Thailand Law Journal 2011 Spring Issue 1 Volume 14

Is the American model of citizen enforcement of environmental policy through the courts appropriate for Thailand?
The relationship between civil society empowerment and government authority has been a live issue in the United States from the moment its constitution was drafted.  The Federalist Papers discuss the relationship between national and local policy making.  James Madison argued that an all-powerful national legislature was needed to control the tyranny of local majorities.⁷⁵ Tyranny was feared most, he said, at the local level, where the majority might shut out the minority (for example, through race or class biased local policies), or where the most influential power-holders, such as land owners, or businesses, might control local government.  Madison’s argument for a strong national legislature was necessary because of strong traditions of local self-governance which existed long before the American Revolution.  In practice, Americans had been governing themselves for years and had to be persuaded to give up some of that power.⁷⁶  Belief in local governance, and in the rights of individuals to govern themselves, is deeply rooted.  

Because the United States had a tradition of local self-governance and has created a national government to regulate, but not displace, local decision making, legal practices in the United States may not provide a good example for other societies.   In the U.S., national policy making may be uniquely symbiotic with direct citizen input through litigation and by other means.  Three differences might make litigation more appropriate in the US than in a centralized bureaucratic state like Thailand.

First, Professor Frank Reynolds contrasts fundamental values underlying the political discourse of constitutional monarchy in Thailand—often described in terms of a trilogy of concepts: Monarchy, Nation, Religion—with the underlying values that dominate American political culture, termed “utilitarian individualism.”⁷⁷  While American political culture grew from a tradition of individual freedom of conscience and dissent, treating institutionalized authority with suspicion, Thai political culture grew from a tradition far more respectful of the authority of traditional and spiritual leaders.  Some have argued that Thai civic culture, perhaps when combined with the hierarchical social order of Thai society, have made Thai reluctant to litigate.⁷⁸  Some Thai spiritual leaders suggest that western law may be fundamentally at odds with Buddhist principles of mindfulness.⁷⁹         
Second, the federal structure of the U.S. creates a weak, decentralized political system and weak, decentralized policy making.  Therefore, civil society groups have opportunities to influence government at many levels, and to use the political power of government at one level to push for policies at a higher level of government.

Third, the gaps between local, state, and federal policy making and the many conflicts among the fifty states have created an ideal opportunity for common law courts to make policy.   Courts have become politicized and courts have become powerful because of the loosely articulated structure and poorly coordinated policies, unlike other countries, for example in Europe, where there is far less litigation of this type.

Yet the contrast between Thailand and the United States is misleading.  If Thai civic culture values conflict avoidance, the Thai people are not very good at it.  Political and social conflicts are among the most important facts of modern Thai history, and many of them concern the use of government power.   Different kinds of conflicts dominate the political and social landscapes of the United States and Thailand, so the question may still be whether law, and litigation, is an appropriate tool, but not whether there is any need for conflict resolution or institutionalized limits on government.  Political dissent is becoming stronger and more effective in Thailand.  The important question is whether there is political space for new social issues, issues being raised by groups who have not already achieved power.  Groups attempting to defend human rights often fall into this category, as do groups protecting environmental rights. 

