By Lobsang Gyatso Sither
March 25th, 2021 was a dark day in the evolution of Tibetan Exile Democracy when one pillar of Democracy, the Tibetan Supreme Justice Commission(TSJC) was dismantled and removed within 1:31hrs (1 hour and 31 minutes) out of which the reading of the resolution by the Deputy Speaker of the Tibetan Parliament in Exile(TPIE) and a clarification by the Speaker took 42:00 minutes. [1]
The discussion on the resolution was only 40:00 minutes!!! The final 9 minutes were spent on a secret voting where 31 Tibetan Parliamentarians voted for the motion and 10 against the resolution with 4 absentees.
As a new Tibetan MP candidate for the upcoming Tibetan General Election, I am concerned to see the backward direction of our democracy. It is not only about who was right or wrong but the mere fact that removing one pillar of democracy took an hour and a half should give all of us concern. The process should have been transparent and should not have been carried out in such a hurried manner which shows a lack of conviction in the TPIE’s resolution.
The fundamentals of Tibetan Democracy as I have always understood were the 3 pillars namely the Kashag(Executive), TPIE(Legislative) and the TSJC(Judiciary) where there is a clear separation of power for check and balance, however this was not the case here.
There are 3 main issues in this whole saga and I am making the following conclusions based on my research. I have summarized my conclusion for each issue here for clarity and ease of reading but there is a more detailed explanation for each point below:
- The TPIE Speaker and the other 10 Standing Committee members in my opinion have violated the Tibetan Charter in Exile when they postponed the September Parliament session as they have infringed Article 40 of the Charter and the two Articles mentioned by the TPIE as in Article 6 and Clause 2 of Article 49 by the TPIE are not valid supporting articles. Covid-19 is a global emergency and it may be a valid reason but using that reason selectively is also problematic as could be seen in the case of the removal of Tibetan MP Thubten Wangchen. However, even if the reason may be valid, it cannot be against the Charter.
- Is “Suo Moto” valid? Based on my reading of Article 66, Article 58, Article 67 of the Charter of the Tibetan in Exile in as well as the Clause (i) of Article 69 of Public Interest Litigation Rules and Regulation of the TSJC, “Suo Moto” is valid. At the same time, “Suo Moto” has already been used by the TSJC previously during the nomination of Kashag Secretary Topgyal Tsering la in March, 2019 during the 7th session of the Tibetan Parliament. Topgyal Tsering la was not allowed to be sworn in by the TSJC and their reason for rejection was the violation of Article 22. Why didn’t the TPIE make an issue when that happened as this is a clear case of “Suo Moto” judgement. Also, it is imperative to understand that it is not the legislative which interprets the law.
- The removal of the Tibetan Supreme Justice Commissioners(TSJC’s) and whether that is legal under the Charter is more complex and my reading of the Charter Article 63 Clause 4 highlights the authority of TPIE to do and as such is legal but has some issues with regards to the premise of the resolution which is not valid as outlined in point 1 and 2. At the same time, the removal of TSJC’s was retaliatory in its nature which can be seen from the removal proceeding as well as the wordings in the resolution and the Speakers clarification statements and in my view is unconstitutional.
What can be done now?
This is a complex issue and I don’t think there is a silver bullet which will solve this issue but I have some suggestions which may be helpful.
- Maybe, the Kashag can step in to form an independent commission which can consist of former Tibetan Supreme Justices, Former Parliamentarians, and Constitutional Law experts to review each of the documents as presented by the TSJC and the TPIE.
- The TPIE will be holding a special session in May, 2021 during which I hope that a Tibetan MP can bring a private resolution to reinstate the TSJC’s and MP’s who voted for the earlier resolution can make it right by voting for that resolution. All of us Tibetans in Exile should call our elected members of parliament and get a firm resolution from them that they would vote for such a resolution. And this new vote should not be a secret vote as we need accountability from our MP’s.
- Another process must be undertaken where constitutional law experts review the Charter of Tibetans-in-Exile to evaluate some of the inconsistencies between the different Articles and make it concise so that there is clearer separation of powers of the three pillars of democracy along with clear checks and balances.
- How about instituting a Constitutional bench with representatives of the four pillars of democracy for resolving issues of “Substantial question of law in its interpretation”. (Including representative of the Press)
On April 11th, we have the final Tibetan General Election where we celebrate our Exile Democracy. With one pillar of our Exile Democracy removed, where is our democracy headed is a question that I believe each one of us must ponder upon especially those 31 Tibetan MP’s who voted for this resolution.
