Thailand Law Journal 2010 Spring Issue 1 Volume 13

C. Somchai Homla-or--The "October Generation" Lawyer

Near the end of his four years as a law student at Thammasat University in October 1973, Somchai Homla-or and his university schoolmates propelled a conflict with the government into a confrontation and a mass-movement. Many of his generation were drawn to left idealists like Mao Tse-tung and in the early 1970s students at Thammasat had rediscovered and circulated the writings of the independent Thai Marxist Jit Promlak.

Somchai is the son of middle class parents who grew up in Ayutthaya, the old capital of Siam, north of Bangkok. His grandfather was a farmer, but his father had a university education and had worked as an accountant for the government and for private business. Even before 1973, he was drawn to discussions of social problems while in law school, as were many of his classmates. He helped organize the "Rule of Law Club," which recruited law students [FN113] to study social conditions in Thailand and prepared them for visits to the countryside to talk with villagers. [FN114]

After graduation, he worked for a federation of farmers in the poor, rural northeast and as a school teacher. The federation was organized by students who had been involved in the October 14 uprising. Their purpose was to help mobilize the farmers to achieve land reform. Somchai helped investigate cases of fraudulent transfer of title to speculators.

They occupied and used the land for generations, and they discovered that their land is under the title deed of one of the chiefs of the education department. The people were shocked. So they fight. We checked the document. We found a long time ago when these farmers were young, officers came and said they were surveying but didn't say they were issuing title deeds. So the farmers cooperate. We helped them write a petition to the government in which we described these facts. And that mobilized the farmers.

Thailand had no administrative courts at that time, and a petition to the Council of State, which oversees the state bureaucracy, was one of the few remedies available.

[Y]ou have to mention some legal principle--land title, going back to the king--like public domain. The concept is that the king gives use of the land to you, not ownership. The concept of private ownership is introduced by the West. King Rama V introduced private land to Thai society ... [and] allocated land titles to members of his family. In principle, if not developed during ten years, it must be returned to [the] king. The person who actually exploits the land should have ownership--that was their argument.

The government set up a committee to investigate the claims of the farmers, and eventually the farmers won return of their land titles from the family of the powerful bureaucrat who had stolen them, because, Somchai commented wryly, "the family was probably not powerful any more!"

Somchai was arrested when a military dictatorship returned to power in 1976. Released on bail, he fled to the jungle to join thousands of other October activists who escaped arrest in the camps of communist cadres on the Thai-Laos border. He soon became dissatisfied with the communist movement in the jungle and secretly returned to Bangkok to work underground. He was arrested and remained in jail for a few years until a general amnesty was declared in 1979.

Though support for dissent against military rule was growing within Thailand, the international community showed little interest.
At that time [there were] very few international organizations .... We know about Amnesty International because they sent the team from Oxford to the trial of the political activists, the student leaders that were arrested in 1976 and detained for almost three years before being released.

A Thai NGO, the Union for Civil Liberties (UCL), was formed around 1974 by European educated academics to support the human rights of participants in social movements. [FN115] Somchai worked for the UCL after his release from jail in 1980, and the UCL had close connections with Amnesty International (AI) which was then monitoring Thai military treatment of refugees on the Thai-Cambodia and Thai-Laos border.

I helped Amnesty International to investigate and the National Security Council was very angry with me. It became big news for weeks but they did not mention me by name, but they implied it was me when they gave an interview ... blamed me, harassed me, somebody follow me. The investigation became big news ....

Somchai was linked, like Thongbai, with the communist party, but the government perceived his involvement in a very different way because he had fled to the jungle. Anticipating arrest for his work with AI, he fled again in 1980, this time to Hong Kong. It was his first trip abroad. During three years in exile, Somchai became a fellow for the Asian Human Rights Commission and a trainee for Human Rights Watch. He studied human rights in other Asian societies. Later, he also met human rights advocates in the United States. These contacts provided resources that transformed his career.

When he returned to Thailand, he worked as a voluntary chairperson of the UCL and joined the Internet Law Firm, which was inspired by a Washington, D.C., human rights organization named Human Rights Internet which published a directory of human rights organizations in the days before the Internet. In addition, Somchai established a Human Rights Committee for the Lawyers Council of Thailand [FN116] immediately after the ratification of the 1997 Constitution in order to gather all of the cause lawyers in one place for mutual support. Their legitimacy as a professional organization grows from the Council's mandate to take cases on behalf of the needy.

