Thailand Law Journal 2010 Spring Issue 1 Volume 13

Equality and democracy have particular appeal for the generation of Thai who lived through the 1960s era of brutal military rule and anti-communist terrorism that led to the student uprising of October 14, 1973, the "October Revolution." In the 1960s, Thailand's economy experienced its first "take-off." The military dictatorship received massive American foreign aid and philanthropy as well as World Bank guidance. [FN82] During the Vietnam War, Thailand became a staging area for U.S. military intervention in Vietnam as well as efforts to create a free market bulwark in Thailand against the spread of communism. Many members of Thailand's growing educated elite opposed the Thai government's authoritarianism and corruption and supported the October student uprising. [FN83] The uprising toppled the U.S.-supported military government and created a brief window for political liberalization. The years 1973-1976 became a watershed of social and political change--a true "constitutional moment." [FN84]

Military rule returned in 1976 after a second bloody confrontation between the military and students because, in part, a wavering middle class favored stability, even if it meant the return of an authoritarian government. The political ambivalence of the Thai urban middle class toward popular democracy, and its comfort with authoritarian governments under some circumstances, is a continuing theme of Thai politics. [FN85] Government persecution of the October activists drove many of them to join the communists in the countryside. By the end of the 1970s, a more moderate authoritarian regime attempted to heal this rift by welcoming the dissidents back into Thai society. [FN86] Many members of the "October generation" continue in active roles in universities, government, and private enterprise.

Among the most influential members of the October generation is Somchai Homla-or, a second generation social justice lawyer who came of age as a student leader at Thammasat University before and during the uprising. Like other students of his generation, when the uprising toppled the dictatorship and democracy followed, he became a teacher and organizer in the countryside. When the dictators returned, he fled to the jungle to seek protection. Somchai returned from the jungle in 1979 *763 to a greatly altered political landscape. During the 1980s, under stable, military-led governments, the economy again grew rapidly, attracting Japanese and Western investors. The October generation's legacy grew through the efforts of returning activists, like Somchai Homla-or, who helped build a vibrant NGO movement in both the poorer parts of the countryside and in urban centers.

A third generation of social justice lawyers graduated in the shadow of the events of 1973 with the new political and social landscape of the 1980s-- relatively benign military leaders and a booming economy. With the end of the Cold War, communism receded as a plausible threat. Political space opened as government violence against its enemies declined. [FN87] Many lawyers strove to expand this space, but they were by no means the only actors who entered this field of opportunity. Unlike Latin America, Thailand was never the focus of a decades-long Cold War campaign by U.S. philanthropists for rule of law or human rights reform. Yet the long-term presence of NGO workers and organizers in rural areas indirectly reflects the influence of global funding and activism. Some TANs became facilitators of political consciousness and organizers of social movements among the rural poor. [FN88] The continuing presence of NGO workers, with some support from TANs and international aid agencies, may have strengthened popular consciousness of social injustice but may not necessarily have raised consciousness of rights, in part because of the influence of traditional culture in the construction of popular justice claims in local contexts. [FN89] Thai have always been ambivalent about perceived foreign intervention, and as a result, not only was the American and Vietnamese intervention increasingly unpopular, but the NGO movement was (and is still) widely perceived as foreign-supported and, therefore, "non-Thai."

Surachi Trong-ngam is a third generation social justice lawyer who graduated from Thammasat's law program in 1987. Early in his career he worked for NGOs while he accumulated experience. In 1994 he and three other lawyers formed a private social justice law practice. In 2000, with the aid of a network of activists and foreign funding, he became coordinator of an environmental litigation project. Many third generation lawyers, representing a transitional cohort of social justice lawyers, *764 combine the idealism of the October generation with new career opportunities in a growing private sector.

A military coup in 1991 provoked yet another confrontation, this time with a much stronger, widely mobilized "civil society" sector, which resulted in the restoration of civilian rule and a strong rejection of military intervention. [FN90] The same sector led a popular debate about expansion of constitutional rights and democratic government. In its final stages, the efforts of these advocates for change, combined with institutional failures contributing to the currency crisis of 1997 [FN91] and international pressure for "structural reform," [FN92] led to adoption, with widespread popular approval, of a liberal, rights-oriented constitution in 1997. [FN93]

Until 1997, Thailand's constitutions played only a small role in its jurisprudence; courts rarely referred to the constitution and only a handful of cases involving constitutional questions were decided against the government. [FN94] The 1997 Thai Constitution, however, created a politically independent Constitutional Court with power to render binding constitutional interpretations and an Administrative Court that for the first time offered an accessible forum for challenging the decisions and policies of the vast bureaucracy. [FN95]

The fourth generation is comprised of lawyers whose careers began after the adoption of the 1997 Constitution. During this generation, the NGO movement has continued to strengthen and expand in part a result of new forms of foreign subsidy. After the Cold War ended, the United States was far less interested in sending military aid to Southeast Asia, but aid has continued and reflects, as always, American social concerns and policies, including drug interdiction and human trafficking prevention.

