Thailand Law Journal 2010 Spring Issue 1 Volume 13

A. The Historical Context of Four Generations of Thai Social Justice Lawyers

Until the nineteenth century, governance in the feudal society of Siam, later renamed Thailand, was adapted to the needs of a powerful monarch and his local subordinates who exercised traditional authority. The structure and substance of monarchical rule spread from other parts of South and Southeast Asia, but, unlike the remote, infallible, and semi-divine rulers of India and Cambodia, Siam's monarchs embraced a version of Buddhism that obligated them, as well as their people, to obey its precepts. [FN59] Buddhism, still the religion of more than ninety percent of Thailand's people, [FN60] teaches that karma-- the accumulated merit of an individual--determines individual fate. [FN61] The concept of karma underpinned Thailand's traditional social hierarchy. [FN62] In the sixteenth century, hierarchy was formalized by the system of sakdina, in which each member of society, from members of the royal family to the lowliest villager, had a prescribed place based on their relationship to the king. [FN63] While sakdina became a relic after the overthrow of the absolute monarchy in 1932, modern Thai society remains hierarchical. [FN64] Its monarch is still revered for his virtue and, many Thai believe, his sacred power. The influence of Buddhism remains strong, but has fragmented in an era of mass society, *759 consumerism, and middle class ambition. [FN65] Still, although much has changed, the institution of the monarchy and the hierarchy it represents still survive and their influence in both social relationships and politics is apparent. [FN66]

In the pre-constitutional era before 1932, King Chulalongkorn's (1853-1910) late nineteenth century "defensive modernization" of the Thai state included gradual Westernization of its legal institutions: establishment of courts, adoption of civil and criminal codes, and bureaucratic administration. [FN67] State administration remained, as before, highly centralized, answerable to the king, and remote from the vast majority of ordinary Thai, although the aristocracy was pushed to assume administrative roles replacing their hereditary authority. The legal system King Chulalongkorn established was influenced by both civil and common law institutions, although the prevalence of code law, absence of citizen participation, and limited authority for judicial review suggest the predominance of civil law. [FN68] Since the early twentieth century, Thailand has had civil and criminal courts of general jurisdiction and, more recently, specialized courts for domestic, labor, and commercial and intellectual property cases. [FN69]

From its establishment, the purpose of the legal system was to support the centralization of the king's authority, and the need for lawyers was limited largely to the affairs of state or dealings with foreign governments. King Chulalongkorn sent his son, Prince Rajburidirekrit (known as Prince Rabi), to study law in England, and on his return Prince Rabi established the first law school, which was for sons of royal families who were expected, like other members of the aristocracy, to serve in the king's government. [FN70] Prior to the middle of the twentieth century, private domestic business and commerce were undeveloped and dominated by Sino-Thai merchant families. [FN71] The largely rural population knew little about law or lawyers.

A few firms with foreign-trained lawyers were located in Bangkok to serve foreign business interests, but the number of lawyers in private practice was small. [FN72] As the influence of Western culture grew, families with means increasingly sent *760 their sons abroad to be educated, typically to France or England. Some, who were sons (and later daughters) of royalty, the tiny middle class, or successful Sino-Thai merchant families, returned with an education in law. Thai who were educated abroad, and especially those with law degrees, were likely to serve in the government after returning to Thailand. Alternatives to entering government service were few. Prestige and position were not won by entering private practice. A law graduate with an aristocratic name might become an important bureaucrat or win a coveted position in the Foreign Service. [FN73]

The monarchy's historical compromise with Western power opened Thai legal culture to the influence of powerful new values, including the concepts of equality and human rights. [FN74] These new values, along with other elements of European culture, were embraced by some elites, but the attraction was by no means universal. Nevertheless, a slow transformation began which contributed to overthrow of the absolute monarchy by elites educated in the West, including a group of military leaders, and creation of a constitutional monarchy in 1932. [FN75]

Pridi Banomyong, the intellectual force behind the elite revolution that overthrew the absolute monarchy in 1932, made establishment of a public university to educate government officials one of his first priorities. In 1933, the University of Moral and Political Science (later renamed Thammasat University) opened, offering an undergraduate curriculum in law and other subjects, intended to educate future government officials in their responsibilities to the nation and its people. Pridi, imbued with many Western values, expected the majority of graduates to enter public service and to help establish a new mission for government--being responsive to the needs of the people--but his attempt to establish a parliamentary democracy was short-lived. [FN76] Generals who made up the majority of the revolutionary party had ambitions of their own and soon pushed Pridi aside, promoting a new nationalism that combined the authority of the monarchy, the symbolic unity of the nation, and the sacred power of Buddhism under a central administration closely connected to its powerful leaders. From 1947-1973, Thailand was ruled by military dictators. [FN77]

