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Opinion: The Tibetan Justice Commission Conundrum

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Chief Justice Commissioner Sonam Norbu Dagpo (C), and Justice Commissioners, Karma Dadul (L) and Tenzin Lungtok (R) address the press on Friday in Dharamshala (Phayul photo)

Separating the wheat from the chaff

By Tsering Wangyal

On Thursday, 25th March 2021, the Tibetan Parliament in Exile (TPiE) impeached the Chief Justice Commissioner and the other two commissioners of the Tibetan Supreme Justice Commission (TSJC) via a quick floor test. Many called this event a constitutional crisis, a ‘hurried decision’, ‘political vendetta’ and many other things.

What is essential during such instances, when there is a general lack of clarity, is the ability to be objective, rely on facts and reason, exercise restraint from jumping to conclusions, and the use of critical thinking skills to analyse arguments on both sides and separate the wheat from the chaff. As the saying goes, “you are entitled to your own opinions, but you are not entitled to your own facts”.

Whenever a crisis like this happens and many parties are involved, there is always plenty of blame to go around. No party is “doodh ka dhula hua” (beyond reproach). However, it is not worth spending excessive time debating who is entirely to blame when both parties have erred at some level or other. Instead, it would be more purposeful to focus on the more significant issues, such as analysing different points of view regarding the interpretation of the constitution and gaining clarity about the role and function of these two bodies of government involved in this particular case.

However, it would not be wrong to say that the inflexibility and the severe action of the Tibetan Supreme Justice Commissioners is the main progenitor of this crisis. The harsh reaction of the Tibetan Parliament in Exile (TPiE) has indeed precipitated this crisis further. Thus, a fair assessment would be that both are in the wrong. Blaming one and acquitting the other would be partial and therefore, unjustifiable. However, it must be mentioned that TSJC could have been more flexible and averted this issue altogether in the first place by not being too pedantic and literal about interpreting and enforcing the law. Once they had done what they did (i. e. disenfranchise the parliament leaders), this showdown was inevitable. And the conclusion, in my view, also pretty much foregone.

So first, let us begin with the genesis of this issue, i. e. the postponement of the parliament session. Now there can be many views on whether such a postponement was constitutional or not. However, if you were like me (holed up in your house and living in fear of contracting Covid-19 and dying), it would be quite unreasonable to expect and demand that the parliament members travel and meet for sessions because it is written in our charter that they must do so (and thus, endanger their lives). Now you may argue that we must respect the charter as it is our constitution. But, in that very parliament, we have an MP who has refused to accept this commission’s rulings for years and nothing has been done to him. The very same people who have rushed to defend the TSJC today in the name of justice, have not said a word about this person’s clear and flagrant disrespect to the court’s rulings. So clearly, it is not just about justice and rule of law when they protest this unceremonious removal. We all should be able to see through that.

Of course, the parliament could have been convened online or held in a hybrid manner – some members online and some participating in a face-to-face setting. But that would have required some logistical arrangements. But this is not as easy as we think it is.  However, the moot point here is, should the parliament leaders be allowed to postpone the parliament session due to dramatic events like war and pandemic?  Although the charter says ‘No’, we must remember that when this charter was written, there was no Covid-19. And logic tells us that extraordinary circumstances do indeed call for extraordinary measures and considerations.

So, what should the commissioners have done under such an extraordinary circumstance? In my view, they should have tried to appreciate the intent of the charter and applied common sense.

The intent behind scheduling time-bound sessions is to ensure that the legislature’s work (such as the passing of new laws, reviewing old ones, etc.) continues without interruption. It is also to ensure that the executive body’s work (Kashag for us) is scrutinised closely by the people’s representatives and that they are held accountable. You may have seen ministers being asked questions and made to provide facts and explanations in parliament for that purpose. When sessions are postponed, the executive escapes the scrutiny of the parliament. Recently, the Indian parliament cancelled its winter session. Many accused the Modi government of doing this specifically to skirt the parliament’s watchful eye and escape its scrutiny over pressing issues like farmer agitation.

However, in this instance, that is clearly not the case. The request for postponement of parliament session by the leaders was very legitimate and consideration worthy. Therefore, even if constitutionally it was okay for the commission to take this issue up “suo moto” (we will talk about this later), it could have been more flexible and granted this rare exception with a promise from the parliament leaders to hold the session as soon as it is feasible. However, here they did not exercise such flexibility.

Instead, what they did was add fuel to the fire. Not only did they reject the parliament leaders’ proposal, but they also proceeded to disenfranchise the parliament leaders from the upcoming elections and threaten them that their right to stand for election as candidate could also be revoked. This was a totally uncalled for escalation on their part. They could have censured these leaders or done anything else but disenfranchise them.

Disenfranchisement is not a minor action. It is a very drastic step. It is a direct attack on the individual leader’s political rights. It diminishes their standing in politics and society. It is also an attack on their office’s dignity and authority. Who, in right mind, would vote for a person who himself or herself is not allowed to vote?

In short, it was a case of what we call, my way or highway. Since the argument is about who has what authority, it is a de facto declaration of a turf war. Both parties were at loggerheads about this for quite some time. The TSJ commissioners did what they could. And now, the TPiE leaders have done what they can. This is a classic tit for tat situation. Both parties have either created or added to the crisis. Therefore, both are responsible for this mess.

If we want to get to the heart of this conflict is the debate, we must examine whether the TSJC was right in taking up this case on its own when no one was asking them to take up this matter. We have to analyse whether they were engaging in a judicial overreach aka judicial activism when they punished the parliament leaders? Did they have the jurisdiction to do so?

The commissioners claim that they have such jurisdiction based on their “suo moto” power or authority. On the other hand, the TPiE leaders claim that the commission does not have such power according to the constitution. The TSJ commissioners further argue that based on their latest revision of The Public Litigation Procedural Rules along with Powers of the TSJC, and Witness Guidelines in 2019, which was carried out by a committee of experts they appointed, they were granted this power.

It is here that the matter really gets interesting if you are a law or constitution nerd. It also calls for a good reading of Article 56 of the charter which delineates the TSJC’s jurisdiction.

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. In shall be the highest judicial authority of the Tibetan Administration.
  2. As all Tibetans in-exile are required to adhere to the laws of the respective host countries, the Tibetan Supreme Justice Commission shall have the primary authority to inquire into the following types of cases, except those that a civil and criminal in nature:
    1. cases involving interpretation of the wordings of the charter of Tibetans in-exile;
    1. cases involving the conduct of business of the executive departments or civil servants of the Tibetan Administration;
    1. cases involving redressal of grievances regarding the services of civil servants of the Tibetan Administration and such institutions under its jurisdiction;
    1. disputes involving land and property of the Tibetan settlements;
    1. cases of arbitration involving Tibetan communities regarding social welfare and security;
    1. pronouncement of judgements in types of cases other than those specified in this Article; and
    1. shall have the authority over and offer guidance to the Tibetan Local Justice Commissions and the Tibetan Administration in regard to their conduct of business involving legal matters.

It is obvious that there is no mention of the TSJC having “suo moto” power in the charter. Thus, we can conclude that charter does not bestow the TSJC “suo moto” power.

What is “suo moto” power?

