By
the Editorial Board of The Tibetan Political Review
With
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.
SOME NEW FACTORS TO CONSIDER
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.
Model 1: Evolution to “Constitutional Ganden Phodrang”
Head
of State = Dalai Lama
Head
of Government = Kalon Tripa
Head
of Legislature = Speaker of Parliament
Checks
and balances recommended among branches of government
Tibetans
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.
What
Might “Constitutional Ganden Phodrang” Look Like?
Under
“Constitutional Ganden Phodrang,” the head of state would be the Dalai Lama (or
a Regent if a Dalai Lama is a minor or has not been identified). His Holiness
would have only limited ceremonial responsibilities, and no political
ones. In fact, His Holiness would
explicitly be removed from a political role, similar to the expectation that
the British Queen will hold herself above politics. His Holiness would therefore be freed of His political
responsibilities.
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.”
This nomenclature is particularly useful in situations where
the TGIE has used the legal ambiguity between the TGIE and His Holiness, for
example the name of some Offices of Tibet: the “Bureau of His Holiness” in New
Delhi, the “Liaison office of His Holiness” in Tokyo, and the “Religious
Foundation of His Holiness” in Taipei. Since the TGIE lacks legal recognition as a sovereign government,
this ambiguity has been a useful way to get around certain international hurdles
in carrying out its diplomacy.
Ordinarily,
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.
Recommended Checks and Balances
Since
the Kalon Tripa would be head of government and also closely associated with
the head of state, there is a risk that too much power will flow to this office
at the expense of the other branches.
Therefore, it would be prudent to consider some checks and balances to
ensure that the legislature and judiciary can check the executive and ensure
proper balance in the system.
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).
Clearly,
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.
ALTERNATIVE POLITICAL MODELS
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?
Alternative
Model 1: US-Style Presidential Republic
No
role for His Holiness
Head of State and Head of Government = Kalon Tripa
Head
of Legislature = Speaker of Parliament
Checks
and Balances recommended
If
Tibetans were to adopt a U.S.-style republic, the Kalon Tripa would become the
head of state and the head of government, akin to a president. He (there will not be a “she” for at
least five years) would be the symbolic and ceremonial head of the nation. He would also exercise full power over
the executive branch, and would have the power to sign or veto laws passed by
the legislature.
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
No
role for His Holiness
Head
of State = President/Sid-dzin
Head
of Government = Kalon Tripa
Head
of Legislature = Speaker of Parliament
Checks and Balances recommended
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.
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.
TIBETAN PARLIAMENT: DECIDING IN HASTE?
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.
In
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.
