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Revolution Imagined: Cause Advocacy, Consumer Rights, and the Evolving Role of NGOs in Thailand

Published online by Cambridge University Press:  29 May 2015

Frank Munger
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Abstract

This article describes the founding and evolution of a “Thai-style” NGO dedicated to consumer protection. Through a description of the NGO and the career of its founder, the article brings to light features of the evolution of NGO-based advocacy in Thailand from the student uprising in 1973 to the present. The legacy of the 1973 October Generation of activists continues to influence development of NGOs but new emphasis on rights has emerged since the era of constitutional reform in the 1990s. Many NGOs now make use of litigation to attempt to achieve social change, but litigation, like other long-standing methods of advocacy involving reliance on networks that penetrate government itself, reflect the particular opportunities and pathways for change opened by Thailand’s politics.

Keywords

litigationThailandconsumer rights
Type
Articles
Information
Asian Journal of Comparative Law , Volume 9: Special Issue: Socio-Legal Research on Southeast Asia: Themes, Directions, and Challenges , 1 January 2014 , pp. 29 - 64
Copyright
Copyright © Faculty of Law, National University of Singapore 2014

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References

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14 From 1949, Dr. Sem Pringpuangkeo, long identified with health care reform in Thailand, lobbied for development of rural health facilities. As part of its public health expansion program in the 1960s, the Thai government embarked on construction of a hospital in every administrative district. The expansion, in turn, greatly increased the number of doctors assigned to rural areas and the potential base for a rural doctor’s movement. In 1968, rural doctors persuaded the Thai government to establish a Medical Council to take up issues of medical advancement. In 1969, the same group of practitioners succeeded in winning government support for a conference on the ethical responsibility of doctors to promote development. Suwit Wibulpolprasert, 25 [Twenty-Five Years of the Rural Doctor’s Movement] (Bangkok: World Health Organization, 2003).

15 As Bamber points out, the government doctors were rotated between posts, maintaining connections to the university and to other professionals. Supra note 10. Bamber also suggests that a decade or two later doctors were among the first users of mobile phone technology, making them valuable allies in collective action.

16 Among the better known activists, Dr. Prawet Wasi founded the Folk Doctor Association in 1976 to train Monks in basic medicine. Wasi was a prominent senior practitioner whose status aided the cause of rural doctors and later the movement for liberal constitutional reform. Bamber, supra note 10.

17 Wibulpolprasert, supra note 14 at 3.

18 Bamber, supra note 10.

19 Prime Ministerial Order 66/2523 (1980).

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23 As Anderson predicted when his essay was first published in the 1970s, in the latter part of the twentieth century, governments in Thailand have increasingly needed popular and business community legitimacy, and the military’s role has been increasingly challenged and reduced.

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27 Wasi himself was the founder of the “folk doctor” movement but also an elite advocate for liberalisation. But because the social background of many of the leaders of the Club (and indeed many successful members of the profession) is Sino-Thai, the association was viewed by the MOPH at first as a kind of “Chinese Gangster association.” Wibulpolprasert, supra note 14 at 5.

28 Wibulpolprasert, supra note 14.

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32 See <http://www.comsumerprotection.or.th/index.php?mo=10&art=579212> (last visited 6 August 2013).

33 Rattinai, supra note 31.

34 For example, the Food Quality Control Act of 1974 regulated quality and sales practices for many staples sold for household consumption. Research undertaken in Malaysia by the Regional Office of the IOCU suggests that mislabeling ingredients and quality control were massive problems throughout Asia. See Thorelli, Hans B. & Sentell, Gerald D., Consumer Emancipation and Economic Development: The Case of Thailand (London: JAI Press, 1982)Google Scholar.

35 Ibid. Thorelli and Sentell attribute lack of enforcement to bureaucratic inefficiency and corruption but more fundamentally to the lack of initiative on the part of consumers themselves.

36 Ibid. More than 50% believed that if they purchased a defective product they had no right to complain. Tables X.6, X.7 & X.8.

37 Ibid. Table X.10.

38 Ibid. Other data gathered for the study suggested that consumers were conflict averse, reporting reluctance to confront a seller or manufacturer. A recent study found culture an important contributor to avoidance of personal injury litigation. Engel, David M. & Engel, Jaruwan S., Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand (Stanford, CA: Stanford University Press, 2010)Google Scholar.