In law, “suo motu” refers to the power or authority that courts avails to take cognisance of cases on their own without formal prompting or request from any party seeking the court’s intervention. In plain words, this gives the court the power to take up a case without anyone asking for its arbitration. Those who have supported courts having this power have argued that this allows the court to help those who really cannot seek the court’s help on their own. Those who have opposed courts having such power cite judicial activism which can cause interference in the work of the executive and the legislature (as evident from this case). Thus, arguments can be made to support both the views. Therefore, I shall wade no further. If we grant the courts “suo moto” power, we have to bear with judicial activism. If we do not, of course, a certain section of society may be deprived of justice. Either way, there is a price to pay.

But it is at this juncture that the TSJC bring up Article 67 of the charter. So, let us read Article 67 first.

Article 67- Rules of Procedure and Code of Law of the Tibetan Supreme Justice Commission

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 approved by His Holiness the Dalai Lama, they shall come into effect.

According to the commissioners, this article of the charter grants them power to “make its [their] own rules of procedure and codes of law”. They argue that in 2019, based on this provision of the charter, they made a new code of law (in my view is made a new law) and granted themselves “suo moto” power following the recommendations of an expert committee that they had set up earlier. Technically, this seems to me to be a case of conflict of interest. You do not want to be in a situation where you constitute your own experts committee to grant yourself more powers. It just does not sound proper, does it?

It is here that I think the TSJC made its first big mistake. They misinterpreted making the “codes of law” to be the same as making “law”. The task of making the “codes of law”, if I am not wrong, means codification or demarcating clearly what falls within the purview of a specific law in the constitution/ charter. In other words, it is interpreting what a law entails in as exhaustive a way as possible. If the charter really wanted to grant TSJC the power to “make laws”, then this article will not be phrased as make “codes of law” which refers to codification but simply as “make law”.

Another way to explain “making codes of law” would be, for example, if the charter grants all Tibetans “freedom of speech”, the process of making “codes of law” would entail deciding what falls under the purview of this “freedom of speech” right and what does not. Thus, making “codes of law” refers to the interpretation of laws aspect of the commission’s job. It does not refer to and grant it the power to make new laws. That was a gross misinterpretation on the courts part. If “freedom of speech” was not enshrined in the constitution or charter, the commission cannot make ‘codes of law’ granting freedom of speech to Tibetans. That would be unconstitutional. It is the parliament’s job to make laws and grant power/authority through the constitution, not the judiciary’s purview. If the judiciary can make laws, there is no need to have a parliament. A simple exercise of logic would tell us that such an interpretation is totally erroneous.

As for the “rules of procedure” phrase, this should refer to the process how justice is to be carried out. It has nothing to do with making of new laws or self-granting of new powers. All the powers of the TSJC, parliament and Kashag are derived from the constitution. If there is no mention of such power or authority in the constitution/charter, these bodies cannot grant themselves new powers through committees that they themselves have appointed (expert or non-expert).

The antecedent clause of Article 67, “subject to the provisions of any law as specified in this charter passed by the Tibetan Assembly”, clearly preambles that TSJC must act within the purview of the constitutional power granted to it by the Assembly through the constitution. It is subject to “the provisions of the laws specified in the charter”. Therefore, if the “suo moto” power does not exist in the constitution, there is no avenue for the judiciary to self-grant such power to themselves through any process of codification. Any new power or law must be first endorsed by the parliament.

To justify the self-granting of “suo moto” power, the commissioners during their most recent press conference used the example of other countries’ judiciary possessing and exercising similar powers. However, what they have failed to mention is that these courts are explicitly granted this power in their respective constitutions. In ours, the TSJC is not.  

If we read Article 62 of the charter, it is evident that TSJC is not meant to be like the Indian or US courts. It says clearly in the article that it is “vested with judicial powers suitable to the temporary and special needs of the Tibetan Administration and citizens in-exile”. So the commissioners can not make a case that other courts have such power.

You can read Article 62 below.

Article 62 – Tibetan Supreme Justice Commission

“There shall be a Tibetan Supreme Justice Commission vested with judicial powers suitable to the temporary and special needs of the Tibetan Administration and citizens in-exile.”

Of course, it seems very much true that the commission did indeed update the TPiE and other stakeholders through correspondence after self-granting themselves this power. However, whether due to the parliament leader’s or their office’s oversight or negligence, it was either not noticed or ignored when noticed. That was a big mistake on the TPiE’s part.

A keen eye for detail when examining important documents on the part of the parliament leaders or their office would have and should have immediately noticed this misinterpretation. The TSJC could have also alerted the concerned offices about the important changes in the document by highlighting the revised sections. Maybe they did. Maybe they did not.  At least, this is what I do as a practice when I make changes to a shared document to draw the reader’s attention to the latest changes. So, those responsible for such acts of omission or commission should be held accountable. Lame excuses like I was out of office by the speaker does fly as it is an act of negligence.

When the TSJC granted itself “suo moto” power, the parliament leaders should have been alert or alerted. And they should have immediately checked this move as it is unconstitutional. The fact also remains that the commissioners too should have known better. They are supposed to be the expert authorities of the constitution. They should have known that self-granting of such power and authority is neither the function nor the purview of the judiciary. I am not in any position to prescribe any other motive to this mistake except lack of expertise. But it was indeed an error of judgement on their part.

Now I have read and heard many debates about the process of this impeachment. Some have argued that the way this bill was presented and passed was very sudden and rushed. Some say that it could have been deliberated at a greater length. Some MPs have claimed that they were caught unawares when the motion to impeach was introduced. And the holding of secret ballot did seem a bit ‘cowardly’. All these points are legitimate.

On the other hand, others have argued that secret ballot is allowed under the constitution. So, the MPs were only availing their constitutional privilege. Whether rushed or not, the result was not going to change much even if the debate was extended. It was a showdown in every sense. I am also told that many bills and resolutions are introduced and passed by the parliament in this very same manner. So, it was nothing unusual transpired. Now I am in no position to say who is telling the truth. It seems arguments can be made to defend both sides in this regard. So, let us go back to technicalities again.

If we watch the 40 odd minutes that the MPs debated this motion, nothing substantial was ever said by those who opposed this move. Nor did those who moved the motion show an appetite for debate. Even after the passage of the impeachment resolution, except for making accusations of ‘political vendetta’, no clear arguments or worthy objections were presented. One MP even opined, “Who will check the parliament then? We should have the means to impeach MPs and the parliament?” Such ignorant remarks betray the MP’s fundamental ignorance about how a parliamentary democracy works and what is written in the charter.

As you may know, MPs can already be disqualified under Article 57 of the charter. A careful reading of the charter would have revealed this. Asking for the power to impeach the parliament to be granted to another body is tantamount to asking for pathways to undermine the very foundations of democracy. It is akin to asking create provisions to facilitate a political coup d’état! Parliament can only be dissolved when certain conditions are met. An example would be – the end of term. The parliament cannot be impeached in a democracy. These are the ABCDs of democracy. An MP should know better!

I have also heard people making the argument that the process should have been longer and consultative. In some ways, I do agree with them. However, since both parties cannot see eye to eye and fundamentally disagree on this matter, something had to give. There can be only one – not two interpretations of the commission’s powers and the charter. Therefore, using the power to impeach the commissioners was a quick way for the TPiE leaders to resolve this issue. The reason why the TSJC members did not challenge the constitutionality of their dismissal is because they know that they have no grounds for that. They know very well that they serve at the parliament’s pleasure and approval.

