The Judicialization of the Environmental Movement in Thailand

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Thailand Law Journal 2011 Spring Issue 1 Volume 14

There is another face to international advocacy, one that is closer to the grass roots conflicts that development has triggered through the spillovers which are the primary environmental problems identified by major western funders.¹⁸ The second face of international advocacy understands that deep political divisions and problems of governance lie just beneath the surface of environmental conflict in developing societies. The governance issues are often far more serious than “capacity building” needs articulated by, for example, the United Nations Environmental Project, or the Blacksmith Institute. For example, the Pak Mun Dam in northeastern Thailand – an infamous World Bank funded dam project in Thailand – is one among many large scale water management projects which displaced entire villages, destroyed local culture, and damaged ecosystems that sustained local populations. Imposition of central government planning on the local population ignited resistance. Rural Thailand has a long history of central government subjugation, exploitation, and non-participatory decision making involving projects that often advantaged privileged businesses or wealthy land owners and impoverished local people. The resistance of local groups has received international recognition and support.¹⁹ In turn, international NGO advocacy contributed to pressure on the World Bank to alter its project funding to include input on behalf of local interests affected by its projects.²⁰ At the local level, some international NGOs, such as Greenpeace, and European foundations, for example the Heinrich Boell Foundation, have played a role in supporting grass roots organizing and resistance, a role eschewed by many major U.S. funders.²¹ The Foundation for Ecological Recovery,²² a Thai NGO dedicated to supporting political negotiations among stakeholders to resolve development related environmental conflicts, has been supported by the German Heinrich Boell Foundation since the early 1980s.²³

Although the goals of the second group of funders more closely match the concerns of villagers, fishermen, indigenous nomadic forest people, and other Thai communities directly affected by loss of land, water, food sources, and habitation, the conflicts are actually about many different issues, only some of which are “environmental,” and they are defined by local interests. When the first international advocates for “environmental rights” appeared on the scene, Thailand’s NGO community was already deeply involved in supporting community political development.²⁴ Many of the most important community based NGOs date from the immediate post-cold war era, following a declaration of amnesty for radicals and activists banished to the jungles in the mid-1970s. Their goals and methods have been shaped both by a general commitment to grassroots capacity building on one hand and protecting communities from intervention and exploitation by a remote and often self-interested state bureaucracy on the other. An NGO staffer who worked with rural or urban poor would have seen little difference between helping a community resist eviction, unreasonable rents, interference with traditional hunting or fishing, loss of freedom to plant crops, and stopping pollution by a project that was the ultimate source these problems. The language they used might refer to needs, or to “rights” established by long experience, or, in more sophisticated organizations with more training, to the discourse of environmental law and constitutional rights (especially after adoption of the “People’s constitution” in 1997). But consciousness of the issues was local: dependence on local ecology, a strong desire for equality, and the necessity of political empowerment.²⁵ From its offices on Fifth Avenue, Blacksmith had reason to think that its funding and technical support for litigation might play an important part in pollution control. In 1992, following an international conference on the environment, many countries in Southeast Asia, including Thailand, had adopted environmental laws establishing agencies to develop and oversee environmental policy and environmental law enforcement. The new Thai law incorporated some familiar requirements of the National Environmental Protection Act [NEPA], including preparation of an Environmental Impact Assessment. Responsibility for developing standards was assigned to a new agency dedicated to environmental protection.²⁶ Further, the power of the Thai court system had been extended through adoption of the historic 1997 “People’s Constitution,” which created an independent constitutional court, a human rights commission, and other governmental oversight institutions, but most importantly a system of administrative courts with jurisdiction over the bureaucracy.²⁷ The reforms seemed to signal greater commitment to accountability and to government by the people, and under the 1997 constitution, public participation in environmental policy making, an often-violated statutory right since 1992, became a constitutional right. Above all, Blacksmith might have been influenced by the presumption among most environmental advocates in the United States that litigation works.

But Blacksmith did not consider why, given the apparent development of its courts and law, Thailand lacked an environmental litigator. Blacksmith proposed to put about nine thousand dollars each year for five years toward this purpose in Thailand – by any measure a cheap fix and an incredible bargain if it worked.²⁸

Cause lawyers as symbolic entrepreneurs

Scholars have turned to studies of “cause lawyers” to provide a new and important perspective on the rising emphasis on the “rule of law” in developing societies.²⁹ The spreading rule of law discourse, international rule of law aid, and rule of law institutionalization of human rights over the past half century are elements of what may be characterized as “third wave” globalization.³⁰ “Cause lawyering,” defined by one team of American scholars as law practice “furthering a vision of the good society,” drew interest because of peculiarly American professional values that require loyalty to clients but political neutrality, that is, loyalty to clients but not to causes beyond the law.³¹ Cause lawyers traded off material and professional achievement for other, more political, goals and values, sometimes risking breach of the professional norm of client loyalty in the service of social movements. But studying cause lawyers quickly encountered questions raised by contemporary globalization’s emphasis on market development and stable governance. The ending of the cold war and surge in global market development has been accompanied by unprecedented emphasis on the development of constitutions, the transfer of regulatory technology, and international legalization of human rights.³² Further, the legal profession has become a global growth industry, evidenced by sharply rising numbers even in societies where the rule of law, by any definition, has not become established.³³ While the concept of cause lawyer seemed at first to reflect an American obsession with the ideals of common lawyers, the practice of lawyer-assisted resistance to abuse of government power has been embraced in many societies in the Global South, not limited to the common law or common law-influenced world, raising new and challenging issues about the attraction of cause lawyering and its impact on societies where it is a cultural and political transplant.

