P.BAYAR: Voting on a draft Constitution written by a non-constitutional subject is illegal

P.BAYAR: Voting on a draft Constitution written by a non-constitutional subject is illegal

  • By Misheel   -   Jan 30,2023
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In the following interview, lawyer Dr. P.Bayar delved into the procedure for approving laws, constitutional amendments and the newly-approved Law on Protection of Human Rights on Social Media. He earned a doctoral degree in law from Cornell University, one of the Ivy League universities in the USA.

You worked as a legal director of the Millennium Challenge Corporation in Mongolia for the past three years. What did you accomplish during this time?

The compact agreement to increase the total water supply of Ulaanbaatar was signed between the governments of Mongolia and the US in 2018. I had previous experience in negotiating international agreements, so I decided to participate in its implementation and joined the project team. In order to make the contract effective and receive the 350 million USD grant, our government was obliged to meet certain conditions. The role and participation of a lawyer was high in meeting those conditions. As a result of the support of the government, the Mongolia Water Compact came into force in 2021. When the main work of the project began, everything was governed by the American laws, such as procurement and financial activities, so I tried to use what I learned there, and start this big project right from the beginning.

What was the most difficult and complicated for you?

Mongolia makes an agreement with other countries and announces that it will do nice work. However, it is no secret that the country is not sufficient in fulfilling its contractual obligations. Rather than the knowledge and ability of the responsible officials, it is seen that they have no desire to move the work forward. If it is not directly beneficial to them, they are indifferent to government work, which can be seen from the former executives of the Development Bank of Mongolia and coal thieves. In the future, our country should negotiate with foreigners and do what is agreed upon.

You also worked in the field of international treaties and law at the Ministry of Foreign Affairs, the Permanent Mission of Mongolia to the UN and other international organizations in Geneva, Switzerland. How are contracts and documents signed by our country with foreign countries and international organizations? What do you think about those contracts?

Since the revision of the Law on International Agreements in 2016, this issue has been settled. For example, the governor of a bordering soum used to make a contract with the local head of a neighboring country. We are a unified country in terms of state structure. The government should communicate with countries through “one window”.

What do you think about the Mongolian legal regulation of foreign investment?

This is one of the topics I study. We must stop trying to change the Foreign Investment Law to attract and increase foreign investment and improve its legal environment. A foreign investor wants a stable legal environment rather than a favorable condition. There should be no fear that the law that is in force today will be changed tomorrow or next year. They only see if Mongolians are true to what they say. So we need to stop amending the law, whether it was passed in 1993 or not. In general, the countries are currently moving towards a unified tax system. Investors are no longer demanding lower tax rates. 

Even if our laws are very bad, if we keep our promises and can be stable, foreigners will find a way to invest. It means that even with high taxes, they will come in after calculating their profit and risk. Actually, the political risk is not that important. Investors are insured against political risk.

In general, should the entire law and legal environment be stable in any field?

Legislation, adoption and implementation are considered separate disciplines. Before drafting a law, it should be determined based on research whether it is necessary to approve it or not. If necessary, the purpose of the law should be very clear and the results to be achieved should be visible. It is important to involve as many parties as possible in the drafting of the law. 

It is necessary to study the international cases where the law served against its purpose. Let me mention only one example, the so-called cobra effect. A law was passed in India during the British colonial period. There were many snakes on the streets of India, so they decided to get rid of them and passed a law offering a reward to anyone who brought a snake skin. But people started breeding snakes to get rewards. Therefore, the purpose of the law was not fulfilled, so it was repealed. But when people threw snakes, they were feeding out into the street, the number of snakes multiplied. This is cobra effect. In other countries, such cases are taken into account when passing laws. Therefore, it is wrong to be guided by only one goal when passing any law. Whether the goal will be fulfilled or not should be carefully calculated from many aspects. 

In order to pass a good law, lawmakers can change the order and procedure of discussing bills. Many professional representatives are elected to Parliament. All of them may not know the precise techniques of law making. In this case, a checklist can be developed. This will give the members the opportunity to check whether the bill under discussion is really necessary, whether it will be implemented in life, and whether it will bring benefits.

Can you elaborate on this?