Duean Wongsa is a fourth generation social justice lawyer. She graduated in 1999 with a law degree from Chiangmai University and followed the tide of law graduates entering the global economy, choosing employment for two years as a lawyer with a Japanese business firm. At present, she is a staff lawyer with a trafficking prevention NGO funded by the U.S. government but created by a long-*765 time Thai-British organizer and philanthropist. Her career reflects the maturation, in a certain sense, of social justice lawyering as a viable career.

After ten years of popular democratic rule, a military coup in September 2006 imposed a government pattern that many Thai thought had been rejected in 1992. Yet the coup was bloodless and was welcomed by middle class, urban Thai because it ousted a prime minister who, although popularly elected, was perceived as corrupt and overreaching. The coup leaders restored civilian rule under a new, popularly-ratified constitution after a little more than a year, but many Thai have viewed the recent coup as a step back from constitutionalism and rights.

Thailand's rapidly growing economy has created opportunities for lawyers and, perhaps, for cause lawyers. Access to university level education has increased steadily since the mid-twentieth century, supplying both the private sector and the government with educated workers. [FN96] Law is an increasingly popular undergraduate major, [FN97] and the number of licensed attorneys is growing rapidly. [FN98] In 1985, Parliament established an independent Lawyers Council of Thailand with exclusive power to license *766 attorneys. [FN99] The Lawyers Council of Thailand has utilized its mandate to establish a legal assistance bureau to provide a clearinghouse for lawyers representing individuals and movements in human rights cases, although the scope and effect of this role awaits careful study. The governing board of the Lawyers Council has included human rights lawyers like Somchai Homla-or, who became the first chairman of its Human Rights Committee after the adoption of the 1997 Constitution. Surachai has served on both its Environmental Law and Human Rights Committees.

Yet the maturation of social justice law careers does not reflect the complexities that Thai social justice lawyers confront. For example, in spite of explicit recognition of human rights by the 1997 Constitution, and the growing support for human rights lawyers from the Lawyers Council of Thailand, an attorney associated with the Council, widely known for his human rights advocacy on behalf of the Muslim minority in southern Thailand, was assassinated by police in 2004. The Lawyers Council responded by issuing a public declaration calling for an investigation into and the punishment of the perpetrators, yet the government has taken no action to identify or prosecute his abductors. [FN100] The assassination is not an isolated case, and the government's use of violence to silence advocacy for rights, however infrequent, cannot be ignored by Thai attorneys.

Authoritarian rule has roots in Thai legal culture. Professor Frank Reynolds contrasts fundamental values underlying the political discourse of constitutional monarchy in Thailand--often described in terms of a trilogy of concepts: monarchy, nation, and religion--with the underlying values that dominate American political culture, termed "utilitarian individualism." [FN101] While American political culture grew from a tradition of individual freedom of conscience and dissent, treating institutionalized authority with suspicion, Thai political culture grew from a tradition far more respectful of the authority of traditional and spiritual leaders. Yet, the culture of deference to traditional leaders has not precluded objections to government action based on the welfare of the Thai people, and advocates for popular movements have been able to claim that those in power are responsible for promoting the people's welfare. [FN102] Equality and democracy (if not precisely representative democracy) [FN103] also have a strong appeal, not only among elites, but among the Thai people generally, and growing support for these values is credited, in part, for the strong popular protests which toppled military rule in 1992 [FN104] and propelled constitutional reform in 1997. [FN105]

Some Western scholars have suggested that Thai culture encourages respect for leaders, avoidance of direct conflict, and reluctance to invoke law against persons who possess authority. [FN106] According to this theory, patriarchal social norms encourage clientelism and networking to secure social position and benefits rather than contentious interaction with government officials and private power holders. If such a generalization is true, one might argue that Thai cause lawyers will prefer mediation or cooperation with the government over threatening to invoke formal legal process in order to preempt or oppose the government or other power holders. This generalization, like the claim that the Thai embrace "Buddhist values," is controversial and best evaluated in the context of particular conflicts and the work of particular cause lawyers.

[FN82]. See BAKER & PHONGPAICHIT, supra note 4, at 140-55.

[FN83]. See MORELL & SAMUDAVANIJA, supra note 77, at 3-6 (1981) (providing a classic account of this period).

