Thailand Law Journal 2011 Spring Issue 1 Volume 14

V. Origins of a cause lawyer

Surachai Trong-ngam is a “third-generation” cause lawyer who graduated from Thammasat University law school in 1987.  Surachai entered law school with no particular understanding of the October revolution and no commitment to activism, but after entering Thammasat as a student he was greatly influenced by the traditions, extracurricular activities, and mentoring that embodied the continuing spirit of student service.  There he learned about the problems of the people and about activism.  Other students exposed to the same influences may have acquired an appreciation for social issues and public service but most did become social justice lawyers.  Surachai was caught up by the ideals of the revolution and the social problems he saw on his visits to the countryside as a student.  He read voraciously in the radical literature popularized by the revolutionary generation – Marxist and socialist theory, the works of Mao, writings by the Thai Marxist Jit Phumisak, and others.   He became committed to activism, but he was also pragmatic, quickly realizing that law school alone provided poor preparation for serving other people.  His visits to the countryside as a student taught him about social problems, but his undergraduate legal education had provided him no knowledge about law that could be useful to villagers denied access to land, were abused by police, lacking government services, or who had other problems experienced by the rural poor.⁵⁷

When law students drawn to cause lawyering, like Surachai, graduated from Thammasat University in the 1980s, they entered a field that had taken shape through the work of the October generation, especially Thammasat University’s own  graduates.  Surachai’s career provides an illustration.  The handful of small law offices of first generation social justice lawyers were unable to absorb many young law graduates, if indeed they had any desire to do so.  Establishing a new practice with no experience would have been nearly impossible given only an undergraduate legal education, and licensing required an apprenticeship in any event.  Instead, like many third generation cause lawyers, Surachai began his career by working for an NGO.

After declaration of an amnesty for those allegedly involved in criminal or communist activity during the 1976 conflict with the military, many activists returned to work with foreign NGOs or to establish their own projects, some with foreign funding, to address problems of the rural and urban poor.⁵⁸ Surachai’s first job did not involve conventional legal work at all, but rather “community research” for an NGO concerned about the problems of youth in Thailand’s northern communities.  Nevertheless, he learned about the legal problems of the rural poor, for example, corrupt transfer of land titles to wealthy families or speculators.  He began to see a role for a cause lawyer who knew about these problems, but he himself lacked knowledge and experience as a lawyer. 

Within a few years, though his network of law school and NGO friends, he found a job as a litigator with the Friends of Women Foundation (FOW), one of the first and best funded of a number of organizations founded by members of the October generation.⁵⁹  Joining FOW in the early 1990s, Surachai learned about litigation and took the first step toward becoming an accomplished litigator.  At FOW Surachai learned about litigation in order to defend women in criminal court, but FOW was not primarily engaged in litigation for its client community.  FOW is a typical “Thai-style” NGO,⁶⁰ in part acting as advocate for the interests of an oppressed group and in part supplementing inadequate government services for the needy.  Viewed as an activist organization, a Thai-style NGO educates and, thus, empowers its clients, and at the same time disciplines lower level government officials not fully under the control of higher level administrators.  Viewed as a comprador organization, a Thai-style NGO arguably legitimates inadequately responsive governmental policies.⁶¹  However we view the work of FOW, its influence must be judged through a longer lens which includes training lawyers, the lawyers’ subsequent careers, and its role in enabling other activity peripheral to its own stated mission. 

While at FOW, Surachai again became involved in community conflicts like those he had seen in the north.⁶²  Surachai learned more about the courts and litigation, but he also considered himself a community organizer and educator.  NGO staff members, for their part, worked with communities by organizing and guiding them toward collective decision and action, but sometimes they did not share Surachai’s belief that law was always an important potential resource.  After working for the Friends of Women Foundation for a year, Surachai joined a small law firm with partners experienced in working for labor organizations, slum movement groups, and other social causes.

A few years after joining the firm, Surachai’s network brought him another opportunity, an American foundation willing to fund an environmental litigation NGO in Thailand.  The Blacksmith Institute had sent an email to international NGOs in Thailand describing its interest in funding an environmental litigation project in Thailand.   A Thai staff member of Human Rights First based in Chiangmai who saw the email was in the network of Thammasat University graduates and activists who worked on community development issues, a network which included Surachai.  Soon directors of a number of environmental NGOs, began a search for a coordinator of the new NGO to be funded by Blacksmith.  Surachai’s prior litigation experience and working relationship with the network of NGOs, academics, activists, and human rights lawyers made him an attractive candidate.  EnLaw was created to receive the Blacksmith funds, and any other funding, and to direct the work of its litigation coordinator, Surachai.  The governing board of EnLaw is comprised of long-time friends and collaborators in the network of NGOs, including some of Surachai’s law school classmates and mentors as well as the directors of several important NGOS.  EnLaw is thus a collaboration among mutually committed colleagues as well as a formal organization, and reflects one of the important intangible by-products of the NGO network which began to take shape in the 1980s.

