Civil societies demand withdrawal of ‘anti-association’ bill as it negates past progress
- By Misheel Lkhasuren -
- Nov 16,2022
In 1997, Parliament passed the Law on Non-Governmental Organizations (NGOs), which laid out the initial framework for Mongolians to fully exercise their newly gained constitutional rights of association, assembly and expression. Since then, civil society organizations have grown in number and capacity and have made invaluable contributions to the country’s evolving free and open society. However, these groups and the fundamental freedoms they enshrine are at risk as Parliament is discussing more “stringent” bills. Therefore, they have expressed their disapproval of the bills, which govern the work of civil society organizations, including the processes for registration and reporting and the types of activities allowed.
Last November, the Ministry of Justice and Internal Affairs submitted two new bills to regulate NGOs – a bill on associations and another on foundations. Both bills are pending in Parliament and propose a substantial revamp of the country’s regulatory environment for NGOs. In fact, according to the International Republican Institute’s latest poll, 60 percent of Mongolians have a positive view of civil society organizations and NGOs, more than double the favorability of political parties. It also constitutes a higher rating than any ranked government institution. Despite this achievement and public approval, the government drafted strict regulatory bills.
Civil society organizations were woefully sidelined from the policy development process. The release of these bills put civic activists on alert, resulting in the open letter e-petition last April. In the petition, NGO representatives critique the closed way both bills were developed as well as the inadequacies found in the bills’ concepts. In response, they demand the bills be scrapped and ultimately replaced with more civil society-enabling policy alternatives.
In November 2021, civil society, together with several international organizations, also launched a campaign calling for the bills to be dropped immediately, given there had been no consultation with civil society. The campaign managed to halt the progress of the bills and Parliament conceded to hold further discussions. In this regard, Parliament held a discussion on the legal status of the associations and foundations to hear the opinions of civil society organizations and researchers on November 8.
Civic activists have tried to review and refine the bills several times to ensure they uphold fundamental civic freedoms, but to no avail. Therefore, they have attempted to block the bills as they are more restrictive than the current regulations and pose risks to the integrity of the country’s civic space, political pluralism and long-standing permissive NGO operating environment.
In fact, Article 16.10 of the Constitution of Mongolia provides for the right to freedom of association in political parties or other voluntary organizations on the basis of social and personal interests and opinions. It states, “Political parties and other mass organizations shall uphold public order and state security and abide by the law. Discrimination and persecution of a person for joining a political party or other associations or for being a member are prohibited. Party membership of some categories of state employees may be suspended.”
The right to association is a fundamental right of citizens. Through this right, citizens can enjoy other basic rights. Therefore, the right to association can be limited only by law for the protection of public interests. However, civil society representatives have warned that the bills on the legal status of associations and foundations do not meet these three requirements and instead, worsen the current conditions for NGOs.
In specific, the aforementioned bills prohibit civil society organizations from financing political parties, preaching religion and propagandizing. If this provision is violated, the organizations will not only be fined under the Law on Infringements but also liquidated.
During the discussion, Professor of the Law School of the National University of Mongolia O.Munkhsaikhan said, “The bills specify the activities of political parties in a very general way. It is unclear what will be included in the activities. For example, parties hold peaceful demonstrations and rallies. If any association or foundation organizes a demonstration in collaboration with a political party, it will be immediately dissolved. Without clarifying this, there is a risk of misusing such provisions in the law. In particular, NGOs operating in the field of human rights and democracy are close to politics because they raise issues of public interests.”
Moreover, if passed, these bills will impose undue burdens on civil society organizations, particularly regarding the ways they will have to report to meet government requirements. It is estimated that more than 90 percent of NGOs, three-quarters of which are non-membership civil society organizations, may have to stop operating because of the failure to comply with various undue burdens. These include increased and burdensome reporting criteria that apply to all civil society organizations regardless of their size, capacities and activities, as well as internal requirements related to management and organizational structures that are not suitable for many informal groups.
Perhaps the biggest concern discussed amongst NGOs and activists is that these bills would create a Civil Society Development Support Council, a new entity run by political appointees that would have vast powers to oversee civil society operations, allocate their funding and summarily dissolve NGOs. For instance, international organizations and experts say that this provision carries the potential of shrinking funding opportunities for many civil society organizations, particularly those working to further human rights. The risk of arbitrary deregistration is also high, given the vast powers conferred on the council and the broad and vague provisions on prohibited activities.
