By the Editorial Board of The Tibetan Political Review
His Holiness the Dalai Lama’s firm decision to devolve His political power, it
is certain that the current constitutional structure of the Tibetan
government-in-exile will change.
However, the Tibetan leader has left the shape of the new political
system up to the Tibetan people, and there are many ways it could be changed. While the Tibetan
Parliament-in-exile currently appears set to push through constitutional
changes by May 2011, we hope that our elected leaders will give this monumental
decision the time it needs to get it right.
What are His Holiness’s Current Powers?
To understand His Holiness’s monumental devolution of power, it is necessary to understand what powers He currently has. Samdhong Rinpoche succinctly described His Holiness’s current political powers under the Tibetan Charter:
“His Holiness is head of the nation, and also head of the administration, the executive. And whatever executive decisions are taken, whatever executive actions are implemented, all of these are done in the name of His Holiness, and for the legislative part, whatever legislation is adopted by the people's deputies, finally His Holiness has to give his consent to those legislations, and he also takes charge of all the elected leadership including the Speaker, Deputy Speaker, and the Justice Commissioners, and also the Kalons and Kalon Tripas. Therefore, he has responsibility of giving a sign to the legislations, rules and evaluations, whatever is adopted by the legislative assembly, and also he has to approve the executive side, whatever decisions and policies are adopted by the executive side; that also needs his formal approval.”
The key point to note is that His Holiness currently serves as both head of state and head of government. Some systems likewise combine both roles into one individual (like the U.S. President) and many others keep them separate (like the British Queen versus Prime Minister, or the Indian President versus Prime Minister).
The other critical factor that cannot be ignored is that due to His Holiness’s role, the Tibetan government-in-exile (TGIE) represents the legal and historical continuation of the legitimate government of Tibet; it is not just the government of 150,000 Tibetan exiles. According to its official website, the TGIE was established by His Holiness as “the continuation of the government of independent Tibet.” The legal principle of a government-in-exile is well-established. His Holiness’s position as head of a sovereign Tibet allowed him to establish the TGIE as the legal “continuation of the government of independent Tibet.”
Since the Great Fifth Dalai Lama founded the Ganden Phodrang government of Tibet in 1642, the successive Dalai Lamas have headed the Tibetan state for nearly four centuries. Additionally, the tireless work the current Fourteenth Dalai Lama is doing for Tibet makes him universally recognized by Tibetans in and outside Tibet as their undisputed leader. These facts give the Gandern Phodrang government a great historical as well as legal legitimacy. Consequently, Tibetans inside Tibet continue to look to the exile government headed by the Dalai Lama as the legitimate government of Tibet.
There are two main variables to consider in implementing His Holiness’s devolution of power: (1) whether His Holiness will remain the head of state even as he relinquishes responsibility as head of government, and (2) how His Holiness’s powers will be transferred to the elected leadership, i.e. whether there will be a system of checks and balances.
Taking these variables into account, we describe one model that we believe is a good starting point for discussion. We also outline some alternative models below for purposes of further discussion. We hope that readers will submit their own articles and letters with their views on this topic to The Tibetan Political Review, and also contact your elected Chitues.
of State = Dalai Lama
might consider evolving to a system similar to constitutional monarchy, which
we could call “Constitutional Ganden Phodrang.” Constitutional Ganden Podrang
has the benefit of being a logical evolution, and one that will present the
least threat to the TGIE’s legitimacy in the eyes of international law and
Tibetans in Tibet.
Constitutional monarchy developed in England, where the monarch gradually devolved his or her powers to what became a parliament made up of aristocracy and commoners, i.e. the House of Lords and the House of Commons. The end result was that the British Parliament runs ”Her Majesty’s Government” in the name of the Queen, while the Queen serves as a unifying national figure who is above political disputes. Interestingly for the Tibetan context, the Queen also serves as the head of the official Church of England.
This was an evolutionary rather than revolutionary process (notwithstanding the beheading of Charles I), meaning that today’s British government is a continuation of the English monarchy. By contrast, France has had a number of revolutions. The current French government can only claim to be the successor – not the continuation – of the previous French republics, empires, and monarchies.
Being a successor rather than continuation does not ordinarily present a country’s government with a legal legitimacy problem, but the situation is more complex with a government-in-exile. The legal legitimacy of a government-in-exile rests on its being a continuation. In effect, a government-in-exile is the government of a state that is suspended in time due to foreign occupation.
Therefore, the legal legitimacy of the TGIE is heavily related to its status as the continuation of the Ganden Podrang government stretching back to the Great Fifth Dalai Lama. This government can and should evolve, including instituting full democracy. However, it would be legally unwise to completely discard the Ganden Phodrang framework. To do so wold risk discarding the TGIE’s best legal claim to being the legitimate representative of the entire Tibetan people rather than just the government of the Tibetans in exile.
