the relationship between government and Thai-style NGOs is not merely symbolic devolution of responsibility but without real power to alter policy. Because of the limitations of contemporary Thai government administration, the relationship is often one of symbiosis, not domination.

[FN199]. See Vitit Muntarbhorn, Rule of Law and Aspects of Human Rights in Thailand, in ASIAN DISCOURSES OF THE RULE OF LAW, supra note 32, at 346, 360- 64.

[FN200]. Pongsapich, supra note 88, at 216.

[FN201]. Amara Pongsapich argues the network is thickening and getting stronger. The two most important periods of "negotiation" have been 1973-1975 and 1992-1997. This 1992-1997 period has yielded politically engaged "civil society" organizations. Id. at 236-37.

[FN202]. Non-elite, political engagement in Thailand at any level through privately organized communities, interest groups, or nation-wide collective action was quite rare, partly because of the absence of underlying "civil society" organization. Few interest groups existed above the level of family or community agricultural cooperatives and non-participatory governance did not encourage formation of groups for participation in politics. The emergence of citizen groups that can influence policy or politics has been quite recent. As described previously in the text, during the "American Era" in the 1960s and 1970s, student groups began to form and some rural communities began to mobilize against development. See supra note 179 and accompanying text. Since 1973, "civil society" has grown rapidly through community organizing and NGO building by committed advocates, formation of political parties after parliamentary democracy began to become established in the 1980s, and still more recently, formation of political action groups mobilizing mass support to influence Parliament and government. In more established democracies, civil society organizations have existed in greater numbers over longer periods of time, often growing out of long standing communities of interest, collectively representing a wide array of non-political and political interests, and having deep roots (i.e., their existence is widely known and organizing is wide-spread and ongoing). In Thailand, these organizations have a much shorter history and are linked almost exclusively to advocacy. Coloring public perceptions is the fact that a great many NGOs, including "Thai-style" NGOs, have received substantial support from sources outside of Thailand.

[FN203]. See Pongsapich, supra note 88, at 217-20.

[FN204]. The classic case study of "cooptation," in the management of Tennessee Valley Authority (TVA) projects, describes relationships between a public project and the seemingly less powerful local agencies and actors. See PHILIP SELZNICK, TVA AND THE GRASS ROOTS: A STUDY IN THE SOCIOLOGY OF FORMAL ORGANIZATION (1949). Yet the lesson of the TVA was not that the larger federal authority prevailed, but precisely that its purposes were altered by its need to accommodate local needs brokered by local organizations. Through the influence of local organizations, local interests altered the course and influence of the project.

[FN205]. I am deeply indebted to Nick Cheesman whose stimulating and thoughtful insights about Thai politics and rule of law are based on many years of work as a human rights advocate in Burma and Thailand. I owe to him the suggestion that Asian societies, like Thailand, with a history of bureaucratic governance and authoritarian politics, create governance systems that allow small gains through processes that absorb the efforts and energy of human rights advocates who devote proportionately less time to more meaningful institutional change. It might be argued further that a political morality of paternalistic governance, as in Thailand, plays a role in creating a system of small gains and (perversely) limiting the expectations of advocates. In the text, however, I argue that such a system need not lead to profound cynicism about change because small changes of the right kind may incrementally build capacity to undertake larger changes.

[FN206]. Pongsapich, supra note 88, at 223-27. While the rights of the people may have played a role in this process, their role is likely to have been wholly different from modern Western conceptions of constitutionalism and rule of law based on a passive acceptance of the legitimacy of authority and may be closer to the direct popular participation of Americans during the American Revolutionary War.

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) .