Separating more wheat from more chaff
By Tsering Wangyal
” If I want to find out what truth is, not knowing what it is, I must be able to see what is false.”
– Jiddu Krishnamurti
Since the publication of my article “The Tibetan Justice Commission Conundrum” on this site almost a fortnight ago, much has transpired in our society. We just finished our Sikyong and Chithue elections two days ago. Before that, the speaker of our parliament resigned, and so did an MP who was part of the TPiE leadership involved in the recent spat with TSJC.
More arguments have been presented by supporters on both sides of the fence on social media and our Tibetan news channels. More interpretations of the charter were shared by people portraying themselves to be ‘neutral’ experts. However, sorely missing from these interviews and exchanges were sharp and critical questioning, good counterarguments, and rebuttals when the guest speakers presented very biased interpretations by cherry-picking specific articles from the charter to present a one-sided perspective and made extremely illogical arguments.
In this article, I will highlight the fallacious logic and biased misinterpretations of the charter in the arguments presented by the supporters of the three commissioners in recent public discourse. You may think I am a bit biased in this article. But I am doing this because I feel that in the past few days, many supporters of the three commissioners have been raining down on the TPiE leaders when both the parties are to be blamed for this episode, not just one. It has always been my nature to side with the underdog, especially when I feel that they are being bullied or unfairly treated. So here we go.
Was the dismissal of the Commissioners the destruction/dismantling of the third pillar of democracy?
On this point, my stand is quite clear. The answer is “No”. The commission still exists; only the commissioners have been dismissed. They can and will be replaced.
If we consider the dismissal of an officer or officers from an office as the destruction or dismantling of the entire office itself, then no dismissal from any post is consideration worthy or implementable.
So, this is a totally illogical assertion.
Did this impeachment cause a ‘constitutional breakdown’?
My answer is again, “No”. Article 29 of the charter makes provision for the dismissal of the entire Kashag, including the Sikyong.
Surely, the drafters of our charter would not have knowingly made such provisions within the charter if the dismissal of an entire branch of government constituted a ‘constitutional breakdown’. That would be akin to the drafters making provisions for self-sabotage in the charter.
Impeachment is a provision to protect the constitution if any one branch of the government contravenes the writ of the charter/constitution. Thus, it is a protection mechanism, not a destructive mechanism. Impeachment should not be seen or characterised as a breakdown of the constitution but rather a constitutional remedy process that preserves its sanctity and allows it to regenerate after a malignant part of the government body is surgically removed. It is a painful but in-built self-healing mechanism.
If the impeachment process really causes a constitutional breakdown, then it should/would/could not logically be part of the charter/Constitution.
Argument – The jurisdiction of the TSJC allows it to make laws. Therefore, it has the power to grant itself “suo motu” power by making a new law.
Absolutely not!
Article 66 explains the jurisdiction of the Tibetan Supreme Justice Commission. It is clearly stated in the article that “The Tibetan Supreme Justice Commission shall be the supreme appellate court regarding legal issues involving individuals and public institutions of the Tibetans-in-Exile. It shall be the highest judicial authority of the Tibetan Administration.”
The Tibetan version of the article is below.
དོན་ཚན་རེ་དྲུག་པ། ཆེས་མཐོའི་ཁྲིམས་ཞིབ་ཁང་གི་དབང་ཚད།
༡ ཆས་མཐོའི་ཁྲིམས་ཞིབ་ཁང་ནི་བཙན་བྱོལ་བོད་མི་སྤྱི་སྒེར་ཡོངས་ཀྱི་མཐར་ཐུག་གི་ཞུ་གཏུགས་བྱ་ཡུལ་ཁྲིམས་ཞིབ་ཁང་དང༌། བོད་མིའི་སྒྲིག་འཛུགས་ཀྱི་ ཁྲིམས་འཛིན་གོང་ན་མེད་པ་དེ་ཡིན།
This article of the charter, I believe, is purposely being misinterpreted to suit a false narrative. It is clearly stated in this article that the TSJC is meant to be a “supreme appellate court”. The adjective “appellate” between the words “supreme” and “court” clearly characterises the TSJC as an “appellate court”, i. e., a court where “appeals” are heard, not a court that engages in judicial activism through “suo motu” power. In Tibetan, it is clearly stated that it is a “ཞུ་གཏུགས་བྱ་ཡུལ་ཁྲིམས་ཞིབ་ཁང་”.
In this very same article of the charter, the TSJC is clearly described as “the highest judicial authority”. But nowhere in this article is stated that it has any legislative authority. If the TSJC in its jurisdiction were to be granted any power or authority to make new laws, surely it would/should be stated here. Where else would it be stated but here, where its jurisdiction or job scope is outlined?
More importantly, if the TSJC was really empowered by the charter to make its own laws as argued by some, then this totally nullifies the need for a legislative body like a parliament. Why do we need the MPs and the parliament when the TSJC can make and pass laws on their own as and when they wish?
Having a parliament would be a sheer waste of money! Two bodies of the government serving the same function. Unheard of.
I am sure our charter drafters were neither that illogical nor that self-contradicting to frame our constitution thus! Therefore, such arguments are not only unsustainable but also betrays the intellectual laziness or bias of the proponents of such arguments.
Moreover, the charter clearly states in Article 36 that “All legislative power and authority shall rest in the Tibetan Assembly”.