People say that members of Parliament pass laws that benefit themselves. Therefore, it is necessary to reduce the subjective relationship. When discussing and approving a law, it is necessary to check whether it meets the criteria mentioned earlier. If the law meets these criteria, it can be approved.

In particular, there is a need to find out what the current situation is and what is overlooked, and study what changes will be brought about in social relations and how people’s behavior will be changed by the adoption of that policy and legislation. For instance, when deciding whether or not to increase the number of parliamentarians, which is being discussed at the party level, they talk about only one or two important things inside the State Palace, and do not touch on what changes they will bring to the people. In addition, it should be clear what purpose will be achieved by changing the law. If these conditions are not met, any policy or legislation is bound to fail. For example, in 2019, amendments were made to the Constitution, and after three years, the Constitution was also amended.

In fact, the Law on Legislation stipulates the requirements for drafting laws, right? 

It’s safe to say that the legislators highlight only one feature of the legislation they drafted and pretend to have done research to support it. There are many cases where laws are passed and not enforced, or they do not achieve their desired goals. In general, laws and contracts are aimed at changing people’s behavior. Even if a law serves one target group, it should contain provisions that do not harm others. For example, recently there was a problem that the monthly child allowance was not provided equally. On the one hand, legislators should have carefully presented the laws and regulations they passed. I doubt if the people have any desire to protect their rights. 

I think there is such desire. But many people don’t know how.

Yes, citizens don’t know it. Civil society organizations should be active for the common interest. What we lack is real participation and cooperation of the civil society, more than demonstrations and meetings. It is not clear who will control whether the messages and demands of the participants of those demonstrations and gatherings were sent to the government. Judging from the last demonstration, only one actor remained and ended up being the target of verbal abuse. We need people who speak up for human rights. They can open a donation account, raise funds, and pay for their activities. Many people have forgotten what they demanded and what results were achieved in the recent demonstration.

In general, anything is more effective when it is structured or organized. For example, the ad hoc review committee established by Parliament held a public hearing to analyze the evidence related to the Development Bank case. I think we have taken a step forward by hearing these cases in an organized manner.

However, there were people who criticized members of Parliament, including B.Enkhbayar, who presided over the hearing, for acting like a judge. 

This kind of discussion is done in democratic countries. We should have the right to hear and know the relevant information within the framework of the law when the Development Bank distributes the money that should be spent for the development of the country to a few people. It’s not judging whether someone is guilty or not. The court judges whether they are guilty or not and makes a decision. On the other hand, having such a hearing creates an advantage for someone to blow the whistle. In fact, such information has always been secret. Of course, in our situation, the risk of deliberate “accusation” based on what was said during the hearing cannot be ignored. I believe that the Mongolian court will make its decision based on evidence.

You mentioned earlier about the amendments to the Constitution. What’s your position on the new Constitution drafted by the working group led by former President N.Enkhbayar?

I have not seen the draft Constitution. Actually, I don’t want to read it. Reading and voting on a draft Constitution written by a non-constitutional entity that does not provide for citizen participation is illegal. The Constitution is one of the external expressions of our country, conforming to international principles and norms. Countries affected by civil war adopt a new Constitution and announce it to the international community for peaceful coexistence. However, how will other foreign countries react to “Democratic Mongolia changing its constitution”? At least foreign investors will not come in the next five to 10 years, donor organizations and other countries will also be skeptical. When the economy is difficult and people’s lives are poor, it is not necessary to play with the country like this.

You emphasized that it is important to involve as many parties as possible and get their opinions when drafting any legislation. However, Parliament approved the Law on Protection of Human Rights in social media in two days. Parliament worked very differently from what you are saying, right?

The Law on Protection of Human Rights in social media was passed in violation of the provisions of the Law on Legislation and the Law on Parliamentary Procedure. It seems that the government intervened to regulate everything. Internationally, there are two types of regulations governing the control of e-networks: self-regulation by the social network company, or government regulation. Most countries choose the first. This is because it is considered inappropriate for the government to participate in the civil legal relationship between citizens and social media platforms. Liability for infringement of the rights of others are reflected in our specialized laws.

In general, the law regulation on taking into account the opinions of citizens, the public, and interest groups is not actually enforced. It would be correct if the D-parliament website provides an opportunity for citizens and legal entities to monitor and vote on each bill.

Misheel Lkhasuren