[FN84]. Id. at 4. See generally BRUCE ACKERMAN, 1 WE THE PEOPLE: FOUNDATIONS 5-7 (1991); BRUCE ACKERMAN, 2 WE THE PEOPLE: TRANSFORMATIONS 8, 117 (1998) (providing an explanation of his theory of transformations of the United States Constitution). In brief, Ackerman argues that the fundamental relationship between the American people and their government has changed at critical moments in history, not only through alterations of the founding document, but also through widespread acceptance of new understandings brought about by fundamental and powerful social change. Three such moments have occurred according to Ackerman: the Civil War, the Great Depression, and the civil rights transformation signaled by Brown v. Board of Education. Id.

[FN85]. See, e.g., BENEDICT ANDERSON, Withdrawal Symptoms, in THE SPECTRE OF COMPARISONS: NATIONALISM, SOUTHEAST ASIA, AND THE WORLD 139 (1998); BAKER & PHONGPAICHIT, supra note 4, 263-65.

[FN86]. BAKER & PHONGPAICHIT, supra note 4, at 196-97.

[FN87]. See id. at 188-89; Ji Giles Ungpakorn, Challenges to the Thai N.G.O. Movement from the Dawn of a New Opposition to Global Capital, in RADICALISING THAILAND: NEW POLITICAL PERSPECTIVES 289 (Ji Giles Ungpakorn ed., 2003).

[FN88]. See, e.g., Prudhisan Jumbala & Maneerat Mitprasat, Non-governmental Development Organizations: Empowerment and Environment, in POLITICAL CHANGE IN THAILAND: DEMOCRACY AND PARTICIPATION, supra note 57, at 195; BRUCE D. MISSINGHAM, THE ASSEMBLY OF THE POOR IN THAILAND: FROM LOCAL STRUGGLES TO NATIONAL PROTEST MOVEMENT 33-41 (2003); Amara Pongsapich, Thai Political Space for Advocacy, in BREAKING THROUGH: POLITICAL SPACE FOR ADVOCACY IN SOUTHEAST ASIA 216 (Paredes et al. eds., 2007). My interviews also revealed the presence of American-trained grass roots organizers from the Philippines who conducted training for NGO staff members and lawyers working with poor communities in the 1980s and 1990s.

[FN89]. See MISSINGHAM, supra note 88, at 215-20; Frank E. Reynolds, Legitimation and Rebellion: Thailand's Civic Religion and the Student Uprising of October, 1973, in RELIGION AND LEGITIMATION OF POWER IN THAILAND, LAOS, AND BURMA 134 (Bardwell L. Smith ed., 1978).

[FN90]. See BENEDICT ANDERSON, Elections in Southeast Asia, in THE SPECTRE OF COMPARISONS: NATIONALISM, SOUTHEAST ASIA, AND THE WORLD, supra note 85, at 272; BAKER & PHONGPAICHIT, supra note 4, at 243-46.

[FN91]. The IMF interventions in 1997, together with foreign criticisms of "crony-capitalism" and "patron-clientelism," were considered Eurocentric misperceptions by many Thai. See BAKER & PHONGPAICHIT, supra note 4, at 256-57.

[FN92]. See id. at 254. See generally PASUK PHONGPAICHIT & CHRIS BAKER, THAILAND'S CRISIS (2000) (discussing the role of the IMF and more broadly discussing what worked and failed from both an economic and social perspective).

[FN93]. See Michael Kelly Conners, Framing the 'People's Constitution,' in REFORMING THAI POLITICS, supra note 29, at 37.

[FN94]. See Imaizumi, supra note 69, at 229-37.

[FN95]. Borwornsak Uwanno & Wayne D. Burns, The Thai Constitution of 1997: Sources and Process, 32 U.B.C. L. REV. 227, 243 (1998).

[FN96]. See ANDERSON, supra note 85, at 149-52; ROBERT J. MUSCAT, THAILAND AND THE UNITED STATES: DEVELOPMENT, SECURITY, AND FOREIGN AID 49-70 (1990).

[FN97]. As in Great Britain and much of Europe, Thai law schools are four-year undergraduate institutions. The first public law school, which later expanded to become Thammasat University, was established in 1933 as an "open" university, introducing a radically democratic concept of education, especially professional education, in a country where universities had been administered by and largely for the benefit of its elite. In most of rural Thailand, primary education was provided to males only, typically by literate monks at nearby temples. Secondary education was neither free nor locally available in much of the country. In the 1960s, a faculty of law was added to Chulalongkorn University, the country's oldest university. See KOVILAIKOOL, supra note 70, at 538. In the late 1970s, Thailand's first open-admission law school, Ramkamhaeng, was founded. Id. Over the past twenty years, the number of public law schools has increased rapidly. The Ministry of Education (MOE) records statistics for twenty-four public universities and other institutions of higher education offering first law degrees (undergraduate degrees). See MOE ANNUAL REPORT, supra note 28, at 27. A web search suggested that an equal number of private schools may offer first law degrees. While graduates in Law are not uniformly reported separately from graduates in Political Science in the MOE's reports, the numbers suggest an enormous rise in popularity of law among undergraduates beginning in the 1980s. During Thailand's boom in the 1980s, law became the second most popular field of study. Chira Hongladarom, Unemployment in Thailand, in THAILAND ON THE MOVE: STUMBLING BLOCKS AND BREAKTHROUGHS (Suchart Prasithrathsint ed., 1990). The table is reproduced in Tienchai Wongschisuwan, The Political Economy of Thailand: The Thai Peripheral State, 1958-1988, at 378 (1993) (unpublished Ph.D. dissertation, SUNY Binghamton) (on file with author).