39 Consumer Protection Act of 1979, s. 10.

40 Consumer Protection Act of 1979, s. 20.

41 Like a great deal of Thai social welfare legislation on the books, administration of the Act lagged according to Taewee Photipala, Professor of Pharmacy at Sukhothai Thammathirat University, Director of Public Relations of the OCPB 1979-1983, Chair of the National Women’s Council Consumer Protection Committee 1997-2000. Interviewed 10 July 2013 and 25 December 2013 (conducted by Peerawich Thoviriyavej and Vorapitchaya Rabiablok). Thai consumers may have underutilised the OCPB in part because they seldom sought remedies for consumer issues. Further, the OCPB perceives its primary role as setting standards for industry rather than protecting individual consumers. Complaints brought to the OCPB often result in compromises which are perceived to favour business. Ibid.

42 Consumer Protection Act of 1979, ss. 40 & 41. Subsequent amendments, including the Consumer Protection Act of 1998 and the Consumer Protection Act of 2013, did not change the relevant parts of these sections.

43 Consumer Protection Act of 1979, s. 41 required ministerial regulations governing registration to litigate. PM Chavalit issued the first set of regulations on 9 September 1997, amid a rising tide of NGO power and a movement for constitutional reform. Ministerial Regulations 8 and 9 Pursuant to the Consumer Protection Act of 1979 (1997).

44 Interview with Professor Thaewee Photipala, supra note 42. This characterisation of consumer behaviour when the Consumer Protection Act was enacted may require some modification at present. Although Professor Photipala believes that some consumers are more willing to pursue remedies, Thai are still extremely reluctant to use the court system.

45 Saree Aongsomwang, Director, Foundation for Consumers. Interviewed 11 July 2011.

46 Unless otherwise indicated, details which follow are based on my interview with Saree Aongsomwang, 11 July 2011.

47 Many bus operators are concessionaires operating under the oversight of a government ministry.

48 Dr. Nittayarompong shortly afterward became president of the Rural Doctor’s Club. In the late 1990s, he proposed Thailand’s current “Thirty baht” medical coverage which was adopted under Prime Minister Thaksin Shinawatra. Wibulpolprasert, supra note 15.

49 Chair of Chulalongkorn University’s Department of Social Development, Amara Pongsapitch, has distinguished these organisations from a later generation of rights-based (rather than needs-based) civil society organisations in Thailand. Pongsapitch, supra note 5. Saree’s advocacy has evolved to become rights-based but her Foundation for Consumers retains many of the characteristics of a Thai-style NGO.

50 Andrew Turton suggested that the problems of widespread misuse of drugs was widespread and symptomatic of growing consumption and unregulated markets when CCPN was organised. He concludes, “It is noteworthy that many of the efforts of poor farmers to set up their own association, in conditions where political organization is most difficult, take the form of medical self-help projects… In this they are often helped by some of the alternative developmental organizations, recently formed consumer groups, and some concerned sectors of Thailand’s highly advanced by unequally distributed medical system.” Turton, Andrew, “Limits of Ideological Domination and the Formation of Social Consciousness” in Turton, Andrew & Tanabe, Shigeharu, eds., History and Peasant Consciousness in South East Asia (Osaka: National Museum of Ethnology, 1984) at 41.Google Scholar

51 In addition to my own interviews, other sources refer to this campaign. Wibulpolprasert, supra note 14.

52 Shortly after Bread for World discontinued its funding for CCPN, Saree reported, because the NGO was now helping “rich people,” reflecting, perhaps, Thailand’s rising levels of income, but also the shift in the focus of Saree’s advocacy.

53 Interview by ThaiNGO.org [in Thai] 20 November 2008 found at <http://www.thaingo.org/story/info_009.htm> (last visited 29 December 2013).

54 Although Saree says that she did not model the Foundation on similar organisations outside Thailand, an active consumer protection center existed in Penang, Malaysia, and Saree was in contact with at least two of its networks, the breast feeding and pesticide networks. The Consumers Association of Panang was founded in 1970 and quickly became a leader in advocacy for poor consumers. See Brobeck, supra note 30 at 177. See also <http://www.consumer.org.my/index.php/homepage/about-us/69-vision-a-mission> (last visited 4 April 2014).

55 Although the OCPB’s activity seems irrelevant to Saree’s current conception of her mission, the OCPB seems to have become more active over time. In recent years has undertaken significant consumer protection initiatives and receives between 500 and 1,000 complaints each month. Issues topping the list of complaints (e.g., membership at a fitness center) are distinctively urban and middle class. OCPB current monthly statistics are available at <http://www.ocpb.go.th/ewt_news.php?nid=384> (last visited 31 December 2013).

56 Complaints received by the Foundation’s Complaint Center number far fewer than those reported by the OCPB. While the OCPB provides no information about following up and retains discretion about whether to take any action, the Foundation pursues every consumer complaint to a conclusion, including litigation support if necessary. Unpublished statistics were obtained directly from the Foundation for Consumers.