Second, the unified structure of the Thai administrative state confronts many of the same kinds of conflicts between national and local priorities that tend to make the U.S. political system dynamic and democratic.  While national control (e.g., over the police) has rightly been perceived by some human rights advocates as one answer to local corruption in Thailand,⁸⁰ national policy making nevertheless requires input from local citizens about failures in compliance and about tailoring standards to local needs.  This is not so much a question of constitutional or administrative structure but of responsiveness to needs of the people.
Finally, courts in Thailand have traditionally played a different role in policy making from courts in the United States.  While substantive legal policies have been influenced by a wide variety of international examples, the structure of the judicial system was inspired mostly by the civil law tradition.   Beyond its historical structural role as subordinate to Parliament and the bureaucracy, Thai judges are themselves bureaucrats and deeply conservative.  Bureaucrats historically considered themselves servants of the King and above the people.  While this view is, no doubt, changing, judges enjoy a special relationship to the King.⁸¹  Finally, the judiciary has little experience enforcing affirmative constitutional principles and little knowledge of human rights.⁸²  Yet the activism of courts and judges has been slowly growing.  There are good reasons for this, and in 2006 the King reminded the judiciary about them.  The 1997 and 2007 constitutions place a growing burden on the courts to act as honest brokers for the political and administrative systems, in sharp contrast to the French system of separation of powers with its restricted role for ordinary courts (by comparison with common law courts) and the extremely limited jurisdiction of its constitutional court.  Until 1997, Thailand lacked a system of administrative courts to supervise its large, tradition-bound bureaucracy.   The 1997 constitution created such an administrative court system, and as Surachai has demonstrated, administrative courts can be an effective weapon against the government.  Eventually, the Thai judiciary may come to believe that it has a role to play in Thailand when civil society concerns go unrecognized by the political and bureaucratic branches of government because of a failure of due process (as judged by constitutional requirements), private influence, or bureaucratic and legislative gridlock.

Surachai’s litigation experience suggests that the Thai courts will occasionally fulfill this role, especially when the positive law is relatively clear or the constitutional mandate unavoidable (as with highly publicized cases).   Until the courts fulfill this role on a regular basis, however, discussion of Surachai’s strategy must move beyond the prospect for incremental legalism.  And indeed, in Thailand and elsewhere, a broader perspective on the functions of judicialization may be more useful than focusing on development of the content of the law itself.

1. The functions of judicialization – the case study revisited

Why would we want the judiciary to play a more active role in the resolution of social conflict?   The global trend toward judicialization of politics is highly controversial.  Critics characterize greater judicial control of potentially political issues as a snare which stifles genuine popular politics.⁸³  Enthusiasts for judicialization of human rights often seem to ignore the limitations of both judiciaries and politics in developing societies.⁸⁴  More recently, scholars have urged a more nuanced view than either the skeptics or the enthusiasts, suggesting that there may be both benefits and risks, and that outcomes are contextually determined.⁸⁵   There is a great deal to be learned from this view, but between the extreme views of critics and enthusiasts on one hand and the indeterminate contextual view on the other, there is room for theory if we examine more closely what courts actually do and the functions they serve when they intervene in social conflict.

75. The Federalist No. 10 (James Madison).

76. Gordon S. Wood, The Radicalism of the American Revolution (Vintage 1993).

77. Frank E. Reynolds, Dhamma in Dispute: The Interactions of Religion and Law in Thailand, 28 Law & Soc’y Rev. 433 (1994).

78. Such sentiments are part of the folk wisdom of Thai opinions about their own society, and reflect the view that hierarchy reduces the legimacy of acting on the basis of rights.  On the latter point, see Thanet Aphornsuvan, Sitthi in Thai Thought, 6 Thai Culture 273, 288- 89 (2001).

79. Interview with Ajarn Sulak Sivaraksa 2/14/08.

80. See the Asian Human Rights Commission comment on the UNHCR policy recommendation to decentralize control over the Thai police, available at http://www.ahrchk.net/statements/mainfile.php/2006statements/860/ (last visited 9/25/09).

81. For example, they are the audience for an annual address by the king, a privilege enjoyed by no other group of bureaucrats.  Prasit Kovilaikool, Asian Law Ass’n, Part VI The Legal System of Thailand (1995).

82. Interview with member of the Appellate Division of the Thai Supreme Court (name withheld) July 1, 2009.

83. See supra note 35 and associated text.

84. Id.

85. Mimi Ajzenstadt, Judicialization, Neo-liberalism and Foreign Workers in Israel, 9-1 INTERNATIONAL REVIEW OF CONSTITUTIONALISM  101 (2009).

86. Michael Dowdle, On the Regulatory Dynamics of Judicialization:  The Promise and Perils of Exploring ‘Judicialization’ in East and Southeast Asia, in Administrative Law 23-37 at 34 (Tom Ginsberg & Albert H.Y. Chen eds., Routledge 2008).  I draw upon Dowdle’s insightful conceptualization throughout this section.

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).