Protesting is a right not a crime

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The Constitution of Mongolia and Universal Declaration of Human Rights stipulates that everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of their interests. Yet, the government and law enforcement authorities are severely violating this fundamental right, a new study finds.

Amnesty International Mongolia has conducted a new study, titled “Law Enforcement During COVID-19”, purely based on real cases that occurred since the wake of the COVID-19 pandemic. The first chapter of the study focuses on the right to protest and assess how Mongolia handled public demonstrations, whether procedural due process were followed before depriving an individual of this right. In the wake of the COVID-19 pandemic, the government, State Emergency Commission and Ulaanbaatar Mayor’s Office passed a number of decisions and resolutions “limiting” the right to protest. Nevertheless, the public has held peaceful demonstrations, marches, online petitions, vigils, unintentional mass demonstration, peopleless protests, flash mobs, sit-ins, and civil disobedience to express their objection, disapproval and dissent toward the decisions and measures enforced by the authorities.

“Demonstrations in many forms occurred during the pandemic but they didn’t sail smoothly. They faced certain obstacles and difficulties, some of which were purely due to connected to the legal regulation. This is something Mongolia needs to pay attention to in the future. For example, the protests on social media, peopleless protests, and unintentional demonstrations and gatherings are not properly regulated by the Mongolian Law on Demonstrations. Government authorities blocked Facebook accounts of some protesters, and made direct and indirect threats to social media groups where people were expressing their objection and opinions, as reported by people who were interviewed for the study. This calls on the need to improve the legal regulation for this matter,” said lawyer R.Ochirbal, deputy head of the board of directors of Amnesty International Mongolia.

He stressed that there were instances when government bodies refused to register and/or permit demonstrations, pushing people to choose sit-in and hunger strike, which don’t gather crowds. The lack of regulation and policy for organizing these forms of demonstration raises concerns about the obligation to ensure the rights and protection of citizens.

Deputy President of the Confederation of Mongolian Trade Union S.Erdenebat talked about how his right to freedom of expression and right to demonstration were violated during the pandemic. In December 2020, or a month before Mongolia took severe actions against COVID-19, S.Erdenebat went to the Ministry of Labor and Social Protection and other relevant authorities to personally hand over a complaint about the government’s decision to raise seven types of taxes without public consultation. However, he was penalized for coming directly to the ministry without permit under the Law of Infringements. S.Erdenebat explained that he had repeatedly made a complaint via mail and email to the ministry and authorities, and the absence of response warranted him to visit the institutions.

On June 4, S.Erdenebat held a solo sit-in against the government for granting social insurance premium discount to only government organizations on behalf of the federation and its members. He demanded the government to retract its decision and ensure equality in the discount and notified to the Sukhbaatar District Mayor’s Office that he would hold a sit-in. The office refused to accept the complaint in paper form over COVID-19 health risks and even declined to provide their email address, according to the federation’s deputy head.

S.Erdenebat holding solo demonstration against social insurance premium increase

“In the case the authorities fail to respond or refuses to give a response to a complaint, the citizen has the right to go to the next stage and hold a demonstration without getting a permit according to the law. On June 4, I started a sit-in alone at Sukhbaatar Square at 9:00 a.m. Immediately after, the police arrived and I explained the process I went through before the sit-in. The police viewed my action as a demonstration/gathering and notified to forcefully remove me in two hours. I told them that a demonstration is conducted by ‘citizens’ or more than two persons under the law and that what I was doing was an action to prevent large gatherings and risks of COVID-19 spreading while expressing the interests and voices of the federation,” he said.

“On the fifth day of the sit-in, the government imposed a strict lockdown so I decided to temporarily stop my protest. On my way to work, I started a live stream explaining my decision, but five or six police officers came to me demanding to stop the live stream. They forcefully removed me from Sukhbaatar Square and followed me until I entered my office. I believe this the police used its powers incorrectly in this case.”

Amnesty International Mongolia evaluated the countermeasures of the police and other law enforcement bodies against public protests.

“The relevant organizations viewed the peopleless protest as a demonstration, and the police called in the organizer to get ‘an explanation’. The organizer was charged with a penalty of 2 million MNT in accordance with the Law on Infringements. Our research team views that there wasn’t a rational ground to penalize the organizer as the demonstration, held using props and items, didn’t pose risks of spreading COVID-19 as specified in the COVID-19 Law,” R.Ochirbal stated.