Please note: This is based on my research of the Charter of Tibetans-in-Exile and the numerous documents shared by the TSJC and the TPIE.
Disclaimer: The author is a Tibetan who is an official candidate for Utsang MP for the upcoming Tibetan General Election. All views expressed in this article are my own and do not represent the opinions of any entity whatsoever with which I have been, am now, or will be affiliated.
Issue 1: Postponement of the 10th Session of the 16th Tibetan Parliament-In-Exile
This issue revolves around the fact that the Tibetan Parliament had to postpone the 10th session of the 16th Tibetan Parliament-in-Exile which was announced on 17th August, 2020 as per the decision taken at the 327th Standing Committee meeting on 13 August 2020[2], in accordance to the Article 6 and clause 2 of Article 49 of the Charter of Tibetans in exile.[3]
དོན་ཚན་དྲུག་པ། རྒྱལ་སྤྱིའི་ཁྲིམས་ལུགས་དང༌། ཡུལ་ཁྲིམས་ལ་བརྩི་སྲུང༌།
བོད་མིའི་སྒྲིག་འཛུགས་ཀྱི་ཁྲིམས་ལུགས་དང༌། ཆབ་སྲིད་དབང་འཛིན་གྱི་བཀའ། སྒྲིག་གཞི་བཅས་རྒྱལ་སྤྱིའི་ཁྲིམས་ལུགས་དང༌། ལྷག་དོན་བོད་མིའི་གནས་ཡུལ་རྒྱལ་ཁབ་ཁག་གི་ཡུལ་ཁྲིམས་དང་མི་འགལ་བ་བྱ་རྒྱུ།
དོན་ཚན་ཞེ་དགུ་པ། སྤྱི་འཐུས་ལྷན་ཚོགས་སུ་སྤྱི་འཐུས་ཀྱི་ཉུང་ཚད།
༢ སྤྱི་འཐུས་ཉུང་མཐའི་གྲངས་ཚད་མ་ལོངས་པར་ཚོགས་འདུ་ཉིན་གྲངས་བདུན་ལྷག་འཕར་འགྱངས་བྱེད་དགོས་བྱུང་ན་ཚོགས་གཙོ་སྦྲེལ་པོས་ཚོགས་འདུ་འཕར་འགྱངས་ཀྱི་ཐག་གཅོད་བྱ་རྒྱུ།
However, on August 21st, 2020, the Tibetan Supreme Justice Commission passed a judgement[4] that the postponement was against the Charter of the Tibetans in Exile and as such was against the Tibetan Charter by citing the Article 40 of the Charter of Tibetans in Exile.
དོན་ཚན་བཞི་བཅུ་པ། སྤྱི་འཐུས་ལྷན་ཚོགས་ཀྱི་ཚོགས་འདུ།
འཆར་ཅན་སྤྱི་འཐུས་ལྷན་ཚོགས་ཀྱི་ཚོགས་འདུའི་ཚོགས་ཚེས་དང༌། དུས་ཡུན། ས་གནས་བཅས་སྤྱི་འཐུས་རྒྱུན་ལས་དང་གོ་བསྡུར་ཐོག་སྤྱི་འཐུས་ཚོགས་གཙོ་ལྷན་རྒྱས་ཀྱིས་གཏན་ལ་ཕབ་པ་ལྟར་ཚོགས་དྲུང་ལས་ཁུངས་ནས་སྤྱི་འཐུས་སོ་སོར་ཚོགས་བསྐོང་བརྡ་ཁྱབ་གཏོང་རྒྱུ་དང༌། ཚོགས་འདུ་སྔོན་མ་གྲོལ་བ་ནས་ཟླ་དྲུག་ནང་ཚུན་ཚོགས་འདུ་རྗེས་མ་དབུ་ཚུགས་ཟིན་པ་དགོས་རྒྱུ།
The basis for the Speaker and the Standing Committee that they have to abide by local laws and international law (Article 6) is not correct as India was not under lockdown in August, 2020 and was already in Unlock 3.0 via Ministry of Home Affair order No. 40-3/2020-DM-I(A)[5] dated 29th July, 2020 where “Social/Political/Sports/entertainment, etc were permitted. …no restriction on inter-State and intra-state movement of persons and goods..”. There were no restrictions of travel all over India and international travel was also possible, however the concern that there is fear of Covid19 is valid but citing these two articles does not do any justice to the rationale of adhering to local law. And citing clause 2 of article 49 doesn’t even make sense as this article states that the Speaker has the right to postpone a session for a week in the absence of the minimum quorum required and has nothing to do with Covid-19 or suspending a session completely.
