Separating more wheat from more chaff
By Tsering Wangyal
” If I want to find out what truth is, not knowing what it is, I must be able to see what is false.”
– Jiddu Krishnamurti
Since the publication of my article “The Tibetan Justice Commission Conundrum” on this site almost a fortnight ago, much has transpired in our society. We just finished our Sikyong and Chithue elections two days ago. Before that, the speaker of our parliament resigned, and so did an MP who was part of the TPiE leadership involved in the recent spat with TSJC.
More arguments have been presented by supporters on both sides of the fence on social media and our Tibetan news channels. More interpretations of the charter were shared by people portraying themselves to be ‘neutral’ experts. However, sorely missing from these interviews and exchanges were sharp and critical questioning, good counterarguments, and rebuttals when the guest speakers presented very biased interpretations by cherry-picking specific articles from the charter to present a one-sided perspective and made extremely illogical arguments.
In this article, I will highlight the fallacious logic and biased misinterpretations of the charter in the arguments presented by the supporters of the three commissioners in recent public discourse. You may think I am a bit biased in this article. But I am doing this because I feel that in the past few days, many supporters of the three commissioners have been raining down on the TPiE leaders when both the parties are to be blamed for this episode, not just one. It has always been my nature to side with the underdog, especially when I feel that they are being bullied or unfairly treated. So here we go.
Was the dismissal of the Commissioners the destruction/dismantling of the third pillar of democracy?
On this point, my stand is quite clear. The answer is “No”. The commission still exists; only the commissioners have been dismissed. They can and will be replaced.
If we consider the dismissal of an officer or officers from an office as the destruction or dismantling of the entire office itself, then no dismissal from any post is consideration worthy or implementable.
So, this is a totally illogical assertion.
Did this impeachment cause a ‘constitutional breakdown’?
My answer is again, “No”. Article 29 of the charter makes provision for the dismissal of the entire Kashag, including the Sikyong.
Surely, the drafters of our charter would not have knowingly made such provisions within the charter if the dismissal of an entire branch of government constituted a ‘constitutional breakdown’. That would be akin to the drafters making provisions for self-sabotage in the charter.
Impeachment is a provision to protect the constitution if any one branch of the government contravenes the writ of the charter/constitution. Thus, it is a protection mechanism, not a destructive mechanism. Impeachment should not be seen or characterised as a breakdown of the constitution but rather a constitutional remedy process that preserves its sanctity and allows it to regenerate after a malignant part of the government body is surgically removed. It is a painful but in-built self-healing mechanism.
If the impeachment process really causes a constitutional breakdown, then it should/would/could not logically be part of the charter/Constitution.
Argument – The jurisdiction of the TSJC allows it to make laws. Therefore, it has the power to grant itself “suo motu” power by making a new law.
Article 66 explains the jurisdiction of the Tibetan Supreme Justice Commission. It is clearly stated in the article that “The Tibetan Supreme Justice Commission shall be the supreme appellate court regarding legal issues involving individuals and public institutions of the Tibetans-in-Exile. It shall be the highest judicial authority of the Tibetan Administration.”
The Tibetan version of the article is below.
༡ ཆས་མཐོའི་ཁྲིམས་ཞིབ་ཁང་ནི་བཙན་བྱོལ་བོད་མི་སྤྱི་སྒེར་ཡོངས་ཀྱི་མཐར་ཐུག་གི་ཞུ་གཏུགས་བྱ་ཡུལ་ཁྲིམས་ཞིབ་ཁང་དང༌། བོད་མིའི་སྒྲིག་འཛུགས་ཀྱི་ ཁྲིམས་འཛིན་གོང་ན་མེད་པ་དེ་ཡིན།
This article of the charter, I believe, is purposely being misinterpreted to suit a false narrative. It is clearly stated in this article that the TSJC is meant to be a “supreme appellate court”. The adjective “appellate” between the words “supreme” and “court” clearly characterises the TSJC as an “appellate court”, i. e., a court where “appeals” are heard, not a court that engages in judicial activism through “suo motu” power. In Tibetan, it is clearly stated that it is a “ཞུ་གཏུགས་བྱ་ཡུལ་ཁྲིམས་ཞིབ་ཁང་”.