• Article 8.3 of the Law on Procedures for Demonstrations and Assembly

•             Article 12.3 of Law on Prevention, Combat and Mitigation of Socioeconomic Impacts of COVID-19 (COVID-19 Law)

•             Ulaanbaatar Mayor’s Resolutions A/930 of 2020 and A/25, A/246 and A/357 of 2021

•             Decisions of the State Emergency Commission

Article 8.3 of the Law on Procedures for Demonstrations and Assembly bans demonstrations and gatherings during war and disasters, which the international human rights organization doesn’t see as appropriate. It backed this opinion stating that Germany passed a law with a similar content in April 2020, but the Federal Constitutional Court rebutted that it was wrong to restrict the freedom of expression and right to protest if it is conducted in conformity with safety guidelines.

“It is doubtful whether this provision is a rational measure consistent with the Constitution, whether it is appropriate for the situation, and whether this restriction of right was unavoidable,” says R.Ochirbal.

As for the resolutions passed by the Ulaanbaatar mayor to limit the right to gatherings, Amnesty International has concluded that it is within the right of the mayor to make such a decision within the city territory. These resolutions also provided the condition to impose penalties and arrest anyone who organizes or participates in a demonstration or assembly during the pandemic under the Law on Infringements. Before these resolutions took force, only penalty was allowed to be imposed at a lower rate.

The study relays a case for this. Apparently, a citizen held a peaceful demonstration against the construction of a water fountain at the National Garden Park for over 40 days. In accordance with Article 5.13 of the Law on Infringements, the citizen was charged a fine of 150,000 MNT. Following a complaint made by the citizen, the Sukhbaatar District Criminal Court of First Instances dismissed the fine on account of “unclear regulation during lockdown” and “not compliant with Article 1.2.4 of the Law on Infringements” because the citizen didn’t cause gathering or crowding.

Another citizen was arrested for a week on January 27 for organizing a small-scale protest with retail traders in Bayangol District.

Human rights defenders strongly opposed authorities’ decisions prohibiting protests during the pandemic as it violates their fundamental rights.

“Demonstrations tend to happened based on emotions. People with different kinds of psychological state can gather, so the situation can stir in any direction. It’s unpredictable. Demonstrations must be arranged with thorough organization and regulated sensibly. In such a case, the police is obligated to ensure public order and protect the lives of people participating in the demonstration. Currently, the First Division of the Sukhbaatar District Police Department is responsible for ensuring order at Sukhbaatar Square. Yet the 180 or so police officers in the division have only around 40 radio. They don’t have adequate conditions to perform their duty. But it is not a valid reason to abuse their power,” underlined G.Narantuya, member of the National Human Rights Commission of Mongolia.

“The legal regulation is inadequate when it comes to the right of demonstration. Since 2016, the National Human Rights Commission has raised an issue concerning the need to notify before demonstrating, which is fundamentally creating an authorization/ permit system. Banning demonstrations and assembly at Sukhbaatar Square is not consistent with the fundamental right to freedom of expression and right to demonstration, included in the Universal Declaration of Human Rights. If the public can’t express their disapproval or objection there, where else would they be able to? As for the live streams, they are vital for providing evidence for the commission and understanding the whole situation.”

Experts pointed out that the government permitted large gatherings with the number of attendees exceeding that of demonstrations despite banning demonstrations and gatherings during COVID-19. For example, they allowed election campaign and meetings, presidential inauguration, Creative Fall Festival at Yavuukhulan Park (over 800 participants), shooting of “My Ulaanbaatar Dance Challenge” and etc. They stressed that these activities went against their interest to prevent the spread of COVID-19 and protect public health.

Regarding cases where the police forcefully stopped demonstrations, and investigated and arrested protesters, experts agreed that this aggravates the situation, leading to misunderstanding between citizens and the police and increases risks of spreading COVID-19. Lawyers strongly advised the police and authorities to avoid using force to disband demonstrations and gatherings. The police should abide by the law above else, a lawyer noted.

To conclude, Mongolia must relook its laws and regulations to ensure all citizens can exercise their rights, especially during the pandemic. The current legal system has limited the freedom of expression and right to protest, causing distress and harm to all sides. The more detailed the law and due process, the better and quicker issues can be resolved.

Dulguun Bayarsaikhan