57 Since 1996, the government has provided about half of the Foundation’s funding. Subscriptions to Smart Buy comprise about 20% of the foundation’s funding, and other donations make up the rest.

58 Constitution of Thailand 1997, s. 57; Constitution of Thailand 2007, s. 61.

59 The Foundation’s current campaigns are described on its website. See “Campaigns” [in Thai] found at <www.consumerthai.org> (last visited 6 August 2013).

60 Interview with ThaiNGO.org, supra note 53.

61 Interviewed 22 June 2007 and 13 July 2011.

62 Interview with Professor Taewee Photipala, supra note 44.

63 Part VI draws heavily on prior work. See Munger, supra note 8.

64 Supra note 43.

65 Consumer Protection Association of Thailand, “History” found at <http://www.comsumerprotection.or.th/index.php?mo=10&art=579212> (last visited 6 August 2013).

66 Interview with a former Union for Civil Liberties staff member, Sutin Borrommajet on 2 July 2008.

67 Epp, Charles, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago, IL: University of Chicago Press, 1998) at 2–3.Google Scholar

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69 Missingham, Bruce, The Assembly of the Poor in Thailand: From Local Struggles to National Protest Movement (Chiangmai, Thailand: Silkworm Press, 2003)Google Scholar; Quinn, Rapin, “Competition over resources and the local environment: The role of Thai NGOs” in Hirsch, Philip, ed., Seeing Forest for Trees: Environment and Environmentalism in Thailand (Chiangmai, Thailand: Silkworm Press, 1996)Google Scholar.

70 Pichaikul, Ruangrawee & Klein, James R., Legal Literacy for Supporting Governance: Legal Empowerment – Advancing Good Governance and Poverty Reduction (Bangkok: The Asia Foundation, 2005)Google Scholar.

71 Interview with Sutin Borrommajet, 2 July 2008.

72 Ibid.

73 Although the Thai judiciary historically has been relatively free from corruption and independent of direct political interference (in contrast to some other Asian judiciaries), it has traditionally been bureaucratic, concerned about career advancement, conservative, and unlikely to thwart government’s purposes.

74 An occasional petition to the Council of State might result in a reversal of a bureaucratic decision. Although designed to provide a check on ministerial powers, the Council lacked independence from the executive and capacity to provide a comprehensive resource for control of government, nor did it create a culture of accountability or strengthen the rule of law. See Leyland, Peter, “The emergence of administrative justice in Thailand under the 1997 Constitution” in Ginsburg, T. & Chen, A.H.Y., eds., Administrative Law and Governance in Asia: Comparative perspectives (London: Routledge, Taylor & Francis, 2009)Google Scholar.

75 Interviews with Somchai Homla-or, former Chair of the Human Rights Committee, Lawyers Council of Thailand on 21 December 2006 and 18 June 2007. Interview with Dej-Udom Krairit, former President of the Lawyers Council of Thailand on 11 December 2009.

76 Some leading Thai practitioners concede they are intimidated by the powerful bureaucratic state and are therefore reluctant to jeopardise good relationships needed to promote the interests of their business clients. Interview with the principal partner of a large (non-global) Thai law firm, 10 December 2009.

77 Interview with Saneh Chamarik, former Chair of the Thailand Human Rights Commission on 22 December 2006. Interview with Gothom Arya, founder and former Chair of the Union for Civil Liberties on 22 December 2006.

78 Prime ministers Anand and Chuan following the coup were sympathetic to NGO collaboration in policy development and implementation and provided funding for them. Foreign funders encouraged the discussion of Thailand’s political future by supporting think tanks, NGO outreach to the public, and preparations for drafting a new Constitution. Baker & Phongpaichit, supra note 2.

79 Chairat believes that some of the lawyers may hope to make contacts leading to future fee-paying business, but most of them genuinely believe in consumer rights. Interview on 13 July 2011.

80 Leyland, Peter, “Genealogy of the administrative courts and the consolidation of administrative justice in Thailand” in Harding, Andrew & Nicholson, Penelope, eds., New Courts in Asia (London: Routledge, Taylor & Francis, 2010)Google Scholar.

81 Act Establishing the Administrative Courts and Administrative Court Procedure of 1999, s. 45. Administrative Court judges need not be career bureaucratic judges from the established judiciary but may have more varied experience and a broader background. Section 13. The first chief judge of the administrative court system was a leading member of the Council of State who had strongly advocated a more formal, accessible, and system of courts under law for oversight of bureaucratic decision making. Notwithstanding these provisions making access easier, many consumers report that judges have rejected petitions, urging the plaintiff to obtain the assistance of a lawyer before returning to court.

