“Three pillars of Tibetan Democracy, check and balance and Suo Moto”

His Holiness The Dalai Lama announced that he would complete retirement from his role as Tibet’s political leader on 10th March 2011, on the 52nd anniversary of his exile from Tibet. He said the decision came from a long-held belief that the Tibetans needed a freely elected leader. Since then, we have our Sikyong of the Tibetan Government in exile, officially known as Central Tibetan Administration (CTA) and previously served by Kalon Tripa since 2001. With his long-held belief and acknowledgment, we are blessed to elect our Sikyong and make him its highest political leader of Tibet.

His Holiness The 14th Dalai Lama, carrying full responsibility of Tibet and the Tibetan struggle, announced his decision to retire as political head of the Tibetan Government in exile and to hand over his “formal authority” to a “freely-elected” leader on 10th March 2011. The spiritual and temporal head of Tibet, His Holiness the Dalai Lama is probably the only leader in the world who has voluntarily given an opportunity of political power step by step to his own initiative with crystal clear guidance on his vision to achieve the Tibetan mission in this twenty-first century.

 On these very lines, the Central Tibetan Administration completed the establishment of the three pillars of democracy (Legislative, Executive, and Judiciary). In 1992, the Tibetan Judiciary, known as the Supreme Justice Commission was constituted. In 1991, His Holiness announced further democratization by making the Tibetan parliament in exile, a full-fledged legislative body. The Charter of Tibetans in exile was adopted by the Tibetan parliament and enacted by His Holiness the Dalai Lama. The Charter provided an enlargement of the Tibetan Parliament with the power to elect members of the Kashag after the nomination of candidates by His Holiness. The Kashag (the highest executive body) supervises the Central Tibetan Administration, which has seven major departments; Religion & Culture, Home, Finance, Security, Education, Health and Information and International Relations. In addition to these departments, there are three autonomous entities embedded within the CTA. An Independent Election Commission conducting and overseeing free and fair elections, a Public Service Commission responsible for all aspects relating to the recruitment, training, and appointment of CTA civil servants and the Office of Auditor General to audit and scrutinize the financial management of all organizations under the CTA.  In addition to all, there is a 46-member Tibetan Parliament, a representative and elected legislative branch that holds sessions twice a year and makes our democracy more systematic. 

The legislative power shall be vested in the two chambers of the Tibetan National Assembly and the President (Sikyong). Laws passed by the upper and lower chambers of the assembly shall have to obtain the assent of the President (Sikyong). The lower chamber of the Tibetan National Assembly shall consist of representatives directly elected by the citizens within their respective constituencies and it shall be the highest law-making body. The upper chamber of the Tibetan National Assembly shall consist of members elected by their provincial assemblies and those nominated by the Sikyong. The legislative branch makes laws, but the President in the executive branch can veto those laws with a Presidential Veto. And also the legislative branch can make laws but the judicial branch can declare those laws unconstitutional. The legislative branch has the power to approve Presidential nominations, control the budget and can impeach the president and remove him or her from office. The beauty of this fundamental process is called Checks and balances.  

The executive power shall be vested by the President (Sikyong) in the executive branch of the Tibetan National Assembly in accordance with the law. A Tibet government in exile follows a parliamentary system of government, wherein the Speaker and Deputy Speaker shall be elected from the party or any group constituting the absolute majority of the members of the lower chamber of the Tibetan National Assembly from the nominated candidates appointed by the President (Sikyong). However, should this recourse fail, the Speakers shall be elected by the entire members of the Tibetan National Assembly, the power to exercise executive powers shall rest primarily in the cabinet set by the Sikyong. The President in the executive branch can veto a law, but the legislative branch can override that veto with enough votes. The executive branch can declare Executive Orders, which are like proclamations that carry the force of law, but the judicial branch can declare those acts unconstitutional. The beauty of this fundamental process is called Checks and balances.  