There is another important reason to consider a Constitutional Ganden Phodrang system: the Sino-Tibetan dialogue. China adamantly refuses to recognize the TGIE and will not meet with TGIE officials, only His Holiness’s personal envoys. As long as His Holiness is Tibetan head of the state, this presents no contradiction for Tibetans because His Holiness, as the political leader of the Tibetan people, could speak for, negotiate on behalf of, and even bind the TGIE and the Tibetan people.
If His Holiness relinquishes all political power, including being head of state, then His Holiness’s envoys will have no clear right to represent the TGIE in any negotiated settlement, and doing so may be ultra vires (beyond their legal authority). Logically, neither He nor His envoys should be negotiating about Tibet's future. This would also make it easier for China to claim that the “dialogue” with His Holiness’s envoys is solely about His personal status, as it does now.
Tibetans know that China will not meet with TGIE officials, so if His Holiness is no longer the head of state, then negotiations may effectively end. This is another reason to consider in deciding whether His Holiness should remain Tibet’s head of state under Constitutional Ganden Phodrang.
Might “Constitutional Ganden Phodrang” Look Like?
Instead, His Holiness would symbolically represent the country, and all official acts
and legislation would be done in His name (similar to the British Queen). The government would still be the
government “of His Holiness the Dalai Lama.”
in Constitutional Ganden Phodrang, one would expect the Kalon Tripa to be a
member of parliament. However, in
principle there is nothing inherently wrong with having a directly elected
Kalon Tripa separate from the legislature. Indeed, until and unless there can be substantial
parliamentary reforms, it is likely most
Tibetans will not be very keen on parliamentary supremacy. Thus, the Kalon Tripa would carry out
executive actions as head of government, but in the name of the head of state
(Dalai Lama). There would continue
to be a separate Parliament and Supreme Justice Commission.
What would the system look like without checks and balances? One possible (and unwise) way to implement the devolution of His Holiness’s power is to simply go through the Tibetan Charter and put “Kalon Tripa” everywhere it says “His Holiness.” Let us call this the “Replace All” model, named after the feature of Microsoft Word. Under the Replace All model, Tibetans would get a system where the Kalon Tripa has basically unchecked power.
"Replace All" Is Unwise
For example, Parliament would be subservient to the Kalon Tripa because the Kalon Tripa would have power to approve or block all legislation. The Kalon Tripa would also have unchecked power to appoint the Election Commissioner (a conflict of interest, given that the Election Commisioner could run an election where the Kalon Tripa seeks re-election).
the Tibetan people were happy to give His Holiness such sweeping powers due to
our faith in His Holiness and the legal and historical legitimacy of the
institution of Ganden Phodrang. However, no elected leader will likely enjoy such universal support,
meaning that it is inappropriate for the new Kalon Tripa to simply inherit
wholesale all of His Holiness’s political powers.
For this reason, the Replace All method is an unwise one. The decision therefore is how His Holiness’s roles and powers should be divided among the Kalon Tripa, Parliament, and other government organs to ensure adequate checks and balances.
For example, the Kalon Tripa will probably be able to veto legislation by refusing to sign a bill, as His Holiness can currently do, but Parliament should have the power to override the Kalon Tripa’s veto by a 2/3 vote (there is no current right to override His Holiness’s veto).
Additionally, Parliament should also be given a new right of oversight over the Kashag, including the power to form investigative committees and to compel testimony from administration officials. Parliament should also retain its right to approve major appointments in the administration, as well as the power to set the government’s budget. Lastly, Parliament should have the power to impeach the Kalon Tripa, Justice Commissioner, or Election Commissioner for a set of well-defined serious crimes with a 3/4 vote.
Regarding the Judiciary, the Kalon Tripa should still appoint Justice Commissioners, but requiring the approval of Parliament. Once appointed, the Justice Commissioners should have job security to prevent political retribution. Justice Commissioners should also have power to hear cases alleging that a piece of legislation is unconstitutional or that a government official violated a law or regulation.
This model would make the Kalon Tripa the most powerful figure in the government, but by dividing power it would ensure that other parts of the government can check the Kalon Tripa to ensure the overall system functions in balance. As described above, this model also represents an evolution rather than revolution, and best preserves the legitimacy of the TGIE in the eyes of international law and Tibetans everywhere including in Tibet.
If His Holiness does not consent to remaining the head of state (or if Parliament does not desire this), there are other political models available involving a different head of state. These models are unlikely to be directly applicable to Tibetan society, but looking at their salient features will help illustrate some outcomes that Tibetan society could choose.
