By Tenzin Sangmo
File photos of TPIE Speaker and TSJC Secretary, April 4, 2019
DHARAMSHALA, APRIL 28: The Tibetan Supreme Justice Commission’s (SJC) decision not to swear in the former Kashag Secretary Topgyal Tsering as Kalon despite being declared elected in the parliament last month resulted in vehement justification from both the sides.
The bone of contention remains the calculation of the percentage stated as the minimum requirement of votes in the election of Kalon.
On March 22, when a Kalon nominee was presented, the speaker declared before the voting that 50% of 43 votes is 21.5 but since there is a provision in the charter to disregard fractions, securing 21 votes would mean favouring the election as a majority.
The speaker chose not to cast his secret ballot with 21 Yays in the result and declared the nominee elected.
The commission contends that securing 21 votes of the 43 Members of Parliament (MP) present amounts to being 48.8% and not 50%, a requirement for the election of kalon as enshrined in the article 22 of the charter of the Tibetan government in –exile.
Members of the exile press questioned the logic of the calculation during a break. The Speaker reiterated the provision that allows fractions to be disregarded and asserted that the same method has been employed in the elections of ministers in previous parliaments.
The news came out the next day that the Tibetan Supreme Justice Commission (SJC) wrote to the speaker the same morning of voting pointing out the miscalculation. The commission received a response in the afternoon saying the same means of calculation has been employed in the past and if it’s wrong, all the past nominations must be considered wrong.
The Speaker in his closing speech on March 19, 2019, reiterated his stand, claiming precedence and not being wrong.
On April 4, 2019, SJC convened a press conference where it issued a 9-page statement on its decision and the reasoning behind it. It recounts the meetings and correspondence between various offices since the day of voting that compelled it to publicly explain the issue.
Claiming the power enshrined in Article No. 5 and Article No. 66 of the charter, it explained the meaning of the articles relevant in the case, including Article No. 48 on “privileges of the members of the Tibetan Assembly” and Article No. 56 on “non-liability of parliamentary proceedings,” two articles quoted by the Speaker as being violated by the judiciary by interfering in the manner of the proceedings of the Tibetan Assembly.
SJC clarified that the Speaker’s claim that there is a provision in the charter allowing fractions to be disregarded is enshrined in the Article No. 49 which is about the minimum number of parliamentarians required in a given session to resolve a matter, to be applied in a situation where a resolution has secured 2/3rd of the votes.
The judiciary denounced the assertion that the similar means of calculation of disregarding fractions was employed in the past Kalon election and verified that all voting results for Kalon nominees since 2001 produced a clear majority when not unanimous.
SJC also refuted the table of calculation forwarded by the Speaker as a justification as it was about the minimum number of MPs required in making amendments to the charter and not about Kalon nomination as can be discerned from the content of the heading of the table.
The press release claimed that the commission received a letter from the office of the secretary of Kashag urging the justice commission to swear in the elected Kalon which was swiftly rejected as an act violating of the charter.
In the meantime, the Kalon nominee has retired.
The Speaker, when interviewed by Phayul on the matter recently said he stands by what he has said.
The Secretary of the commission refused to speak further on the matter.
The commission, by exercising Suo Moto cognizance, taking up a matter it sees as unlawful or going against the provisions of the charter has attracted both appreciation and criticism.
A Tibetan advocate from Delhi, certified in Indian law, stated on the condition of anonymity that the commission was being selectively proactive, unlike its handling of other cases in the past that could use such resourcefulness.
Another Tibetan advocate in Dharamshala certified in the study of the charter, opined that one of the possible reasons why the TSJC only has a handful of cases in its kitty, disproportionate to the high number of legal cases being fought in the exile community could be public’s lack of confidence in the Tibetan apex court stemming from the fact that its commissioners are not always equipped with serious legal education or background.
He added that the eligibility criteria to be appointed a chief justice commissioner is not as gruelling as it should be.
Members of parliament-in-exile have refused to speak on the matter as they are known to have attended an internal conference after the justice commission decried the appointment where it was decided by a majority that the Speaker’s decision was in congruence with the provision of the charter.
However, it must be noted that since no parliamentarians raised objections when the Speaker categorically stated before the voting that securing 21 out of 43 present would mean the Kalon getting elected, the parliamentarians are not in the best position to go against their own judgment.
While many thought discussion on the matter will have to wait till the Autumn session, an opinion piece by a member of parliament has emerged on Tibet Times
In it, MP Lobsang Choejor contends that the Speaker hasn’t violated the provisions of article no. 22 because if one considers the privilege accorded to the Speaker and Deputy Speaker by precedence set by customary laws, the two are not required to cast votes in a case like this.
The writer recalled a statement by the speaker in the 9th session of the 11th TPiE about the precedence of the Speaker and the Deputy Speaker refraining from such voting in 10th TPiE.
The piece implied that given the existence of such a practice, the votes secured in the Kalon election last month would meet the criteria of not being less than 50%
Calling it a customary law, he states that not all laws are written and enacted, questioning if the commission is violating the provisions of the charter by not swearing in the Kalon nominated by the parliament.
All the people interviewed on this issue, ranging from law students, advocate, public servants to members of civil society unanimously agreed that Customary Law, if there is any, may be employed only in the absence of clear statutory laws as enshrined in the charter, not simultaneously.
The op-ed, however, says there is nothing to contend about the judiciary’s explanation of Article No. 48 and Article No. 56 in its press release. This takes away the crux of what the speaker has been saying about non-interference from the SJC in the manner the parliamentary proceedings.
The matter seems to boil down to the question of which of the two, the judiciary, represented by the Tibetan Supreme Justice Commission or the Legislative body, represented by the Speaker led 45 member - parliament, knows the charter better.
Until this incidence, the speaker was usually consulted as an expert in the charter.
The SJC continues to stand by its actions citing Article No. 5 and 66 that accords it the authority to adjudicate disputes pertaining to law and interpret the wordings of the charter.
The commission also laid it out that it is the judiciary’s foremost duty to ensure that the boundary between the three pillars of democracy is not crossed.