(TibetanReview.net, Jun15’21) – The reason why the issue of the legitimacy of the justice commissioners of the Tibetan Supreme Justice Commission (TSJC) still hangs in the air is because no competent authority had the occasion to rule on the validity of Resolution No, 39 of Mar 25, 2020 of the 16th Tibetan Parliament in Exile (TPiE). “Everyone” says it is illegal, and rightly so, because the illegality is writ large on the very face of it and the subterfuge employed to pass that resolution was despicable.
Still, it cannot be said that a piece of legislation or executive action is illegal simply because you and I say so. Rather, the issue has to be taken up before the competent authority whose ruling thereon would obviously be binding on all of us.
And it is not as if we do not have such a competent authority. There was, of course, an attempt from the TPiE itself by virtue of its competence to pass a resolution to withdraw or annul that resolution. But it was rendered impossible by the failure to hold a scheduled additional meeting of the 16th TPiE even after it was postponed.
But nobody appears to have thought about taking the matter before the TSJC in which Article 5 of the Charter of Tibetans in Exile very explicitly vests the power to decide such an issue.
Had that move been made in time while the Justice Commissioners were in their recusal mode, as they said they were from Mar 26 to May 23, we might have a panel of Justice commissioners of the TSJC whose legitimacy no one would have a reason to question.
Meanwhile, the manner in which a grouping of 22 elected candidates to the 17th TPiE took their oath of office was obviously not according to the provisions of the Charter and the Tibetan Chief Election Commissioner was right in not recognizing it. However, the grouping may have a point in saying the pro tem speaker who was otherwise to administer to them their oath of office was himself not rightly sworn in, even though the sky won’t fall on their heads if they took their oath like the other elected candidates since it had at least a veneer of legality.
First thing first. Administering the oath of office to yourself, even if done before a portrait of His Holiness the Dalai Lama and the Charter of Tibetans in Exile, and even though arranged by the TPiE secretariat for whatever reason on top of it, is still not according to the Charter. The Charter has a clear and specific provision for oath-taking. It is hypocritical to swear by the Charter only to ignore its provisions by citing extraneous reasons, no matter how great these reasons may be otherwise.
The enormity of the power and responsibility of a TPiE member warrants that the oath be administered by a person of sufficient official stature, with him (or her) reading out each word of the oath, and the oath-taker repeating after him with utmost solemnity so that it becomes absolutely clear to the latter what becoming a member of the TPiE entails.
Oath-taking is not like reciting lines of prayers before images of deities with a view to accumulate spiritual merits but has real-life implications of accountability. The format prescribed by the Charter is obviously meant to make this very clear.
The group of 22 members refuse to recognize the legitimacy of the Chief Justice Commissioner because their apparent leaders had, in their previous incarnations as members of the 16th TPiE, led the removal of the entire panel of justice commissioners of the TSJC. And the resolution by which the removal was made was carried out with the support of more than two-thirds of the members of the TPiE.
However, that resolution was absolutely illegal both in terms of the substantive provisions of the law for this purpose as well as in terms of the procedure by which it was carried out. This lack of validity of the legislation would not change even if it had been passed unanimously.
However, while the illegality is writ large on the face of the resolution itself, it still has to be declared illegal, or, rather, it has to be ruled on by a duly empowered authority of the CTA. Otherwise anyone can go about branding anything as illegal and pandemonium will prevail.
You may say a piece of legislation is void ab initio, meaning it was invalid and has to be taken as if it was never passed. But that will come into play, with retrospective effect, only after the competent authority of the CTA had duly ruled it as void ab initio because it alone can declare it so. That is because there is no automatic process or mechanism for illegal laws to become void even if most of the people agree that it is illegal.
True, Article 5 of the Charter annuls any law, executive order or regulation which is in violation of its provisions. But it then vests the power to adjudicate to decide the issue on the TSJC. So, the first thing to do is to challenge that resolution before the TSJC.
The party to challenge it could be the panel of the TSJC as they are the direct victims, or from among the dissenting members of the 16th TPiE for obvious reason, or the Kashag since the action severely affects the working of the CTA including being unable to appoint the kalons, or possibly any member of the public as no Tibetan can claim to have remained unaffected by the Charter breakdown the resolution has led to.
But it is clear that the case cannot be heard and decided by the current panel members of the TSJC where the suit is to be filed since they have a direct interest in its outcome. So they should recuse themselves. Who then should hear and decide this case?
While the Charter is truly silent on the peculiar situation the 16th TPiE has presented to us, we are not utterly helpless. Article 1 of the Charter makes it clear: “As and when He sees it necessary, OR whenever appealed to by the leadership, His Holiness the Dalai Lama is to provide suggestions on opinions of the Kashag or the Tibetan Parliament-in-Exile on important matters concerned with the Tibetan people, society, religion and politics.”
Under this broad and sweeping provision, His Holiness can be approached to suggest names for an ad hoc panel of justice commissioners who would hear and decide that case, as and when it is presented before the TSJC. So, let someone or some entity present the case before the TSJC first. The TSJC itself may appeal to His Holiness the Dalai Lama to recommend names for the proposed ad hoc panel of justice commissioners.
This might be a bit time-consuming. But is there a better alternative?