The use of the pre-determiner “All” in this article definitively settles it once and for all that only the parliament has the power to make laws; no one else.
Any interpretation to the contrary would be going against the very writ of the Constitution. Unless someone can justify an exception that falls outside the purview of the phrase “All legislative power and authority”, this phrasing of the article clearly shows that the TSJC cannot make any laws. So those who support the “literal” interpretation of the charter and yet still make a case for TSJC need to explain this contradiction in their arguments.
You can read it in Tibetan version here. I have bolded the word Yong Zog for your attention.
དོན་ཚན་སོ་དྲུག་པ། ཁྲིམས་བཟོའི་དབང་ཆ།
ཁྲིམས་ལུགས་བཟོ་འགོད་དང༌། གཏན་འབེབས་བྱ་རྒྱུའི་དབང་ཆ་ཡོངས་རྫོགས་བོད་མི་མང་སྤྱི་འཐུས་ལྷན་ཚོགས་ལ་ཡོད་པ་དང༌། ཁྲིམས་ལུགས་དེ་དག་ ཁྲིམས་སུ་བཅའ་བ་ལ་སྲིད་སྐྱོང་གིས་ཆོག་མཆན་མིང་རྟགས་འགོད་དགོས།”
Argument – But the charter says the TSJC commission has the power to make “codes of laws” on its own.
The answer is clearly an overwhelming ‘No’ again. I have explained what constitutes “codes of law” in my previous article. So, I would repeat that here.
Article 67 clearly states that the power of the TSJC to “make its own rules of procedure and codes of law” is “subject to the provisions of any law as specified in this charter passed by the Tibetan Assembly”. Therefore, the TSJC cannotindependently do things as it wishes and pleases. It must operate within its inscribed role in the Constitution.
You can read it in the Tibetan version here. I have bolded the relevant clause for your easier notice.
དོན་ཚན་རེ་བདུན་པ། ཆེས་མཐོའི་ཁྲིམས་ཞིབ་ཁང་གི་རྩ་འཛིན་ཁྲིམས་ཡིག་དང༌། སྒྲིག་གཞི།
བཅའ་ཁྲིམས་འདི་དང༌། སྤྱི་འཐུས་ལྷན་ཚོགས་ནས་གཏན་ལ་ཕབ་པའི་ཁྲིམས་ལུགས་གང་རུང་གི་དོན་ཚན་ཁག་གཞིར་བཟུང་ཐོག་ཆེས་མཐོའི་ཁྲིམས་ཞིབ་ ཁང་ནས་ཁྲིམས་ཞིབ་ཁང་གི་རྩ་འཛིན་ཁྲིམས་ཡིག་དང༌། འགྲོ་ལུགས་སྒྲིག་གཞི་བཅས་ཁྲིམས་ཞིབ་པ་ཆེ་བ་དང་ཁྲིམས་ཞིབ་པ་གཞན་གཉིས་བཅས་སྤྱི་མོས་ ཀྱིས་བཟོ་འགོད་གཏན་འབེབས་ལྟར་རྩ་འཛིན་ལག་བསྟར་བྱ་རྒྱུ།
In other words,since the charter does not state that the TSJC has “suo motu” powers, it cannot formulate any rules of procedure and codes of law on its own granting itself such power since it is not constitutionally sanctioned by the charter.
If the three TSJC can make any law once they reach a consensus without needing any sanction from the charter (legislated by the parliament), then such a possibility would totally tilt the balance of power in favour of the TSJC as it is able to go beyond the purview of both the existing constitution and the legislature – all it needs is a three-man consensus to amend or write any new law to suits its purpose. This is a highly untenable proposition!
How can this be called “a model of democracy in which the parliament is supreme”?
This would mean that the constitution itself, which is supposed to promote the notion of three co-equal branches of government, grants the TSJC unfettered powers to amend and append at will.
This argument is so ridiculous that it does not make any sense. Does it? You do not need to be an expert to see through the fallacy of such arguments. It defies both logic and the very idea of checks and balances in a democratic government.
Argument – The charter would not have allowed the dismissal of all three TSJC commissioners at the same time as it would lead to a “constitutional breakdown”.
This is one of the most ridiculous red herrings I have ever come across in this entire debate!
If the dismissal of the three Justice Commissioners at one go would not have been allowed in the charter as that would have led to a ‘constitutional breakdown’ (because that would be the dismantling of one pillar of our democracy), then why does the charter make provision for dismissal of the entire Kashag including the Sikyong?
Wouldn’t that have resulted in a similar constitutional breakdown? Isn’t Kashag also another pillar of our democracy?
Or were some pillars of democracy more equal than others to the drafters of the charter?
Argument – The parliament should have formed a committee and allowed the TSJC to present their side of the argument.
Absolutely. That would have allowed a more transparent presentation of the issues by both parties to the MPs so that they could reach a more informed decision.
But is the parliament required to constitute a committee to dismiss the commissioners?
The answer is “No”.
The charter does not mandate that the parliament must hold a hearing before dismissing them. Nor does it mandate the formation of a committee for such dismissal. I have made this case in my original article. Therefore, I will not repeat them here. The only point I would like to add here is that if one espouses a literalist approach to the interpretation of the charter, then one must insist on literalism equitably across the charter; not only when such an approach suits one’s purpose.