1. Becoming a symbolic entrepreneur

57. Interview with Surachai Trong-ngam 6/16/07.

58. Foreign funding, when available, came mostly from European philanthropies concerned about poverty.  None of the private US philanthropies took up the challenge of human rights development in Thailand in the 1960s and 1970s, as the Ford Foundation had in Latin America, reflecting a near consensus on anti-communism and development policy in Asia in contrast to the conflict within the US over dictatorships in Latin America.  Even though support for the much-hated dictators placed the United States in an awkward position on the issue of human rights, dissenting elites in the US focused on Vietnam, not on Thailand, where development soon became a showcase for capitalism but not democracy.

59. Friends of Women was founded in the early 1980s by women activists, including academics from Thammasat University, with funding from Oxfam Netherlands [NOVIB].  Interview with Chadet Chawilai, direction of Friends of Women Foundation, February 8, 2008.  As it flourished, FOW spun off related projects, including the Child Rights Protection Center, another well-known NGO which has provided employment for several generations of young cause lawyers and human rights activists.

60. Interview with Khun Yupa Phusahas, Asian Foundation staff member, December 21, 2006.

61. This challenge is posed directly by a noted Thai scholar.  Amara Pongsapich, Thai Political Space for Advocacy, in Breaking Through:  Political Space for Advocacy in Southeast Asia 216 (Paredes et al. eds., 2007).

62. For example, one of the NGOs which drew Surachai into its work, the Alternative Energy Project for Sustainability [AEPS], supported communities threatened with environmental, social, and economic disruption by Thailand’s program for building new power plants, typically at sites selected by a private company with government cooperation but without prior notice to the community and without regard to its impact.  AEPS, in turn, was a spin-off from the Foundation for Ecological Recovery [FER].  FER, later the Project for Ecological Recovery, was formed by a member of the October generation in response to a 1981 meeting among NGOs and activists concerned about the impact of development projects in the 1970s and early 1980s.  Interview with Premrudee Daoroung July 1, 2009.  Massive projects included clearing land for export cropping and relocation of entire communities for waterway projects, such as the Pak Mun Dam.  See Jumbala & Mitprasat, supra note 25.  The projects displaced large numbers of people, threatening their access to land, livelihood, and the natural resources which sustained many traditional communities.  The meeting among Thai activists chose “ecological recovery” as their focus, bridging western funders’ environmental sensibilities and Thai concerns about community sustainability.   FER proposed a method of conflict resolution which addressed underlying political imbalance in representation in policy making through public demands for negotiations among stakeholders.  Resistance to land-grabs and development was by no means unknown in Thailand, but resistance had typically resulted in violence and brutal repression.  The new approach was more sophisticated, long-term, and political.

63. Surachai Trong-ngam is an exception in many way, as a cause lawyer but also as a plaintiffs’ lawyer.  My interviews with more than a hundred lawyers for people’s causes revealed that there is little interest among members of the profession in seeking out new causes of action for plaintiffs, precisely because conditions are so unfavorable, among them the lack of fee generating potential in most cases and their general unfamiliarity, i.e. riskiness.

64. Prasit Kovilaikool, ASEAN Law Ass’n, Part VI The Legal System of Thailand 526 (1995); Enhancement and Conservation of National Environmental Quality Act of B.E. 2535 (1992) see http://www.pcd.go.th/info_serv/en_reg_envi.html (last visited 10/3/09).

65. Constitution of the Kingdom of Thailand (B.E. 2540) [Thailand], B.E. 2540 (1997), 11 October 1997, available at http://www.unhcr.org/refworld/docid/3ae6b5b2b.html.  See Borwornsak Uwanno & Wayne D. Burns, The Thai Constitutionof 1997:  Sources and Process, 32 U. Brit. Colum. L. Rev. 227, 243 (1998).

66. EnLaw Report to New World Foundation, June 2008-April 2009: 1.

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).