It is also important to note that Himachal Pradesh, where the Tibetan Parliament is based out of, held their Monsoon session from September 7th-17th, 2020.[6] This is not to say that the Tibetan Parliament should have held a physical meeting, however why they couldn’t explore other options whether it is virtual or at-least have ⅔ of parliamentarians participate or some hybrid setup is questionable. During the back and forth between the TPIE and TSJC, it was even mentioned that there is no provision which allows virtual meetings but there is also no clause which states that virtual meetings are not allowed.
The Supreme Justice Commission mentioned in their ruling that they were asking the Speaker and the Standing committee members to explore other options as I have mentioned above as postponing such a session is against the Charter as per Article 40 which states that, “A time period of six months shall not pass between the last session and the date appointed for the next session.”
Well, then the question arises, Covid-19 was unprecedented and never seen before and we should have some “flexibility”. True, however this is also the fault of the parliamentarians, as this is not the first pandemic, SARS had already happened in 2003. How many of us were angry when the WHO refused to allow Taiwan to be a part of the WHO pandemic response because they were prepared and had taken steps after the SARS pandemic in 2002. Why didn’t we?
TPIE had a one day session on March 17th, 2020[7] and it begs the question, why didn’t they work on something that would allow them some emergency amendment as Covid19 was declared a global pandemic on 11 March, 2020 before the 9th session was held and we had already seen an issue where a Tibetan MP was unable to participate in the March session due to Covid-19 namely MP Thubten Wangchen.[8]
At that same time, there is a legitimate question about Covid-19 and the risks associated with it, however when it came to Ven. Thubten Wangchen, the European and South America Tibetan MP, who was unable to attend the 9th TPIE session due to Covid-19 lockdown and a “State of Alarm” declared in Spain between 13th and 27 March 2020.[9] In some ways, Article 6 of the fundamental principles could have applied to him but the Speaker decided to use a rule which is not even in the Charter but part of the rules and regulations of the TPIE and replaced him.
How did Covid-19 not feature in MP Thubten Wangchen la’s removal but could be used by the Speaker and the Standing committee as a valid reason when they deem it necessary even if postponing was directly against Article 40 of the Charter of Tibetans-in-Exile.
The TSJC in its judgement passed on 25th September, 2020 took away the voting rights till 11 March, 2021 for the 11 Standing Committee members of the 16th TPIE and as such all of them were unable to vote during the preliminary elections on January 3rd. The 11 Standing Committee members voting rights being withheld was also upheld by the Election Commission and as such they were not allowed. The Speaker of the TPIE in the same discussion of the removal mentioned that they didn’t vote because they didn’t want to cause any issues rather than accepting the judgement which is an unconstitutional statement and he should be held in contempt of court but there is no TSJC.
Issue 2: Suo Moto.
Suo Moto, meaning “on its own motion” is a legal term where someone usually a judge or a court takes action without a prior motion or request from parties.
The TSJC has used Suo Moto under the Clause (i)[ཏ] of Article 69 of the “སྤྱི་མང་གཏུག་བཤེར་འགྲོ་ལུགས་རྩ་འཛིན་ཁྲིམས་ཡིག” (Public Interest Litigation Procedural Rules) which states[10]:
དོན་ཚན་རེ་དགུ་པ། གཞི་རྩའི་ཐོབ་ཐང་ལག་བསྟར་ཡོང་བའི་བདེ་སྙན།
[ཏ] ཁྲིམས་ཀྱིས་ངོས་བཞེས། (Suo Moto)
ཁྲིམས་ཞིབ་ཁང་ནས་བོད་ཀྱི་ཡུལ་མི་སུ་རུང་གི་གཞི་རྩའི་ཐོབ་ཐང་ངམ། ཁྲིམས་ཀྱི་ཐོབ་ཐང་གང་རུང་ལ་གནོད་འགལ་བྱུང་བའམ། སྤྱི་པའི་ཁེ་ཕན་ལ་གནོད་འགལ་བྱུང་བ་ཞིག་ཤེས་ཚོར་བྱུང་ཚེ། བྱ་རིམ་གཞན་ལ་བསྟུན་མ་དགོས་པར་ཁྲིམས་ཀྱིས་ངོས་བཞེས་བརྒྱུད། རྩོད་ལན་པར་བརྡ་ཐོ་བཏང་སྟེ་ཁྲིམས་ཞིབ་ཐག་གཅོད་བྱེད་ཆོག
The Public Litigation Procedural Rules (སྤྱི་མང་གཏུག་བཤེར་འགྲོ་ལུགས་རྩ་འཛིན་ཁྲིམས་ཡིག”) along with Powers of the TSJC, and Witness Guidelines after its first approval from His Holiness the Dalai Lama on March 28th, 1996 has undergone 5 amendments since then with the latest amendment on October 14th, 2019 which included the Suo Moto amendment and was given to both the Kashag and the TPIE on October 16th, 2019 and receipts were shown during the TSJC’s press conference, however just before secret voting, the Speaker of the TPIE said he didn’t see it which is an irresponsible remark to make in the parliament. All the parliamentarians are equally responsible for saying that they didn’t know about Suo Moto and discussing whether it is legal or not if it was already delivered to the parliament in 2019. If they believe that this amendment is illegal, what were they doing till now?
