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
- 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.
- 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:
- cases involving interpretation of the wordings of the charter of Tibetans in-exile;
- cases involving the conduct of business of the executive departments or civil servants of the Tibetan Administration;
- cases involving redressal of grievances regarding the services of civil servants of the Tibetan Administration and such institutions under its jurisdiction;
- disputes involving land and property of the Tibetan settlements;
- cases of arbitration involving Tibetan communities regarding social welfare and security;
- pronouncement of judgements in types of cases other than those specified in this Article; and
- 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.
- 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.
- 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.
- 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?
- 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
- 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.
- 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.
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.