82 CCPA, s. 4.

83 CCPA, s. 12.

84 CCPA, s. 42.

85 Constitution of Thailand 2007, s. 139(3).

86 Found at www.bangkokbiznews.com reported 4 February 2009 (last visited 5 August 2013). Professor Taewee Photipala, former OCPB public relations director and long-time consumer advocate says consumer behavior has changed little over the past four decades and few are willing to litigate. Most consumer cases are about bigger ticket items and brought by relatively well-to-do consumers. See supra note 44.

87 Thai litigants who need a lawyer encounter another barrier – the attorney’s fee. Thailand’s Code of Civil Procedure does not permit contingent fees. Potential plaintiffs but must agree to a fixed fee to be paid whether the case is successful or not. Reportedly, this limitation is widely ignored but fees in violation of the code risk invalidation by the court, making attorneys more reluctant to take cases involving the broad standards by which consumer protections are judged.

88 Petitions to the Council were sometimes made on behalf of social movements, but they were often a political move rather than a legal one. Farmers contesting seizure of their land in northern Thailand submitted petitions in the 1970 to contest land seizures they considered unjust. The Assembly of the Poor petitioned to prevent the Pak Moon Dam from submerging their villages in the Northeast. See Missingham, supra note 69.

89 Interviews with Somchai Homla-or 21 December 2006 and 18 June 2007; Nakorn Champhoochat 15 June 2007; Nitithorn Lamlhuea 22 June 2007 and 15 July 2011; Chalit Meesit 13 December 2012.

90 Interview with Nitithorn Lamlhuea (interviewed by Worrawan Jirathanapiwat), 18 May 2013.

91 Interview with Appellate Court Judge Prinya Deepadung, 1 July 2009.

92 Interview with Saree Aongsomwang, 11 July 2011.

93 The Foundation has legal officers who may not be attorneys and who lack the experience of Chairat and Nitithorn.

94 The Foundation’s victory in the EGAT case is not an isolated example, nor is the Foundation for Consumers the only NGO to have discovered the potential benefits of social reform litigation. In the next Part, I briefly compare the litigation experience of another social movement. Peter Leyland cites this case as a leading example of the independence and power of the new administrative courts (Leyland, P. 2009). FFC’s attempt to block privatisation of another major utility, Thailand’s state owned petroleum and gas company [PTT] in 2007 was dismissed on technical grounds. See Matichon, 13 December 2007 [in Thai] found at <http://news.sanook.com/politic/politic_224614.php> (last visited 26 June 2013).

95 Foundation For Consumers, !!! [Accident Victims Are Fed Up!!!], 5 July 2012, found at <http://www.consumerthai.org/main/index.php?option=com_content&view=article&id=2369:2012-07-05-14-06-08&catid=132:2010-11-05-07-01-51&Itemid=188> (last visited 31 December 2013).

96 Ibid.

97 Pichaikul & Klein, supra note 70.

98 Munger, Frank W., “Global Funder; Grassroots Litigator – The Judicialization of the Environmental Movement in Thailand” (2009) 9 International Review of Constitutionalism 75.Google Scholar

99 Interviewed 16 June 2007, 27 February 2008, 28 June 2008, 30 June 2009. Like Chairat and Nitithorn, he is from a poor family in the south of Thailand.

100 The term has been popularised by Galanter to describe one of the advantages of “repeat players” who have sufficient resources to make strategic use of litigation. Galanter, Marc, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Social Change” (1974) 9 Law & Soc’ Rev. 95.CrossRefGoogle Scholar

101 Administrative Court News, #74/2009 [Opinion of the Supreme Administrative Court in case 586/2552 (The case of Map Ta Phut)].

102 Twenty years after first meeting Surachai as a student, who was then a senior at Thammasat University, the associate dean at the law school has placed Surachai’s photograph on his office wall – beard, torn jeans, a cloth shoulder bag, looking like a Thai Jack Kerouac in a rice field.

103 EnLaw, Environmental Justice: Essays and Interviews About Environmental Justice Law Suits (Bangkok: EnLaw, 2008).Google Scholar

104 Homla-or, Somchai, “Introduction” in Panichkul, Darunee, ed., Environmental Justice: Essays and Interviews About Environmental Justice Law Suits (Bangkok: EnLaw, 2008)Google Scholar.

105 Upham, Frank, “The Rule of Law Orthodoxy” in Carothers, Thomas, ed., Promoting the Rule of Law Abroad: In Search of Knowledge (Washington, DC: Carnegie Endowment for International Peace, 2006)Google Scholar.

106 See Walker, supra note 26; McCargo, supra note 4.