The TSJC quotes Article 67 of the Charter of Tibetan in Exile which states that: “Subject to the provisions of any law as specified in this Charter passed by the Tibetan Assembly, the Tibetan Supreme Justice Commission shall make its own rules of procedure and codes of law, and once it has unanimous support from Supreme Justice Commission and the other two commissioners and they shall come into effect.”
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།
The TPIE says that the judgement passed by the TSJC is illegal under Article 58 which states:
Article 58 – Non-Liability of the Proceedings of the Tibetan Assembly
- (1) Any manner of the proceedings of the Tibetan Assembly shall not be called into question by any Tibetan Justice Commissioner under the pretext of any alleged irregularity or discrepancy with the regulations.
- (2) No member of the Tibetan Assembly who is empowered under this Charter with regard to the conduct of business, regulation, discipline or for maintaining order within the Tibetan Assembly shall be subject to the jurisdiction of any Tibetan Justice Commission.
དོན་ཚན་ང་བརྒྱད་པ། སྤྱི་འཐུས་ལྷན་ཚོགས་ཀྱི་ལས་དོན་ལ་ཁྲིམས་ཞིབ་རྩད་གཅོད་མི་ཆོག་པ།
༡ སྤྱི་འཐུས་ལྷན་ཚོགས་ཀྱི་ལས་དོན་གང་ཞིག་ཚད་ལྡན་ཡིན་མིན་དང་ཐག་གཅོད་བྱེད་ཕྱོགས་ལྷན་ཚོགས་ཀྱི་སྒྲིག་གཞི་དང་མཐུན་མིན་ལ་བསྙད་དེ་ཁྲིམས་ཞིབ་ཁང་ནས་རྩད་གཅོད་མི་ཆོག
༢ ལྷན་ཚོགས་ཀྱི་འགྲོ་ལུགས་དང༌། སྒྲིག་གཞི་བཟོ་འགོད་བཅས་ཀྱི་ཆེད་བཅའ་ཁྲིམས་འདི་ཐོག་ནས་སྤྲད་པའི་དབང་ཚད་ལག་བསྟར་བྱེད་ཕྱོགས་ལ་སྤྱི་འཐུས་ལྷན་ཚོགས་ཀྱི་ཚོགས་མི་སུ་ཡང་ཁྲིམས་ཞིབ་ཁང་གང་གིའང་ཁྱབ་ཁོངས་སུ་མེད།
Article 58 states that TSJC cannot interfere in the internal workings and procedures of the TPIE but there is no statement which states that TSJC cannot make a judgement when it comes to the Charters of Tibetans in Exile as Clause 2(༢ )- subsection A (ཀ )Article 66 gives TSJC the authority over the “Interpretations of the wordings of the Charter of the Tibetans in Exile”.
དོན་ཚན་རེ་དྲུག་པ། ཆེས་མཐོའི་ཁྲིམས་ཞིབ་ཁང་གི་དབང་ཚད།
༢ བཙན་བྱོལ་དུ་གནས་རིང་གནས་ཡུལ་རྒྱལ་ཁབ་སོ་སོའི་ཁྲིམས་འོག་ཏུ་གནས་དགོས་སྟབས་ནག་ཉེས་དང་མཁར་དབང་རྩོད་རྙོག་གི་ཁྲིམས་ཞིབ་བྱ་རྒྱུར་འབྲེལ་བ་མེད་ནའང་གཙོ་ཆེར།
ཀ བཙན་བྱོལ་བོད་མིའི་བཅའ་ཁྲིམས་ཀྱི་ཚིག་དོན་འགྲེལ་བརྗོད་བྱེད་ཕྱོགས་ལ་བརྟེན་པའི་རྩོད་གླེང་དང༌།
As such, TSJC has the authority to interpret the Charter, whereas the TPIE is a lawmaker and cannot contradict the interpretation of the law by the TSJC as TPIE is a lawmaker and not the interpreter of law. If the legislative has voted a law which is not clear, the TSJC can/should interpret it. If the TPIE has an issue with an interpretation of the law, they are welcome to amend it but can’t interpret it.
