Thailand Law Journal 2010 Spring Issue 1 Volume 13

E. Duean Wongsa--The NGO Lawyer

When I first met Duean Wongsa, she was a young and idealistic twenty-seven year old about to embark on her career as an NGO lawyer in Chiangmai in northern Thailand. Today, at thirty, this fourth generation cause lawyer has seen and coped with more of the rough side of Thai society than the vast majority of her classmates. She has adapted her idealism to the contradictions of working between state anti-trafficking policies and the needs of young Burmese women whom she "rescues," sometimes against their wishes.

Duean's family has been a source of inspiration. Her mother worked at menial, difficult jobs to support Duean and her older sister. Duean has a strong feminist consciousness of the violence that men perpetrate against women, which may reflect her family's experience, as well as the influence of her law school mentors, activist faculty members.

She attended the then new public law school at Chiangmai University. Although Chiangmai Law School does not have the reputation of the elite Bangkok universities, it has an exceptional faculty of activists, two of whom served as mentors for Duean. Both of her mentors were third generation cause lawyers with national reputations as advocates for northern rural communities, ethnic communities, and other human rights causes. One served on the board of EnLaw, Surachai's environmental NGO. The other, a female professor Duean greatly admired, earned a doctor of laws degree at Cornell University, writing her dissertation under feminist law professor Martha Fineman's direction, about the continuing struggle for women's rights after the adoption of Thailand's 1997 liberal constitution.

Duean's first employer, typical of her generation, was a Japanese business firm where her sister worked as an administrator. She was quickly bored by the work, and after two years she searched the Internet for something that meant more to her. She accepted an opportunity to work for a new NGO dedicated to addressing problems of human trafficking. [FN134] Trafcord, the NGO she works for, receives some funding from the Thai government, but most of its funding comes from U.S. sources: Open Society Institute (OSI), World Vision Foundation, and the United States government, which provides support through its Embassy in Bangkok. The Embassy channels funding under U.S. programs, such as the Office to Monitor and Combat Trafficking in Persons (G/TIP). [FN135]

Trafcord is in fact a network of formal and informal relationships among government and private agencies which collaborate to identify brothels, rescue women who are held in the sex trade against their will, and prosecute the traffickers. Collaboration between government and NGO is typical of many NGOs that have survived for long periods and remained effective. As Duean says, it is a necessary relationship. She explained that the NGO's founders have experience helping children and families but no authority to make government officials or brothel owners cooperate. The government has the authority but no knowledge or ability to help. The alliance created by Trafcord may be smoother than in other circumstances because the G/TIP program threatens withdrawal of U.S. aid in countries that do not comply with U.S. policy. [FN136]

Employment by the NGO is a stage in her career as well as a cause. Duean explains her cause as providing a service to children, families, and the law--a career goal with latitude to allow her to envision moving to a larger NGO in a few years where she can assume greater responsibility. Her long-term goal is to form her own NGO or private organization to provide services to families. Typical of many in her generation, Duean can contemplate a career which might not have been possible for earlier generations of activists.

V. THE INFLUENCE OF SOCIAL CHANGE ON GENERATIONS OF CAUSE LAWYERS

The arc of the career of each of the four social justice lawyers was influenced by perceptions and interpretations of the individuals as well as by the opportunities and constraints created by their families, institutions, and other relationships. As individuals, the four lawyers are not alike, nor can they be viewed as representative, in any statistical sense, of all cause lawyers in the four generations. Yet their careers, considered together, suggest some of the most likely pathways for cause lawyer careers in each generation and the social changes that have altered them.

In this Part, I will consider the influence of Thailand's political and economic evolution on cause lawyering. Four broad, overlapping sources of change emerge from the career narratives: (A) Thailand's "development," [FN137] its economic growth together with related changes in education and class structure, (B) the October 1973 uprising, (C) the emergence of the 1980s NGO movement, and (D) the international flow of resources during the Cold War and post-Cold War periods.

A. Thailand's Development

The longer view afforded by time underscores a parallel between Thailand's modern economic development and the increasing numbers of lawyers (far outstripping its population increase). Thailand's first public law school was established in 1933, opening the profession to anyone qualified for admission. Nearly thirty years passed before a second public law school was established. In the past twenty years, and especially in the last decade, the number of public and private law schools has grown rapidly. [FN138] Families of university students have almost always preferred to have children enter secure government employment, and law students themselves are typically drawn to high-status public careers as a judge or prosecutor. Increasingly, students have been attracted to law as an entry point to the rapidly growing and globalizing business sector. As Daniel Lev has observed about similar increases in Indonesia and Malaysia, the vast majority of the new recruits are not deeply imbued with the values of professional independence or the rule of law. [FN139] Yet there are far more cause lawyers in Somchai Homla-or's extended network than there were in Thailand when Thongbai Thongbao began practicing law. [FN140]