[FN98]. The careers of practicing lawyers, public prosecutors, and judges are distinct. The term for a practicing lawyer is frequently translated as "barrister," although unlike the British use of this term, it covers all licensed lawyers, including those who perform functions as solicitors as well as those who appear in court. As in many civil law legal systems, candidates seeking to become public prosecutors or judges must pass a separate, much more difficult examination, and usually sit for this exam early in their careers. Thus, judges and prosecutors do not normally come from the ranks of practitioners. Most judges are career bureaucrats receiving assignments which are, as a formal matter, based on merit and moving up a hierarchy of authority and desirability (e.g., being assigned to an area closer to Bangkok is generally considered more desirable). As described previously, the number of practitioners has increased dramatically in the past twenty-five years, paralleling the rise in other rapidly developing Asian societies. See supra note 20 and accompanying text.

[FN99]. A Thai Bar Association has existed since the reign of Rama VI (1910- 1925), but, in the views of practitioners, it came to be dominated by Thailand's career judges and prosecutors. Its current responsibilities are principally educational: preparing applicants who sit for the examinations for these positions. KOVILAIKOOL, supra note 70, at 539; Malee Pruekpongsawalee, Thammasat Clinical Education and the Delivery of Legal Services: A Historical and Personal Perspective, in EDUCATING FOR JUSTICE AROUND THE WORLD: LEGAL EDUCATION, LEGAL PRACTICE, AND THE COMMUNITY 118, 124-27 (Louise G. Trubek & Jeremy Cooper eds., 1999). Practitioners pushed steadily for their own professional association as private sector growth increased their numbers and economic independence. In 1985, Parliament established the separate Lawyers Council of Thailand to oversee and speak for practicing lawyers. KOVILAIKOOL, supra note 70, at 546-47. Since 1985, graduates with a law degree qualify for the practice of law by attending a course of classroom preparation for law practice provided by the Lawyers Council followed by a six month apprenticeship. However, graduates who have already accumulated more than a year of apprenticeship experience or who have served as public prosecutors or judges are exempt from these requirements. Id.

[FN100]. See WORKING GROUP ON JUSTICE FOR PEACE, HUMAN RIGHTS UNDER ATTACK: OVERVIEW OF THE HUMAN RIGHTS SITUATION IN SOUTHERN THAILAND 10-11 (2008), available at http://thailand.ahrchk.net/docs/HRunderAttack.pdf.

[FN101]. Reynolds, supra note 59, at 433; see also Aphornsuvan, supra note 61, at 277-78, 286.

[FN102]. See Jackson, supra note 65; Reynolds, supra note 59.

[FN103]. See MICHAEL KELLY CONNORS, DEMOCRACY AND NATIONAL IDENTITY IN THAILAND, at ch. 8 (2003) (claiming democracy and liberal western political values are often embraced as an ideal and taken to mean government which respects the needs and best interests of the people--government for the people). But this rhetoric and its underlying values are manipulated to support authoritarian governance--government for the people but not by the people, rather government by the better elements of society.

[FN104]. ANDERSON, Elections in Southeast Asia, in THE SPECTRE OF COMPARISONS: NATIONALISM, SOUTHEAST ASIA, AND THE WORLD, supra note 85, at 265, 271-72 & n.8.

[FN105]. See Imaizumi, supra note 69, at 228.

[FN106]. See, e.g., FIONA HAINES, GLOBALIZATION AND REGULATORY CHARACTER: REGULATORY REFORM AFTER THE KADER TOY FACTORY FIRE 52-56 (2005). Haines' theory does not predict an absence of conflict, but rather suggests that Thai power holders also prefer "corporatist" consolidation of their power and exclusion of rivals rather than public conflict or violence. Id. at 55. Yet Thai society displays plenty of overt conflict. As Indonesia scholar Daniel Lev commented with respect to another Asian culture said to avoid conflict, "[i]f Indonesians seek harmony and avoid conflict, they have not been good at it." LEV, supra note 25, at 5-6.

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) .