Food for Thought: The New Tibetan Flag Without Ganden Phodrang?
role for His Holiness
The principal drafter of the U.S Constitution and fourth U.S. President, James Madison, wrote that “the structure of the government must furnish the proper checks and balances between the different departments” (Federalist Papers #51). We discussed some recommended checks and balances for the Tibetan situation above. A U.S.-style Presidential model with checks and balances would make the Kalon Tripa the head of state and the most powerful figure in the government, but by dividing power it would ensure that other parts of the government can check the Kalon Tripa and preserve an overall balance.
Alternative Model 2: Indian-Style Republic
role for His Holiness
Many TPR readers will be familiar with the Indian political structure. The key point to make is that this system separates the role of head of state (president) and head of government (prime minister).
If Tibetans were to adopt an Indian-style republic, there would be a head of state (perhaps called a President or Sid-zin) to perform ceremonial functions and represent the nation. Of course, practically speaking, it is difficult to imagine this model being successful while most Tibetans continue to regard His Holiness as the unofficial embodiment of the Tibetan nation. Creating new head of state may also be financially wasteful, given the Tibetan government’s budget.
The Indian model has the Prime Minister be a member of Parliament. To follow this model closely, the Tibetan Charter would need to be revised to make the Parliament supreme, and the Kalon Tripa would be a member of parliament elected by his or her fellow parliamentarians. For this system to work well, it would be helpful to have a party-based system, as well as a stronger correlation between Parliament members and their actual constituencies.
With the current Tibetan Parliamentary system needing reform, it is unlikely that Tibetans will want to give up direct election for Kalon Tripa in favor of parliamentary supremacy. Perhaps this is a change to be tackled in a future self-ruling Tibet. For the time being, the Kalon Tripa will likely continue to be the directly-elected executive. As a result, an Indian-style system would have to carefully balance the role of President, Kalon Tripa, and Speaker of Parliament to avoid creating a constitutional mess.
The Indian system reminds us that there is a benefit to separating the roles of head of state and head of government. In the combined system, U.S. President Bush used his position as head of state (leader of the nation) to accuse political opponents of being, effectively, traitors to the nation. This disturbing tactic is harder to use by an individual who is solely the head of government and who does not symbolically represent the nation. Therefore, Tibetan democracy is best served through separation of the roles of head of state and head of government.
Given the range of options described above, it is clear that the issue of how to implement His Holiness’s devolution of political power involves very complicated factors. Suffice to say, the new form of the Tibetan government is a monumental decision that deserves careful thought, adequate research, full transparency, and public consultation and participation.
Unfortunately, from current reports, it does not appear that the Tibetan Parliament is proceeding this way. Rather, it appears that Parliament is set to make a rather hasty decision. According to Phayul, the Parliament has formed a Charter Redrafting Committee tasked with proposing necessary amendments to the Tibetan Charter. The Committee must report back by April 11, and the Parliament resolved to amend the Charter before the current Parliament’s term ends in May.
On one level, the Parliament is to be congratulated for taking action. On another level, one must ask: why the sudden haste? Perhaps it is simply the interplay of Tibetan cultural norms: now that the Parliament has decided to act, it wants to carry out its task before the end of its session, similar to how one should not drag a task into a new year. While understandable, this approach risks rushing a critical decision and doing a disservice to both the Tibetan people and to His Holiness’s democratic vision.
This devolution might very well result in His Holiness being the first Dalai Lama in almost 400 years not to be at the formal apex of the Tibetan state (the last was the Fourth Dalai Lama, ten incarnations ago). Given the enormity of this matter, it hardly seems adequate to allocate only a scant few weeks to constitutional re-drafting. It does not give enough time for the Tibetan public to comment on any proposals or for the Parliament to think through all the consequences of any proposed amendments.
other words, is hastiness wise?
The current Parliament session should be praised for getting the devolution process started, especially for forming the Charter Redrafting Committee. Now, the Committee should be given enough time to thoroughly examine all the social, legal, and political factors. The Committee should also be given enough time to consult outside experts on constitutional law as well as provide an opportunity for public comment.
Redrafting a constitution is akin to delicate brain surgery for a society. Such monumental changes to the Charter and the TGIE require at least six months or even a year to accomplish, so any final decision should be left for the incoming 15th Parliament to make.
The coming special session of the Parliament in May will consider the recommendations of the Committee. We hope that this special session – and the special Tibetan people’s meeting that same month – will be the start rather than ending of this critical discussion. We hope that the final decision will not be hasty, will not fail to adequately consider all the factors, and will allow the Tibetan people (not just those at the special meeting) to express their views. After all, the Tibetan government belongs to the entire people, and this literally once-in-ten-lifetimes decision must be handled in a way that will stand the test of time.