By Tenzin Namgyal (Dharamsala, India)
Tibet has long history of its own distinct legal system which can be traced back to the early Christian era. But, with the advent of Tibetan language under the first historical King Songtsen Gampo (620-866AD), the first codified law was written under this great empire. This codified law includes (a) The Ten Virtuous Acts and (b) Sixteen Moral Principles which were strongly based on Tibetan Buddhist canon.
The Tsang Kingdom was the third and last of three secular Tibetan dynasties lines--- known as Three Kingdoms. The fourth Tsang King, Karma Tenkyong Wangpo who reigned in 1623, was keen in legal administration. The Tsang Codified law was the first to widely distribute throughout Tibet right up to the mid-twentieth century.
In 1642, after the great fifth Dalai Lama in charge of Tibet, the Gaden Phodrang Code and Central Administrative Bureaucracy were codified, on the basis of the Tsang codified law, which was in the line with the spirit of Buddhism. Whereas, the Chinese legal system was based on ancient philosophy of Confucius and legalist. The Chinese legal system was later modernized in the 19th Century and was way ahead of us, as well.
In Tibet, laymen generally consider law as set of moral rules which used interchangeable with religion, politics and administration. Out of different categorization of laws, the “law of the kings” or state law (gya trim) and “local law”(yul trim) were the pivotal law in Tibet. Buddhism being the state religion, it had a great influence in the legal system of Tibet. The legal code consisted of phrases or proverbs and myth. Although these were suggestive in nature but very often played vital roles in conciliation of disputes. Unlike English laws, the concept of stare decisis or precedent and res judicata (finality of the case and a bar to subsequent suit/action) were alien to the Tibetan legal system. In other words, irrespective of case being similar to the past issues, the conciliator or the judge considers each matter as unique to other matter. And the decided matter can be re-opened in any future date. As a Tibetan proverb says “fighting and disputes does not decay with time.”
Until, 1959 the Gaden Phodrang law code was the main source of law that governed the Tibetan legal system. But after coming into exile, His Holiness promulgated future constitution of Tibet in 1963 and approved the Charter of Tibetan in exile on 28th June 1991. In both occasions, His Holiness recognized and outlined the democratic governance system which is based on justice and equality and to ensure cultural, religious, and economic advancement.
OBJECTIVE & SOURCE OF THIS ARTICLE
To justify Tibet was independent and sovereign state prior to 1959, there has been enough vociferous discussion on Tibet’s distinct political, cultural and religious system, which was diverse from China. However, so far the concrete discussion and statement on Tibetan legal system seems infrequent and untouched as well. Thus, the objective behind this article is to highlight the distinct Tibetan legal system, which has been concluded by many renowned authors and which are the source of this article as follows:
(i) The Golden Yoke, The Legal Cosmology of Buddhist Tibet. Written by Rebecca Redwood French. The comprehensive book on Tibetan legal system prior to 1959;
(ii) Hidden Tibet, History of Independence and Occupation by S.L.Kuzmin. This book traces the history of Tibetan statehood which includes distinct legal system from China;
(iii) The Political History of Tibet by Tsepon W.D. Shakaba;
(iv) Tibet Justice Centre website; and
(v) Central Tibetan Administration website.
From the era of the great historical king Songtsen Gampo in the 7th century, the administration of the state was systemically organized and under the control of the central government which consisted of different offices/departments, including the Ministry of Justice as well.
The administration of Tibet was further reorganized by the great H.H. 5th Dalai Lama. The three highest levels in the Tibetan central government were the office of the Dalai Lama, Cabinet (Kashag) and Ecclesiastical Office (yigsang). The balance of religion and politics was achieved by dividing the bureaucracy of the government into ecclesiastical office and secular wings. The officials in the ecclesiastical wing were staffed with monk officials and positions in the secular wing were headed by the kashag which was filled by the both monk and lay officials. Both the wings ultimately reported to the Office of the Dalai Lama.
