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.
10 Responses
There are many fools still agrees, “The TSJC members reinstatement was illegal and sets a very dangerous precedent for our democracy. It delegitimizes the power of the TPiE, the only body that is elected by the people thereby robbing Tibetan constituents the right for fair representation in the government” said someone in the comment here.
If your elect representatives cross any line , who comes in , Speaker of the House. If Speaker of the House is on firing spree like the traits of Sikyong LS and Donald Trump character. Judicial Office will take notice and Judiciary is the out most, your God Father. Let the dust settled before you see any.
Can anyone prove that 99.99 % Tibetans support reinstatement of TSJC. Then who are those 0.01 % that opposed TSJC misusing of the power that is not granted to them by the Charter. Has anyone read and think about the comment from Gyal Chepa. Rumours should have some reason to convince people but this types of rumours is the clear indication of jumping blindly on who you want to support and blame the opponent based upon hatred. Tibetans lack sincerity and intelligence to seek all information truthfully. Tibetans are running after who they want to listen, support and the truth is not been always valued. Open and healthy society cannot be built for the well being of all Tibetans if we stick on favortism, groupism , communal interest etc.
Thank you Tenzin la for your eye opening article, which I hope will help many of us to understand what actually went wrong with regards to the resolution 39. Due to lack of good legal knowledge, it has created lots of confusion amongst common people, including some of the elected representatives who may have supported to remove the honorable members of TSJC. Sadly, this messy situation is the work of the former speaker, Pema Jungney and his handful of supporters. I am sure he must be today very happy and satisfied man, for being able to do such wonderful job.
This is my sincere appeal to all the Chhthies to show their wisdom for the greater interest of Tibet and Tibetans. Do you think it is morally right to remain adamant and assert your egocentric views at this critical time in the history of our people? Do you have other agendas?
Please note that the 99.99% of Tibetan people supported the reinstatement of three members of TSJC. We now get the feeling that some of you are not working for us, but for other hostile forces.
My deepest appreciation and thanks to Mr.Tenzin Dayoe for his most enlightening article on Indian law related to Suo Moto. However, I failed to understand when was Suo Moto’s power granted to the honorable judges of the Tibetan Supreme Court and under which article. Was it ever debated by the Tibetan Parliament and approved by them. Suo Moto’s power of the Indian Supreme court has been provided under Article 131 of the Indian Constitution. Which article of Tibetan consitution gave the honorable Judges that power?
The issue here, is Tibetan Supreme Court judges above law? Can they deprive elected parliamentarians there basic right to vote or debate in the parliament?
There is the principles of separation of powers or of judicial review; what is justiciable and what is not justiciable and the practice of judicial restraint.
What is in question is the legality of the Suo motu that was imposed by the Tibetan Supreme Justice Commissioners. Suo motu actions are particularly rampant in countries where there is no rule of law, where press freedoms are under severe constraint. However, in free and democratic countries there is hardly an instance of suo moto. For example in Canada the courts are forbidden from taking such notice unless expressly permitted by a statute. It’s completely unknown in Australia and S Africa.
Suo moto is not a stranger to India but issued in dire consequences where there is injustice such as rape, loss of life owing to natural disasters or Government’s in apt actions and lack of duty of care. A court notice of Suo moto are based on such conditions as follows: “where there is gross negligence on part of public authorities and government, where the law is disobeyed and the public is put to suffering and where the precious values of the constitution are subjected to injuries, a constitutional court can very well take notice of that at its own”.
Suo moto jurisdiction undermines the confidence of the public in the Government and in the present context, it completely undermined the trust in the Legislative Assembly of the Tibetan people better known as chitue Lhankhang. The courts take extreme care not to be seen as overly active vigilante judiciary, infringing on the realms of the executive branch, in this case the chitue Lhankhang. The Suo moto is used primarily in matters that concerns the dignity of the court, contempt of court or violation of any order or judgement of the court.
The 16th Chitue Lhankhang had NOT VIOLATED ANY OF THE AFOREMENTIONED CONDITIONS.
However, Tibetan Justice Commissioners decided to penalise eleven chitues for no apparent reason. This where they floundered. They have used it without meeting any criteria that has been used in India and Indian States. The Legislative Assembly was not in contempt of court or undermining the dignity of the court. There was no tragedies where people were suffering injustices or lacking duty of care that would warrant imposition of Suo moto! It was a random whim of the Tibetan Justice Commissioners. It had no legal basis whatsoever. Besides, in the Indian context there is clear rendition of Suo moto in Article 32 and 226 of the constitution of India but there is NO MENTION OF SUO MOTO anywhere in the Tibetan charter among the 111 Articles! So, where did they dig up Suo moto Special powers which is NOT enshrined in the Tibetan charter? In the Indian constitution it is WARRANTED BY ARTICLE 32 and ARTICLE 226, but where did the Tibetan Justice commissioners derive that power? CAN ANYONE TELL ME? Without constitutional sanction, how can they impose Suo moto without ANY BASIS? THEREFORE THE RIGHT TO TAKE AWAY THE UNIVERSAL SUFFRAGE OF THE ELEVEN STANDING CHITUES WAS ILLEGAL!!! That being the case the chitue Lhankhang dismissed the three Justice commissioners by a two thirds majority since they had no other option. It was fair and square.