During the 7th session of the TPIE from March 19-29, 2019, when Kashag Secretary Topgyal Tsering la was nominated by Sikyong as a Kalon and won 21 votes out of 43, the TPIE said that according to their own way of counting, 21 is 50% as they disregard fraction as 50% of 43 is 21.5. The explanation given by the Speaker in this news video(0:40 sec) is that “this is the way that we have always done”. Once a mistake is identified, it must be rectified and saying that this is the way we have always done is not a valid reason when the Charter says something else and you are willingly violating the Charter.[11]
དོན་ཚན་ཉེར་གཉིས་པ། བཀའ་བློན་གྱི་འོས་འདེམས།
འདེམས་ཐོན་ཐོག་དམ་འབུལ་ཟིན་པའི་སྲིད་སྐྱོང་དེས་རང་གི་བཀའ་ཤག་ལྷན་ཚོགས་སུ་བཀའ་བློན་ཇི་དགོས་མང་མཐའ་བདུན་ལས་མ་བརྒལ་བའི་མི་འགྲོའི་མིང་དང་ལོ་རྒྱུས་བཅའ་ཁྲིམས་དོན་ཚན་ ༢༡ པར་གསལ་བའི་འོས་ཆོས་ཚང་ལུགས་བཅས་སྤྱི་འཐུས་ལྷན་ཚོགས་སུ་གསལ་བཤད་དང་སྦྲགས་འབུལ་རྒྱུ་དང༌། དེའི་ཐོག་སྤྱི་མོས་བྱུང་ན་སྨོས་མེད། མ་བྱུང་ཚེ་སྤྱི་མོས་མ་བྱུང་བའི་འོས་གཞི་སོ་སོའི་ཐོག་ངོ་ཡོད་སྤྱི་འཐུས་ཡོངས་རྫོགས་ཀྱིས་གསང་བའི་འོས་ཤོག་འཕངས་ཏེ་འོས་འདེམས་བྱེད་དགོས། ངོ་ཡོད་སྤྱི་འཐུས་ཀྱི་བརྒྱ་ཆ་ལྔ་བཅུ་ལས་མ་ཉུང་བའི་འོས་ཤོག་ཐོབ་ན་བཀའ་བློན་དུ་འོས་ཐོན་གསལ་བསྒྲགས་བྱ་རྒྱུ། གྲོས་ཚོགས་སུ་སྤྱི་མོས་སམ་མང་མོས་ཐོན་པའི་རིགས་ལ་སྲིད་སྐྱོང་གིས་བཀའ་བློན་དུ་བསྐོ་གཞག་བྱ་རྒྱུ། སྲིད་སྐྱོང་གིས་བཏོན་པའི་འོས་གཞི་ཡོངས་རྫོགས་སམ་གང་རུང་ལ་མང་མོས་མ་ཐོབ་ཚེ་འོས་གཞི་གསར་པ་སྲིད་སྐྱོང་གིས་གོང་བཞིན་སྤྱི་འཐུས་ལྷན་ཚོགས་སུ་འབུལ་རྒྱུ།
The Article 22(above) states the nominee should not receive less than 50%, the TSJC wrote to the TPIE and Topgyal Tsering la’s nomination and appointment was cancelled as the TSJC didn’t allow him to swear in.
In what mathematical world is 21 more than 50% of 43, can someone please explain?
At that point, no-one from the TPIE questioned this move by the TSJC as this is a clear case of “Suo Moto”. If the TPIE is raising the issue of “Suo Moto” in their dismissal, the earlier action by the TSJC should have raised this issue and if they have not raised it, it shows the acceptance of “Suo Moto” in the Charter itself and the amendment in the Article 69 of the Public Interest Litigation is merely stating the obvious for clarity purposes as the power is already given to the TSJC under Article 66 as it states:
དོན་ཚན་རེ་དྲུག་པ། ཆེས་མཐོའི་ཁྲིམས་ཞིབ་ཁང་གི་དབང་ཚད།
༡ ཆེས་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།
Article 66 – Jurisdiction of the Tibetan Supreme Justice Commission(1) 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 high-est judicial authority of the Tibetan Administration.