*761 In this period of military dictatorship, Thailand's government formed a bureaucratic polity. [FN78] While diverse elite factions were incorporated, and politics were pursued within the bureaucratic state, the bulk of the population was excluded from meaningful political participation. Moreover, there were few effective legal checks on the exercise of power by the Thai bureaucracy. The Thai Parliament tended to delegate broadly to ministries which used their authority to make policies without effective parliamentary oversight. The courts were deferential to bureaucratic discretion in making policy. With little oversight, Thai ministries were vulnerable to the self-interest of bureaucrats and outside influence, qualities that allowed alliances of the powerful traditional elite, military, and wealthy business families to grow through favoritism and corruption. [FN79]

Thongbai Thongbao, perhaps Thailand's first social justice lawyer, began his career in the era of Thailand's bureaucratic polity. He graduated in 1951 from Thammasat University's Faculty of Law, Thailand's first law school for commoners. It is not difficult to understand how Thongbai's origins in poverty, exposure to teachers steeped in public service, and belief in Buddhism contributed to an early embrace of social justice. Buddhism, together with Thammasat University's public service values, emerges from Thongbai's narrative as an important source of guiding principles. His identity as a lawyer, and the dictators' abuse of both the concept of public service and the virtues of the dhama ruler to whom they owed allegiance, explain his passion for justice. More extraordinary is his early decision to devote his life to the legal defense of victims of government abuse at a time when there were few lawyers in Thailand and hardly any willing to oppose a ruthless military dictatorship.

The second generation of social justice lawyers entered the legal profession under radically different circumstances. The critical turning point for them occurred in 1973, although social unrest leading to the events of that year began long before. [FN80] The student uprising against the dictatorship in 1973 and its aftermath marked a watershed in cause lawyering and in Thai anti-authoritarianism generally. Not only was the rising tide of discontent and radical idealism among students validated, shaping the careers of many, but Pridi's public service ideals for legal education were reinforced and reshaped, especially at Thammasat, to emphasize the transformation of civil society as well as government. For later generations, Thammasat became the most desirable law school for candidates with a commitment to social causes and the source of a disproportionate number of new cause lawyers. [FN81]

A. The Historical Context of Four Generations of Thai Social Justice Lawyers

Until the nineteenth century, governance in the feudal society of Siam, later renamed Thailand, was adapted to the needs of a powerful monarch and his local subordinates who exercised traditional authority. The structure and substance of monarchical rule spread from other parts of South and Southeast Asia, but, unlike the remote, infallible, and semi-divine rulers of India and Cambodia, Siam's monarchs embraced a version of Buddhism that obligated them, as well as their people, to obey its precepts. [FN59] Buddhism, still the religion of more than ninety percent of Thailand's people, [FN60] teaches that karma-- the accumulated merit of an individual--determines individual fate. [FN61] The concept of karma underpinned Thailand's traditional social hierarchy. [FN62] In the sixteenth century, hierarchy was formalized by the system of sakdina, in which each member of society, from members of the royal family to the lowliest villager, had a prescribed place based on their relationship to the king. [FN63] While sakdina became a relic after the overthrow of the absolute monarchy in 1932, modern Thai society remains hierarchical. [FN64] Its monarch is still revered for his virtue and, many Thai believe, his sacred power. The influence of Buddhism remains strong, but has fragmented in an era of mass society, *759 consumerism, and middle class ambition. [FN65] Still, although much has changed, the institution of the monarchy and the hierarchy it represents still survive and their influence in both social relationships and politics is apparent. [FN66]

In the pre-constitutional era before 1932, King Chulalongkorn's (1853-1910) late nineteenth century "defensive modernization" of the Thai state included gradual Westernization of its legal institutions: establishment of courts, adoption of civil and criminal codes, and bureaucratic administration. [FN67] State administration remained, as before, highly centralized, answerable to the king, and remote from the vast majority of ordinary Thai, although the aristocracy was pushed to assume administrative roles replacing their hereditary authority. The legal system King Chulalongkorn established was influenced by both civil and common law institutions, although the prevalence of code law, absence of citizen participation, and limited authority for judicial review suggest the predominance of civil law. [FN68] Since the early twentieth century, Thailand has had civil and criminal courts of general jurisdiction and, more recently, specialized courts for domestic, labor, and commercial and intellectual property cases. [FN69]

From its establishment, the purpose of the legal system was to support the centralization of the king's authority, and the need for lawyers was limited largely to the affairs of state or dealings with foreign governments. King Chulalongkorn sent his son, Prince Rajburidirekrit (known as Prince Rabi), to study law in England, and on his return Prince Rabi established the first law school, which was for sons of royal families who were expected, like other members of the aristocracy, to serve in the king's government. [FN70] Prior to the middle of the twentieth century, private domestic business and commerce were undeveloped and dominated by Sino-Thai merchant families. [FN71] The largely rural population knew little about law or lawyers.