In this very same article of the charter, the TSJC is clearly described as “the highest judicial authority”. But nowhere in this article is stated that it has any legislative authority. If the TSJC in its jurisdiction were to be granted any power or authority to make new laws, surely it would/should be stated here. Where else would it be stated but here, where its jurisdiction or job scope is outlined?
More importantly, if the TSJC was really empowered by the charter to make its own laws as argued by some, then this totally nullifies the need for a legislative body like a parliament. Why do we need the MPs and the parliament when the TSJC can make and pass laws on their own as and when they wish?
Having a parliament would be a sheer waste of money! Two bodies of the government serving the same function. Unheard of.
I am sure our charter drafters were neither that illogical nor that self-contradicting to frame our constitution thus! Therefore, such arguments are not only unsustainable but also betrays the intellectual laziness or bias of the proponents of such arguments.
Moreover, the charter clearly states in Article 36 that “All legislative power and authority shall rest in the Tibetan Assembly”.
The use of the pre-determiner “All” in this article definitively settles it once and for all that only the parliament has the power to make laws; no one else.
Any interpretation to the contrary would be going against the very writ of the Constitution. Unless someone can justify an exception that falls outside the purview of the phrase “All legislative power and authority”, this phrasing of the article clearly shows that the TSJC cannot make any laws. So those who support the “literal” interpretation of the charter and yet still make a case for TSJC need to explain this contradiction in their arguments.
You can read it in Tibetan version here. I have bolded the word Yong Zog for your attention.
ཁྲིམས་ལུགས་བཟོ་འགོད་དང༌། གཏན་འབེབས་བྱ་རྒྱུའི་དབང་ཆ་ཡོངས་རྫོགས་བོད་མི་མང་སྤྱི་འཐུས་ལྷན་ཚོགས་ལ་ཡོད་པ་དང༌། ཁྲིམས་ལུགས་དེ་དག་ ཁྲིམས་སུ་བཅའ་བ་ལ་སྲིད་སྐྱོང་གིས་ཆོག་མཆན་མིང་རྟགས་འགོད་དགོས།”
Argument – But the charter says the TSJC commission has the power to make “codes of laws” on its own.
The answer is clearly an overwhelming ‘No’ again. I have explained what constitutes “codes of law” in my previous article. So, I would repeat that here.
Article 67 clearly states that the power of the TSJC to “make its own rules of procedure and codes of law” is “subject to the provisions of any law as specified in this charter passed by the Tibetan Assembly”. Therefore, the TSJC cannotindependently do things as it wishes and pleases. It must operate within its inscribed role in the Constitution.
You can read it in the Tibetan version here. I have bolded the relevant clause for your easier notice.
དོན་ཚན་རེ་བདུན་པ། ཆེས་མཐོའི་ཁྲིམས་ཞིབ་ཁང་གི་རྩ་འཛིན་ཁྲིམས་ཡིག་དང༌། སྒྲིག་གཞི།
བཅའ་ཁྲིམས་འདི་དང༌། སྤྱི་འཐུས་ལྷན་ཚོགས་ནས་གཏན་ལ་ཕབ་པའི་ཁྲིམས་ལུགས་གང་རུང་གི་དོན་ཚན་ཁག་གཞིར་བཟུང་ཐོག་ཆེས་མཐོའི་ཁྲིམས་ཞིབ་ ཁང་ནས་ཁྲིམས་ཞིབ་ཁང་གི་རྩ་འཛིན་ཁྲིམས་ཡིག་དང༌། འགྲོ་ལུགས་སྒྲིག་གཞི་བཅས་ཁྲིམས་ཞིབ་པ་ཆེ་བ་དང་ཁྲིམས་ཞིབ་པ་གཞན་གཉིས་བཅས་སྤྱི་མོས་ ཀྱིས་བཟོ་འགོད་གཏན་འབེབས་ལྟར་རྩ་འཛིན་ལག་བསྟར་བྱ་རྒྱུ།
In other words,since the charter does not state that the TSJC has “suo motu” powers, it cannot formulate any rules of procedure and codes of law on its own granting itself such power since it is not constitutionally sanctioned by the charter.