The Speaker and a number of parliaments have quoted this article by using “ཞུ་གཏུགས” and mentioning that without any body asking the TSJC, they cannot act. However, they forgot to mention the second part of this clause, “བོད་མིའི་སྒྲིག་འཛུགས་ཀྱི་ཁྲིམས་འཛིན་གོང་ན་མེད་པ་དེ་ཡིན།” which states that TSJC is the highest judicial authority.
So according to Article 66, the TSJC has the authority over the interpretations of the Charter of the Tibetans-in-Exile as well as being the highest judicial authority and therefore whoever violates the Charter, be it the TPIE or anyone else, TSJC has the full authority to make judgements and uphold the Charter when it is being broken. This does not violate Article 58 which is about the proceeding in the parliament and not about the Charter.
Issue 3: Removal of the TSJC’s
Article 63, clause 4:
དོན་ཚན་རེ་གསུམ་པ། ཆེས་མཐོའི་ཁྲིམས་ཞིབ་ཁང་གི་ཁྲིམས་ཞིབ་པ།
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།
Under Clause 4, Article 63, the TPIE has the full authority to remove the TSJC’s and this is a right that has been given to them under the Charter. What is surprising is that there seems to be no requirement or guidelines for the impeachment process apart from a resolution which can be brought forth with no burden of proof. And how it was conducted via secret voting is also not clear and transparent.
The removal of TSJC according to the Charter of the Tibetans-in-Exile doesn’t seem to be illegal, however the resolution used to remove the TSJC’s has a lot of issues especially outlined above such as the usage of Article 6 and Clause 2 of Article 49 to postpone the Parliament session as well as the violation of the Article 40 which begs the questions, is the resolution itself unconstitutional.
There is also an ethical question here where the accused has not been able to present their case, in this case, the TSJC’s.
Footnotes:
- Tibetan Parliamentary session on the removal of the Tibetan Supreme Justice Commissioners. https://www.youtube.com/watch?v=D6nnaJBmZLI&feature=youtu.be
- Postponement of the 10th session press release by the Speaker and Standing Committee members. https://tibetanparliament.org/press-statement-of-the-tibetan-parliament-in-exile/
- Charter of the Tibetans-in-Exile. https://chithu.org/
- Tibetan Supreme Justice Commissioners Judgement on the infringement of the Charter by the 11 Standing Committee members. https://trimzin.net/
- India Unlock 3.0 Government of India, Ministry of Home Affairs dated 29th July, 2020: https://www.mha.gov.in/sites/default/files/Unlock3_29072020.pdf
- Monsoon session of Himachal Pradesh assembly begins under Covid shadow: Hindustan Times: https://www.hindustantimes.com/chandigarh/himachal-s-monsoon-session-begins/story-WvzUDQE1rb7YgpcDyxmOhI.html
- Tibetan Parliament Budget Session held for one day on March 17, 2020. https://tibetanparliament.org/budget-session-for-the-fiscal-year-2020-2021-will-be-convened-for-a-day/
- MP Thubten Wangchen Replaced: http://www.phayul.com/2020/04/03/43030/
- State of Alarm declared in Spain between 13th and 27 March, 2020. https://www.garda.com/crisis24/news-alerts/322816/spain-government-activates-state-of-alert-nationwide-amid-covid-19-march-14-update-6
- Public Interest Litigation Procedural Rules: Includes Suo Moto(Page 63): https://trimzin.net/
- Kashag Secretary Topgyal Tsering la’s nomination and Suo Moto judgement by the Tibetan Supreme Justice Commission and the interview with the Speaker of the Tibetan Parliament: https://www.facebook.com/watch/?v=2213671145563753
(Views expressed are his own)
The author is a digital security expert named among WIRED UK 2021’s smart list of 32 innovators. He is the Digital Security Program Director at Tibet Action Institute and is an aspiring candidate for the 2021 Tibetan Parliament in Exile from the Utsang constituency.
20 Responses
As per the Tibetan charter new commissioner have to take oath infront of TSJC. And where is TSJC? Removed…. I don’t see any exaggeration in above article. Who so ever is the author was very specific and with comparing to the charter to the point. I can and hope many will understand if legislation body had impeach TSJC in more civilized manner. I would have respect their decision, but the way they did all those part looks like they have taken the issue personally. Moreover in that particular time whole world are in pandemic. Means we are are also. It was high time for our legislation body to discuss and solve many problem our people are facing at the time. But where are our chitues hiding. They were supposed to be our voice and hope as they were only one we had elect. When they can’t come out when in need what are they for. Filled with grudges. Now where is Tsoktso. Resign this morning after dismantling our Administration. That is escapist. He should have done better then that.
