Thailand Law Journal 2011 Spring Issue 1 Volume 14

The second function, which Dowdle calls the convening power, has a decentralizing effect, bringing local and contextual stakeholders together for conflict resolution.  The Ango-Saxon jury is an extreme example, but other court actions also encourage negotiation of local governance.  Third, court intervention serves an expressive function.  Political trials serve an expressive purpose, reinforcing authority in Burma, for example, where the outcome itself is nearly predetermined.  Lese majeste prosecutions in Thailand, deplored as an anachronism by western critics, serve a similar function, and in western societies, civil disobedience trials may serve a different expressive purpose.  Finally, judicial determinations are coercive and difficult to change, promising benefits to parties who have little basis for reaching compromise cooperatively (as in the case of very strong or very weak parties).  Dowdle calls this the resistance function.  The perceived importance of each function depends on one’s position relative to alternative regulatory systems.  Local civil society groups and national Parliamentary groups will have different perspectives on which functions are most important in a given dispute.  Likewise national and local government officials will differ in their demands for different functions performed by courts.⁸⁷ 

Surachai Trong-ngam believes in involving the courts in people’s movements for recognition and expansion of their rights, and he maintains that his practice gives voice to important civil society concerns.⁸⁸ Dowdle’s elaboration of the functions of judicialization provides a starting point for closer examination of the benefits (and risks) of his enthusiasm for litigation.

Surachai’s understanding is that the most important effects of his use of law, courts, and litigation are achieved through the expressive and convening functions.  Many of his cases require a collective decision by a group or community to use the courts, encouraging civil society groups to form and to take action and strengthening them for direct negotiations as well.  Much of his time is spent on public education, speaking at meetings to teach citizens about their rights, but also counseling them on possible courses of action to solve problems raised by the community.   As the litigation brought by EnLaw has begun to achieve well-publicized successes, EnLaw has also used the growing importance of litigation and the courts to convene governmental officials, legal experts from the universities to talk about the state of the law, the responsibilities of the government, likely outcomes of litigation, and policy change.  Collaboration has begun to grow in the “shadow” of the courts.  Although little policy change has occurred by this means, community advocates are playing new roles, policies are being scrutinized in ways they were not previously examined, and EnLaw’s reputation is growing inside as well as outside the government.⁸⁹ Second, Surachai, as explained previously, “plays for rules,” that is, he litigates in part to persuade courts to accept interpretations of ambiguous laws which expand protection for his clients’ rights.⁹⁰ This is an example of the resistance function of courts – deploying coerciveness and finality.  By presenting courts with information about the social impact of their decisions, he believes they will establish interpretations which will influence both bureaucrats and other courts. Litigation helps clarify rules governing public policy.  In some cases the rules themselves are ambiguous.  In some, the scope of government enforcement powers may be in doubt, but where it is not, the courts have forced an agency to fulfill its responsibilities. Victories in these cases have opened new possibilities for community action, not to mention the ground-breaking implications they have for the courts themselves.  Of course, some of his litigation also helps compensate a community for violations of its rights and it makes violators pay for their abuse of rights.

Further, court rulings clarifying standards or forcing an agency to act simplify the role of a bureaucrat. Lower level government officials are sometimes reluctant to enforce clear rules that protect citizens’ rights because the outcome will be contrary to the expectations of higher officials or some segment of the public.  By using the court’s function as an administrative centralizer, litigation may not only force compliance but actually empower public servants to enforce the law as written under similar circumstances.

“Playing for rules” also involves a still more expansive effect of the convening and expressive functions of courts. Somchai Homla-or and other senior attorneys associated with the Human Rights committee have mentored young attorneys to raise constitutional issues at every possible opportunity in order to educate judges about the meaning and interpretation of rights.  Surachai’s work thus contributes to efforts to create an “epistemic community” of social justice lawyers, in other words a community of recognized experts who are valuable both to their clients and to bureaucratic or legislative policy makers.  Members of the Lawyers Council network are slowly achieving recognition and influence as experts in rights-oriented fields of law.

Finally, the resistance function of courts has a further potential political consequence, namely repoliticization of important social issues.  Litigation, independently of strengthening the capacity of civil society groups, can have the effect of putting important social issues on the public political agenda for further consideration by politicians and policy makers.

XI. Conclusion – the repoliticization of law

Surachai is careful to point out the role of strong communities and effective NGO facilitators in making his litigation possible, and, in turn, giving it a purpose.  But the day may be approaching when courts will issue decisions in a community’s favor more frequently.  The organization of a “Green Bench” to permit handling of environmental cases by a group of experienced and specially trained judges has already shown signs of the coming changes.  In 2006, in a suit brought by EnLaw, a provincial court ordered the Lead Concentrate Company to pay more than four million baht in damages for damage to the health of Klity Land villagers for releasing toxic waste into the water supply.  In August 2008, the Environmental Division of the Court of Appeal increased that award to more than twenty-nine million baht, a seven-fold increase.⁹¹  If the decision by the Environmental Division is a foretaste of the role it will play, and lower courts are encouraged to award larger sums in compensation for environmental injuries, the capacity of clients to pay attorney’s fees will improve, and other litigators will join the queue, looking for cases promoting environmental compliance.