The criteria ... are not restricted to these [poverty cases], but ... we mainly focus on the cases that have an impact on the public, for example, the cases that really violate the basic principles of human rights. Because we want to maintain and promote the principle of human rights, so any case that may revoke or weaken the principle of human rights we will take. The case that may have some impact on or affect the vast majority of the people or a big group of the people we will take. We want to empower the people, not just only to solve the immediate problem. Because we believe that democracy cannot be built without the people's participation ... so we identify our role is one of support for the people's movement.

Within the committee we set up subcommittees on different kinds of rights, and in the subcommittee we have lawyers and people from NGOs and academics, because we want the lawyers to work together with them. We want to be different from the mainstream lawyers ... you cannot work alone.

Somchai has faith in the courts, and he urges young lawyers to raise constitutional rights and human rights in the cases that they litigate.

Judges are independent from the executive branch ... but they are not independent from the king .... They are very proud that they act on behalf of the king .... And to this extent they can check the executive branch. There is no direct link between the other two powers and the judiciary. They are quite independent from the other branches. Except some corrupt judges!

He also understands the deeper problem of establishing rule of law--the behavior of the entrenched bureaucracy. [FN117] A court decision may be required not only to vindicate the small adjustment of registration regulations to conform with the intent of the law, but also to empower a lower level government officer to use initiative to make the change.

Somchai is concerned that there are so few young lawyers in his network who are self-sustaining; one of his goals is to increase that number. [FN118] He notes that young lawyers are difficult to recruit. "They are not our generation. Our generation is more political." The growing disparity between opportunities for private lawyers for businesses and the self-sacrifice required to pursue human rights litigation is as much a deterrent for third and fourth generation social justice lawyers as it was for Thongbai's. A new internship program funds a few law graduates entering a training program run by Somchai and his colleagues, but they receive only 3000 baht (about $100) per month as a stipend. [FN119] He believes that neither the Thai government nor international funding will sustain their work for long. Somchai has continued to maintain and extend his international network, allowing him to tap international funding for his projects and coordinate them with international advocacy. [FN120]

Prior to 1973, radical lawyers like Thongbai found a way to make a modest living while providing services to a poor, underserved, and needy urban population. These were the exceptional few who survived in spite of the constant threat of jail for "communist" activities, as Thongbai's experience illustrates.

After 1973, cause lawyers found new roles. A group of activist first generation practitioners founded the Legal Aid Center Institute to provide services to poor, needy, and politically marginalized groups who lacked legal representation. [FN121] Two academics educated in Europe formed the UCL, an organization focused on the rights of causes seeking to open political space for popular movements. [FN122] After graduation, activist second generation law graduates, like Somchai, became organizers, but they delayed making decisions about the paths of their legal careers because they had fled to the jungle. Upon returning, their activism continued. The returning group took up careers shaped by idealism; some becoming organizers in rural areas, [FN123] others joining NGOs spun off by staff members of the Legal Aid Center Institute who had been mentored by Thongbai's generation, [FN124] and still others entering government or politics. In the 1980s, a tidal wave of new NGOs marked the rise of "civil society" in Thailand and laid a foundation for the rapid overthrow of the 1991 coup and the movement supporting the adoption of Thailand's liberal constitution in 1997. [FN125]

Thus, like Somchai, many cause lawyers in the first and second generations helped to institutionalize activist roles as providers of direct support for marginalized and poor individuals, as well as for social movement organizations. They also provided apprenticeships for the third and fourth generations.

[FN113]. This recruitment process occurred until undergraduates were moved from Thammasat's main, central Bangkok campus to the Rangsit campus on Bangkok's outskirts and could no longer be recruited by upperclass members. Interview with Prinya Thewanaruemitkul, Vice-Rector, Thammasat University, in Bangkok, Thailand (Feb. 29, 2008); Interview with Prinya Thewanaruemitkul, Vice-Rector, Thammasat University, in Bangkok, Thailand (June 14, 2008).