Legislation Body is the heart and brain of Democracy. It can impeach Sikyong and any officials but itself. In my opinion, Legislature as a body (not individual legislatures) even stands above Constitution. It can amend existing constitution and add new ones as it wishes. When people fail to respect Legislation Body, when people feel legislation body is misleading or breaking the laws, there is no where to turn except communism. Supreme Justices can be removed and replaced, Sikyong and Kashaks can be removed and replaced but not legislation body (45 MPs). When 2/3 of majority rule in Legislation Body, that is the final in Democracy whether we like it or not. 2/3 majority can eve over turn presidential Veto power. That is the highest power in Democracy.
What a misleading article. This article is not just fabricated but totally incorrect about the what has happened to the Supreme Court Justices.
Superb! Lobsang Gyatso Sither la.
Of course the Supreme court can use suo moto without being appeal by any party. However, suo moto cannot apply on legislative assembly because there is no ground of exercising such power. The Indian Supreme court has used suo moto whenever there lies controversial conflict with the government and to protect public interest. It has never interfered the function of the parliament and also induction of minister unless opposition party approach to the court. The exile Supreme Justice commission had unnecessarily interfered and awarded penalty to the Executive members of the legislative Assembly. It was totally unprecedented and such thing never happened anywhere in the world. In most of the countries, suo moto is provided within the constitution whereas the exile Chater does not provide such authority to the Supreme Justice commission. There is no chapter, clause or sub-clause in the exile Chater that grants suo moto. It was included within the clause of the public litigation and allow to exercise only if all three Judges are consensus. Suo moto, what it mean and in reality how it apply by the court is always not same in every country and depend upon the system of democracy. The exile Supreme Justice Commission had earlier misused suo moto authority and rejected taking the oath of the person who was unanimously approved by the members of the assembly to be inducted into the cabinet. It had repeatedly misuse suo moto and acted as dictator. In fact, suo moto is an authority that gives court a power where no one can challenge it. However, suo moto has to be a provision of the constitution or Charter unlike the judges issuing a document and giving power to themselves without the approval of the legislative assembly.
Lobsang la,
I must say that you’ve done commendable job here. Your research is thorough and citations of the Charters and Articles certainly pinpoints where things went wrong. Mention of some of relevant past events also showed some of discrepancies in the application of the laws. I must say, that we have a lot to learn. Without any propaganda or political interest, I would say that your article needs to be read by every Tibetan who can read for themselves and for others who can’t.
I hope we have more of your mind in the Tibetan Politicos. We need our representatives who understands entire law and respects it over their egos.
The amount of exaggeration and misinformation spread in this article by stating “removing one pillar of democracy” is totally uncalled for. The fact is the three justice commissioners were removed following the Charter and by 2/3rd vote of the parliament. New commisioners will be reinstated soon. The authority of the TSJC is still intact.
Who is going to take oath of chief justice? If there is conflict with Election commission during the April 11 election, who will resolve the issue? There are multiple issues that are created by TPiE which they failed to anticipate.
This article is so problematic and so flawed.
We all agree this is an unprecedented move by the TPiE. However, it was a legitimate move as pointed out by the author himself. TPiE did not do anything that was unconstitutional. The proceeding was conducted within the framework of the power afforded to Chitue by the constitution. What transpired before and after is immaterial to this case. The constant reference to Tsering topgyal la and the attempt to paint this event in a more sinister angle is not helpful for Tibetan democracy.
The suggestion to have another body (other than the legislature TPiE) legislate amendments is outrageous. Did the author sit down to reflect on the implication of his suggestions or did he get confused while writing this lengthy hogwash? Reinstatement is out of question. They can get the position back with the next admin or the next parliament but there resume must reflect this termination or break in employment.
I like to express my heartfelt thanks to Losang Gyatso Sither la, one aspiring and deserving Chitue candidate, for his thoughtful analysis of the issue pertaining to the unfortunate removal of the three Justice Commissioners in a shameful manner. Mr. Sither has done his homework in order to present his perspectives and also provides various documents and web links to support his statement. The exile community is in dire need of Chtues like him who will not rush to decision without careful examination of the issue at hand. He has proven that he can be a Chitue who makes his decision based on research, analysis, and consequential thinking.
I urge you all to support his candidacy so that reasoned thinking may previal. My hats off to him. Please support and elect him for the next TGIE.
A very mature and smart piece involving a substantial questions of and legality.
What TPIE did on 25/03/2021 was shameful and very unfortunate. It stank regionalism, political and personal vendetta and devoid of political wisdom, democratic values and a spirit of decency!