As for the way this impeachment was carried out, I do agree that not everything was done appropriately, though constitutional it may have been. However, as I said earlier, it was the only logical conclusion possible under these circumstances. How long can a crisis like this, when the two pillars of democracy do not see things eye to eye, be allowed to stretch when there is no authority under the constitution that can arbitrate their dispute? The parliament leaders did not hesitate to action. Perhaps, they did not want to prolong their own humiliation for long.

Now that both parties have done whatever they wanted to do, the most important thing that we must do is to settle very clearly in the constitution whether we want the commission to have “suo moto” power or not.  This job, if you have watched the live sessions, was not so well done. The parliament should have ensured that all such ambiguities in the charter are removed.

Another big aspersion cast seems to be whether this was a case of “political vendetta”. An MP hinted to this effect on the floor of the parliament. I, personally, will not characterise it as an act of vendetta. However, this is definitely a turf war. The parliament and judiciary were at loggerheads over what fell within their purview and power. Once you have such a clash, the stronger party will definitely punch back harder. So, the person or the party that instigates such a confrontation must be ready and willing to bear the consequences. These are all experienced and educated administrators and politicians that we are talking about, not uneducated folks. So, they would have surely studied the situation and foreseen the repercussions of their actions before they started this confrontation. If the commissioners had really expected the Chithue leaders to put their tails between their legs and meekly obey them after their humiliation through disenfranchisement, they were naïve. They grossly miscalculated their opponents’ capacity to carry out this confrontation. One simply cannot expect the opposing party to take things lying down after having punched their nose.

I have also come across an article on a popular Tibetan website where an aspiring MP makes four very ridiculous suggestions. I will not make this article any longer by quoting him. Please read his article for his suggestions. Here are my quick rebuttals to them.

  1. If the Kashag is given the power to constitute a commission to review the parliament’s decision, that places the Kashag above the parliament. I do not think that is how the power equation is envisaged to be under the present charter.
  2. If the commissioners can be reinstated through a majority vote in a future parliament session, then every impeached person will demand this privilege. This does not sound very practical. Usually, cases of wrongful dismissal are arbitrated in the court (commission in our case). However, regarding this impeachment, there are no grounds to make an argument for wrongful dismissal. If the 2/3 majority of parliamentarians want to impeach the commissioners for whatever reasons, it is constitutionally within their right to do so. There is no written law or rule that deems that a certain amount of time needs to be spent debating this impeachment first before passing such a motion or certain requirements bet met.  
  3. The parliament is the only institution that can make constitutional amendments. Suggesting that external advisors or experts be assigned to do this job is offshoring the parliament’s duty and responsibility. If the parliament and its MPs cannot do their job, what is the point of having a parliament and a house full of MPs?
  4. His fourth suggestion about forming a constitutional bench of the “four pillars of democracy” is nothing short of hilarious. Is he serious about inviting the media to help resolve the issues of “substantial question of law in its interpretation”.? If everybody needs to be given a hand in making and interpreting the law, then, what is the purpose of having a parliament and a judiciary?

The writer and many others have cried wolf and claimed that the third pillar of democracy has been dismantled through this act of the parliament. I think this is a gross mischaracterisation. In truth, only the three justice commissioners, who are officers of this commission, have been removed. The TSJC still exists, and its mandate has not been abolished. Therefore, in PK’s words, I would say ‘yeh aapko firki le raha hai’ (they are taking you for a ride)!

The writer also argues and misrepresents that “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”. This clearly shows that he did not understand or read Article 58 properly.

So, let us read Article 58.

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.

Clause 1 states clearly that TSJC cannot “call into question” “any manner of proceeding” of the parliament “under the pretext of any alleged irregularity or discrepancy with the regulations”, how clearer can things be that the TSJC has indeed overstepped its jurisdiction?

Clause 2 states clearly that “no member” of the parliament “shall be subject to the jurisdiction of any Tibetan Justice Commission” “with regard to the conduct of business, regulation, discipline or for maintaining order within the Tibetan Assembly”. Isn’t when the parliament sessions should/could be convened related to the “conduct of [TPiE] business”?

This morning, I happened to hear two gentlemen on VOA opine and quote Article 54 to support the commissioners and say that their removal contravened this article of the charter.

Let us read this article first.

Article 54 – Restriction on Discussion

No discussion or question shall be raised in the Tibetan Assembly with respect to the conduct of the Chief Tibetan Justice Commissioner in the discharge of his or her duties, except in regard to the issue of removal of the Chief Tibetan Justice Commissioner made by the findings of a Committee especially appointed by the Tibetan Assembly; and upon its recommendation to and with more than a two-thirds majority of the total members of the Tibetan Assembly, and with the approval of His Holiness the Dalai Lama”.

Here too, in a haste to support those whom they want to support, the gentlemen forgot to pay attention to the title header and the language of the article in the charter.

Firstly, the title header clearly says, “Restriction on Discussion”, not “Process or procedure for the impeachment of the TSJC”. If this were a law discussing the process or procedure of the impeachment of TSJC, it would surely be entitled so. It would not have been hidden so inconspicuously in the phrasing of another law under another header as it is too important an aspect of the charter to be written thus. Thus, all argument presented to make a case that a committee must be formed by the parliament to impeach the commissioners is plain bogus.

Most importantly, here again, the antecedent clause, “No discussion or question shall be raised in the Tibetan Assembly” makes it very clear that what this article is restricting is “discussion or question” of the conduct of the Chief Tibetan Justice Commissioner in the discharge of his or her duties. In a way, this could explain why there was not much discussion or debate about the matter in the parliament. It would have contravened the charter.

However, much to my astonishment, the very same speakers in the very same radio interview proceeded to argue further that a lengthier debate should have been held in the parliament before the impeachment process. And that too, with a similar level of high confidence and conviction and of course, very little sense of irony and hypocrisy. It was alarming that such self-contradiction was not noticed by the journalist of the reputed radio channel interviewing them! (Maybe it is because it was early morning!) My rejoinder to the two speakers is that you cannot always have your cake and eat it too?

Article 54 of the charter does not forbid the tabling of the motion to impeach the commissioners or their removal by the parliament in any way. Article 54 only states that, “no question or discussion” can be held “with respect to the conduct of the Chief Tibetan Justice Commissioner in the discharge of his or her duties” in the parliament. Only exception granted is the allowance to “discuss and question” the findings and recommendations of an appointed committee “looking into the issue of removal of the Chief Tibetan Justice Commissioner” is granted. This article does not mandate or imply in any way that the commissioners can only be impeached based on the findings of a commission appointed by the parliament.

Laws are written and phrased as accurately as possible and in a certain way so that they cannot be subject to easy misinterpretation. So, people must read carefully before they comment on laws.

The speakers on the radio show even argued that article 6 or some other article (that I did not catch clearly) characterises the TSJC as a place of arbitration and justice. Therefore, the speaker of the parliament’s statement that it was a commission; not a court, was wrong. The logic he offered was that “where else can one seek redress but a court”. That was just a marvellous specimen of facile logic. The interviewer also did not challenge this patently fallacious logic. If all the places where one goes to seek redress is a court, then following such logic, the settlement officer’s office must also be a court too. The village panchayats should also be considered a court.

To summarise things, many arguments are floating around in the public regarding this event. Therefore, it is important that one does not easily believe people who claim to be experts to be purveyors of truth and unbiased opinions. It is crucial, to follow Lord Buddha’s advice. Examine things as closely as the goldsmith inspects gold. Hear, examine, and contemplate until you are sure that you have arrived at the truth.

This advice applies to what I have said in this article too.

Sarva Mangalam!

