By Tenzin Dayoe
It is true that the present problem between TSJC & TPiE is a legal issue so the solution must also come from the law. The TSJC is the supreme judicial body in case of any crisis which is very clearly provide under Article: 5 of the charter and also have to ensure that law, order etc must conform to the local and internal laws provided under Article: 6. The TSJC must stand up and do everything in hands to resolve the crisis only through the power of Judicial review. It is time to prove that our Judiciary branch is more than competent to handle this kind of crisis today and also in futures to the HHDL. It is very high time that all the Tibetans must consider very carefully that what kind of democratic society they want to choose for their future. The society in where there is a rule of law or where there is no rule of law. The main difference between judiciary in any democratic and autocratic country like china is the existence of judicial review. The main essential feature of ‘rule of law ‘is the power of judicial review. The present crisis in our community clearly shows that the power of judicial review of TSJC is at stake.
The CTA is constituted under the law of India and TSJC is the apex judicial authority like apex judicial body in India and overseas. So, it is very clear that in absence of any legal provision in the charter of Tibetan in exile. Then, the applicable laws will be the constitution of India and the various other laws which are specifically mention in Article: 6 which our charter of Tibetans in exile must follow.
In India, it is the constitution of India which is supreme not parliament. The protection of constitution is tasked to the Judiciary branch which is Supreme Court and Highs Courts. The main principles through which it ensures the protection of constitution of India is through the power of judicial review. Now, the main question is, is there any such provision of judicial review within the charter of Tibetan in exile? The answer is absolutely affirmative because the framers of our Charter of Tibetans in-exile have carefully thought about the importance of such a constitutional provision which is judicial review. If we carefully read the Article: 5 of the charter of the Tibetan in exile. The intention of the founders or the framers of our charter is that Tibetan supreme Justice Commissioner shall be the supreme authority in case any laws, order, ordinance , rules passed by any Tibetan institution does not conform to the local laws and to the generally accepted principles of international law.
In any democratic society, the power of judicial review of court cannot be curtailed by any legislation passed by the parliament or assembly. In India, such a situation arises in 1997 when the parliament of India has passed a law which exclude the jurisdiction of High Court and Supreme Court. In this landmark judgement in the case of: L. Chandra Kumar Vs. Union of India, AIR 1997, a seven-member constitution bench has struck down clause 2 (d) of Arts.323 A and clause 3 (d) of Art. 323B which provided for the exclusion of the jurisdiction of the High courts under Arts.226 and 227 and the Supreme Court under Arts.32 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic feature of the constitution. The court held that the power of judicial review over legislative action of High courts and Supreme Court is an integral and essential feature of the constitution of India.
On the basis of above fact and court rulings. It is well established that there are no such grounds and procedure to remove any justice commissioners by mere passing an ordinance and resolution in the parliament. Under the constitution of India, the removal of judges is mentioned in Article: 124 (5). However, the detail procedure of removal is clearly mentioned in the Judges (Inquiries Act), 1968 which require the institution of a Committee section: 3 (2) consisting of serving judges and distinguish jurist to conduct an investigation into the judicial misconduct before the two houses of the parliament votes on the removal.
The main ground of removal of the justice of Supreme Court and High Court of India is only misbehaviour or incapacity.
The ground of Incapacity has been defined as physical incapacity and mental incapacity as clearly defined under section 3 (5) of the Judges inquiries Act, 1968. The other ground of removal is misbehaviour. The following are the judges who faced the charges under different types of misbehaviour as follows: (1). Justice P.D Dinakaran, chief justice of Sikkim high court, against whom the Rajya Sabha chairman had set up a judicial panel to look into allegation of corruption. (2) Justice V. Ramaswami, against whom motion was brought in Lok Sabha but failed. Justice Ramaswami was caught in a controversy for spending extravagantly during his tenure as chief justice of Punjab and Haryana high court in 1990s.
It is therefore very clear that no democratic country in this world follows such a removal procedure of their highest justice commissioners on the basis of mere issuing a suo motu notice and followed up action taken against the parliament standing committee by the TSJC. Even within the local laws of India such a ground of removal does not exist. Hence, resolution: 39, passed by Tibetan parliament in exile to remove justice commissioners is totally unconstitutional and ultra vires. In such situation, the Article: 5, of the Charter of the Tibetans in exiles mandates the Tibetan supreme justice commission to uphold the supremacy of the charter of the Tibetans in exile specifically in Article: 5 (2) of the charter in case of violation through any forms of laws specifically provided under Article: 5(1)of the charter.