Soon after World War II, the United States replaced England as Thailand's protector and principal benefactor. Initially this was done to secure the United States' position in Southeast Asia, but it quickly became a Cold War strategy driven by the United States' desire to make Thailand a developed, free market bulwark against communism. [FN141] U.S. aid built infrastructure not only to facilitate military needs but also to domesticate rural areas that might otherwise have fallen under communist influence. The Thai state grew and penetrated areas that previously had only a distant relationship to Bangkok, and now had roads, schools, and medical services. Major U.S. foundations addressed development of higher education and professional training. The World Bank issued a plan for fiscal management, which was implemented by Puey Ungpakorn, Director of the Ministry of Finance, later Rector of Thammasat University and a strong supporter of the student uprising in 1973. [FN142]

Business boomed, and rising expectations began to have an important effect on other development policies of the Thai government. Thailand's growth created new wealth and aspirations for upward mobility by families who desired to see opportunity perpetuated for the next generation through better education for their children. [FN143] American advisors also pressured Thai bureaucrats to improve the education system, and American philanthropies invested enormous sums in subsidizing and retraining entire university faculties. [FN144] Between 1961 and 1972, university enrollment increased from 15,000 students at five universities to 100,000 enrolled at seventeen universities. [FN145]

Demographic change created a fertile ground for student idealism and opportunities for idealism to be put into practice. [FN146] As opportunities expanded, middle class expectations also continued to rise, creating a politically precarious environment for Thailand's dictatorship. While university students like Somchai Homla-or discovered new ideals that directed their opposition to authoritarian government, Thailand's emerging middle class wanted economic opportunity, and when the dictatorship could not deliver in the early 1970s, they provided crucial support for the student revolt in 1973. [FN147]

A comparison between the number of cause lawyers at mid-century and at century's end is problematic because the very concept of a cause lawyer varies among the generations. Prior to 1973, some lawyers who worked in important positions for government shared many of the sentiments and values expressed by Thongbai. [FN148] While we might pause before calling them cause lawyers, one of the most important characteristics of contemporary Thai cause lawyering is its use of insider connections to accomplish what would be otherwise impossible through the courts. Whether such insiders who share some of the objectives of traditional cause lawyers are truly capable of "speaking law to power" raises difficult questions about cooptation of dissent. The issue is particularly difficult conceptually and empirically in Thailand where until mid-century the existence of a bureaucratic polity meant that all elite factions were employed by, or otherwise closely linked to, the state and its administration.

After the 1973 student uprising, political idealism carried law graduates in many different directions, but not into the private practice of law. Many of the most radical students in the uprising thought the human rights discourse of some of the professors who supported them was too conservative and too Western. [FN149] The legal profession began its rapid growth in the late 1970s, but this rapid growth in the overall number of lawyers did not necessarily mean a similar increase in the number of cause lawyers. [FN150] Undoubtedly, the general opening of Thai society, more than political idealism, generated a surge in the number of lawyers entering private practice. The same opening created an opportunity for Somchai and others to use their legal training to help the socially oppressed and to found institutions that promoted the use of law to support social movements. [FN151] Soon, however, many of the most radical law students, like Somchai, fled to the jungle, postponing any thought of a professional career.

But of course that is the point. Before 1973, few individuals trained in the law who sympathized with opponents of government chose to invest in a career that involved deploying the law against the state. [FN152] As time passed, and changes occurredin the relationship between the state and "civil society," more roles for cause lawyers emerged.

[FN134]. She and another classmate are the only two from a class of fifty that are working for NGOs.

[FN135]. See U.S. Government Funded Anti-Trafficking Programs, http:// www.state.gov/g/tip/c12606.htm (last visited Mar. 1, 2009) (providing a list of U.S. government funded anti-trafficking programs conducted under Office to Monitor and Combat Trafficking in Persons (G/TIP)). The initial task force to implement such programs was created pursuant to the Victims of Trafficking and Violence Protection Act of 2000 and is presently under the supervision of the G/TIP. See 22 U.S.C.A. § 7103 (2008).

[FN136]. See 22 U.S.C. § 7104(g) (2006).

[FN137]. By "development" I mean rapid social change along a historical path rather than progress toward a particular set of institutions or social goals.

[FN138]. See supra note 97.

[FN139]. See Lev, supra note 20. Thai legal education has been slow to modernize, but the limited role for lawyers derived initially from Thailand's civil law tradition and the historical conservatism of the courts, which have contributed little to the development of a profession with a sense of independence or power.