The translation of the Tibetan Charter was sourced from the Official website of the Central Tibetan Administration available at https://tibet.net/wp-content/uploads/2011/06/Charter1.pdf. This is the 1991 edition. Whenever possible, the writer has also read the Tibetan version of the charter. He finds that the translation done is accurate to the best of his knowledge.

(Views expressed are his own)

The writer is an educator and a researcher based in Singapore.

46 Responses

  1. If Buddha says ” Do not take my words as granted before you do your own satisfactory examination” then how one can say, honourable Samdhong Rinpoche’s opinion is the final and no need to seek truth further. In fact, honourable Samdong Rinpoche believe suo-motu exist in our charter because he said, TSJC is the supreme authority that did not convince me. There are countries in the world including Canada whose supreme court is the supreme authority but they don’t have suo-moto provision in the constitution. On the contrary, the TSJC admitted for not having provision of suo-moto in the charter when it summoned former Chithue Lobsang Chonjor for the court hearing and documents of the hearing would be the best evidence. Mr. Chonjor expressed this in his self prepared live video but later he accepted his ignorance about Charter after being heard Rinpoche’s interview which is something weird or absurd. There are more to know if we keep open heart and put little effort to hear all episode from the both sides before reaching to conclusion. Chithues have the reasons and explanation about article 54, 58, 67 and Public litigation clause 69 of the regulation. Their official response did not come at this moment but will come definitely sooner or later. Unfortunately, attack on them already started and asking their resignation or reinstate Supreme Commissioners. If they choose resignation, they will be labelled escaping from the critical time, and demanding reinstate means politically putting pressure on them to accept constitutional break down whereas no one says we had democratic crisis because TSJC deprived voting rights of all Standing Committee Members during the preliminary election. If TSJC claims it is the supreme authority that guards constitution then the democratic right to elect one’s of Syikong has to be protected instead using it for punitive.

  2. “But, in that very parliament, we have an MP who has refused to accept this commission’s rulings for years and nothing has been done to him.” Firstly, for the sake of argument, if we assume this is true, understand that two wrongs do not make a right. Tomorrow, if everyone uses the same logic to denounce the verdicts handed down by TSJC, what will happen to our democracy? Secondly, please spend more time researching the facts and evidences before writing anything about an issue. The MP in question has not refused to accept commission’s ruling. It was more a problem of CTA not being able to act on commission’s ruling because of the judicial flaws on the ruling itself.

    1. Firstly, you don’t have to assume for the sake of argument. It is true.

      Secondly, no need for us to wait for tomorrow. That person has already set the precedent, so the question should be directed to him and the TSJC.

      Thirdly, your explanation trying to shield the MP for disrespecting the judgement of the TSJC and diverting the blame to the CTA, is hilarious. You need to get the facts and logic right; not me.

      1. What I have said here is based on a thorough research. If the MP in question has really disrespected the decision of TSJC, his electoral rights should have been revoked by now, and he won’t be an MP. Why is there no action on him by TSJC? Did you ever ask why Kashag led BY Lobsang Sangay could do nothing even after this many years of Khampa chithues ganging up on him on this issue at the parliament? I know you don’t have the facts. But what does your logic say about this? BTW, having worked in CTA for more than 10 years and having followed this case very closely and objectively right from the beginning, I am pretty sure I have my facts right. So keep your advice to yourself.

  3. @Doji La, I have not purposely evaded any question. Sometimes this forum does not have a reply button. You can check. Your comment does not have a reply button. So answers become disjointed. If you scroll, you will see I have tried my best to answer whenever and wherever possible.

    If I don’t know much about a certain thing, I refrain from commenting. Let’s deal with the two points that you raised.

    “One of the Chithues complained why they weren’t provided the briefing regarding the TSJC issue in the morning like they always do.”

    I think, if you read carefully, I have written that it was a valid criticism. But, I have also written that I have been told that was the way some bills in past have also been passed too. So please read carefully first – line by line, point by point. Then, make valid criticism.

    Here are the paragraphs for your reference.

    Now I have read and heard many debates about the process of this impeachment. Some have argued that the way this bill was presented and passed was very sudden and rushed. Some say that it could have been deliberated at a greater length. Some MPs have claimed that they were caught unawares when the motion to impeach was introduced. And the holding of secret ballot did seem a bit ‘cowardly’. All these points are legitimate.

    On the other hand, others have argued that secret ballot is allowed under the constitution. So, the MPs were only availing their constitutional privilege. Whether rushed or not, the result was not going to change much even if the debate was extended. It was a showdown in every sense. I am also told that many bills and resolutions are introduced and passed by the parliament in this very same manner. So, it was nothing unusual transpired. Now I am in no position to say who is telling the truth. It seems arguments can be made to defend both sides in this regard. So, let us go back to technicalities again.

    Regarding your point that you “don’t recall TPiE being lenient when they kicked out the European MP despite Covid”. I think is very valid. I did not comment as I was not aware of the details. Definitely, his second absence had a very valid reason and the speaker should have been more accommodating given the circumstances. So you see, I am not for literalism. I am advocating flexibility during extraordinary circumstances. As the saying goes, two wrongs don’t make a right. If the speaker did not show flexibility, it does not mean TSJC should also do the same. Both should have done things with a bit more open mind.

    You have said, “If you’re arguing that both sides have wronged, how come one side has now been removed and the subsequent actions of TPiE taken to remove the TSJC been unpunished?” Well, the TPiE leaders had their electoral rights taken away and the TSJC had their jobs taken away. Is it a case of equal punishment? No. But both sides did what they could do – take extreme steps instead of tempering their response. In every political battle, there are winners and losers. In the current scenario, the TSJC got the losing hand and TPiE leaders had an ace up their sleeve – the power to dismiss them.

    But that does not naturally make the winner right or loser wrong. Here we must see what the constitution allows/permits/authorises/empowers or not. Which is what I have been trying to do objectively.

  4. To suo moto, or not to suo moto, that is the question. At least that is what it seems to me.
    T. Wangyal la has done a wonderful job of pointing out the relevant points in our charter as their pertain to the crisis unleashed by TSJC and the subsequent reaction from the Chitue.
    Does the Charter grant, explicitly or implicitly, that awesome power to TSJC, is it convincing when TJSC says it has that power. If they have it, did they make a judicious use of it or did they see an opportunity to grant itself that power?
    What is the TSJC oversight power over the other two branches of the government, does or should a three/person panel (TSJC) have, perhaps, the power, in the name the charter, to over rule the will of the people as they emerge from Chitue?
    These are some questions I do not have the answers to and would prefer to cede the ground to people who have expertise in.
    Again, thank you T. Wangyal for an illuminating write up on this matter.

  5. Some new points I came across while reading the charter.

    Article 66 – Jurisdiction of the Tibetan Supreme Justice Commission

    “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.”

    This article of the charter is being purposely misinterpreted to suit a false narrative. It is clear stated in this article that the TSJC is meant to be a “supreme appellate court”.

    The adjective “appellate” between the words “supreme” and “court” characterises the TSJC as an “appellate court” i.e. a court where “appeals” are heard; not a court which engages in judicial activism.

    Next point, in this article which delineates the jurisdiction of the TSJC, it is described as “the highest judicial authority of the Tibetan Administration”. Nowhere in this article is stated that it is or has any legislative authority. If it’s jurisdiction granted it power or authority to make new laws, surely it would be stated here. So how can it make laws? That too granting itself new powers.