There were at least twenty administrative offices, included the Finance Office, the High Court of Tibet, the Office of the Army, the Agricultural Office, the New Investigation Office, the Foreign Office for Nepalese, and the Municipal Office, among others. Prior to 1959 there were approximately 120 Districts, the administration of vast territory of Tibet was governed by the concerned District Officer, duties were to collect taxes, receive and pass on commands or requests and decide local conflicts.
THE STRUCTURE OF COURT
Except the High Court in Lhasa, the court proceedings in Tibet were held in the administrative office of concerned District. The territorial jurisdiction of district was being strictly adhered, the entertainment of matter outside of one’s district is prohibited.
(i) The District Court: Although there is no specific court for the district, the district officer had many auxiliary work/powers including adjudicatory power. The matter before district was presided by the District Officer/ Official and assisted by a small number of staff. The district officer was either directly appointed by the central government or indirectly controlled a regional area operated under their own leaders. The matters before the District court were decided according to the rules of the area based on customary traditions of the substantive local law. Each had to be investigated and decided according to its nature and factors. The matter could go for long time, until parties agreed or the district officer decided to stop the case. Generally, less serious matters or crimes were undertaken by the district office whereas grave and serious matters or crimes were directly undertaken by the High court.
(ii) The High Court : Prior to 1959, the sherkhang, the high court in Lhasa was the appellate and the apex court of the Tibet. It was responsible for hearing legal cases at the rate of two to three a day. The judges were called as the trimpon, and sherdrung were the clerks. The working hours were between 9am to 5pm although it was not rigid. The duty of sherkhang were to entertain murder cases, review legal cases sent by the cabinet including important non-criminal cases and any other duty assigned by the cabinet or office of the Dalai Lama.
ALTERNATIVE DISPUTE RESOLUTION OUTSIDE OF COURT
There were mainly two reasons where people preferred to resolute the dispute outside of court/legal proceeding:
(i) The ancient Tibetan beliefs that the conflict is the mental state of mind it evolved due to negative emotions such as greed, anger and so on, which would ultimately seed bad karma.
(ii) To avoid shame and disgrace in the community,
(iii) Less cost and time consuming.
Hence, there were following levels of alternative resolution of disputes outside of court;
(a) Household or family level: The disputes arose within family were decided among themselves by the father or by a friend or by a neighbor. It was considered best not to expose the household’s problems to the outside, if at all possible, but to keep them internal as proverb implies “a wound in the mouth is better cured inside the mouth.” The procedure for the settlement of disputes varied from one region to another.
(b) Community level: Each community elected a headman who had to be knowledgeable elderly man. His main legal duty were settlement of disputes in community levels, and notify the district court of serious crimes.
(c) Association level: The most interconnected network of individuals in Tibet were the Associations. They played important roles in solving the disputes of their members and acted on behalf of their members in disputes with outsiders. Such Associations could be based on ethnic, religious and occupation etc. For instance former Nepalese-Tibetan traders called kasara association, Tibetan Muslim Association and even beggars association was existed in Lhasa. So these associations dealt with their disputes according to their own customary rules.
(d) Township level: The fourth and last level consists of several villages or communities. Disputes at this level were decided by the wealthy man in town, the steward of the estate or the regional headman or council. Under this level, included disputes over irrigation serviced of same river, land disputes over boundaries between adjoining villages, and unsettled disputes from the community or association.
In Tibet the matrimonial system was unique and it varied according to the social status. Prior to 1959, both monogamy and polyandry type of marriages were practiced in Tibet. In the countryside of Tibet, people believed the strength of family rested on the size of the family. To safeguard and strengthen the size and wealth of the family, polyandry between woman and two or more brothers was practiced. However patterns of marriage were flexible for nobility, as the marriage was a contract between two families. The contract included the price of dowry, gifts from the bridegroom, violation of contract by either of the spouse had to be negotiated. The pattern of the divorce was same under all types of marriages. The violation from the husband side could cost him to pay double of the value of the articles brought by the wife or violation from the wife could cost seizure of her property. The care of the boy went to the father and girl to the mother.