[FN140]. Somchai's Law Society network was sustained by a corps of approximately eight lawyers countrywide, see supra note 118, compared to the enterprising three lawyers that began the Legal Aid Center Institute, see infra note 153.

[FN141]. See Hess, supra note 35, at 320, 322.

[FN142]. See Ramon Magsaysay Award Foundation, Puey Ungphakorn, in COLLECTED ARTICLES BY AND ABOUT PUEY UNGPHAKORN: A SIAMESE FOR ALL SEASONS, supra note 114, at 35-36.

[FN143]. Id. at 149-52. Surachai's career was influenced in this way by the expansion in educational opportunities during the 1960s and 1970s. Surachai's family is poor, but a university education was not beyond his grasp or, more importantly for general political development, his family's expectation.

[FN144]. See Hess, supra note 35, at 329, 335, 339. Aid from the Ford Foundation, Rockefeller Foundation, and Carnegie Foundation transformed higher education in Thailand. Puey Ungpakorn, Chair of Thammasat's Economics Department from 1964 to 1972, began with a department of six which grew to over one hundred faculty members by the time he resigned. See Eawsakul, supra note 114, at 365. During the same period, U.S. philanthropies opposed U.S. support for pro-U.S. dictatorships in Latin America by funding human rights, reflecting a political split among elites in the United States. While there was opposition to the war in Vietnam, there was far less opposition to U.S. support for Thailand's repressive military governments. Philanthropies may have viewed Thailand as underdeveloped and needing basic social welfare and educational reforms that would lead to development of a free market economy and democracy. Put another way, Thailand may have drawn less concern about human rights because it was perceived as unready for them while South American societies were perceived as fundamentally European in origin and closer to the United States in culture and politics. Amnesty International sent observers to the student trials in 1976. Interview with Thongbai Thongbao, in Bangkok, Thailand (June 22, 2008). Additionally, congressional hearings in 1977 concerned the wisdom of continued arms shipments but not human rights issues in Thailand. See Ewasakul, supra note 114.

[FN145]. ANDERSON, supra note 85, at 149. During this decade, professional occupations increased more rapidly than any other occupational group. Id. at 150 tbl. 7.1.

[FN146]. See id. at 154.

[FN147]. Id.

[FN148]. Confidential interview with former high ranking government prosecutor, in Mahasarakham, Thailand, (June 26, 2008).

[FN149]. Human rights advocated by some Thammasat faculty, as well as liberal democratic ideas about development supported by Puey Ungpakorn, Rector of Thammasat (who was a protector and supporter of the students), were considered too Western by many students who were influenced by the models of liberation closer at hand in Vietnam and China, and who embraced Maoist political theory.

[FN150]. In 1960, there were fewer than 2000 legal practitioners in Thailand. Between 1970 and 1975, the number increased by a little more than 125 lawyers a year from 2541 to 3177. After 1975, the number of lawyers increased to about 7000 in 1980, or more than 750 each year. STATISTICAL YEARBOOK, supra note 27, at 159. The rate of increase is currently in the range of 3000 new lawyers every year. There are currently over 54,000 licensed lawyers in Thailand (or roughly one fifth the per capita proportion of the United States), about twenty percent of whom are women. See Lawyers Council of Thailand, http://www.nichibenren.or.jp/en/directory/data/E07-Lawyers_Council_of_ Thailand.pdf. (last visited Mar. 1, 2009). In 1980, the Ministry of Justice estimated that the number of lawyers was approximately 7000. STATISTICAL YEARBOOK, supra note 27, at 159. The Lawyers Council registered more than 19,000 lawyers by the year 1986, the first year after it assumed responsibility for licensing practitioners. See Letter from the Office of the President of the Lawyers Council of Thailand to author (July, 1, 2008) (on file with the author). The take-off in numbers actually began a few years before 1980, just as the "October generation" of students who participated in the 1973 uprising graduated and began their careers, suggesting that not only was there an increase in students electing to study law, but also, perhaps, more graduates from law school were choosing private practice. See supra note 97.

[FN151]. See discussion infra at Part V.C.

[FN152]. Other lawyers accompanied Thongbai to prison in the late 1950s, and Thongbai himself trained young lawyers beginning in the late 1960s. Lawyers emerged from the historical shadows to help establish the Legal Aid Center Institute and defend students arrested by the military in 1975 and 1976. Oral history suggests that there were no more than a handful of lawyers ready to commit a substantial amount of time to assisting victims of the dictatorship, helping rural people oppressed by government or land owners, or representing labor unions and social movements. An oral history undertaken on behalf of The Asia Foundation names three lawyers associated with the Legal Aid Center Institute. See PICHAIKUL & KLEIN, supra note 121, at 146-47. During my interview with him, Thongbai recalled just a few who helped him defend students at Thammasat University in 1976.

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) .