    Article 36 clearly states that power to make law resides with the legislature i.e. the parliament.

    Article 36 – Legislative Power

    “All legislative power and authority shall rest in the Tibetan Assembly, and such legislation shall require the assent of His Holiness the Dalai Lama to become law.”

    This article clearly states that “All legislative power and authority” rest in the parliament. Please note that it is stated very clearly – “All”. So, clearly the TSJC cannot make any new laws according to the charter.

    1. “To summarise things, many arguments are floating around in the public regarding this event. Therefore, it is important that one does not easily believe people who claim to be experts to be purveyors of truth and unbiased opinions. It is crucial, to follow Lord Buddha’s advice. Examine things as closely as the goldsmith inspects gold. Hear, examine, and contemplate until you are sure that you have arrived at the truth.

      This advice applies to what I have said in this article too.”

      This is one of the few things I’ve read here that I agree with the writer opinions. I am hoping at this point you’d have already seen the interview with Prof. Samdhong Rinpoche. Now the question is if you are going to admit to your misinterpretation (be it ignorance or malice) or if you’re going to double down and come out with another opinion piece refuting the points made by Prof. Samdhong Rinpoche. I will be looking forward to either path you choose Tsering Wangyal la.

      1. If you have read my article well, most of the points in his interview have already been addressed by me either in my article or in my replies. If there is any that I haven’t addressed, please post it below and I will answer to the best my knowledge.

        I don’t think my interpretation becomes misinterpretation just because you say so or someone else says so.

        1. I guess that means another opinion piece coming out. Possibly on Suo Motu’s constitutionality in the context of the Tibetan Charter and how the Prof. is not fully understanding the context of the situation and the charter. (If you bring up how India has implemented Suo Motu then I’d have to reuse a phrase ‘putting on shoes like a hat’ as described by the speaker). I’m looking forward to it.

          1. My views about whether the TSJC has “suo motu” power or not is very clearly articulated in my article along with arguments to support my view.

            My views about whether TSJC has powers to write new laws is also very clear in my article and subsequent replies. You just need to read them. So no new response is needed.

            Only new argument that I heard that since the charter does not clearly say that the TSJC does not have ‘suo motu’ power, therefore, it has such power.

            That kind of logic is plain hilarious and laughable. Using such logic, you will find many monks in Southeast Asian countries rationalising smoking. ROFL!!!

  6. No one wants to know the fact and the truth because it hurts or harms someone they already built trust in their heart. It is a challenge their ego mistaken to knowledge. Otherwise, Mr. Tsering Wangyal’s article is so far the only one which has gone to the depth of exile constitution, purpose, suitability and the truth is that the constitution does not make provision of Suo Moto to the Supreme Justice Commission. Hence, the Supreme Justice Commission provided this authority to itself through amendment which is totally gone beyond the Constitution. Laughable is that ex-Judge Ngawang Ragyai appeared everywhere with preplanned Q/A to protect or represent Supreme Justice Commission as he or they did not do anything illegal. Another fact is that the Syikong candidates responded to the medias based upon what general public would listen. The issue is not about who has the right to interpret the law and who has the right to make law. The real issue is, does the constitution/charter of exile Tibetan gives suo-moto power to the Supreme Justice Commission or not? No elites groups, and from public talk about that or if yes not very transparent, straight forward without bias like Mr. Tsering Wangyal. Thank you Sir for opening eye of Tibetan who has open heart or some sort of concern.

  7. I think you should learn to read carefully first.

    Once you have read and understood what I have written, then debate. Don’t pluck choice phrases and then misinterpret and misrepresent my arguments.

    BTW What is “laughable calisthenics“?

    Calisthenics I know refers to exercises that don’t rely on anything but a person’s own body weight and are performed with differing levels of intensity and rhythm with light handheld tools like rings and wands.

    Doesn’t make much sense does it!

  8. Thank you Tsering Wangyal la for your critical insight into this recent political development. Your article shows a deep understanding of the entire scenario and given that you are not running for the upcoming elections, yours is a genuine take on the issue and not politically motivated like two other doing their rounds.

  9. You mentioned “that TSJC could have been more flexible and could have averted this issue altogether from arising in the first place by not being too pedantic and literal about interpreting and enforcing the law.”!!

    Your article and premise reeks of partiality. TSJC’s role and responsibility is exactly the opposite of what you are saying they should have done. Interpreting and enforcing the law is their authority and no one else’s. Being flexible and a hanger-on or lackey is not.

    TSJC put the Charter above all and rightfully so. Your “phirki” with condescendence and contempt will be not to achieve whatever you are trying so hard to. So, my friend, you can’t have the cake and eat it too yourself.

    Not India but may be you should have upgraded your network for your Facebook Live issues. Or may be you never heard all of over hundreds of Zoom Meetings many of CTA departments organised during the lockdown. Or may be you didn’t see all the online live teachings and INTERACTIONS our Lamas and Rinpoches were having online. So, keep your condescending attitude to yourself. Logistics was not the problem at all, if Pema Jungney and others had heed TSJC’s suggestions.

    1. I am not saying TSJC has to be flexible all the time with everything. That’s a misrepresentation of my argument – a straw man . My argument was that this being an extraordinarily unprecedented situation, the TSJC could have been less pedantic and literal with this particular rule and appreciated its intention rather than its literal meaning.

      If they had put the charter above else, how come they contravened it in so many ways.

      Organising Zoom meeting for a few minutes or hours with few people is not the same as running a parliament session for a few days where multiple people parlay. Live streaming is different from live conferencing. The former is unidirectional and the latter multidirectional. There is much more logistical complexities involved apart from merely holding the meeting, there is a secretarial aspect, security aspect, etc. I teach people how to use technology to do such things. So on this aspect, I definitely have a better perspective and experience than you.

      And yes, my networks runs at 2Gbps.

      1. I am not surprised at your arrogance anymore now. Claiming expertise and better perspective on use of technology! Secretarial and security aspect? Are you real man? It is the parliament session not mela! Not more than one MP speaks at a time. It ain’t that much different than online meetings; zoom and others. Video conferences aren’t anything new!

        Charter wasn’t clear on what to do in events of unforeseen situations but was very clear and succinct on when the following session is to be held; within six months! Court’s role is to interpret it and rule penalties and otherwise when anything goes against or beyond what is stipulated in the Charter.

        Court should not be flexible ever, period.

        Pema Jungney, Yeshi Phuntsok and their cohorts of 29 on the following days did try and bring the amendments. Why bring the amendments, if the Judges have interpreted it wrong? What stopped them from bringing the amendments earlier? Why didn’t they bring the amendments when the same Judges have ruled against the appointment of a Kalon nominee earlier? Why was it imperative to impeach the judges? The amendments would have sufficed to avoid future clashes.

        Why was the motion so rushed? Why vote secretly? There were legal and ethical options galore!!

        The motion was pure vendetta borne out of Pema Jungney’s ego and others. He had to put his threats into action. It is a kind of an achievement, I guess; Speaker of the parliament threatening the judges and then later acting on those! The same ego will cost our exchequer with the additional session they are calling next month to install Judges to the commission. Will Pema Jungney pay from his pocket?

        1. If you think parliament session is just about people talking over video, then it show that you have no idea what happens behind the scene when the sessions starts.