INHERITANCE AND WILL
Tibetans distinguished between real and personal property for the purpose of inheritance. Personal property (nor) consisted of all the movable material of wealth of personal or family including animals. The most common Tibetan aphorism about inheritance is the son inherits the father’s place. In other words, at least one son would follow on his father’s occupation, unless he took monastic vows. The general pattern of intestate inheritance as follows:
(i) To the eldest son, if not a monk;
(ii) If the eldest could not then preference goes to another brother in seniority;.
(iii) If no sons then the son of a daughter who would occupy the house and work the lands;
(iv) If none of the possibilities above were available, then a son or daughter who could not occupy the land or house could inherit and the non-occupying family member could then either keep title and rent it out or dispose of the land; and
(v) If no heirs then the land reverted back to the government.
Generally, the father would make his will when he knew he was terminally ill. In the presence of family, relatives, and close friends he chose one to executor and would distribute the land and property. The witnesses to the will signed and the copies of the will were given to all those present. A will could alter inheritance from the original pattern. The disputes with regard to inheritance and will could be brought into the civil court. However in the most cases the parties chose to resolve the disputes informally and internally.
In Tibet, one sixth or approximately 16 percent of the produce of every field was owed to the government. An assessment of tax was compound when the land was granted to a person and written into the deed document.
There were six basic forms of taxation in Tibet:
(i) Agricultural taxes were paid in produce, labour or manufactured products;
(ii) Animal taxes were paid in whole animals, their products or manufactured items. For instance meat, butter, wool and butcher tax;
(iii) Tea, salt, and commodities taxes on collected or manufactured items were assessed in areas famous for their production;
(iv) Requisitioned work taxes were paid in days of labour or specific jobs performed by the individual or by their animals;
(v) Occupational taxes, income taxes and customs duties at the border; and
(vi) Oracle tax, hail protection tax, boat tax, and inheritance tax.
The overburden of taxes or misused of power by the concerned officer could be redressed before the cabinet in Lhasa. Tibetan believed that taxation was an administrative issue and not a subject for the court. However, there was enough evident of taxation cases in the court of Lhasa.
CIVIL SUIT PROCEDURE
The formal government procedure for a case or controversy is called khachu. The proceeding of case in Tibet occurred only through a petition to a court or an office with judicial powers, and the entertainment of the case was subject to the acceptance of judge and consent of both the parties as well. In other words, a civil suit could not be addressed without the consent of both the parties (It was more of like arbitral proceeding). Although there was not a written pattern of procedure and it was learned by the judge/official on the job and applies on the practice, but proceeding of case was divided into four categories:
(i) The statement of the case: It shall be initiated by the presentation of petition (plaint) by the petitioner and after which imposition of preliminary question of judge/official began;
(ii) Judges’ questioning of the each party: Second category comes with the calling (summon) of opponent (defendant) named in the petition and presentation of response (written statement) or the refusal of the opponent to appear. The petitioner replies to the opponent’s response (replication) and it was followed by the opponent replies to the petitioner. Thereafter, presentation of important documents or evidence and judge questions the witness/witnesses;
(iii) The investigation and testing: During the course of the trial, court ordered officials to investigate the authenticity of the statement of parties, witness and evidence or documents which they relied. The court imposed penalties on untruthfulness (perjury);
(iv) The decision (judgment): The finality of the case reached when both the parties agreed with each other on fact not with the reality. Judges were often reluctant to go forward with the case, except to continue questioning the parties, until factual consonance had been reached. Thus if both the parties agreed the sky was red, the factual consensus had been achieved.