It stank of regionalism? Two third majority of the parliament voted yes on this resolution, TPiE members voted across provincial lines to pass the resolution. If anything this demonstrated solid unanimous consensus.
གྲོས་ཚོགས་ལ་མཐའ་གཅིག་ཏུ་ངོ་རྒོལ་ཡོད
I don’t think such an elaborated explanation of what happened and on who’s clearly on the wrong side. But given the current circumstances, without the Judiciary and Parliament in break, who will address our situation. Therefore, I have started a petition of ‘Change.org’ title “Reinstatement of Judges of Justice Commission” so that we can submit the signatures to the standing committee for a loud and clear message that so many people are unhappy on your proceedings of impeaching the three judges.
Therefore, friends please don’t forget to sign the petition. Here is a quick link of the petition http://chng.it/KV6gBXyK
Best
Lobsang la, what do you think of Article 54 that says no discussion or debate shall be held in the TPiE with respect to the removal or conduct of the Chief Justice Commissioner or any of the other two Justice Commissioners of the Tibetan Supreme Justice Commission (TSJC) except after a committee constituted by the Tibetan Parliament for the purpose had submitted its enquiry report thereon. Does this bring into question the legality of the motion put forward without a committee set in place for that purpose since you said “ The removal of TSJC according to the Charter of the Tibetans-in-Exile doesn’t seem to be illegal”. Please share your thoughts.
Thank you for speak on behalf of our general public.. my family vote goes to u .. we need a members of parliament like you . Heads off to u ..best of luck
Tibetan democracy is did not start from grass root level. It is given from top but our public are left without eyes and brain to avail this opportunity. My parents and grandparents were illiterate in both Tibetan language and foreign language because our leaders have no interest to educate our Tibetan public in Tibet and in exile. All Tibetan schools are initiated by Indian Prime Minister, Nehru to exchange Tibet for Indian defense to China.
This Tibetan crisis is exist only in Dharamsala and settlements in India. Tibetans living abroad and Northeastern parts of India have little or no interest in Tibetan politics of Dharamsala because our leaders have created little or no interest to persuade Tibetan language and culture to Tibetans.
Good job brother. That’s how democracy works.. people power.. keeping fingers crossed for you to be in the next session of the parliament.. 🙏🏼
1. If kashag can constitute a commission to review parliament’s decision, that places kashag above parliament. I don’t think that’s the equation in our constitution.
2. If the commissioners can be reinstated through voting, then it should be allowed for all positions of the Govt.
That does not make sense.
Then, selection and appointment process of Govt. Officials will be in jeopardy as anyone impeached or dismissed can be reinstated by an act of parliament.
Usually such case of wrongful dismissal are arbitrated in court. Example, PT case. As for this impeachment, there is no grounds to make an argument for wrongful dismissal. If the parliament does not want their services, it is the parliament’s decision. That’s why both PT and the commissioners did not seek reinstatement. This is because they have no avenue to do that. The former served at Kashag’s pleasure and the other at parliament’s.
The same commissioners can now only be reappointed through the same process they were appointed earlier (unless there is a clause banning such reappointment). It cannot be short-circuited this way. That would set a wrong precedent.
3. The parliament is the only institution that can make constitutional amendments. Suggesting that external advisors or experts do this job, is like suggesting that the parliament’s job be given to another agency. Then, why would we need a parliament. Why would we need MPs like him. An expert could and would do a better job.
Of course, they can advice but they cannot be the ones to make changes.
4. Suggestion about a constitutional bench of “four pillars of democracy” review the constitution is a joke. It totally exposes the speaker’s ignorance about simple things about democracy.
He wants to bring media (OMG) into a constitutional bench? He must be joking!!!
If everybody has a hand in making and interpreting law, what is the purpose of having a parliament and a judiciary. Let’s have a fish market!
How did this guy become an MP? He does not know even the ABCD of democratic Govt.
Please think and research before speaking.
PT was working as an employee of Kashag in the Office of Tibet hence he could be fired from his post. The only reason it became an issue was because they provided reasons (later deemed to be incorrect) for his dismissal which they really didn’t need to. The TSJC is an independent 3rd pillar of a democratic govt. The commissioners are not employees working under the Parliament but as equal with both the Kashag and TPiE. TPiE does have the power to impeach, but a proper procedure must be followed with proper basis in accordance with the charter If not, it is all a moot point. If the Parliament can now make and interpret laws, what’s the point of a judiciary then? The parliament itself could be the legislative and judicial body. Might as well start a fish market there as well. Seems like you chose a fitting username. Please think and research before speaking.