I think that the dismissal of the TSJC through a 2/3 majority vote of the parliament is the only envisaged procedure by the drafters of the charter. 2/3 is a high majority and was most probably deemed enough to be sufficient benchmark to prevent abuse and rampant abuse by the drafters. So, in my view, that was the only intended procedure.
If there were other steps needed or envisaged for the dismissal process as argued by some, I am sure it would have been added below this requirement/clause; not hidden obscurely under the sub-clause of some entirely other article dealing with not so relevant a subject. It makes no sense doing such a thing. A consistent literalist would agree with my argument. For example, the process for the dismissal of the Kashag is stated under one article, not across articles for example. Same is the case for dismissal of individual MPs.
If indeed there were other steps needed in this process as argued by some, I am sure it would have been added below this requirement/clause; not hidden obscurely under the sub-clause of some other article dealing with not-so-relevant a subject. Scattering instructions for an important parliamentary procedure across articles and hiding them under headings of unrelated articles would have been an act of gross negligence or incompetence on the part of the charter drafters (which clearly is not the case).
Moreover, one cannot get away by arguing on the one hand that such an event, i. e. the possibility of the dismissal of all three commissioners at one go was not foreseen by the drafters therefore clear guidelines for this do not exist in the charter and on the other hand, claim that a procedure is indeed prescribed in the charter (which is the formation of a committee to oversee the impeachment process)? This is inherently self-contradictory. If the dismissal of all three commissioners was not foreseen by the drafters as claimed, then how can they argue that a procedure is already prescribed in the charter by the drafters?
My advice to such people would be to make up their minds. You cannot have it both ways!
Argument – The TPiE does not have the power to dismiss all three commissioners at one go.
My view is that they do have the power to dismiss all three at one go. The commissioners also accepted the parliament’s power to dismiss them all at one go too.
Since they are our “highest judicial authority”, their acceptance of their dismissal shows that they see and interpret it as being within the legitimate power of the parliament. Any attempt to make an alternative interpretation would self-contradict the very literalist premise that the interpretation of the TSJC is binding and final.
The argument that since “the procedure for the dismissal of all the three commissioners” is not clearly stated in the constitution shows that “such a situation was not envisioned” by the drafters because that would lead to a ‘constitutional breakdown’, is simply fallacious.
Following such logic, any person with common sense would ask if the entire Kashag’s dismissal was envisioned in the charter and the procedure for their dismissal written in it, how can one sustainably argue that the writers of our charter did not envision the possibility of dismissing all the three commissioners?
That would imply a grave oversight on the part of the constitutional committee. Since, the drafters of the charter were amongst the most experienced parliamentarians, learned scholars and advisors, I very much doubt that they would have committed such oversight or shown such lack of foresight.
When the drafters could envision such a scenario for the Kashag, why couldn’t they envision such a scenario for the TSJC? Or did they naively believe that at least one of these three commissioners would always turn out to be infallible?
Argument – Since the constitution does not explicitly say that the TSJC cannot exercise “suo motu” power, that means it can exercise such power!
This kind of logic is plain hilarious and laughable. You will find many monks in Southeast Asian countries using such logic to rationalize smoking and many other things. Using such logic, you can argue that TSJC can do everything or anything under the sun which is not explicitly prohibited in the charter.
God forbid if such an interpretation is considered tenable.
ROFL!!!
Argument – Can the court be both the judge and the plaintiff? (It seems that while exercising “suo motu” power that seems to be the case).
When courts are explicitly granted “suo motu” powers, there are certain areas envisaged for the use of such powers.
I am also sure that when such powers are explicitly granted under the constitution, it is done with the understanding that the courts will work under or within the framework of the constitution i. e. based on the laws legislated by the parliament which will act as a check to the courts’ judiciary power; not with the notion that the courts themselves have legislative authority too. If the latter were the case, where is the possibility for check and balance? Each time the legislature passes a law, the court can amend or create other laws to circumvent or abrogate it.
If there is a case of conflict-of-interest where the judges themselves have an interest in the case, another judicial bench is usually constituted. In a recent incident, the previous chief justice of India (Mr. Ranjan Gogoi) was heavily criticised for adjudicating a case in which he himself was implicated, as it was a clear example of conflict-of-interest. How can the accused be the adjudicator? Such a setup contravenes the very principal of natural justice!
But constituting a separate bench is not possible in our case as we do not have the luxury of having extra independent commissioners form such a bench. Currently, due to the existence of only one bench when a conflict-of-interest situation arises, there is no remedy. So, obviously, this is a problem. However, to claim that there is no conflict of interest when the very same bench of commissioners are both the defendants as well as adjudicators is patently dishonest.
Justice must not only be done but also seem to be done. So, such a conflict-of-interest where both the plaintiff and the adjudicator are the same is quite untenable. If the parliament was wrong in being both the judge and the plaintiff, then, the TSJC was wrong too in being the judge and the defendant.
What is not appropriate for the goose cannot be appropriate for the gander!
I shall stop here. If more lines of debate emerge, I shall write more later.
“I’m for truth, no matter who tells it. I’m for justice, no matter who it is for or against.”
– Malcolm X
Sarva Mangalam!
(Views expressed are his own)
The writer is an educator and a researcher based in Singapore.