A few firms with foreign-trained lawyers were located in Bangkok to serve foreign business interests, but the number of lawyers in private practice was small. [FN72] As the influence of Western culture grew, families with means increasingly sent *760 their sons abroad to be educated, typically to France or England. Some, who were sons (and later daughters) of royalty, the tiny middle class, or successful Sino-Thai merchant families, returned with an education in law. Thai who were educated abroad, and especially those with law degrees, were likely to serve in the government after returning to Thailand. Alternatives to entering government service were few. Prestige and position were not won by entering private practice. A law graduate with an aristocratic name might become an important bureaucrat or win a coveted position in the Foreign Service. [FN73]

The monarchy's historical compromise with Western power opened Thai legal culture to the influence of powerful new values, including the concepts of equality and human rights. [FN74] These new values, along with other elements of European culture, were embraced by some elites, but the attraction was by no means universal. Nevertheless, a slow transformation began which contributed to overthrow of the absolute monarchy by elites educated in the West, including a group of military leaders, and creation of a constitutional monarchy in 1932. [FN75]

Pridi Banomyong, the intellectual force behind the elite revolution that overthrew the absolute monarchy in 1932, made establishment of a public university to educate government officials one of his first priorities. In 1933, the University of Moral and Political Science (later renamed Thammasat University) opened, offering an undergraduate curriculum in law and other subjects, intended to educate future government officials in their responsibilities to the nation and its people. Pridi, imbued with many Western values, expected the majority of graduates to enter public service and to help establish a new mission for government--being responsive to the needs of the people--but his attempt to establish a parliamentary democracy was short-lived. [FN76] Generals who made up the majority of the revolutionary party had ambitions of their own and soon pushed Pridi aside, promoting a new nationalism that combined the authority of the monarchy, the symbolic unity of the nation, and the sacred power of Buddhism under a central administration closely connected to its powerful leaders. From 1947-1973, Thailand was ruled by military dictators. [FN77]

*761 In this period of military dictatorship, Thailand's government formed a bureaucratic polity. [FN78] While diverse elite factions were incorporated, and politics were pursued within the bureaucratic state, the bulk of the population was excluded from meaningful political participation. Moreover, there were few effective legal checks on the exercise of power by the Thai bureaucracy. The Thai Parliament tended to delegate broadly to ministries which used their authority to make policies without effective parliamentary oversight. The courts were deferential to bureaucratic discretion in making policy. With little oversight, Thai ministries were vulnerable to the self-interest of bureaucrats and outside influence, qualities that allowed alliances of the powerful traditional elite, military, and wealthy business families to grow through favoritism and corruption. [FN79]

Thongbai Thongbao, perhaps Thailand's first social justice lawyer, began his career in the era of Thailand's bureaucratic polity. He graduated in 1951 from Thammasat University's Faculty of Law, Thailand's first law school for commoners. It is not difficult to understand how Thongbai's origins in poverty, exposure to teachers steeped in public service, and belief in Buddhism contributed to an early embrace of social justice. Buddhism, together with Thammasat University's public service values, emerges from Thongbai's narrative as an important source of guiding principles. His identity as a lawyer, and the dictators' abuse of both the concept of public service and the virtues of the dhama ruler to whom they owed allegiance, explain his passion for justice. More extraordinary is his early decision to devote his life to the legal defense of victims of government abuse at a time when there were few lawyers in Thailand and hardly any willing to oppose a ruthless military dictatorship.

The second generation of social justice lawyers entered the legal profession under radically different circumstances. The critical turning point for them occurred in 1973, although social unrest leading to the events of that year began long before. [FN80] The student uprising against the dictatorship in 1973 and its aftermath marked a watershed in cause lawyering and in Thai anti-authoritarianism generally. Not only was the rising tide of discontent and radical idealism among students validated, shaping the careers of many, but Pridi's public service ideals for legal education were reinforced and reshaped, especially at Thammasat, to emphasize the transformation of civil society as well as government. For later generations, Thammasat became the most desirable law school for candidates with a commitment to social causes and the source of a disproportionate number of new cause lawyers. [FN81]

[FN59]. See BAKER & PHONGPAICHIT, supra note 4, at 7-8, 19-20; Frank E. Reynolds, Dhamma in Dispute: The Interactions of Religion and Law in Thailand, 28 LAW & SOC'Y REV. 433 (1994).