When no factual consensus reached, the Oath taking and rolling dice were two procedures sometime use to determine the truth of the case. Oath taking was used where parties to a dispute were willing to take an Oath to clear them of allegation. Rolling Dice used to settle a dispute as device if both parties were unclear about case or if there was not sufficient evidence for resolution. Tibetans often accepted the outcomes of these procedures because they were thought to be karmically determined.
Failure to resolve the dispute through Oath, Dice throwing or other method then decision of judge prevailed under such circumstances. However, in civil cases the district court could not impose its decision unless both the parties agreed. Refusal to accept decision of court was subject to jurisdiction of higher administrative body or one of the parties could appeal to appellate body.
The consensus of parties deemed to be reached when both parties the signed the document and payments and punishments were carried out in court. Besides, the court costs were typically paid by both parties, but it was subject to judicial discretion.
There was contentious practice of visiting to judge’s home during trial or before final decision with gifts. Although it was meant to show respect and to determine the judge’s wisdom in furtherance to meet reconciliation, it often prejudiced the outcome of case by the persons who were financially well off.
Tibetans believed that people being religious and strong devotion to Buddhism, the commission of serious crimes were infrequent in Tibet. For minor criminal offences, people sought to resolve the dispute internally and out formal legal proceeding. However certain serious crimes such as poisoning, murder, treason, arson, rioting, severing injury to another person, and black magic were not generally permitted to be handled internally or local level but had to report to the central government through district officer and the liability of the such crime could lie on the defaulter.
The burden of proof lies on petitioner in production of evidence under civil and minor criminal cases, whereas under serious crime the district officer or central government would send our personal representative to investigate the scene of the crime, gather documentary evidence and question the witness. The representative from court would seal off the area where crime happened until investigator was able to conduct his investigation.
The procedure of formal court proceeding in both civil and criminal in High Court was the same as the District Court. It included questioning of the parties, examining of the evidence, searching for factual consonance and factoring all the elements to determine the correct punishment and compensation. It was common impression of judges to presume the guilt of the accused even before its adjudication. Thus whipping of the accused during every stages of trial till admission of its crime was justified.
Punishments in Tibet: Tibetan criminal jurisprudence saw most cases as unique, the latitude of the crime had to be judged on the seriousness of the crime, injury sustained by the victim, the social status of the parties, the level quality and type of evidence, mitigating factors such as self-defense or good character, mental state of the accused, competency (age and mental ability), and root cause and immediate cause.
The law codes listed all the bad crimes and all the bad punishments but it was discretionary to the judge to decide the level and seriousness of the crime and the punishment. Thus there was no specific punishment for a specific offense in Tibet.
Before judge could impose punishment, the purpose of punishment had to be mind. To a Tibetan, the very purpose of punishment was to prevent repetition of crime and to deter others from commission of a crime.
The most common types of punishment in Tibet prior to 1959 were compensation, whipping and labor punishment:
(i) Compensation: The level of compensation was equated or determined as per the social status of victim and the payment of compensation is called tong. The compensation could be claimed by the relatives, friends and any known person. In case the convicted failed to pay the tong, then his/her property, both movable and immovable, was seized. If the convicted were insolvent then tong had to borne by the landowner of property under which the crime happened or the instigator of such crime, or if none of the above, then relatives of the convicted were liable to pay the tong.
(ii) Whipping: Its use varied according to the level of offences and could be administered on the accused or convicted person, but not to the family and relatives of such person. The whipping was generally administered in open courthouse, i.e in public.
(iii) Labor punishment: It had been given according to the circumstances and was rehabilitation in nature. During this course, convicted either had to moved away from his house and farm a new plot of land for several years or work in the private land who needed help.
As recorded in ancient law codes, punishment such as gouging out the eyes, cutting the Achilles tendon, and cutting the tongue and hands of the criminal. which were conducted under the most heinous crimes. Later it was declared outlawed by the thirteenth Dalai Lama.