36 Responses
Who appointed these justices who are not even capable of using common sense let alone interpreting the constitution? CTA Charter is young and growing. It does not have all the necessary laws that covers everything yet. For example, emergency laws under crises such as COVID pandemic. Many countries around the world have taken special measures to fight against COVID. Many of them are total violation of constitutionally protected rights.
How can anyone talk about this mess without mentioning of COVID situation? Rinpoche, PT and news networks never talked about covid.
To Non Phd Tibetan,
First fall I would like to tell you, if you don’t understand Tibetan language, read English version of article 54. Where it is said?, ‘Through appointment of committee, only one Judge could be impeached’. I don’t want to quote here article 54 but leave on you to read it again properly. In Tibetan, the article 54 says, Gang rung whereas S. Rinpoche said, Su rung. Anyhow the meaning is same. However, if you have learn Tibetan grammar, the word, Gang, Su both are the grammatical articles representing Spyi Sgra (Chi dra, referring to general or common). Therefore, Gang rung or Su rung does not refer to one alone. When it was said, it refers to one, that is the real misinterpretation. For example in English, if the law says, ‘Anyone who breaks the law, will be dealt with penalty of Rs. 2000 fine or upto six month imprisonment”. Here ‘anyone’ refers to all those who break law and the word does not refer one individual alone. Thus Su rung could apply to one if one breaks law and also could apply to all three, if they break the law together. Another logical reason is, if Su rung applies only for one individual then it gives wrong message that the judges are allowed to break laws being accomplice but do not break law as an individual. How could law maker make such a contradicting law? The Chithue Standing Committee brought a motion of impeachment saying that all three had unanimously misused the power called Suo-motu which is not granted in the Charter for TSJC. The Standing Committe said, it had postponed the session due to covid 19 pandemic and this authority is given to us by the article 6 of the Charter which gives direction to follow Local law if it conflicts with the implementation of Charter. The article 40 and 49 are invalid when the article 6 is implemented. Therefore, seeking alternative to have session through online or not, is sole discretion of the Standing Committee and no one can dictate. According to my understanding of the Charter, the Standing Committee followed Charter and nothing it did wrong.
In terms of Suo-motu, first fall the TSJC already accepted that it is not granted such power in the Charter during the hearing about Contempt of the Court that it summoned former Chithue Lobsang Chonjor. On contarary, Prof. S. Rinpoche in response to the Norway Tibetan media said TSJC is the Supreme authority, hence Suo-motu granted. Who you would accept, the official word or the private interview. Again being Supreme authority, if the Suo-motu is granted, why we know that many countries in the world have not granted Suo-motu power to their Supreme authority ? Article 67 is also quoted saying that it is the another article that empowers Suo-motu. But its wording clearly says, the TSJC can amend law yet based upon the provision of the Charter and rules set up by the legislature. So, the TSJC is restricted here to make law without seeking the provision of the Charter and rules set up by the legislature. Thus the TSJC is refrained from making its own law and if it does, it is illegal. In fact, rule and regulation 69 ( clause Ta) is illegal because it did not provide in the Charter. If Suo-motu is granted in the Charter, there should be terms such as ” The court can give direction to Executive and Legislature anytime and refrain any act in the interest of the public or individual”. This means, the court is granted special power to act by itself without someone’s appeal, anytime it sees appropriate. However, such thing is not ascribed under the chapter of Judiciary in the Charter.
Ha ha. You need to read Tibetan version properly. “སུ་རུང་” does not mean one of them. It means anyone. This term was misinterpreted by Zamdhong Rinpiche as well. སུ་རུང་ means anyone. For example if you say anyone who has US visa can travel to US to 10 people, this does not necessarily mean all 10 people can not travel because all 10 people could have US visa.
Do your own Research on word སུ་རུང་
Don’t make up stuff. Article 54 – Restriction on Discussion
No where it said one of them
I am totally convinced by the well and systematic explanation of the arguments were the Charter is misinterpreted. The public icon was politically misused by the Norway Tibetan media with the intend to draw voter’s attention and to prevent some Chithues from religious sect including Tsogtso Pema Jungney to be re-elected. There is no doubt regarding my opinion because I know clearly how medias play dirty politic along with politicians hiding under the mask of sincerity. This type of dirty drama is not a new in Tibetan community specially in Dharamsala where some actors still alive. There was an ex-TSJC continuously appeared in most of the Tibetan medias and was given lots of opportunities to defend TSJC and make provocative statement at the end. The sole purpose was instigating public to raise their voice against the Chithues but nothing happened till Norway media released their most provocative news on April 8, 2021 the last day for election campaign. The campaign was succeed as per planned to drop honourable Pema Jungney to win election but badly failed to stop religious sect Chithues. I would say the dirty politic of all the Cholkha sum NGOs, Kyidug, betrayals among Chithues and Thupten Thomed, the Spokeperson failed from their hidden campaign agenda. Definitely, mistake happened with the TSJC also as I understand but to covered up it, all the ex-TSJC raised their voice in favour of TSJC since they swim on the same boat. They were apparently inspired by the Norway media release as it confirmed that all the mistakes were done by the Chithues. The drama was actually started right after the conclusion of the parliament session continued by all XYZ in the face of the public and Amdo Tibetan Writers tried to justify TSJC in their compositions sent through Tibet Times. Did I see any sincere tibetans among elite groups, actually none. All came to attack Chithue Standing Committee and 31 assembly members who did not fail democratic proceeding. Did anybody pay attention or ignore when democratic crisis happened last year September due to TSJC decision? Where all those sincere people gone? Why no one sincerely lend unconditional effort to stop the river of trouble right at the time it began?
