Thailand Law Journal 2011 Spring Issue 1 Volume 14

Surachai thinks litigation has become increasingly important for lawyers working with social movements after the ratification of the 1997 constitution.

Ratification 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 . . . .  Until now, the legal process has been employed to limit the people’s rights.  Now, people have their own rights to assert in the legal process.  The legal process is a channel for people to fight.  And we think we can back them up on this part.

As a matter of principle, Surachai does not consider litigation an end in itself.  He says litigation is a movement strategy used for movement goals. 

It’s true that these groups [supporting litigation] 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. 

Thus, Surachai’s view of his mission and EnLaw’s is quite different from Blacksmith’s emphasis on the natural environment.  Surachai’s mission is supporting community self-determiniation, and as a practical matter, as well as in principle, the starting point is always a community movement.  

The understanding which subordinates law to social movement goals is reinforced by Surachai’s NGO collaborators.  Early in the process of establishing EnLaw, a disagreement arose over funding for the project.  Surachai proposed taking on business clients to try to make the project self-sustaining because foundations were not a secure source of funding over the long term.  His proposal was vetoed by his board, which not only understood that EnLaw could be caught between conflicting interests, but also believed that EnLaws’ clients, villagers inclined to mistrust law and lawyers, would not accept a lawyer who was not perceived as sharing the villagers interests.  For example, a Surachai himself explained, they would not trust him if he attempted to claim a part of a civil court monetary award as compensation for his own efforts. Yet, Surachai also views litigation in another light, as a means of achieving government accountability independent of community collective action.  Whenever possible EnLaw continues to focus litigation on establishing new interpretations of law which fill gaps, rationalize constitutional principles and positive law, and extend government accountability.  So far, his litigation has always linked to ongoing community mobilization.  As a consequence of the establishment of EnLaw and its growing caseload, Surachai has become better and better known to the cause lawyering community and to the public at large through his cases and through publicity arranged, in part, by the Lawyers Council.⁶⁸  Because of his reputation based on his early victories in cases handled by EnLaw, and the close relationship between the Human Rights Committee and the NGO community, Surachai is the “go to” lawyer for communities resisting development projects by private companies and government which threaten their natural environment and their quality of life.  Their expertise extends far beyond cases which could be called “environmental.” The four original partners had a varied social justice practice including labor, slum eviction cases, and criminal defense cases.  More recently, the firm has formed a working group to defend political crime cases brought under the computer crime and lese majeste laws.⁶⁹

Blacksmith’s website describes the impressive litigation victories that Surachai has achieved, such as forcing government to establish standards for levels of pollution or winning compensation for victims of the government’s negligent remediation of environmental hazards.⁷⁰  But the website says no more about Surachai.  Blacksmith has always assumed that its own goal of enforcing environmental law to protect the natural environment is the primary purpose of environmental litigation.  Its website implies that this is also Surachai’s goal, and it is.  Surachai has established to all appearances an “American-style” environmental litigation firm that “plays for rules.”  But that is not Surachai’s only goal or necessarily his most important objective. Surachai’s interest in “environmental” issues, especially those caused by the exploitation of rural communities and government failure to protect them, has developed over the length of a career that began long before Blacksmith influenced his law practice.  “Playing for rules” is one particular type of environmental litigation, a resource draining style requiring investment in the development of expertise and litigation costs.  Other ways of deploying law and courts may also be effective and more sustainable where cause lawyers represent desperately poor clients before judges who lack initiative and independence—characteristic of civil law courts and authoriatian political systems that exist in many developing societies. 

VIII Reproducing the experiment  

Blacksmith’s proposal to fund only litigation, and for a relatively short period, suggested a lack of knowledge about the finances which support the practices of cause lawyers outside the US.  While much needed funding is sometimes available from global funders of advocacy for rights, international funders often do not fully understand the indigenous advocates’ strategies for advocacy and their limitations.  Surachai says that Blacksmith terminated its support for him after five years.  At least one EnLaw board member has concluded that Blacksmith assumed, without saying, that the project should quickly become a self-sustaining legal practice.⁷¹  In the United States, a similarly funded environmental litigation project might have become self-sustaining within five years, aided by civil society groups with resources of their own and by U.S. laws providing for citizen suits and fee-shifting.  Communities represented by Surachai are often poor, and, he says, would not trust a lawyer who took as his fee part of their compensation for injuries by a power plant because the community members themselves are so needy.   Maintaining trust has required a great deal of self-sacrifice and a struggle to find alternative strategies to sustain his project.

Surachai himself has been concerned about the fact that so few young public interest lawyers seem to be able to form their own firms, although his law firm has encouraged younger associates to establish practices of their own.  Reproduction and expansion of the number of public interest lawyers has long been a concern of Somchai Homla-or former chair of the Human Rights Committee of the Lawyers Council ofThailand.⁷²  Somchai depended on contacts with NGOs to channel the most important cases to the Committee for consideration, but there are too few lawyers to handle all of them.  The reasons for slow expansion of the number of private practitioners pursuing public interest work are easy to understand and are principally financial.   Most of the clients who need representation by a human rights lawyer cannot afford to pay.  NGOs themselves operate on small, marginal budgets, when they have a budget.

Surachai’s law firm, which does the legal work for EnLaw, was established in an attempt to demonstrate that a social justice practice could become self-sustaining and train a new generation of public interest lawyers.  But the model he promotes has encountered problems, which he readily acknowledges.  The firm is unable to provide lawyers with a sustainable income.

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.

Surachai himself earns very little from his practice.  His firm cobbles together income from a variety of sources, including small grants, research work for the Thailand Social Research Institute, and from a small number of private fee-for-service cases in areas of practice which do not conflict with EnLaw’s work.   His firm is almost self-sustaining, but his practice may be a model for martyrs that lacks broad appeal for a younger generation.

IX. Myths about transplants

One possible response to Surachai’s efforts to drive national policy making, politics and grass roots community mobilization through environmental litigation is that attempting to use the courts this way is simply not appropriate for Thailand, and, therefore, doomed to failure.  From the beginning of the environmental movement in the United States, civil society activism and citizen enforcement of the law through litigation has played an important role.  Activism forced a conservative administration to pass the National Environmental Protection Act in1970.⁷³  But the Act had vague language, no standards, and no means of enforcement.  The environmental impact statement requirement could have been interpreted in many ways, including ways that would have rendered it ineffective.  On interpretation is that the Act, put forward by a conservative administration, was intended to fail, to have no effect whatsoever.  Only litigation, and the support of federal judges who saw merit in the policies, made the law effective by interpreting the vague statutory language to create standards and remedies. 

67. All quotes are from interviews with Surachai Trong-ngam between 6/16/07 and 6/30/09.

68. Interview with Somchai Homla-or12/31/06.

69. They are currently defending charges against the webmaster of Thailand’s most progressive internet news service and the famous engaged Buddhism leader, Sulak Sivaraksa.  Interview with Surachai 6/30/09.

70. See http://216.235.79.157/  (last visited 10/3/09).

71. Interview with Surachai 6/28/08.

72. Interview with Khun Somchai Homla-or 12/31/06.

73. Kirkpatrick Sale, The Green Revolution:  The American Environmental Movement, 1962-1992 (critical ed., Hill and Wang 1993).

74. See supra note 37.

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).