At the discussion, many activists and organizations expressed that the establishment of such a council is unclear and its rights and duties are too general. They are greatly outraged by the fact that the council is to be established under the Cabinet Secretariat with the aim of increasing the results of communication, cooperation and partnership with the government on common development issues of civil society, further strengthening its capacity and improving its internal governance, ethics and responsibility.
The bill initiators say that people belonging to eight sectors can request and nominate their names for the council, which will have nine members. But it is not clear what criteria will be used to select them. There is also a risk that organizations that monitor the government and demand transparency for the sake of public interest will be abandoned or left out of support. Regarding this issue, Member of Parliament Ts.Munkh-Orgil commented, “Is it the duty of the council to just evaluate whether NGOs’ performances are good or bad? If so, it’s wrong. The government should not be involved in this matter. It is enough for the government to approve the law and control it.”
General Secretary of the Council of Mongolians Abroad NGO B.Munkhdelger expressed doubts about the guidelines for candidacy in the council.
On top of that, the bills state that more than five citizens can join and form an association. Article 4.1 of the current law stipulates that a citizen of Mongolia must establish a non-governmental organization on a voluntary basis based on his or her own interests and opinions and conduct activities independently of the government and on the principle of self-management. Meanwhile, Article 5.1 reflects that a citizen of Mongolia can establish a non-governmental organization without obtaining permission from the government based on his or her own interests and opinions.
Julie Hunter, a legal advisor to the International Center for Not-For-Profit Law (ICNL), who analyzed the bills, mentioned that the prohibitions on permissible activities are “overbroad” and constitute “potential violations of freedoms recognized under international law”. She concluded that the bills have vague provisions that leave room for interpretation and could undermine the financial independence of organizations.
During the discussion, General coordinator of MONFEMNET National Network D.Enkhjargal also cautioned that the fact that at least five citizens can form an association is a great limitation of the fundamental rights of citizens.
In accordance with the bills, a civil society organization will be dissolved if it discriminates against its members. In the early 2000s, when there was no legal framework, D.Enkhjargal established the National Center Against Violence and served various people, she recalled. There were cases of refusal to provide services to clients who made excessive demands. Therefore, D.Enkhjargal and other participants asked whether the organizations would be liquidated if they discriminate against their customers for such reasons.
Legislators have said that due to the fact that the Financial Action Task Force (FATF) placed Mongolia on the “grey” list in 2020, the need to re-approve and revise the laws related to NGOs arose. In other words, there are directions to correct the risks arising in connection with the activities of some civil society organizations in the recommendations given by FATF
State Secretary of the Ministry of Justice and Internal Affairs P.Sainzorig informed, “FATF is demanding transparency in the not-for-profit sector. Since the Law on Non-Governmental Organizations has only 25 articles, it was considered appropriate to revise it. The General Department of Taxation inspected about 10 NGOs and found violations of more than 10 billion MNT. Investigation and resolution of related cases is now underway."
However, civil society organizations heavily opposed his statement at the discussion. More specifically, Director of the Democracy Education Center G.Undral said, “Our country was included in the ‘grey’ list due to money laundering through trade in precious metals. FATF and ICNL have also provided clear statements. Of course, there are good and bad NGOs. However, we should stop blackmailing the entire civil society and attacking the reputation of 30,000 registered NGOs because of a few organizations.”
The draft laws also fail to stipulate an arbitration or appeals process. Therefore, many NGOs remarked that these bills would eventually expose them to unjustified and political targeting.
In general, the bills on associations and foundations meet only four of the six criteria specified in the Law on Legislation of Mongolia, according to an external study conducted by the Center for Law and Policy Research. Therefore, it is necessary to withdraw these bills that conflict with the Constitution and other laws and restrict the activities of civil society organizations.
These bills had also been circulated in 2019 and were deemed problematic because they would tarnish the independence of civil society organizations by requiring them to have professional licenses. Although Parliament has said the bills are currently suspended, there is no guarantee they will be dropped. Past experience shows that the government often makes decisions on policy matters without proper consultation.