Like a fish, the rot started from the Head ( the SJC) and it let to the present predicament.
The author obviously tries to wish away all the things that is not to his liking and paints a picture that Resolution 39 is “lapsed”. It exposes his insincerity and obstinacy to peddle the same narrative that is in currency today among the ignorant and bigoted communal elements. But truth is hard to swallow and that is why it is given short shrift. To claim that the “Tibetan Supreme Justice Commissioners shall be the supreme authority” sounds like makings of a Tibetan dictator like the Chinese dictator Xi. Separation of power refers to the division of a State’s Government into branches, each with seperate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of other branches. If the Tibetan SJC had all the power vested in it, where are the checks and balances?
Remember, the Charter said, if there are arguments regarding the interpretation of the articles and acts, the Tibetan language shall be the final. Therefore, if someone read article 5 in Tibetan language, it does not indicates Sue moto clearly nor authorized TSJC any special power. The article gives general idea on how any laws, acts and regulations would automatically be nullified themselves if they do not follow Charter. The TSJC has secret law professional advisers who give them ideas and advices. If TSJC is authorized by the article 5, and it is kind of granting sue moto, its advisers have already suggested them to implement when Legislative Assembly passed impeachment bill. The recue is the advisor’s conspiracy otherwise TSJC already left their job.
Regarding Charter, there are different views and no consensus between the Charter drafting committee member’s interpretation about the provision of sue moto, impeachment due process and many more. However, the two parties (political backbone) tried to justify the view that favours and suit party objectives. In worst case, the party that is formed with the involvement of many former CTA staff, accuse and spread rumours that the opponents are attempting to dismantle CTA organization since there are paid employees of CCP. This kind of political strategy is helpful to convince and win general public support and could easily defeat the opponent. In fact, it is the Department of security who should notify public with names and titles of CCP espionages if there are exist in our community. However, many dirty politics and conspiracy are being played by those who claimed to be most sincere and dedicated to CTA. The real problem comes from prejudice, resentment, ego, lack of sincerity, hatred, lack of national interest and power struggle. Both parties have many actors who belong to different groups, communities, Cholkas NGO, medias, authors, twiteers, Dharnad, Dharmar, lawyers and civilians. Therefore, no one is praiseworthy, trustworthy nor leave without accountable for social disturbance or distorting unity.
It is totally joke that the two parties are allowed to take two different ways of Oaths through official announcement and within the fourteens hours since Oath taking notification was done, no official made any objection prior to begin real ceremony. After official ceremony was done, conspiracy started and official rejection for 22 Chithue’s Oath came from Chief Election Commissioner. Didn’t it sounds conspiracy and something threat issued on EC or he might be involved with Right party groups. The rule and conspiracy when go together, it creates confusion to general public to understand who is right or wrong. Last but not least, I can assure that the present problem cannot be resolved by rule, it can only be resolved through sincerity, understanding of national interest, amicable and compromise.
Well documented and researched facts. However, as owls are blinded by the sun light, those few senseless and unpatriotic people lead by Ogen Topgyal in the guise of monk, an antique with no modern education and even nil in Buddhist teachings, may not understand the facts. The above suggestions are good but the MPs who have already taken oath as per the constitution must not take oath again. This will have negative impact on the constitution itself.
Since, the resolution 39 itself was unconstitutional, the legality of all the others that followed after, have no meaning as per the law. The status of Tibetan constitution has not changed at all and we must follow the charter in letter and spirit.
Tibetan brethren, we must oppose those poisonous people who are in the garb of monks or cholkha supporters. We are Tibetan first. We are the disciple of His Holiness the Dalai Lama first. We are the proud Tibetans who have been fighting Red Chinese for decades. However, the poisonous Tibetans must shed their poison towards Tibetan people, rather direct it towards our common enemy if you really are Tibetans. If not, you have might been influenced by some kind of rewards from our enemy.
Tenzin Dayoe is handing autocratic power to the TSJC by suggesting that the other branches of government such as the legislature (TPiE in this case) cannot hold them accountable because in his words “the supreme power of the charter lies with the TSJC”. I thought the whole point of having three branches of government was to provide check and balance. If the judiciary can act without any recourse then what’s the difference between TSJC and Kim Jong Un.
The author conveniently applies Indian law to Tibetan charter with the simple explanation that the Tibetan charter borrows ideas from the Indian constitution. But when that analogy does not benefit his argument, he is quick to state that the Tibetan charter is unique. You cannot have it both your ways.
The TSJC members reinstatement was illegal and sets a very dangerous precedent for our democracy. It delegitimizes the power of the TPiE, the only body that is elected by the people thereby robbing Tibetan constituents the right for fair representation in the government.
It is really high time to TSJC must pass a written order by using under Article 5(a)(b) to declare the resolution no 39 passed by 16th TPiE as UNCONSTITUTIONAL.
Above article must be translated into Tibetan language and should be printed all major Tibetan newspapers. Author seems to have good knowledge of judicial systems and law.