If the three TSJC can make any law once they reach a consensus without needing any sanction from the charter (legislated by the parliament), then such a possibility would totally tilt the balance of power in favour of the TSJC as it is able to go beyond the purview of both the existing constitution and the legislature – all it needs is a three-man consensus to amend or write any new law to suits its purpose. This is a highly untenable proposition!
How can this be called “a model of democracy in which the parliament is supreme”?
This would mean that the constitution itself, which is supposed to promote the notion of three co-equal branches of government, grants the TSJC unfettered powers to amend and append at will.
This argument is so ridiculous that it does not make any sense. Does it? You do not need to be an expert to see through the fallacy of such arguments. It defies both logic and the very idea of checks and balances in a democratic government.
Argument – The charter would not have allowed the dismissal of all three TSJC commissioners at the same time as it would lead to a “constitutional breakdown”.
This is one of the most ridiculous red herrings I have ever come across in this entire debate!
If the dismissal of the three Justice Commissioners at one go would not have been allowed in the charter as that would have led to a ‘constitutional breakdown’ (because that would be the dismantling of one pillar of our democracy), then why does the charter make provision for dismissal of the entire Kashag including the Sikyong?
Wouldn’t that have resulted in a similar constitutional breakdown? Isn’t Kashag also another pillar of our democracy?
Or were some pillars of democracy more equal than others to the drafters of the charter?
Argument – The parliament should have formed a committee and allowed the TSJC to present their side of the argument.
Absolutely. That would have allowed a more transparent presentation of the issues by both parties to the MPs so that they could reach a more informed decision.
But is the parliament required to constitute a committee to dismiss the commissioners?
The answer is “No”.
The charter does not mandate that the parliament must hold a hearing before dismissing them. Nor does it mandate the formation of a committee for such dismissal. I have made this case in my original article. Therefore, I will not repeat them here. The only point I would like to add here is that if one espouses a literalist approach to the interpretation of the charter, then one must insist on literalism equitably across the charter; not only when such an approach suits one’s purpose.
I think that the dismissal of the TSJC through a 2/3 majority vote of the parliament is the only envisaged procedure by the drafters of the charter. 2/3 is a high majority and was most probably deemed enough to be sufficient benchmark to prevent abuse and rampant abuse by the drafters. So, in my view, that was the only intended procedure.
If there were other steps needed or envisaged for the dismissal process as argued by some, I am sure it would have been added below this requirement/clause; not hidden obscurely under the sub-clause of some entirely other article dealing with not so relevant a subject. It makes no sense doing such a thing. A consistent literalist would agree with my argument. For example, the process for the dismissal of the Kashag is stated under one article, not across articles for example. Same is the case for dismissal of individual MPs.
If indeed there were other steps needed in this process as argued by some, I am sure it would have been added below this requirement/clause; not hidden obscurely under the sub-clause of some other article dealing with not-so-relevant a subject. Scattering instructions for an important parliamentary procedure across articles and hiding them under headings of unrelated articles would have been an act of gross negligence or incompetence on the part of the charter drafters (which clearly is not the case).
Moreover, one cannot get away by arguing on the one hand that such an event, i. e. the possibility of the dismissal of all three commissioners at one go was not foreseen by the drafters therefore clear guidelines for this do not exist in the charter and on the other hand, claim that a procedure is indeed prescribed in the charter (which is the formation of a committee to oversee the impeachment process)? This is inherently self-contradictory. If the dismissal of all three commissioners was not foreseen by the drafters as claimed, then how can they argue that a procedure is already prescribed in the charter by the drafters?