In our society, some Tibetans argued that the Tibetan supreme justice commission (TSJC) does not have a Suo Motu power and also claimed that constitution of India specifically mentioned such powers to the Supreme Court and High Court of India which is absolutely baseless and false. The supreme court of India has mandate under the constitution to protect fundamental rights of the citizens under Article: 32 and Article: 13 in case any laws, ordinance, order, bye-law, rule, regulation, notification which violates the basic structure of the constitution which is a fundamental rights and judicial review. So, through this provision, the supreme court of India has taken numerous Suo Motu cases for the public interest. All, those Suo Motu cases are ordered on the basis of various reputed news reporting and letters received by the supreme court of India. However, such a provision is not mentioned in their constitution that the supreme court of India will have a Suo Motu power. The supreme court of India derived its powers from the power of judicial review. This kind of Suo Motu jurisdiction is also known as epistolary jurisdiction. Therefore, the supreme court of India derived its sumo Motu power from the principle of judicial review mandated under Article: 13 & 32 of the constitution of India. Likewise, the TSJC also derived its Suo Motu power from the principles of judicial review enshrined under Article: 5 (1) & (2) of the charter of Tibetans in exile.
It is very absurd that the 16th Tibetan parliament in exile has assumed that mere passing of resolution: 39 during the parliament session is enough to remove justice commissioners without following any established procedure enshrined in the local laws and international laws. The detail procedure of removal is neither given in our charter nor separate rules is available. Therefore, such a removal procedure must be look at the local law of the land which in our case is the constitution of India and its laws. So, the Tibetan parliament in exile should have followed established procedure available in the local laws and international laws.
Hence, without following any sort of established procedure of inquiry and examination on the basis of local laws of India is an attack on the principle of independent judiciary which in our case is Tibetan supreme justice commission.
In china, there is no ‘rule of law’ due to the absence of judicial review. The irony is that even the constitution of people republic of china (PRC) followed such a standard international procedure mentioned above for removal of all their supreme court Judges to lower court judges which is clearly mentioned in the PRC Judges Laws of the people republic of china under Article: 18 (chapter iv) on appointment and dismissal of judges. So, failure to follow such a procedure for removal of justice commissioners makes such a laws, resolution or ordinances null and void ab initio (from the beginning). So there is no question of its legal effect as well.
Way forward for the TSJC: in order to strengthen the democratic society according to rule of law.
On the basis of above legal analysis, it is very clear that the framers of the charter of the Tibetans in exile have intended the power of judicial review to the Tibetan supreme justice under Article: 5 (1) & (2) against any forms of order, laws which is against the Charter of the Tibetans in-exile. The language of this Article is very clear and unambiguous. So, the TSJC has a very clear authority to pass any Suo Motu order whenever any decisions from the executive and legislator violate the provision of the charter of Tibetans in exile. Therefore, TSJC must take following steps in order to establish the supremacy of constitution which in our case is Charter of Tibetans in exile and the power of judicial review. The Tibetan supreme justice commission must sit a full bench and pass a Suo Motu written order by upholding the supremacy of charter of Tibetans in exile and the judicial review clearly provided under Article: 5 (1) & (2). Then the very basis of the entire crisis is resolved and TSJC functioning continues uninterrupted.
The TSJC must pass a written order to specifically declare the resolution: 39 passed by the 16th Tibetan parliament in exile as unconstitutional and ultra vires because the ground of such removal of Tibetan supreme justice commissioner does not exist anywhere in the world except in banana republic. The only grounds of removals available under the constitution of India and laws are only on the grounds of viz. misbehaviour or incapacity. The incapacity includes physical and mental incapacity. Whereas the misbehaviour includes all forms of corruption in or outside court, sexual harassment allegation, any criminal allegation etc. For the sake of argument, even if such grounds exist for removing any Tibetan supreme justice commissioner but the resolution: 39, itself has already lapsed because no further courses of actions were followed viz. no inquiry, examination and committee report. In addition, the 16th Tibetan parliament in exile does not exist anymore. Therefore, such a resolution has automatically lapsed due to the dissolution of the 16th parliament in exile and does not have legal effects because it has already become null and void. In the written order, all the reasons must be included without responding any political statement.
The Tibetan justice commission must unequivocally establish and upheld the supremacy of Charter of Tibetans in exile and the judicial review. This will set a precedent for all the futures disputes that the ultimate guardian of the charter of Tibetans in exile is the Tibetan supreme justice commission. Otherwise, in futures such a resolution may also be passed by various local Tibetan assemblies against their local justice commissioners as well. So, in the long run the rule of law will not survive in exile Tibetan community.
Thereafter, the Tibetan supreme justice commission must proceed with the fresh oath taking ceremony of the elected members of the 17th parliament in exile to continue the functioning of the Tibetan parliament in exile. So, I firmly believe all the remedy of the present crisis is rest on the Tibetan supreme justice commission (TSJC).
(Views expressed are his own)
The author is an independent lawyer based in Dehradun, India. He has been working at Dehradun District Court since 2013.