Separation of Powers and Constitutionalism undermined
- By Myagmardorj Buyanjargal -
- Mar 27,2019
On March 26, Mongolia started digging the grave of its democracy and judiciary. On this day, the speaker of Parliament issued a decree to amend the agenda for the current irregular session of Parliament as proposed by the president to include the discussion of the amendment to the Law on Legal Status of Court(s) of Mongolia and the proposed relevant laws. The amendment was approved by a 76.8 percent vote in the standing committee and Parliament approved it with 81.8 percent vote.
In his statement, the speaker stated that it was an “order” from the National Security Council of Mongolia dated March 25 that prompted the president to submit the amendment proposal to Parliament. It is because the president is one of the three persons/bodies who have the power to propose laws and amendments under the Constitution of Mongolia. The fact is that it took only one day for all these, normally lengthy, procedural measures to be put forward to Parliament. On the other hand, the council does not have the power to issue orders to the president.
National Security Council's three members are: (from left to right) President of Mongolia Mr.Battulga Khaltmaa, Speaker Mr.Zandanshatar Gombojav, and PM Mr.Khurelsukh Ukhnaa.
This amendment is proposing only one change to the laws, which will make it possible to dismiss judge(s) and prosecutor(s) on the basis of a recommendation from the National Security Council of Mongolia. This is definitely a big departure for democracy. Constitutional subjects such as judges cannot be dismissed or cannot be subject to the whims of a non-constitutional organization like the National Security Council of Mongolia. The wording is the amendment, according to legal wording techniques, it’s at this moment ruled that the General Council of Courts shall issue a proposal to the president in case the National Security Council issued a decree for judges to be dismissed. In principle, the National Security Council decree is an advisory document, but in respect of legal wording technique, the wording in the amendment would make it possible to dismiss of judges arbitrarily.
Article 49.1 of the Constitution states, “Judges shall be independent and subject only to the law”, and Article 49.2 states, “Neither a private person nor any official including the president, prime minister, members of Parliament and the government, officials of political parties or other mass organizations shall interfere with the exercise by the judges of their duties.” These are the “essential” rules, and this proposed amendment violates constitutional rules.
Former Speaker and Head of the President’s Office Z.Enkhbold mentioned that the legal justification for this amendment is Article 6.2 of the Law on National Security, which states “Legislative, executive, judicial and local government must execute objectives of the National Security within their power in accordance with the Constitution of Mongolia and other laws,” which has nothing to do with the council having the power to call for the dismissal of judges or prosecutors.
Member of Parliament and Justice Minister Ts.Nyamdorj and lawmaker J.Batzandan had deliberated several court practices where they accuse judges and prosecutors of abusing their power and violated rights of citizens, and therefore, this “control” from the council is essential for ensuring “true” justice. But there are existing legal grounds for the dismissal of judges and prosecutors.
If this amendment is passed by Parliament, it will be the second case where a political faction has succeeded in making changes to laws for their faction’s interests. Three months ago, Mongolia saw almost the same phenomenon. A group of people wanted to change the speaker and they proposed an amendment to the Act of Parliament, which was passed, and soon after the speaker was dismissed.
Many also accuse that there are about 43 members of Parliament that were involved in the misappropriation of the Small and Medium Enterprises Development Fund, which should be considered a crime under the Criminal Code. For example, lawmaker O.Baasankhuu tweeted that the Prosecutor’s Office opened cases of abuse of power which involve about 60 high-level officials and that 49 of them were members of Parliament. Accordingly, whoever has the relevant documents that could serve as potential evidence for the criminal cases can leverage it to make these lawmakers do their bidding. It is alleged that the amendment to the Act of Parliament related to the dismissal of the speaker was passed by Parliament precisely through this means.
Restructuring the judicial system is not a joke. At least not something we could make in one week, let alone a single day. On the other hand, this attempt at restructuring judicial power could be the reason why the recent smear campaign against judges and prosecutors went viral.
The people of Mongolia believe that the absolute majority of the Mongolia People’s Party in Parliament could bring essential much-needed changes to the governance of the country. If this amendment is passed by Parliament, it will bring the complete collapse of the separation of powers and serve as the point at which the nation completely loses our hope.