CHINESE LEGAL SYSTEM:
The Chinese legal system was poles apart with the Tibetan legal system. Unlike Tibetan law, the ancient Chinese law was based on Confucius and legalist (codified law). The Confucius believed that man had to be governed through traditional customs, mores, and norms – which allow people to have a sense of shame and become humane people with good character rather by the courts. Whereas the legalist believed that human beings are born evil and self- centered, and must cure this behavior by enforcing punishment to avoid social unrest.
The source of Chinese laws are codified laws, the emperor's order, statutes inherited from previous dynasties and precedents, among which codified laws had the highest binding power over the other three. The codified law was famously promulgated by the Tang code in CE 624.
The introduction and translation of Western legal texts into Chinese is believed to have been started under the auspices of Lin Zexu in 1839. Chinese legal law had influenced by the Japanese law during Meiji Period, European model law during Qing dynasty, and socialist law during present PRC.
Prior to 1959, Tibetan legal system was entirely based on Buddhist canon and there was no evidentiary proof as Tibetan law being influenced by or similar with Chinese law, rather it had connection with India and Mongol at certain level.
TIBETAN LEGAL SYSTEM IN EXILE
“Even prior to my departure from Tibet in March, 1959, I had come to the conclusion that in the changing circumstances of the modern world the system of governance in Tibet must be so modified and amended as to allow the elected representatives of the people to play a more effective role in guiding and shaping the social and economic policies of the State. I also firmly believed that this could only be done through democratic institutions based on social and economic justice. Unfortunately, for me and my people, all our efforts were frustrated by the Chinese authorities who had established in Tibet the worst form of colonial regime.” HH the great XIVth Dalai Lama.
(i) The Charter: Soon after HH Dalai Lama and his entourage came into exile the draft democratic Constitution for Tibet on 10th March 1963 was promulgated which intended to secure a system of democracy based on justice and equality and ensure the cultural, religious and economic advancement of Tibetans. Later, the Charter of Tibetans in Exile was adopted by the Tibetan Parliament in Exile on 14th June 1991 at par with the principles of Universal Declaration of Human Rights.
(ii) Judiciary Body: Article 62 of the Charter established Tibetan Supreme Justice Commission which is the apex judiciary body and one of the three pillars (Executive and Legislative being the other two) of the democratic system of the Central Tibetan Administration. This Commission adjudicates civil disputes within the Tibetan community in exile. Under this Commission there are law codes:
(a) Civil Procedure: It deals with procedure of civil disputes and consists of 18 chapters and 88 sections;
(b) Evidence: It deals with admissibility of documents as evidence in the course of civil cases before this Commission and consists of 14 chapters and 83 sections.
(c) Code of Judiciary: It deals with hierarchy and administrative function of this Commission and consists of 9 chapters and 84 sections.
The distinct Tibetan legal system which was existed since from 620 and was later reorganized in 1600s during the reign of the great 5th Dalai Lama. Through thick and thin in history, the leadership under His Holiness secured the smooth functioning of legal system in Tibet. However due to geopolitical inclusiveness, which segregated Tibet from rest of the world, caused the Tibetan legal system to be less reformist than the English legal system.
Prior to 1959 some of the questionable practice under Tibetan legal system such as:
(a) Visiting at judge home in both criminal and civil case which often prejudiced the ends of justice;
(b) Presumed guilty even before the judgment;
(c) Truth could be reached when parties agreed on similar view without referring to the legality of the dispute;
(d) Quest of factual consonance and rights of parties to flout the decision of civil case; and
(e) Lack of finality and closure of the case, which could be reopened after it was decided.
The history of our Tibetan legal system may have been out-of-date and not at par with the modern legal system. But the great lies when we learn from our history by an introspection of the present legal system in exile by creating just and certain laws, which are accessible to the common people. The objective of law must be to render justice to the aggrieved and for the smooth functioning of the judiciary and laws/rules need to be superseded if they are obsolete and contain too much red tape.