[FN114]. In the 1960s, the Rector and Chair of the Economics Department of Thammasat, Puey Ungpakorn, had been instrumental in organizing a Graduate Volunteer Service, on the model of a similar British organization, which placed university graduates in community-based organizations in the countryside to give them better knowledge of their country and to encourage careers in public service. See Thanapol Eawsakul, Puey Ungphakorn: A Biography, in COLLECTED ARTICLES BY AND ABOUT PUEY UNGPHAKORN: A SIAMESE FOR ALL SEASONS 361, 366 (5th ed. 2000). According to one source, it is likely that this organization was made possible by funding from The Asia Foundation. See SULAK SIVARAKSA, LOYALTY DEMANDS DISSENT 79, 116 (1998). In the 1970s and 1980s, the Thai Volunteer Service, managed by Puey Ungpakorn's son Jon Ungpakorn, placed students with non-governmental organizations in an effort to channel students' careers in a similar direction and to support the growing NGO movement. Interview with Somchai Homla-or, in Bangkok (Dec. 21, 2006); see also infra note 119.

[FN115]. See infra pp. 785-86.

[FN116]. See Amnesty Int'l, Human Rights Defender in Thailand: Somchai Homlaor (Dec. 9, 2008), http://www.amnesty.org/en/news-and-updates/feature-stories/human-rights-defender-thailand-somchaihomlaor-20081209.

[FN117]. He also trains government lawyers and at times uses a different strategy for advocacy to change government actions, namely by using his good relations with some ministry officials to propose cabinet resolutions favoring a broad and uncontroversial human rights policy. An example would be a resolution entitling every child to an education, and then using the resolution to pressure local administrators to address the need for improved education.

[FN118]. In 2006, when I first interviewed him, Somchai said, somewhat regretfully, that his Law Society network was sustained mostly by an aging corps of only about eighty lawyers countrywide. The limited interest of the vast majority of private practitioners in supporting, much less working on behalf of, social justice, human rights, or improvement of the rule of law in Thailand has been a persistent concern. Somchai recalled just one practicing lawyer who participated in the first years of the UCL, and he left quickly because it was not his thing. While my interviews suggested that the most active core was far smaller--at most fifteen or twenty whose names appeared again and again as organizers, trainers, and leaders of various projects, many others helped with particular projects or handled a small number of cases. Still others, not part of the network, work in the outlying provinces advising activist groups or NGOs and providing criminal defense for protesters. Still others serve as leaders, staff members, or counsel to NGOs.

[FN119]. There were nineteen trainees in the program in 2006. Somchai focused recruitment on the need for human rights lawyers for Thailand's beleaguered Muslim communities. The training was to be held in the south, the area of Muslim concentration, and many of the participants were from Muslim families. Another program, the Thai Volunteer Service, was formed in 1980 with a grant from the Asia Foundation to support the NGO movement by providing a small two-year subsidy to university graduates working for NGOs. In 2006, Thai Volunteer Service began supporting law graduates working for NGOs. Interview with Somchai Homla-or, in Bangkok, Thailand (Dec. 21, 2006); Interview with Somchai Homla-or, in Bangkok, Thailand (June 18, 2007); Interview with Somchai Homla-or, in Bangkok, Thailand (July 8, 2008); see also supra note 112.

[FN120]. For example, Somchai's Cross-Cultural Foundation funnels money to many of his projects and the committees or NGOs that maintain them. Former Prime Minister Thaksin Shinwatra attempted to block foreign funding flowing to Thai NGOs that he found politically troublesome by adopting regulations making direct funding of Thai NGOs from foreign sources illegal. However, Thai foundations may legally accept foreign funding, and in turn these foundations can fund NGOs. Interview with Somchai Homla-or, in Bangkok, Thailand (July 8, 2008); see also Amara Pongsapich, Thailand, in THE INTERNATIONAL GUIDE TO NONPROFIT LAW 304 (Lester M. Salamon ed., 1977).

[FN121]. See RUANGRAWEE PICHAIKUL & JAMES R. KLEIN, THE ASIA FOUNDATION, LEGAL LITERACY FOR SUPPORTING GOVERNANCE LEGAL EMPOWERMENT: ADVANCING GOOD GOVERNANCE AND POVERTY REDUCTION 146-47; see also infra note 154 and accompanying text.

[FN122]. See infra p. 785-86.

[FN123]. See Ungpakorn, supra note 87, at 290-91, 295; Jumbala & Mitprasat, supra note 88, at 198.

[FN124]. PICHAIKUL & KLEIN, supra note 121, at 147; see also infra note 153.

[FN125]. See Pongsapich, supra note 88, at 219-20.

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) .