Thailand Law Journal 2010 Spring Issue 1 Volume 13

D. Surachai Trong-ngam--The "Environmental" Litigator

Surachai Trong-ngam entered Thammasat University a little less than a decade after the uprising in October 1973 and is a member of the third generation of cause lawyers. The Vice Rector of Thammasat University, a prominent scholar and political pundit who is a half-generation younger and great admirer of Surachai Trong-ngam, showed me a picture of Surachai when he was in law school in the mid 1980s. In the picture he has long hair, torn jeans, a red book, and a cloth bag--he looks like a Berkeley radical. During the period when the photograph was taken, Surachai led groups of Thai law students to the rice fields near Bangkok to learn about the people.

Surachai has "attitude" that is expressed in his class-conscious description of his family, his admission of his own naiveté and that of other law students who went to the countryside to lecture villagers on politics unprepared to help with their legal problems, his continuing commitment to represent social causes, even though his commitment has meant a life in poverty, and his belief in the causes of the clients he represents in their fights against the government.

Surachai became radicalized during law school by students and teachers who believed in human rights and by a personal journey through which he embraced the legacy of 1973. A thoughtful self-critic, Surachai commented on the naiveté of law students armed with a superficial knowledge of Marxism, expecting to have something useful to tell villagers. He credited the visits with awakening him to Thailand's social problems, its pervasive poverty and inequality, and the realization that law school had ill prepared him to understand the legal problems of the rural poor or to use the law to help them.

Surachai entered law practice in 1987 and worked for an NGO in Chiangmai, in Northern Thailand, doing "community research" by assessing problems of the youth and providing social services. While at this job, he gained further experience with rural communities reinforcing his belief that more specialized expertise was needed to help them and that an NGO specifically for that purpose would be useful.

Surachai moved to Bangkok where he was employed for a year or two by the Friends of Women Foundation, an NGO created by a lawyer from the October generation. In 1994, Surachai joined three other lawyers to establish a small public interest law firm, Meesit Law Firm.
*777 The purpose was to help the lawyers survive well in their profession and so continue to do social [cause] work. They did not want to rely on sources of funding from foreign countries or on being an NGO in order to do social work. They wanted to find some other ways through being in the legal profession to do social work.

Each lawyer had experience in social cause practice--labor union representation, slum advocacy, criminal law--and Surachai brought his experience as a litigator for the Friends of Women Foundation and his interest in representing communities like those he had seen near Chiangmai. From the outset, the problem for the Meesit Law Firm was financial survival.
We try to get some work from the business sector but by nature the business is about problems related to villagers' cases. We found it difficult to build good connections with business. We could make money from cases that were passed on by other lawyers or through a network of relatives and friends. We thought that if our strength was doing socially important work we should create this image and try to [sell] it to the public .... We thought about our strength in doing social work, and if we want Meesit to grow, we could try to use our strength to promote Meesit and get social cases in other areas.

Another challenge for Meesit is the reproduction of this kind of law practice. Surachai acknowledges that it is important to recruit and train younger lawyers, but this commitment adds to the burden of supporting the partners.
We provide opportunities to learn. Most of the people here were involved in social activities. We might not be able to fully support the next generation lawyers. If they can survive here, they must have fewer financial constraints and family obligations .... Many might not be able to continue to be here and will have to leave.

In 1999, Surachai returned to Thammasat University to earn a diploma in Public Law, which prepared him to represent clients in the new Administrative Courts created by the 1997 Constitution. Surachai was then recruited by Somchai Homla-or to join his Human Rights Committee and handle litigation brought to the Committee by NGOs on behalf of communities resisting private development or government projects.

In 2001, the New York based Blacksmith Institute proposed to fund an environmental litigation project in Thailand by creating an NGO called EnLaw. [FN126] EnLaw has subsequently received small amounts of funding from other foundations and the Thai government, and it is closely linked to Surachai's law firm, which provides the lawyers who work for EnLaw. EnLaw has helped ease the Meesit Law Firm's financial problems, but only temporarily because the Blacksmith funding, like so many grants from international sources, was a one-time grant to build "capacity" in a firm that was expected to become self-sustaining. Surachai explains, however, that the clients of his firm cannot afford to pay him because they are poor. They believe in him because he is a community activist, not because he is a lawyer for hire--to ask them for payment or part of the meager compensation they receive from court judgments would undermine their trust. Surachai has carefully considered alternative ways to sustain his work. In addition to occasional non-cause work, he thinks that the NGO network may be able to provide long-term funding.

Like Somchai, Surachai thinks litigation has become increasingly important for lawyers defending social causes, especially since the ratification of the 1997 Constitution.

Due to the fact that the establishment of the Constitution in 1997 including the trend toward development of administrative law, these make it easier for the people to oversee the state's power by creating more channels for oversight that the people's movements lack .... Until now, the legal process has been employed to limit the people's rights. Now, people have their own rights to use the legal process. The legal process is a channel for people to fight. And we think we can back them up on this part.

Some of the important cases that have propelled Surachai's reputation appear on the Blacksmith Institute website as illustrations of the global fight against pollution. [FN127] To Western observers, Surachai may seem to support the most conventional form of the rule of law, an "American-style" [FN128] environmental litigation firm that "plays for rules." [FN129] He litigates like American-style public interest lawyers, and his litigation seems to focus on a narrow regime of rights--environmental pollution. But Surachai does not view this as narrowing his role as an activist. He views his and EnLaw's mission quite differently from Blacksmith's emphasis on the natural environment. Surachai's mission is supporting community self-determination, and the starting point is always a community movement.
It's true that these groups arise as a result of our explanations about how to exercise their rights, letting them see the benefit of legal ways of fighting, both to protect and to reclaim. If they see the benefit, they can have us work on litigation. This is the work of networks of villagers, NGOs, and lawyers, right? They have to understand their movement's friends .... Mostly, if they are strong, they tend to be sued anyway .... They already tend to be involved in many risky actions. Most of our work supports villagers when they are about to be sued. Even though we definitely do reactive cases, we also want to do proactive cases .... It's the movement's action, so we have to do it in the form of a group.