It seems the Members of Parliament need a tutorial or coaching regarding the Constitution. Even a reasonably educated person can understand that the Constitution has been Misinterpreted and serious lapses in procedure has also taken place. They have acted casually and hastily and have more explaining to do. Resigning and running away wont suffice. And who is this individual quoting Krishnamurty above. Is he trying to be sarcastic. Even his so called analysis is immature and trivial dotted with expressions like “ROFL!!”
Four points
1. I think everyone needs a tutorial in the charter not just TPiE members.
2. Are you implying that many who have commented on or acted upon their interpretation of the charet are not “reasonably educated”?
3. Who ran away and who resigned? Be specific.
4. Why is my analysis immature? You must give reasons to support your views. Just labelling is not good enough.
5. We are in the 21st century – the digital age. This is a digital media platform. So social media acronyms like ROFL are perfectly legit. And so is this :-).
In terms of democratic societies, ours is both a young and fragile plant. So these shocks are necessary to ensure that there are lessons learned. It will be interesting to see if there are any recent surveys of Tibetan officials and politicians to gauge where we are with respect to both knowledge of the processes of democracy. If not, perhaps, there some scholars may want to help out. With the aid that is coming to the CTA from USAID, perhaps, we can also see if a Commonwealth country can help with strengthening the TPiE and its ancillary bodies. Maybe we can learn more from Lalu than Trump, as the latter was never a Parliamentarian and more driven by a desire to ape Oligarchs and Putin. Also, in the future, perhaps good to remember that while knowledge is key, without it being grounded in a framework of morality, it is incomplete. We do tend to go on about our democratic institutions, perhaps this is the time to review, revise and strengthen them. Thanks to Tsering Wangyala for his lucid analysis of the issue. Hats off.
Well said Samphe Lhalungpa and Tsering Wangyal. Salutes to both of you for enlightening the so-called “experts”.
Author admits TSJC has power to make ” codes of law.” So it all depends on how ‘ code of law’ is interpreted. Author says ‘ code of law’ is not really law actually, it means just writing down in sentences or ‘ codifying’ legislation. But others say ‘ code of law’ means ‘ letters of law’, or simply ‘ law’, or ‘ legislation.’
Courts generally don’t make laws, as that’s parliament’s job. But Tibetan system is unique, and there’s no indication which country’s constitution our Charter is based on, whether India, or UK, or USA. So one can say in our system, court can make its own laws, and implement them. Anomalies are common in our set-up. CTA is not a government, but we have parliament. There are no democracy without political parties, but we are party-less democracy.
Interpretation of what “code of law’ means should be according to the context in which it is used. It should not be subject to our whims and fancy.
Of course, our system is unique. But, it definitely is not illogical and uninformed by democratic traditions and ethos. So it must make sense.
I may not agree to everything you said here but this is the best and to the point article on this subject so far.
I was wondering if there is any recourse for reversal of the 2/3 parliamentary decision?
If so , what is the point of setting such a high bar? I ask because there are people petitioning for the reinstatement of the impeached justices.
Thank you
I think the parliament has already passed its motion and the commissioners have resigned too. So that is the end of the episode. I don’t think, constitutionally, there is a pathway for rescinding a 2/3 vote and reinstating the commissioners.
Only pathway possible is a reappointment. For this, they have to go through the same process when they were appointed for the first time.
I also think Samdong Rinpoche has more credibility in this matter , as he was in the drafting committee and here we speak about someone who has been there , done that in CTA , in contrary to you , who doesn’t seem to have served in our community!
How can you claim that I have not served the community without knowing me? That is just a presumption.
Of course, you have the choice of considering whomsoever you want to consider credible as credible. That’s one of the benefits of living in a democracy. BTW – Pema Jungney too worked on the charter too.
How one interprets ” codes of law ” is context-dependent as per the author. But this assumes that Tibetan judiciary interprets legislation following purposive interpretation approach adopted by EU courts where context and backgrounds are taken into account. But according to samdhong rinpoche our charter follows “literal” approach instead of the purposive approach. Literal approach system is adopted by UK courts where meaning of words are interpreted as per dictionary.
These two approaches to interpretation yield different results. Author should make a case for why our court leans on the side of purposive approach instead of literal approach. The long article assumes purposive approach and no sources or traditional convention of why EU style interpretation should be adopted is proffered. Author also doesn’t clarify which country’s constitution our charter is based on. If it is India then it is simple just look into Indian constitution for ejection of judges. But that isn’t clear too.
My point is clear. If you take the literal approach, then you must stick to it all along and not apply it according to one’s convenience.
If we read this part of the charter literally, can we arrive at the conclusion that TSJC can make laws?
ཁྲིམས་ལུགས་བཟོ་འགོད་དང༌། གཏན་འབེབས་བྱ་རྒྱུའི་དབང་ཆ་ཡོངས་རྫོགས་བོད་མི་མང་སྤྱི་འཐུས་ལྷན་ཚོགས་ལ་ཡོད་པ་དང༌། ཁྲིམས་ལུགས་དེ་དག་ ཁྲིམས་སུ་བཅའ་བ་ལ་སྲིད་སྐྱོང་གིས་ཆོག་མཆན་མིང་རྟགས་འགོད་དགོས།
What does ཡོངས་རྫོགས་mean?