My advice to such people would be to make up their minds. You cannot have it both ways!
Argument – The TPiE does not have the power to dismiss all three commissioners at one go.
My view is that they do have the power to dismiss all three at one go. The commissioners also accepted the parliament’s power to dismiss them all at one go too.
Since they are our “highest judicial authority”, their acceptance of their dismissal shows that they see and interpret it as being within the legitimate power of the parliament. Any attempt to make an alternative interpretation would self-contradict the very literalist premise that the interpretation of the TSJC is binding and final.
The argument that since “the procedure for the dismissal of all the three commissioners” is not clearly stated in the constitution shows that “such a situation was not envisioned” by the drafters because that would lead to a ‘constitutional breakdown’, is simply fallacious.
Following such logic, any person with common sense would ask if the entire Kashag’s dismissal was envisioned in the charter and the procedure for their dismissal written in it, how can one sustainably argue that the writers of our charter did not envision the possibility of dismissing all the three commissioners?
That would imply a grave oversight on the part of the constitutional committee. Since, the drafters of the charter were amongst the most experienced parliamentarians, learned scholars and advisors, I very much doubt that they would have committed such oversight or shown such lack of foresight.
When the drafters could envision such a scenario for the Kashag, why couldn’t they envision such a scenario for the TSJC? Or did they naively believe that at least one of these three commissioners would always turn out to be infallible?
Argument – Since the constitution does not explicitly say that the TSJC cannot exercise “suo motu” power, that means it can exercise such power!
This kind of logic is plain hilarious and laughable. You will find many monks in Southeast Asian countries using such logic to rationalize smoking and many other things. Using such logic, you can argue that TSJC can do everything or anything under the sun which is not explicitly prohibited in the charter.
God forbid if such an interpretation is considered tenable.
Argument – Can the court be both the judge and the plaintiff? (It seems that while exercising “suo motu” power that seems to be the case).
When courts are explicitly granted “suo motu” powers, there are certain areas envisaged for the use of such powers.
I am also sure that when such powers are explicitly granted under the constitution, it is done with the understanding that the courts will work under or within the framework of the constitution i. e. based on the laws legislated by the parliament which will act as a check to the courts’ judiciary power; not with the notion that the courts themselves have legislative authority too. If the latter were the case, where is the possibility for check and balance? Each time the legislature passes a law, the court can amend or create other laws to circumvent or abrogate it.
If there is a case of conflict-of-interest where the judges themselves have an interest in the case, another judicial bench is usually constituted. In a recent incident, the previous chief justice of India (Mr. Ranjan Gogoi) was heavily criticised for adjudicating a case in which he himself was implicated, as it was a clear example of conflict-of-interest. How can the accused be the adjudicator? Such a setup contravenes the very principal of natural justice!
But constituting a separate bench is not possible in our case as we do not have the luxury of having extra independent commissioners form such a bench. Currently, due to the existence of only one bench when a conflict-of-interest situation arises, there is no remedy. So, obviously, this is a problem. However, to claim that there is no conflict of interest when the very same bench of commissioners are both the defendants as well as adjudicators is patently dishonest.
Justice must not only be done but also seem to be done. So, such a conflict-of-interest where both the plaintiff and the adjudicator are the same is quite untenable. If the parliament was wrong in being both the judge and the plaintiff, then, the TSJC was wrong too in being the judge and the defendant.
What is not appropriate for the goose cannot be appropriate for the gander!
I shall stop here. If more lines of debate emerge, I shall write more later.
“I’m for truth, no matter who tells it. I’m for justice, no matter who it is for or against.”
– Malcolm X
(Views expressed are his own)
The writer is an educator and a researcher based in Singapore.