He assumes that his own transgressive politics are aligned with his aggressive litigation.

The problems encountered by Surachai sustaining his law practice for social change, including a paucity of fee-paying cases, the mismatch between occasional support from foreign sources and his own goals, and difficulty attracting and supporting younger lawyers, are typical and help explain the slow growth of cause lawyering among private practitioners. Although the number of lawyers in Thailand has increased sharply during the last twenty-five years, [FN130] the number of cause lawyers in private practice, like Thongbai and Surachai, has not. Aging radical lawyers in small firms constitute the core of Somchai Homla-or's country-wide network. [FN131] While the first generation had few choices other than private practice, after 1973, a much wider range of employment opportunities existed for idealistic law graduates, including working for NGOs or combining NGO employment and private practice. The rising number of cause lawyers after 1973 is due in large part to employment by NGOs. The new cause lawyers are salaried, at least in the early stages of their careers, and many have been supported in part by NGOs. Somchai's Human Rights Committee, which has become a focal point for cause lawyering and its reproduction, [FN132] has depended on its relationships with NGOs to channel the most important cases to the Committee for consideration. This loop between human rights activism by lawyers and NGOs has tightened in recent years because most of the youngest members of Surachai's network are associated with NGOs or work with NGOs. [FN133]

[FN126]. Interview with Penchom Saetang, Dir., Campaign for Alternative Industry Network, Nonthaburi, Thailand (June 30, 2008) [hereinafter Penchom Interview]. (Ms. Penchom is a senior activist who helped establish EnLaw.) Surachai said that an "ideal model" of something like EnLaw had been discussed within his network for some time, but his network had few international contacts in the environmental law area. Counterparts in other societies are learning to litigate through networks with environmental litigators elsewhere. Before EnLaw was established, a global network called ELaw linked environmental litigators together. ELaw is an environmental litigation project organized by Professor John Bonine at the University of Oregon. But Surachai's contact with lawyers associated with ELaw has been limited in part by the fact that he speaks only Thai, and Elaw has had no contact with other lawyers in Thailand. Blacksmith's proposal was first conveyed to Surachai's network of friends and NGO contacts by a staff member at Human Rights First. A senior member of the network later approached Surachai about becoming coordinator of EnLaw. In spite of his limited connections with the international environmental law movement, Surachai has received more than adequate expert advice from his supporting network of Thai scholar-friends.

[FN127]. See Blacksmith Institute: Projects, http:// www.blacksmithinstitute.org/projects/regions/se_asia (last visited Mar. 2, 2009).

[FN128]. By "American-style" I mean an aggressive use of law to initiate litigation to change the rules under which Thai ministries operate, to expand the statutory interpretations applicable to private firm liability, or to establish constitutional protections. Perhaps one other firm has recently emerged that aspires to such practice, but Surachai is far ahead of the curve. Interview with Somchai Homla-or, in Bangkok, Thailand (July 8, 2008).

[FN129]. The term was given meaning by Marc Galanter's seminal essay, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 97-102 (1974). The concept refers to use of the court's policy making authority by choosing to litigate for the purpose of establishing precedent rather than merely resolving a conflict or seeking a specific remedy. Id.

[FN130]. See infra note 151. The take-off period occurred in the late 1970s, shortly after the 1973 uprising. See MOE ANNUAL REPORT, supra note 28 (providing statistical data on the number of Thai lawyers).

[FN131]. It is possible that a few new cause lawyering firms have formed outside of Bangkok. See supra note 128. I recently learned of another "environmental" law firm like Surachai's, which is less well known and has kept the Bangkok network at a distance. Although I have asked many sources about this, only a few provincial cause lawyers have surfaced--perhaps ten or fifteen--but all part time and none with the commitment of Somchai or Surachai to build a movement among lawyers or to become identified with social movements generally.

[FN132]. For information on the formation of the Lawyers Council of Thailand (originally named the Law Society), see KOVILAIKOOL, supra note 70, at 546-47. The creation of the Lawyers Council by Parliamentary Act in 1985 may not only reflect the desire of practitioners to have their own organization, but also the symbolic importance of an independent bar in the modern nation state. See, e.g., Heger Boyle & Meyer, supra note 24, at 71. In addition to the growing importance of private lawyers in one of the fastest growing economies in the world and its popularity as a field of study, the liberal authoritarian governments of the 1980s attempted to simultaneously open up political space and to manage it by encouraging participation without full democracy. The Lawyers Council may be viewed as an attempt to foster and manage an important aspect of civil society, access to the courts. This goal is reflected in the Lawyers Council twofold mandate. It was given authority to license attorneys who met certain qualifications, including a test of knowledge and a period of apprenticeship. At the same time, the Lawyers Council was made responsible for providing legal services to needy people and given an annual budget to meet this need. See KOVILAIKOOL, supra note 70, at 546-47. While the Lawyers Council has the appearance of a modern bar association, unlike bar associations in the United States and Europe, its political role is very small because the legal profession is still not particularly powerful. Nevertheless, as Somchai explains, in the hands of the right leader, the Lawyers Council has provided a means of mobilizing influence.

[FN133]. See supra note 119 and accompanying text.

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) .