SHOULD GOVERNMENT BE UNDER JURISDICTION OF ADMINISTRATIVE COURT?
- By Myagmardorj Buyanjargal -
- Jan 30,2019
The proposed amendment to the Administrative General Law has been passed and approved by the Standing Committee on Legal Affairs, and is now awaiting to be debated in Parliament. With regard to the recent political situation, namely the demand by members of Parliament for the speaker to resign at his own request, Parliament had to postpone matters that were supposed to be debated in its fall session.
The impacts the amendment will have is quite serious – it would alter the jurisdiction of the Administrative Court. In fact, the amendment’s only objective would be to exempt any decision made by the government of Mongolia from the Administrative Court’s review.
Article 5.1 of the Administrative General Law, which is the proposed amendment, defines what should be considered an administration affair. Article 5.1.1 is the controversial one, which states that all regional and central state administrative bodies are considered to be administrative organizations. In other words, at this moment, the Administrative Court of Mongolia can review and annul some of the government’s decisions. Why is it “some” that are subject to the law, on the other hand, it does not apply to decision-making for political affairs as stated in Article 3.1.7. But the current Cabinet and some members of Parliament do not want the Administrative Court to have oversight over the government’s non-political decisions to determine whether they are legitimate or not.
Let’s take a look at some historical background. As it is stated in the Constitution of Mongolia that “Specialized courts such as criminal, civil and administrative courts may be formed” in Article 48.1, the Law on Administrative File Procedure and Law of Establishing Administrative Court were passed by the Parliament on December 26, 2002 and have been in force since June 1, 2004. It was the very first time that Mongolia started judicial review of administrative (public) organizations to determine whether they had violated the rights and legal interests of citizens and legal entities.
From the establishment of the court until March 31, 2005, the Administrative Court had been examining the legitimacy of the government’s decision. Yet the Constitutional Court of Mongolia then concluded that to have the Administrative Court have the power to examine and reverse the government’s decisions (whether legitimate or not) would be in violation of the Constitution of Mongolia.
Furthermore, the Constitutional Court concluded that the article of the Administrative Procedural Law which allowed the government’s decisions to be brought before the Administrative Court violated Article 38.1 of the Constitution stating, “The government of Mongolia is the supreme executive branch of the state”, and Article 45.2 stating, “In the event that the government’s decision is not in accordance with the law, the government itself or Parliament shall terminate the decision”.
Therefore, the Administrative Court was unable to judicially review government decisions until 2016. This conclusion of the Constitutional Court of Mongolia was followed by many legal critiques by lawyers and professors at that time, and is still a divisive topic to this day.
In 2016, Mongolia revised its Administrative Procedural Law and adopted the Administrative General Law in 2015, which enabled the Administrative Court to examine the legitimacy of government decisions, except for those with regard to political matters. The law also provided the definition of decision-making for political affairs to make it clear what decisions of the government should be under the mandate of the Administrative Court.
The only legal basis that the government has to propose this amendment is that even if the law is revised and there are new provisions, the Constitutional Court’s decision is still effective, therefore, all government decisions are exempt from the jurisdiction of the Administrative Court.
On the other hand, lawyers and experts consider that this is a backward step for Mongolia. This is because the jurisdiction of the Constitutional Court is limited and as it cannot examine all the decisions of the government, there should be another judicial branch which should have the power to examine the legitimacy of government decisions. The Constitutional Court can only make conclusions on the conformity of government decisions with the Constitution and whether the prime minister and/ or members of the government have breached the Constitution.
Here is an example that Supreme Court Judge Banzragch mentioned in her interview on the consequences of this amendment being passed by Parliament, “Let’s say the government expropriates your land and does not pay you any compensation. In this case, you cannot go to any court for restitution. You cannot claim to Parliament because Parliament is not an organ for restitution of your rights. If you go to the Constitutional Court, the Constitutional Court cannot adjudicate whether the government’s decision breached the Land Law, the Law on Acquiring Land for Special Use or the General Administrative Law. Even if you submit a request or complaint to the Constitutional Court and the court concludes that the government’s decision breaches the Constitution, the Constitutional Court cannot order the government to pay you compensation and restitute your rights. In other words, you will have no recourse for addressing your rights, which it is provided under the constitution and shall be protected by the courts.”
Since the Administrative Court is now able to examine government decisions, the Administrative Court reviewed around 20 government decisions. But just because these are few in number does not mean the government has not violated citizens’ or legal entities’ rights. The court does not open cases at its own initiative, rather claims need to be brought up by an aggrieved party. This ability for citizen(s) or entity(s) to request an examination of legitimacy of government decisions should be maintained.