[1] [2] [3] [4] [5] [6] [7] [8]

18. See http://www.internationalrivers.org/en/node/567 ( discussing the international anti-dam movement) (last visited 9/6/09) or Global Response, http://globalresponse.org/mission.php (whose mission is responding to environmental destruction worldwide) (last visited 9/8/09). See also the report of a global coalition of human rights groups protesting environmental destruction by Rio Tinto, and the organizations mentioned there, available at http://www.ekklesia.co.uk/node/9195 (last visited 9/8/09).

19. Bruce Missingham, The Assembly of the Poor in Thailand: From Local Struggles to National Protect Movement (Silkworm Books 2003). See http://www.greenpeace.org/seasia/en/footer/search?q=thailand (last visited 9/25/09).

20. See, e.g., Sanjeev Khagram, Dames and Development: Transnational Struggles for Water and Power (Cornell Univ. Press 2004).

21. Thai-Malaysia Pipeline resisters received direct support from some international organizations such as Greenpeace. European development agencies financed publicity raising serious questions about the methods and impact of this project. See, e.g., the list of exclusively European donors to a report in 2006 which was critical of this project, available at http://www.reliefweb.int/rw/lib.nsf/db900sid/YAOI-6U35EU/$file/Conflict-Sensitive-Project-Finance.pdf (last visited on 10/3/09). The pipeline has not been stopped, but its developers have made substantial symbolic concessions, becoming major funders of the Thailand Environmental Institute, a promoter of environmental values which supports some Thai environmental NGOs. Interview with Chulalongkorn University Professor of Law Kanongji Sribuaiam, 6/18/08.

22. FER continues as an umbrella for its active components the Project for Ecological Recovery (PER), founded in 1986, and Towards Ecological Recovery and Regional Alliance (TERRA), founded under FER in 1991. Interview with Premrudee Daoroung, July 1, 2009.

23. See, e.g., http://www.boell-southeastasia.org/en/web/index_187.html (last visited 9/8/09).

24. Ernst W. Gohlert, Power and Culture: The Struggle Against Poverty in Thailand pp. 51 et seq. (White Lotus 1991); Chris Baker & Pasuk Phongpaichit, A History of Thailand pp. 216 et seq. (Cambridge Univ. Press 2005).

25. See Prudhisan Jumbala & Maneerat Mitprasat, Non-governmental Development Organizations: Empowerment and Environment, and Philip Hirsch, The Politics of Environment: Opposition and Legitimacy, in Political Change in Thailand: Democracy and Participation (Kevin Hewison, ed., Routledge 1997) [hereinafter Political Change]. Among Thailand’s first environmentalists were Buddhist monks and especially their modernizing spokemen, Buddhadassa and Sulak Sivaraksa. Sulak, trained as a barrister at Gray’s Inn, journalist, and foremost spokesperson for “engaged Buddhism,” has long promoted environmental awareness and preservation, providing inspiration and channeling seed money to support small NGOs and projects which encouraged grassroots awareness of community interests in development. See Sulak Sivraksa, Loyalty Demands Dissent: Autobiography of an Engaged Buddhist (1st ed., Parallax1998). See also Peter Jackson, Withering Centre, Flourishing Margins: Buddhism’s Changing Political Roles, in Political Change (Kevin Hewison, ed., Routledge 1997).

26. Supra note 16.

27. Constitution of the Kingdom of Thailand, B.E. 2540 (1997). Peter Leyland, The Emergence of Administrative Justice in Thailand Under the 1997 Constitution, in Administrative Law and Governance in Asia: Comparative Perspectives (Tom Ginsberg & Albert H.Y. Chen eds., Routledge 2008) [hereinafter Adminstrative Law].

28. Email communication from EnLaw on 9/29/09 in the possession of the author.

29. See, e.g., Cause Lawyering and the State in a Global Era (Austin Sarat & Stuart Scheingold eds., Oxford Univ. Press 2001) [hereinafter Cause Lawyering]; Richard L. Abel, Politics by Other Means: Law in the Struggle Against Apartheid, 1980-1994 (Routledge 1995).See, e.g., Cause Lawyering and the State in a Global Era (Austin Sarat & Stuart Scheingold eds., Oxford Univ. Press 2001) [hereinafter Cause Lawyering]; Richard L. Abel, Politics by Other Means: Law in the Struggle Against Apartheid, 1980-1994 (Routledge 1995).

30. See Ammar Siamwalla, Globalisation and Its Governance in Historical Perspective, in Social Challenges for the Mekong Region (Mingarn Kaosa-ard & John Dore eds., White Lotus 2003). Third wave globalization began after the cold war and rides the revolution in knowledge transfer – technological in the hard science sense but, equally important, two-way transfers of knowledge about governance at all levels of society. At the level of nation-states, the transfers include technologies for both production and democratization, including market stabilization, “citizenship,” and limited government. In the rarified environment of the World Bank and its experts, limited government means the technology of constitutions and stronger courts which protect contract and property rights, and sufficient human rights and liberties to win support among non-elite who are essential both to production and political stability.

31. Austin Sarat & Stuart Scheingold, Cause Lawyering and the Reproduction of Professional Authority: An Introduction, in Cause Lawyering: Political Commitments and Professional Responsibilities 3 (Austin Sarat & Stuart Scheingold eds., Oxford 1998) [hereinafter Political Commitments].

32. Promoting the Rule of Law Abroad: In Search of Knowledge (Thomas Carothers ed., Carnegie 2006).

33. Raising the Bar: The Emerging Legal Profession in East Asia (William P. Alford, Harvard Univ. Press 2007).

This article is published with the kind permission of Frank Munger. The article originally appeared Originally appeared in Volume 9 of the International review of constitutional ion (2009).