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II. F. Lack of Camp Constitutions -
Compounding these problems further is that no camp researched has a formally written and agreed to constitution. While the KNU and KNPP provide guidelines for legislative operations within the camps, no camp body has established their own constitutional framework upon which they must abide by as a political entity nor have the rights of its residents ever been expressed; verbally or in written form. The absence of this framework creates an environment of uncertainty and opens up the possibility of abuse by elected officials. Having an accessible and understood constitution gives camp residents the opportunity to gauge whether or not the administrative structures within the camp are functioning as they should be, and what their rights as residents are. In their present structure too much authority is assumed by the executive, legislative and judicial bodies within the camps. These assumptions lead to a crossover of decision making and as our research indicates this crossover has serious implications on the level of justice that camp residents receive. Without a proper written, agreed to and understood constitution, outlining where the authority and jurisdiction of each administrative body begins and ends, the issuance of justice will continue to face problems.
II. G. Ambivalence of the Thai authorities -
When the Thai government established the camps it did not create the necessary substantive criminal laws and legal structures that an effective criminal justice system requires. That may have been because it did not want to institutionalize the governing system of refugee camps in any formal capacity with a major concern that the refugee camps should not exist in the territory of Thailand for the long term. This has given rise to the current problems outlined above. The camps which have attempted to develop a system of justice and a legislative procedure that are able to function within the camp environment have not yet achieved success. Due to the growth in populations within the camps and the increase in criminal acts, the flaws and failings of this system are becoming more and more exposed; and as a consequence the security of the camp residents is compromised.
Part III: Judiciary
All camps have a Judiciary whose main role is to ensure that the camps rules and regulations are adhered to. The judiciaries also hear criminal cases and issue sentences to convicted criminals15. The most serious cases however, those involving murder, rape, drug trafficking, use of timber, and smuggling of people and weapons are supposed to be adjudicated by the Thai authorities. As our research will indicate, this is not always the case. Different camps, depending upon the seriousness of the crime, have various judiciary committees that will hear these cases. These consist of a Section Judiciary, a Zone Judiciary and a Camp Judiciary. Complicating the role and structure of the judicial process within the Karen camps is the involvement of the KRC. The KRC is the quasi-legislative body for all the Karen refugee camps and at times forms its own judicial committee, as an appeals court, to deal with a case. This can sometimes be in direct conflict with the ruling of the related camp judiciary16.
The judicial system adopted by the various camps has become convoluted with too many individuals and camp bodies interfering within the judicial process. As a consequence a number of significant flaws have developed that inhibit victims and perpetrators alike, such as their ability to receive a fair and impartial trail. The pursuit of justice within the camps researched has been inhibited by the following factors:
III. A. No independent judicial structure -
Within all camps researched there are serious concerns regarding the independence of the judiciary from the camp administrative bodies, the Thai authorities and the ethnic revolutionary groups who play an important role in the camps' operation. In almost all camps it appears that the judiciaries formed have no separation of powers from the administrative bodies and
merely act as agents ormouthpieces for them. This is clearly illustrated in the election process and the manner in which grievances and cases appear before the judiciary. In all Karen camps a member of the camp committee is also a member of the judicial committee, and more often
than not, the individual charged with overseeing the entire camp judicial process. This immediately creates a conflict of interests and blurs the distinction between the role and function of the judiciary and that of the administrative body. It also allows for interference from the
administrative bodies into the rulings and decisions reached by the judiciary. Apart from these obvious flaws the most telling aspect of this interference is in instances where camp administration officials have been implicated in serious crimes. Cases of this nature are either
not heard or the administrative bodies decide the outcome of the case.
An example of such an event occurred in Noe Poh camp. After the murder of a camp resident due to allegations of being a spy it was revealed that the authority for his murder had been issued by the head of camp security who was acting under instruction from members of the camp administration. The only action ever undertaken was the dismissal of the individual who personally carried out the murder from his post as a security officer. The directive for this came from the camp administration itself and not the judiciary. In fact the judiciary has not intervened in this case and appears to be hamstrung by the involvement of committee officials in the murder17. The full details of the administrative and legal structure and the election process of all camp judiciaries need to be observed.18
While this example is an extreme case of how a lack of independence within the judiciary impacts on natural justice being practiced in the camps, other examples of interference abound due to the way in which the judiciaries and reporting procedures are organized within the camps.
These structures have caused confusion for camp residents and inconsistencies in how justice is applied within the camps. While a camp judiciary exists within all camps researched, it is not always the case that sentences or cases will be heard by them. In all camps, petty criminal acts such as small theft and domestic grievances are heard by either zone or section leaders. These officials are nominally elected individuals who oversee the administration of their particular areas within the camps. While it would appear practical to have them hear small criminal cases, so as not distract the camp judiciary from hearing more serious cases, it does create an environment where authority overlaps, residents are left confused as to who and what body issues justice within the camps and, more disturbingly in some instances natural justice is overlooked due to delays associated with the reporting protocols and a lack of procedural guidelines.
In Mae-la camp a 17 year old rape victim was denied natural justice through a combination of factors. Firstly due to interference from the camp committee the original sentence handed down to her attacker of 3 years imprisonment by the camp judiciary was overturned to a 3,000 baht tine. Secondly upon hearing of this reduced sentence the victim sought to appeal its leniency only to be denied due to procedural delays that had occurred after the rape attack. Whilst she had reported the crime to the section committee immediately after her attack, the tardiness of the various camp administrative bodies and the judiciary meant the case was not heard until 6 months after the attack. When the victim took her appeal to UNHCR, it transferred the case to the Thai authorities, but it was rebuffed on the grounds that the attack happened more than 3 months before the appeal and the victim was under 18 years of age. As a result, the Thai authorities could not hear the case and the reduced sentence stood19
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