          Documents on new laws, amendments, budget and account need to be circulated each day before the session starts, parliamentary records like minutes of meeting need to be taken synchronously by secretaries and verified for accuracy, amended documents and announcements need to circulated before voting is done. I am sure this needs to be done in hardcopies because note taking is not that easy on a digital copy unless you have a tablet, stylus, and special apps to do that or a specific software. That would mean a lot of independent printing also needs to be done if the MPs want to read these documents in hard copy and take notes on them. Usually, photocopying by clerks makes life easy. These are secretarial aspects of the session.

          As for security, have you heard about hacking, zoom bombing? Do you know zoom servers route information through China? Other platforms also route data via servers, is it safe to route critical information via these commercial platforms? When you send documents online, it can be hijacked by hackers? If you are chatting with your friend or teaching your students, security concerns are limited. Here we are talking about a parliament session, so there needs to be some guarantee that it is secure.

          Getting signatures on soft copies of important documents is yet another skill that our MPs may struggle with unless they all have training on this or have tablets and stylus which makes the task slightly easier. Will digital signatures be considered legal and valid? Will it be safe and secure to accept digital signatures?

          How will voting be done securely? How will the speaker accept leyrim namshags and conduct the giving of opportunity to speak? These also need protocols to be developed and training conducted. Without that, you can’t just start doing things overnight. That will lead to chaos and disorder.

          Indeed the court’s role is to interpret the law. But can it take cognisance on its own? That is the debate. Does it have jurisdiction over the conduct and proceedings of the parliament? That is the debate.

          The reasons behind the efforts to amend the charter was to create further clarify the role of the TSJC so that such misunderstanding does not happen again. This is common sense.

          1. I believe inviting Tsering Wangyal la on a Clubhouse room would be a lot better than writing comments here where Tsering la very conveniently answers the questions as he chooses and leaves out the ones he is unable to answer. That’s what the other comment was saying about your laughable calisthenics. One of the Chithues complained why they weren’t provided the briefing regarding the TSJC issue in the morning like they always do. I don’t recall TPiE being lenient when they kicked out the European MP despite Covid. If you’re arguing that both sides have wronged, how come one side has now been removed and the subsequent actions of TPiE taken to remove the TSJC been unpunished?

    2. I agree with you, Thank you, Tashi La. You know, can you imagine, they (PJ and his ilk) even went to the extent of threatening the TSJC. Pema Jingney la seems to be a puppet chairman. Can someone guesses who are his masters?

  10. The author here says that suo motu power of the Tibetan court wasn’t explicitly provided in the charter, thus it was wrong on the part of the court to give itself a power that the charter didn’t grant. In the comments, he takes the analogy of the Indian Supreme and High courts whose suo motu powers, he claims, are explicitly granted in the Indian constitution. The fact is the Indian constitution makes no provision for “suo motu” jurisdiction nor explicitly allow the courts to act on its own without anybody filling any appeal or writ petition. The Indian courts have started taking suo motu cognizance of matters only lately in the 1990s with the rise of Public Interest Litigations by interpreting the inherent powers of the court as specified in the constitution. Thus, suo motu power enters Indian legal landscape via the court’s power of interpretation and precedence, not through explicit constitutional amendment in the parliament. Therefore, absence of explicit provision for suo motu power in the Tibetan charter need not make the Tibetan court taking matters suo motu null and void. The judges have interpreted that their suo motu power came from the court’s inherent powers given in the charter as the guardian of rule of law, on the basis of which the 2019 addition to the judicial rulebook was made. One can only wish there were more awareness and understanding of this legal development among the politicians and public at large, for it could have averted this constitutional crisis.

    1. If you study the Indian constitution, suo motu power has been granted under Article 32, Article 226 and Article 139 of the Constitution, which gives special power to the Supreme Court and High Court to issue any directions to do or refrain to do an act. In other words, when the honourable court feels that a matter requires serious and immediate legal intervention, it can act suo motu.

      1. The articles you cited from the Indian constitution are inherent remedial powers of the Supreme and High courts to enforce fundamental rights. Nowhere do they say the courts can act on their own without petitioners filing writ petitions. You can’t pick certain lines from the articles (out of context) and say they necessarily grant suo motu power to the courts. One has to read the articles in their entirety and context. The context is the right to move these courts for constitutional remedy when fundamental rights of the individuals as enshrined in Part III of the constitution are violated. It is to enforce these rights that parts of articles 32 and 226 empower the courts “to issue directions or orders or writ”. So the presumption was that an aggrieved person would file a writ petition in the court when his or her fundamental rights are violated and the court would then enforce them using powers granted by the above-mentioned articles. And the fact is this is how the courts worked for a long time until the 1990s when the courts started interpreting these provisions liberally to entertain PILs and thus given birth to the concept of “suo motu” power which then becomes part of the Indian case-law or legal precedents.

        *One must not forget that law is not only what is written in the constitution or in specific legislation, it is also how the courts interpret it and become (binding) precedents.

        1. Here is Article 139 of the Indian Constitution. Please read carefully.

          139. “Conferment on the Supreme Court of powers to issue certain writs.—Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of Article 32.”

          Provision for conferment on the Supreme Court of powers to issue certain writs was contained in both the Constitutional Adviser’s Draft Constitution of October 1947 (clause 97) as well as the Draft Constitution (February 1948) prepared by the Drafting Committee. Draft Article 115 read as follows:

          “Parliament may, by law, confer on the Supreme Court power to issue directions or orders in the nature of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for any purposes other than those mentioned in clause (2) of Article 25 (which relates to the enforcement of fundamental rights) of this Constitution.”

          Please note this clause, “ Parliament may by law confer on the Supreme Court power to issue”. The parliament has to make provisions for the court to issue writs and direction I. The constitution before the court avails such power. So you can decide if the parliament has indeed given these power to TSJC in the charter.

          Next, you need to find out the definitions of “directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them”, then you’ll know that TSJC has done is exactly that without the parliament making provisions for that.

          Here is article 226 clearly granting the court such power.

          “Power of High Courts to issue any person or authority, including in appropriate case any Government, directions, orders or writs, for the enforcement of any of the rights conferred by Part III and for “any other purpose.”

          On one hand, you argue that the written charter must be interpreted literally when it comes to holding parliament session within time limit provided in the constitution. On the other hand, you argue that “ One must not forget that law is not only what is written in the constitution or in specific legislation, it is also how the courts interpret it and become (binding) precedents.”.

          You can’t have your cake and eat it! You are contradicting yourself.

  11. Very sad and unfortunate event in Tibetan Parliament in Exile (TPiE) whose impeached the Chief Justice Commissioner and the other two Commissioners of the Tibetan Supreme Justice Commission (TSJC) via a quick floor test. We need to impeach and demand resignation of Speaker Pema Jugnay, Acharaya Yeshi Phuntsok and other 31 MPs who supported to remove Chief Justice commissioners. Very sad event.

  12. What is with you always trying to play the devil’s advocate and pretending to be measured and unbiased when your logic was biased in the first place? You conveniently left the virtual option that TSJC suggested as needing ‘logistical arrangements’, which is ‘not as easy as we think it is’. How do you expect to challenge China especially at a time when there is a global crisis due to China’s handling of the virus if you can’t even convene virtually? Your long winded article does little to convince readers that TPiE and TSJC are equally wrong and more to show that you are as much stupid as you are biased.

    1. It seems you did not read the part where I did suggest that both virtual and hybrid modes could have been held. However, technical challenges are very real in India. I can’t even do a decent Facebook chat with few friends at times. It’s so frustrating, the sound breaks and the video freezes ever so often. Imagine over 50 people trying that at the same time.