That is why I am making the case the ‘literalists’ haven’t been that literal themselves!!
interesting. Well, i think… Whether our Court chooses literal or purposive approach is not upto the court. It is upto the parliament. But there’s no sources to prove that interpretation should be ‘literal’ except SR’s views.
Even for literal interpretation, a meaningful litigation can’t happen. The reason is this – charter is too basic, terminologies are defined in glossary, no body of case law or precedent exists, no declaration that our Charter is tied to Indian Constitution. The solution is this – Charter needs to be amended and details added. Any attempt at litigation or legal argument in the present scenario is a joke otherwise as there aren’t enough materials or legislations to hinge arguments upon.
So how did PJ failed to interpret the charter on Article 40?
How did PJ just introduced a bill without forming a committee for the impeachment of a Judge?
How did PJ failed to read the article which clearly states, one of three instead of all three, judges at the same time.
Why the bill with such a consequence was only given one session?
If PJ was sincere in his approach, he should have given due opportunity for everyone to understand analyze the bill but he just rushed it before tea break. May be his cup of tea was more important than the cause of Tibetan democracy.
I don’t have a PhD too (not yet at least), so no need to feel diminished.
Having a PhD is not important; having a critical mind is. What is important is having the integrity to articulate, own and defend one’s views – without hiding behind fake IDs. I don’t persecute those who disagree and run smear campaigns to take them down. What is more important is to possess an open mind – gave the willingness to debate, discuss and reframe one’s schema. And even more important than that is to have a sense of fairness and dedication to truth and justice; not partisanship, thirst for power/position or be guided by jealousy and ego.
As for the answers to your questions, read my previous article and this obn, trust me, it’s in all there for you. You just need to read them to get them.
You see, real uderstanding comes from having a critical mind and reading. Not through listening to hearsay and blindly committing it to memory and regurgitating it. That’s what I tell my students all the time. Listen, contemplate and then, gain realisation.
It’s strange that no many speaks about the severity of the circumstances to held TPIE session due to Covid during that time.. TSJC should have allowed TPIE tob postpone the meeting bearing in mind the prevailing situation. If at all they have any common sense.. We are refugees in India and should act like one..
Since District administration has issued instructions not to assemble more than 20 Chithues at that time, TPIE has no option but to follow their instruction. TSJC’s punishment to the 11 members of TPIE Standing Committee is non-sence and irresponsible.
First of all, I would like to say that I appreciate you presenting your case in favor of TPiE. Its always good to hear arguments from both sides but one thing is clear that there is really very little argument to present in favor of TPiE due to their gross misinterpretation and misunderstanding of the Chatrim.
Couple of things to highlight.
1. You know Samdhong Rinpoche was one of the people that was involved in the creation of Chatrim. Tsoktso Pema Jugney la himself said in the TPiE session that we could debate on the chatrim keeping Samdhong Rinpoche as the one to judge on the Chatrim interpretation. Samdhong Rinpoche himself has made it clear how Chatrim was grossly misinterpreted and misused. If TPiE and Tsoktso Pema Jugney la was right on their resolution then why did he resigned from his position without any proper reason for his resignation. What is the logical reason for Tsoktso to resign if he was not at fault.
2. Existence of commission office without any Supreme Justice Commissioner is same as not having the “Judicial Body” because no cases can be presented and decided if needed without the Tibetan Supreme Justice Commissioner. Therefore it is a breakdown. You cannot compare Judical Body with the Executive Body. Both have a different reason and purpose. There is usual process to change the whole “Executive” Body’s leader, not just one but whole cabinet after every election. Judges are not appointed through election and therefore there is no process to change the whole judges at one time. Therefore these three judges have different position and different tenure to ensure that there is always a judge at any time when one retires or if one is impeached. Chatrim did not give TPiE the right to impeach all three judges at one time therefore the resolution was unconstitutional.
Charter does mandate the formation of special committee for the impeachment. The special committee would then need to ensure that “due process” is followed. There was no appointment of special committee.
3. TPiE has misinterpreted that they have the right to impeach all three judges at one time and they did it wrongfully. I understand TSJC also misunderstood that TPiE had a right to impeach all three judges at one time therefore they accepted that resolution but definitely denied the wrongdoing and bases that was put forward for the impeachment. Tibetan Supreme Justice Commissioner agreed to abide by the decision. But now we know that TPiE did not have the right to do it so this should nullify/void the impeachment resolution.
I am not a writer but your argument especially against Samdhong Rinpoche’s argument really does not stand. Do you truly believe that you can present your argument against Samdhong Rinpoche’s knowledge on Chatrim/Charter ? I am not trying to pull anyone down but when it comes to our Charter/Chatrim, I don’t see anyone better than Samdhong Rinpoche to explain it. Even Tsoktso Pema Jugney la himself has said that in the TPiE session and therefore he resigned once he realized this gross blunder even though the best approach would be to stay in the position and correct the blunder.
Hopefully, our Chithues have learned a big lesson through this chaos and correct the blunder by voiding the resolution and reinstatement of Tibetan Supreme Justice Commissioner. I have high respect for all Chithues including ex Tsoktso Pema Jugney la for their years of service and definetely not plan to degrade him or any other Chithues at all. But correcting these error will be better solution than resignation.