[FN60]. CENTRAL INTELLIGENCE AGENCY, THE 2008 WORLD FACTBOOK (2008) [hereinafter 2008 WORLD FACTBOOK], available at https:// www.cia.gov/library/publications/the-world-factbook/print/th.html.

[FN61]. Thanet Aphornsuvan, Sitthi in Thai Thought, 6 THAI CULTURE 273, 288- 89 (2001).

[FN62]. See BAKER & PHONGPAICHIT, supra note 4, at 19-21.

[FN63]. Id. at 15

[FN64]. Scholars debate the nature of hierarchy in modern Thailand, but there is a great deal of evidence of its influence, reinforced by institutional remnants adapted to modern politics and economy. See Munger, supra note 29, at 466-67.

[FN65]. See BAKER & PHONGPAICHIT, supra note 4, at 224-27; Peter A. Jackson, Withering Centre, Flourishing Margins: Buddhism's Changing Political Roles, in POLITICAL CHANGE IN THAILAND, supra note 57, at 75.

[FN66]. See Craig J. Reynolds, Introduction to NATIONAL IDENTITY AND ITS DEFENDERS: THAILAND TODAY (Craig J. Reynolds ed., 2002).

[FN67]. BAKER & PHONGPAICHIT, supra note 4, at 47-80.

[FN68]. See Frank C. Darling, The Evolution of Law in Thailand, 32 Rev. of Pol. 197 (1970); Borwornsak Uwanno & Surakiart Sathirathai, Introduction to the Thai Legal System, 4 Chulalongkorn L. Rev. 39, 40-50 (1986).

[FN69]. See Shinya Imaizumi, Political Reform and the Constitutional Court of Thailand, in LAW, DEVELOPMENT AND SOCIO-ECONOMIC CHANGES IN ASIA 227, 229 (Naoyuki Sakumoto et al. eds., 2003).

[FN70]. PRASIT KOVILAIKOOL, ASEAN LAW ASS'N, PART VI THE LEGAL SYSTEM OF THAILAND 533-37 (1995); DAVID K. WYATT, THE POLITICS OF REFORM IN THAILAND 204- 08 (1969).

[FN71]. BAKER & PHONGPAICHIT, supra note 4, at 92-96.

[FN72]. There are few reliable sources on early practitioners. In 1960, the first Thailand Yearbook reported 1700 licensed lawyers (including those who were inactive), STATISTICAL YEARBOOK, supra note 27, at 159, or, for comparative purposes, one lawyer for every 15,000 people (population 26,257,916). National Statistics Office: Thailand, http:// web.nso.go.th/eng/en/pop2000/prelim_e.htm. (last visited Feb. 24, 2009).

[FN73]. Interview with Virada Somswasdi, Dir. of Women's Studies, Chiangmai Univ., in Chiangmai, Thailand (June 28, 2007) [hereinafter Virada Somswasdi Interview].

[FN74]. See David M. Engel, Mich. Papers on South & Southeast Asia, No. 9, Law and Kingship in Thailand During the Reign of King Chulalongkorn 59 (1975).

[FN75]. BAKER & PHONGPAICHIT, supra note 4, at 109-21.

[FN76]. See id. at 123, 143-44.

[FN77]. See DAVID MORELL & CHAI-ANAN SAMUDAVANIJA, POLITICAL CONFLICT IN THAILAND: REFORM, REACTION, REVOLUTION 5 (1981). At the beginning of World War I, a strongly nationalist-and military- dominated government renamed the country Thailand. BAKER & PHONGPAICHIT, supra note 4, at 132.

[FN78]. See Hewison, supra note 57, at 3.

[FN79]. See BAKER & PHONGPAICHIT, supra note 4, at 150-55.

[FN80]. See id. at 180-89; CRAIG J. REYNOLDS, THAI RADICAL DISCOURSE: THE REAL FACE OF THAI FEUDALISM TODAY (1987).

[FN81]. Graduates from Thammasat University form the largest group among my interviewees, and the second largest group graduated from Ramkamhaeng University. Cause lawyers who graduated from Ramkamhaeng may be numerous in part because the university is very large, and many more law students graduate each year from Ramkamhaeng than from other universities in Bangkok. More significant for purposes of my research, virtually all cause lawyers from Thailand's Muslim south attended this law school.

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) .