      The Internet bandwidth is unreliable. Many members may not be well versed in using virtual meeting platforms. Some may not have access to required devices. The parliament’s ability to set up the necessary infrastructure to support online session during Covid period would also include the following considerations: the secure distribution of bill and notices online, getting of digital signatures if necessary, etc. all come into play. It is not as easy as you or me zooming or connecting on Facebook. They also need to ensure cyber security, protection from hacking and data theft, etc.

      Some things are easier said than done.

      1. Tsering Tenzin la,
        Thank you for sharing your opinion. Looks like you have put alot work on this article. However, after reading your article, even though you tried your best to show that this article is not biased but someone who knows the facts and laws will/can clearly see your motive, intention and biased comments towards TSJC.

        And since you said you are not a lawyer but a educator. I don’t think you will find a word “Suo Moto” in the charter because to be able to find that word, one must understand how the application/interpretation of law works.

        Once you find that word, it will answer all your questions on TSJC jurisdiction and what a guardian/protector must do when there is a violation of a Charter.

        You said things like TSJC will exist even if we remove all 3 judges. You know the fact the you are talking about our Supreme Court Judges ? That comments shows how little you know about how Judiciary System works in our society and around the world.

        But I don’t expect you to understand this since you are not a lawyer or someone who understands laws. By this article, I can see which side I more inclined to but all I am saying is show some respect to our Judiciary System.

        The fact that you didn’t find ” suo Moto ” says alot. Thank you for reading, wish I can spent more time on this

        1. You didn’t even get my name correct. It seems to me from your comments that you have also read the article in a similar fashion.

          So there is not much point debating. Read first, understand, analyse, evaluate, research, and then, debate. Point by point.

        2. Dear Tsering Namgyal la,
          After reading your well researched article, I feel myself more informed and peace that two hands are always needed to make a clap. Thank you! Blaming and defending one another with clauses mentioned in our constitution had confused the general public, just wish only if both the honourable institution uphold more dearly the common cause of Tibet issue.

      2. Hahah at this point it is evident whose side you are on behind the guise of being an unbiased educator/ saviour of constitutional nerds and Chitues. You do realize India has better internet than most of us in the West, right? By September, schools were able to shift their entire curriculums online and even my mom was able to figure out how to upload my niece’s assignments on google classroom, what is your excuse for the difficult logistical arrangements and MPs’ not being well versed in technology in the same time span- by September? I am sure you will have another reasoning for it coming to the rescue of these poor parliamentarians.

        1. Your ignorance about internet situation in quite India is obvious. I communicate regularly using the internet and face this frustration routinely. I also watch interviews on Indian news channels where speakers go online and offline intermittently all the time because of this. While one way streaming seems quite okay, when it comes to multiple people doing conference at the same time it can be quite frustrating. If media channels cannot do it that well, rest surely the rest of can’t as they have much bigger budget. Their technical knowhow is definitely better than ours too as it is related to their bread and butter.

          If you are subscribing to a cheap internet plan (in your country in the west) and experiencing slower internet connection than India, that does not mean internet connection in india is better than that in the west. It is faster only when compared to your personal internet connection. What it means is that your plan and connection is no good. No offence meant. Just stating facts. Get a better plan.

          You must also consider that most of our parliament members live all over India where internet connection bandwidth may vary due to infrastructural differences especially in rural settlements. Many MPs also live overseas across different time zones. If it is a 1hr meeting for just one day, it is not a big deal. But if they have to do 10 days of video conferencing, it can be very challenging technically. Plus, there is zoom fatigue – tiredness related to prolonged video conferencing (of the eye and body due to posture) to consider too. Therefore, it is not as easy as you think and say.

          Uploading assignments takes only a few megabytes. The signal need not be consistently strong as uploading is incremental. Doing video conferencing requires consistently strong and reliable bandwidth otherwise audio and video quality suffers.

          For many days of video conferencing, we are talking about hundreds of gigabytes. It will surely bust anyone’s broadband subscription plan unless it is an unlimited subscription which is very expensive.

          IT skills doesn’t automatically get upgraded with passage of time. It needs training. So these things should have been anticipated and planned. But here again, saying is easier than doing. If you have a good plan, please share it.

          My feeling is when Covid 19 first came most people were scared to death but they didn’t anticipate that it will last as long as it did. So most waited and watched. But as it got further prolonged, they realised that they could not wait it out. So now people have started to think about long term situation and making plans to meet such disruptions in future.

          I am an educator and where I live, we always plan for the future. So not a single lesson got cancelled. The day schools were closed, online lessons began almost with very little hiccups. I, myself, was in charge of making such provisions in my university for my department. So, you see, I am speaking from a perspective of experience; not conjecture and ignorance.

          1. Tsering Wangyal la, have you considered the fact that the Speaker only has the power to cancel/postpone a sitting session, but no power to cancel a session before it is even held. If he had held even just one hour of the session with the 10 Standing committee and chithue in Dhasa, and then cancelled the session; none of this would have happened. But they didnt want to listen to this suggestion from the TSJC either.

            And it wasn’t really about not holding a large gathering in Gangkyi to prevent Covid in Sept, was it? There was democracy day event on 2nd Sept in Gangkyi, attended by the Speaker himself and many others (more than if a session had been held).

  13. I have not claimed that I am a lawyer or a constitutional nerd anywhere. That’s why I phrased it thus, “if you are …”. So please do read carefully before commenting.

    I have not written anywhere that “One MP argued in the parliament that other constitutions specifically provide for suo moto jurisdiction for supreme courts.”

    Please read carefully. Below are my exact words.

    “One MP even opined, “Who will check the parliament then? We should have the means to impeach MPs and the parliament?” Such ignorant remarks betray the speaker’s fundamental ignorance about how a parliamentary democracy works and what is in our charter.”

    There is no reference to “suo motu” in these sentences unless you are yourself mistakenly equating “suo motu” power with power to impeach.

    However, I did write that “to justify the self-granting of “suo motu” power, the commissioners during their most recent press conference used the examples of other countries’ judiciary possessing and exercising similar powers. However, what they have failed to mention is that these courts are explicitly granted this power in their respective Constitutions. In ours, they are not. “

    If you study the Indian constitution, suo motu power has been granted under Article 32, Article 226 and Article 139 of the Constitution, which gives special power to the Supreme Court and High Court to issue any directions to do or refrain to do an act. In other words, when the honourable court feels that a matter requires serious and immediate legal intervention, it can act suo motu.

  14. Tsering Wangyal La. All the articles in the charter are “written in some charter”. Article 40 is just written in some charter, so is article 1. Do certain articles have a higher importance than other that we can selectively choose to ignore them over others then? Are you suggesting because it was Covid, that the TSJC turn a blind eye to a parliament that is breaking the charter? Article 39 talks about the 5 year terms of each MP. Can the standing committee ignore that and cancel the elections citing Covid? Surely more that 45 people come together when voting and all of them are in danger of contracting Covid? It’s just words on a paper just like article 40. TSJC should give them a pass on that as well. Maybe TPiE should’ve just tried that. The other question how much is it up to the TSJC to grant exceptions? They are voted in my the TPiE so they could possibly appoint TSJC that can excuse any violation theoretically in such a case. Maybe I missed the part where the Speaker said he respects and puts the charter, except article 40, on his head.