We all can come out of this chaos/fire with shining armour peacefully and with dignity. Restore Tibetan Democracy !!!
#justicefortsjc #reinstatementoftibetansupremejusticecommissioner #bringbacktsjc
Answer to Point No. 1
If a person resigns, does that mean he is at fault? That is not a very logical conclusion. There could be other reasons too. You should read Pema Jungney’s statement when he resigned very carefully. Both Pema Jungney and Samdhong Rinpoche were involved in the drafting/redrafting of the charter. That should be noted too.
If I remember clearly, SR also said in the same interview that he does not want to decide/say which side is right and which side is in the wrong. So how can you claim that he said, “Chatrim was grossly misinterpreted and misused” by the TPiE (watch from 5.58 onwards). Are you putting words into his mouth?
Answer to Point No 2
As I said, this state is temporary. Once the parliament reconvenes, new commissioner will be appointed, and the functions of the commission will resume. In a democracy, all three pillars are co-equal branches. So, if one pillar can be taken down, so can be others too. This is logical.
About the simultaneous dismissal, I have already made my case. So, there is no need to restate it. Obviously, our views differ. Let us agree to disagree.
Answer to Point No 3
If the TSJC is prone to misunderstanding the provisions of the charter (as you have argued), that does not make them look very reliable interpreters of the charter I am afraid. If they are no good at interpreting the charter, a call for their reinstatement does not seem very convincing to me.
Point No 4
I have already presented my arguments so that is a testament of my belief. Truth and opinion are nobody’s hereditary inheritance. In a democracy, everybody is equal and has a voice; be it a mere plebian like me or a learned Rinpoche like him. What matters is truth; not who is speaking.
Point No 5
Hopefully, everyone has learnt a lesson, including me and you. If you make a call for restoring democracy, that implies that democracy does not exist right now. Which is not an accurate representation. Be a bit more aware of the implications of your statements. This impeachment too is a part of a democratic process. If it were not the case, there could be no space of disagreements and free articulation of opinions.
I still don’t get you Mr. Wangyal. The foundation of this whole incident is baseless so why are we talking about the top floor middle floor stuff.
Article of Chatrim clearly states that only one judge through the appointment of committee could be impeached.
Your previous article and this article is completely opposite. So speak up your mind, you can not be black at the same time white. Looks like you got a good offer to come up with this rebuttal for your previous article.
Which article? Figure that out first.
Don’t depend on hearsay. Read it first yourself. Study it and if possible cite it to give your argument weight.
Don’t be Ribong Cheldrog or the proverbial rabbit who cried that sky is falling!
You are referring to Article 63 D or Article 63 Clause 4.
Read the article carefully yourself first.
It is below fir your perusal. Then, make up your mind.
༤ སྤྱི་འཐུས་ལྷན་ཚོགས་ཀྱི་སྤྱི་འཐུས་རྩ་འབོར་གྱི་གསུམ་ཆ་གཉིས་ཡན་གྱིས་ཁྲིམས་ཞིབ་པ་ཆེ་བ་དང༌། ཁྲིམས་ཞིབ་པ་གཞན་གཉིས་བཅས་སུ་རུང་འཕོ་འགྱུར་དགོས་པའི་གྲོས་ཆོད་བཞག་སྟེ་འཕོ་འགྱུར་བྱེད་དགོས་བྱུང་ན་ལས་དེ་མིན་ཁྲིམས་ཞིབ་པ་ཆེ་བའི་ལས་རྒྱུན་ལོ་ལྔའམ། རང་ལོ་དྲུག་ཅུ་རེ་ལྔ་ཧྲིལ་པོ་ལོན་པ་གང་སྔའི་བར་ཡིན། ཁྲིམས་ཞིབ་པ་གཞན་གཉིས་རང་ལོ་དྲུག་ཅུ་རེ་ལྔ་ཧྲིལ་པོ་མ་ལོན་བར་ལས་འཁུར་རྒྱུན་འཛིན་བྱ་རྒྱུ།
What does དང༌། and བཅས་སུ་རུང་ mean in Tibetan?
To me it is, it implies that all three can be impeached at the same time.
Now I no am not a tibetan scholar or professor of Tibetan, but I do know that དང༌། and བཅས་ in tibetan means “and” and “together with”; not “only one” unless my Tibetan teachers (both Varna graduates) taught me wrongly.
སུ་རུང་ means “whoever suitable or fit” (in this case for dismissal). So if all three are deemed “suitable” or “fit”; all three can be dismissed. If you say བོད་པ་སུ་རུང་ཡོང་ཆོག་, does that mean “only one Tibetan can come” or does that mean “anyone who is Tibetan can come”? Apply some logic. Don’t be a blind consumer of other people’s logic and interpretation. Use your own brain.
Moreover, if you really and sincerely believe that the three TSJC are the supreme and final authority to interpret the constitution, then logically you should accept their interpretation that the parliament has the constitutional power or authority to dismiss all three of them at the same time. That’s why they left the office.
You simply can’t eat your cake and have it too! As I have said before, you can have your own opinion but not your own facts!
Funny, these days, every other person is an expert on our Charter. Please keep your opinion to yourself and our people need to understand that what this (Tsering Wangyal) is saying or writing is just his opinion not a fact.