It is fair to ask whether the role of strong communities, and strategies emphasizing stakeholder negotiations at the local and national level, will decline for precisely the reasons that critics of judicialization have feared. First, Surachai’s spectacular litigation record may be illusory, because many of his cases are on appeal where success is by no means guaranteed.⁹²  He has lost some important cases as well, where courts have not been persuaded by the theories carefully worked out with the advice of EnLaw’s scholar collaborators from Thammasat and other Thai universities.⁹³ Second, it is too soon to understand the disempowerment or delegitimation which might occur when a budding movement pressuring officials to rethink a policy is declared to have no rights by the courts.  In Thailand, as in other developing countries, participation in political decision making, as well as the distribution of wealth and opportunities created by the growing economy, is enormously uneven.  Thailand has by far the greatest wealth inequality of any Southeast Asian economy, having favored an educated, largely urban middle class while, without much exaggeration, urging the rural poor to be satisfied with the fruits of a “sufficiency economy.”  Struggle over the “environment” by rural, relatively poor communities, therefore, often has much more at stake than environmental quality.  Litigation which depoliticizes a broadly politically confrontational initiative discourages an important and fundamentally political struggle.

In contrast to this discouraging interpretation of the potential long-term impact of litigation, several of Surachai’s cases have broaded, rather than narrowed, the power base of the communities he represents.  When his cases lead to collaboration with government ministries to develop policies,⁹⁴ or engage international experts on pollution standards,⁹⁵ or have been recognized by foreign experts who train and advise the new Environmental Division of the Appellate Division of the civil courts,⁹⁶ government policies will change – an essentially political outcome.   Most importantly, perhaps, Surachai’s cases, and the outreach by lawyers and community organizers he has influenced, have encouraged mobilization by other communities.⁹⁷

Invisible to the Thai courts, to international funders, and even to many government officials, the dense network of NGOs, involving even seemingly unrelated NGOs, has created a system which, like the courts themselves, can distribute and magnify the influence of change.  Surachai has trained a younger generation of lawyers, a few of whom have become more or less self-sustaining and entrepreneurial cause lawyers. Community organizers in remote parts of Thailand are never isolated from new developments in other parts of the NGO world.  An organizer in Thailand’s northeast is connected to a Northeast Coordinating Committee of NGOs, in turn an important part of a national network based in Bangkok and connected to a training program for young lawyers.  Organizer, graduate lawyer trainees, and a young cause lawyer quickly connect to help a community concerned about nearby government projects find a voice. Other environmental NGOs, committed to building community capacity and which specialize in pushing reluctant government and company officials to engage in stakeholder negotiations also enter the scene.  Litigation is a later element, but available when needed with the help of the young cause lawyer.⁹⁸  This scenario, now playing out in a confrontation between communities and government over development of a power grid in Thailand’s northeast, is possible because of the linking among Thai NGOs.  A similar process led to many of Surachai’s cases.  The litigator, Surachai Trong-ngam, has achieved more than Blacksmith could have wished.  Blacksmith could not have foreseen, nor is it likely to understand, the importance of his litigation when viewed as a part of a process of political change.  The last is the measure of success that is important to him and the NGO network upon which he relies.  Dispute resolution by courts has often been described by law and society scholars as a process of transformation – transforming the meaning of a dispute, the identities of parties, and the relative powers of officials andcitizens or among branches of government.⁹⁹  Courts, whatever they choose to decide, pry government decisions and deals from their obscure political channels, making them more transparent and opening doors for new political participants. Courts in Thailand, too, create risks for the powerful as well as the weak.

Judicialization is a complex process because courts perform many functions simultaneously, and among the most important may be their potential repoliticization of conflict and conflict regulation on new terms.  Of course, organizations and agencies are experienced political infighters, too, and creating opportunities for negotiation and other forms of engagement with them through litigation guarantees little.  Surachai’s litigation successes have been made possible not only by the encouragement of Blacksmith, but also by his expert networks and his rapport with his clients.  However, the longer term success of his efforts – shifting the balance of power in favor of communities – depends on many factors, including political and economic changes which set the terms for local political negotiations. While the involvement of courts makes the struggle for local empowerment more complex; it does not preordain the outcome.  A more refined understanding of different power-shifting roles of courts has revealed some of the factors which may make litigation a useful strategy for the cause lawyer even in legal cultures where it is still an exotic and difficult strategy for grassroots activists.

87. Id. at 35

88. See supra text accompanying note 67.

89. Interview with Director of the Policy Department of the Pollution Control Division, June 2009.

90. See sources cited supra note 66.

91. Interview with Surachai 6/31/09.  The revised award amounted to nearly $880,000 for each of the eight plaintiffs.

92. Report for the New World Foundation, pp.1-12.

93. Id.

94. The Cobalt 60 decision led to collaboration with three agencies on improved monitoring at the site, and potentially, other sites.  Interview with Surachai 6/31/09.

95. According the Blacksmith Institute website, Professor Richard Stewart has been a consultant for EnLaw’s research on policy recommendations to the Thai government.  EnLaw confirms contact with Professor Stewart but said that contact ended quickly because of the difficulties of communication between Professor Steward who speaks no Thai and EnLaw staff whose English is limited (email from EnLaw 9/29/09, on file with author).

96. USAID, Strengthening Environmental Adjudication in Thailand, Judicial Workshops and Roundtables, Bangkok Thailand.  June 22-26, 2009 (workshop program on file with author).

97. Interview with Surachai 6/31/09.  Interview with Premrudee Daoroung July 1, 2009.

98. It will come as no surprise that the young (female) lawyer trained in Surachai’s office and is attempting to establish her own law practice.  She was aided recently by being awarded an Ashoka fellowship to train as a staff member of the Asian Human Rights Commission.  This honor is not likely to affect her financial security as a cause lawyer in Thailand, however, because there is no public interest law career ladder in Thailand other than the difficult and minimal positions as NGO or struggling private attorney, which she has already experienced.  Conversation with project organizer and author David Streckfuss 6/11/09.  Interview with Surachai 6/31/09.

99. See, e.g., Barbara Yngvesson, Inventing Law in Local Settings: Rethinking Popular Legal Culture, 98 Yale L. J. 1689 (1989); John M. Conley & William M. O’Barr, The Ethnography of Legal Discourse (Univ. of Chicago Press 1990).

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).