18 March 2005

The courts and Buddhist Karmapa controversy

- Khyentse Rinpoche Lama v Hope (10.03.05, High Court, Auckland, CIV-2004-404-1363)

Some of the matters which the courts are called on to judge are fascinating. And sometimes the courts are simply not in a position to adjudicate on particular issues - even though the issue may be central to a dispute before it.

A really interesting example is Khyentse Rinpoche Lama v Hope. This was a dispute about the validity of the appointment of the lama as the spiritual director of a Buddhist monastery - Karma Dharma Chakra Choeling - just north of Auckland.

The lama had been appointed as spiritual director in 1979 by His Holiness Gyalwa Karmapa, the 16th Karmapa. However, the trustees of the trust argued that appointment was either - terminated automatically on the death of the 16th Karmapa in 1981, or - by dismissed by the (alleged) 17th Karmapa, His Holiness Urgyen Trinley Dorjie. But there was a critical dispute about who succeeded to the role of the 17th Karmapa:
The difference between the parties following the death of the 16th Karmapa is a New Zealand expression of a wider debate. Underlying the dispute is an issue of international dimensions whether, as the trustees assert, his true incarnation had been identified int he form of His Holiness Urgyen Trinley Dorje as 17th Karmapa or whether, as some leaders within Karama Kagyu assert, the idenfication of Urgyen Trinley Dorje is yet to be confirmed, or whether the true 17th Karmapa is not Urgyen Trinley Dorje but His Holiness Thaye Dorje, or indeed whether, as the plaintiff asserted, both Urgyen Trinley Dorje and Thaye Dorje are true reincarnations.
For more, see Wikipedia: Karmapa controversy

Unsurprisingly, the court said this issue was not justiciable (at least in the New Zealand courts). That meant the court was left in the position of having to accept the status quo - that is, ignoring the purported dismissal of the lama by the alleged 17th Karmapa.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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