Many a times, our people get influenced by not being able to distinguish between facts and opinion. FYI, facts are something which are tested and can be proven anytime under any circumstances but opinions are mere individual idea or conclusions. So my friends, do your part, make your decision and don’t be carried away by people like Tsering Wangyal, mila Rangzen, or Tenzin Yeshi.
As His Holiness said, “motivation and intention is what matters”.
Good differentiation about facts and opinion. But let me just add that opinions can also be based on facts too. In other words, facts also help you form opinions. 🙂
I went through your whole article, it’s nicely written I’ll give you that. You have done the same thing by twisting words and it’s meaning. You should spend more time to go through all your points again n watch the press conference of 3 Justice Commissioners and also honorable samdhong rinpoche’s interview on VoA. For a common man it’s clear to see a blunder has been committed by those 31 chitues in ousting Supreme Justice Commissioners in an hour or so. Anyone can do what you did with little knowledge n write a whole article critiquing someone. Next time you call yourself biased then really be biased.
Nice writing though..
I am happy to tell you that I have done all things that you have recommended and my article was written post these actions. If you have read carefully, you will definitely notice this.
I am afraid that I will have to admit that I am a not so common man. My apologies.
I believe that being biased is not so much about taking sides but more about not being objective.
I think I will go with the more credible and neutral VoT interview and interpretation of former Kalon Tripa and member of the Drafting committee Prof Samdong Rinpoche la; instead of some random guy on the internet with no law background. Good day.
We must always use logic and common sense when we speak or write.
First, even if someone is neutral, that doesn’t mean he/she knows the truth or speaks the truth or that he or she is ‘credible’ in a given area of knowledge. Being neutral means when the person makes a decision, he/she is not partial i. e. does not take sides. He/she uses his/her own intellectual faculties and knowledge to arrive at a decision rather than be swayed by emotions and agenda. This means that actually, much more is dependent on the neutral person’s intellectual and investigative capabilities as far as discovery of the truth or facts are concerned than the mere fact of him/her being neutral. Being impartial does not always logically or consequentially result in truth or justice. Even courts who are both knowledgeable, experienced and neutral, often make mistakes.
Second, I do know that Prof Samdhong Rinpoche was in the drafting committee of the charter. Therefore, I do agree that he definitely has more knowledge about the charter than me. But that does not logically make him a neutral person; nor does that imply that whatever he says is the final verdict on the charter. The charter was drafted by several people; not just him. It has words and intentions of all these people; not just his. So, logically, his interpretation cannot be and should not be considered the one and only or the final interpretation of the charter. Moreover, once any text is written, the words in the text take a life of their own. The text will be interpreted on its own merit based on the words of the text, not based on the writer’s intentions. (If you are a student of Literature, you will understand where I am coming from.) It would be imputed that whatever the writers intended are reflected in the words of the text. Therefore, when an important document like a charter/constitution is written, a lot of deliberation is done not only on the substance of the law but also it’s articulation too.
Third, having more knowledge does not equate to being truthful. Being knowledgeable and being neutral are two different things. One can be one without being the other. They do not have a cause and effect kind of relationship. BTW, for your kind information, ex-speaker Pema Jungney has also done a lot of work with the charter. Please do check out his bio-data. So following your logic, he is also knowledgeable and therefore, his interpretation should hold some water too! Right?
Fourth, as for your random guy vs known guy argument, President Trump is one the most well known persons in the world. But he speaks more lies than me each and every day. (Now I am just refuting your argument and logic. Please don’t take this beyond the context of this logical presentation). So it does not matter much whether one is known or not known. Truth is all about the substance of speech; not the knowledge or qualifications of the speaker. BTW, just like me, Prof Samdhong Rinpoche is not a lawyer and he does not have a law background too 🙂
This is all logic and common sense. Nevertheless, since we all live in a democratic society, you can always choose to believe whoever you want.
To be each, his/her own. Good luck and good day to you too!
So I took your advice and used even more logic and common sense, which you seemed to think was lacking since I disagreed with your opinion.
And I still choose to listen to Prof Samdong Rinpoche’s interpretation of the constitution which makes more sense than yours.
Now I really hope you have a good day wherever you are and dont waste your precious time writing an essay defining “logic” and “common sense”.
Cheers.
Thank you for the advice. But it’s my prerogative to decide how I want to spend my time. I, definitely, don’t consider this exercise a waste of time. If you do, then you definitely are wasting time responding to an article writing which according to you was a waste of time.
And yes, if you have read the article, you’d know where I live.
A precise and succinct interpretation of the law by the writer of this article Mr. Tsering Wangyal. The problem we face today in our society is that such delicate legal intricacies are hard for the common public to understand and they can be easily swayed and manipulated to form a one sided emotionally charged opinion which leads them to organise a revolt/protest against the govt/parliament without understanding the facts of the matter. The public only thinks in simplistic terms and are moved by rhetorics like “our third pillar got demolished!” and “ our democracy is in danger!”. I hope this article forces the larger public in the future ,to wait for a large sample of expert legal opinions to emerge before they decide to pick up their pitchforks and cry for blood. The ramifications of this miscalculated outcry has not only been seen in the arena of public opinion but also in the political sphere. The only silver lining here is that we must take this as a lesson for the future and imprint in our minds the expression “look before you leap”.