    I agree that Covid was not present when the rules were written. I believe Covid was not present anywhere in the world when anyone’s constitution was written. So in such a circumstance, we should definitely make changes to these articles. And who makes such changes to the articles? The speaker said nowhere is it written that allows virtual meetings. Virtual meetings weren’t being done either when the charter was written just like Covid. (The removal voting was done by speaker because he said no where does it say that he can’t do it so seems to be a consistency issue here too. He seems to be choosing whichever path is more beneficial to him). As for the logistics issue of a virtual meeting, I guess it must be an exceptionally hard choice to choose between setting up and learning how to use such technology and between willfully breaking article 40 of the Charter. I mean it’s just written in some charter so I guess maybe it wasn’t that hard. Were you aware there was another option? The speaker could have started the meeting in September with the MPs that were already present in Dhasa for Democracy Day and when the minimum quorum required is not met, the speaker could adjourn the meeting per the powers given to him by article 49 (again just something written in a charter)

    I do have a little issue with your “heart of the matter”. The main issue should be if an article was broken not if TSJC had the right to take it up. It seems to infer that of an actual article was broken by TPiE, TSJC should just shut up and observe it be broken till hopefully someone notices and hopefully someone takes the case to TSJC. A discussion on the interpretation of the law can be had as you have. There will be others that will interpret the same words differently. If only it was just written somewhere in the charter who we can reach out to to interpret the law for us. Was it the parliament just cause the speaker said they can? Maybe cause article 5 is also just something written in the charter.

    Article 58. Man! TSJC can’t question any manner of proceeding. There’s so much to say here but wouldn’t any thing discussed in the parliament or it’s standing committee be considered their manner of proceeding then? The standing committee could talk about removing a charter or ignoring a charter. Or as you put it removing or ignoring something that’s just written somewhere in a charter. And as such won’t be under the jurisdiction of TSJC if any of these proceedings are in violation of an article in the charter? You might say “tHeY woUlD nOt Do ThAt” but it seems we are way past making such assumptions. Or maybe I’m wrong and you’re ok with our parliament acting as they see fit regardless of the charter.

    1. It’s bit difficult to understand what you are trying to say. So I will answer the parts I could understand.

      Yes. All articles are equally important. But that is not the question here. When Covid crisis arose, the ability to hold the parliament session came into question. TPiE leaders felt they had the power to do so. But the TSJC believed they did not. So far nothing has happened that is troubling or wrong. It’s just a difference of opinion in interpretation of the charter. Both are entitled to those positions and it could be debated or arbitrated and settled.

      Of course the quorum option could have been explored too. But if your goal was to postpone the parliament session to prevent the possible spread of Covid due to social contact, does it make sense to ask those present in Dhasa to gather? Do these MPs presents in Dhasa at that time have done special or extra immunity? Or their lives, health and safety don’t matter,

      The problem arise when the TSJC took drastic action using its self-granted “suo motu” power. This opened the Pandora’s box and started the clash. That’s my point.

      1. You seem to not fully answer the issue. Article 40 says the TPiE doesn’t have that power like TSJC said. What is TPiE’s justification that they can other than “well Covid happened”. If they use that, they can’t say their actions were according to the Charter. Even if other articles are brought forward as justification, in case of a difference in interpretation, doesn’t article 66 give those powers to TSJC for interpretation?

        The speaker said they have the right to interpretation due to precedence, not the charter. Suo Motu has been used previously with no opposition from TPiE which then gives TSJC precedence for its use as well.

        Since we are citing Covid now, can TPiE also ignore article 39 and cancel the elections? Also weren’t the MPs in Dhasa not similarly gathered on Democracy Day?

  15. First the author remarks that TSJC shouldnt be so pedantic and literal with the law, and be flexible and let the charter violation go.

    Then he wants the TSJC to consider how disenfranchisement will affect the Standing committee’s office and authority; and their election prospects. Why cant they be judged in the same manner as us common folk. Shouldn’t we all be equal in the eyes of the law?

    Should the TSJC break their oath and bend the rules to appease the chithue, who are violating the law?

    Laughable calisthenics on the logic about how an organizing committee and enquiry report is required only to discuss impeachment, but not for the actual act of impeachment. Wasn’t there a discussion during that 1.5 hours where some MPs opposed and some supported the motion? Then where was the organizing committee for that discussion?

    1. I think you should learn to read carefully first.

      Once you have read and understood what I have written, then debate. Don’t pluck choice phrases and then misinterpret and misrepresent my arguments.

      BTW What is “laughable calisthenics“?

      Calisthenics I know refers to exercises that don’t rely on anything but a person’s own body weight and are performed with differing levels of intensity and rhythm with light handheld tools like rings and wands.

      Doesn’t make much sense does it!

  16. Thank you for this very balanced and constructive article on this issue. There are a lot of lessons in this episode. TSJC is not above the law and their brazen power trip in the last few years has been troubling. There are three pillars of government for check and balance. TSJC under current (or recent past) leadership had to be reined in. I am glad two third majority of the parliament agreed that there was TSJC overreach and passed the resolution. Hope this is a lesson for the people who work in TSJC, no is above the law of constitution.

  17. My first and most important observation on this article is: you are definitely not a lawyer, neither a “constitutional nerd.” One MP argued in the parliament that other constitutions specifically provide for suo moto jurisdiction for supreme courts. Really? Which one? Forget about other constitutions, look at Indian constitution and tell me which article specifically mentions the “suo moto” jurisdiction of the court? Your analysis and arguments are so sub-par that I am amazed you had the audacity to write an article reviewing the Tibetan charter. My sincere request, please talk as much politics as you want, on who is at fault, who should have done what etc. But please leave the legal analysis to people who have studied the law or at least practiced the law.

    1. ” code of law ” = law . They mean the same thing – set of rules to abide by. Tsjc has privilege to make laws and they made suo moto. And then used it against the parliament.

      Charter is dated 1991, before HHDL retired from politics. For Parliament to expel judges, Parliament has to petition hhdl. But it is unclear what role hhdl will play, or maybe charter needs updating.

      1. I think you are not familiar with the distinct functions of the three pillars of democracy.

        The judiciary’s function is to interpret and adjudicate; not make laws. Making laws is the prerogative of the legislature i.e. the parliament.

        Should first be well-informed to debate. Otherwise, it is rangwang gangshey!

    2. I have not claimed that I am a lawyer or a constitutional nerd anywhere. That’s why I phrased it thus, “if you are …”. So please do read carefully before commenting.

      I have not written anywhere that “One MP argued in the parliament that other constitutions specifically provide for suo moto jurisdiction for supreme courts.”

      Please read carefully. Below are my exact words.

      “One MP even opined, “Who will check the parliament then? We should have the means to impeach MPs and the parliament?” Such ignorant remarks betray the speaker’s fundamental ignorance about how a parliamentary democracy works and what is in our charter.”

      There is no reference to “suo motu” in these sentences unless you are yourself mistakenly equating “suo motu” power with power to impeach.

      However, I did write that “to justify the self-granting of “suo motu” power, the commissioners during their most recent press conference used the examples of other countries’ judiciary possessing and exercising similar powers. However, what they have failed to mention is that these courts are explicitly granted this power in their respective Constitutions. In ours, they are not. “

      If you study the Indian constitution, suo motu power has been granted under Article 32, Article 226 and Article 139 of the Constitution, which gives special power to the Supreme Court and High Court to issue any directions to do or refrain to do an act. In other words, when the honourable court feels that a matter requires serious and immediate legal intervention, it can act suo motu.

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