The Judicial power is an independent Supreme Justice Commission of Tibet shall be the highest appellate court of justice. The Supreme Justice Commission shall be the head of the judiciary, which shall safeguard and decide by interpreting the provisions of the constitution all matters brought before it concerning an alleged violation of law, whether by the government or by the citizens, so as to ensure correct and equal dispensation of justice. The Tibetan Supreme Justice Commission is the highest judicial organ and one of the three most important pillars of the Tibetan democratic administration in exile or the Central Tibetan Administration. It formally came into existence as per the provision of the Charter of Tibetan in exile on 11th March 1992 in Gangchen Kyishong, the headquarters of the Central Tibetan Administration (CTA) in Dharamsala in the northern Indian state of Himachal Pradesh. The Tibetan Supreme Justice Commission is composed of the Chief Justice Commissioner and two other Justice Commissioners. They are appointed by the Tibetan Parliament in exile through election out of nominated candidates submitted by the Selection Committee, which is constituted by a Committee of Chief Justice Commissioner, the Speaker and Deputy Speaker of Tibetan Parliament in exile, and Sikyong (Chief of the Kashag/Cabinet). In the past, the Chief Justice Commissioner and two other Justice Commissioners took the oath of office from His Holiness the Dalai Lama. However, since His Holiness devolution of all his political and administrative powers on 29th May 2011, the Chief Justice Commissioner is to take the oath of office from the out-going Chief Justice Commissioner or the officiating Chief Justice Commissioner. The two other Justice Commissioners are required to take the oath of office from the Chief Justice Commissioner. The judicial branch interprets laws, but the President nominates Supreme Court Justice, the court of appeals judges, and district court judges who make the evaluations. The Judicial branch interprets laws, but the Senate in the legislative branch confirms the President’s nominations for judicial positions, those judges and remove them from office. The beauty of this fundamental process is called  Checks and balances.   

The Constitution divides the government into three branches: legislative, executive, and judicial. That was an important decision because it gave specific powers to each branch and set up something called checks and Balances. Just like the phrase sounds, the point of check and balance was to make sure no one branch would be able to control too much power, and it created a separation of powers and made democracy more systematic and genuine for each and every one. 

Suo Moto has its genesis in the concept of “Epistolary Jurisdiction”, which emerged in the late seventies through judicial activism in order to make the judicial process more accessible to the poor, weak background, socially and economically disadvantaged sections of the society. The Latin term Suo Moto (own motion) means an action taken by a government agency, court or other central authority on their own apprehension. In simple terms, it means taking control over a matter. Suo Moto cognizance is when the courts take a case on their own, in cases of gross negligence on part of public authorities or government or whenever the court deems fit. A court or justices take a Sou Moto Cognizance of a legal matter when it receives information about the violation of rights or breach of duty through media or a third party’s notification. The judge shall pass orders on matters of public interest in his own accord, without being approached by any party or individual regarding the matter. 

In India, Suo Moto has been warranted under article 32 and article 226 of the constitution, which gives special power to the Supreme Court and High court to issue any directions to do or refrain to do an act. In other words, when a court feels that a matter requires serious and immediate legal intervention, it acts Suo Motu. The Supreme Court has been granted with suo moto power article 131 of the Constitution. Suo Moto cognizance was mostly taken up by the courts like contempt of court, reopen old cases and order probes for new cases.

In our Charter of the Tibetan-in-exile, in article 67 rules of procedure and code of law of the Supreme Justice Commission, subject to the provision of any law as specified in this Charter passed by the Tibetan Assembly, the Tibetan Supreme Justice Commission shall make its own motions of procedure and codes of law with acceptance of all three Commissioners, they shall come into effect, likewise in US law, Sua Sponte (on its own motion) means Suo Moto to indicate that a court has taken notice of an issue on its own motion without prompting of suggestion from either party. As a general rule, where grounds for dismissal exist, an action is subject to dismissal on a court’s own motion. A trial court has the power to dismiss an action sua sponte for want of prosecution, or failure to comply with the rule of civil procedure or a court order. 

Therefore, Suo Moto describes an act of authority taken without formal prompting from another party and has ensured that justice should prevail in civil as well as criminal matters, whereas check and balance are various procedures set in place to reduce mistakes, prevent improper behavior or decrease the risk of centralization of power. Checks and balances usually ensure that no one person or department has absolute control over decisions, clearly define the assigned duties and force cooperation in completing tasks. 

                                                                                                                               -Som