What happened to SME fund misappropriation?

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On November 7, 2018, some Mongolian students pursuing master’s degrees at Formasa National University of Taiwan started an online protest called “We Will Not Forgive”. They explained that the reason why they named this protest as such is that “Following exposure of the misappropriation by the named members of Parliament with regard to the State Fund for Small and Medium Enterprises (SME) Development, the prime minister of Mongolia demanded the members of Parliament to ask for an apology from the people of Mongolia, otherwise they will not get a mandate to run for the next election”.

The position of the students organizing the protest is that the members of Parliament should bear the legal, political and, at least, ethical responsibility for their misappropriation. In other words, just asking for an apology is not enough -- and they will not forgive.

The online protestors submitted a claim to the Constitutional Court on November 15 to determine whether members of Parliament breached their constitutional obligations by being involved in the SME scandal, and on the same day, issued a complaint to Parliament’s Special Committee on Ethics to determine whether the members of Parliament breached their ethical obligations under the Code of Ethic of Members of Parliament. They also submitted a complaint to the Independent Authority Against Corruption of Mongolia against other high level government officials (other than the members of Parliament) on the same grounds. The anti-corruption authority promptly responded that they had opened separate cases on each individual.

With regard to the complaint to Parliament’s Special Committee on Ethics, not long after, Parliament begun to dysfunction as they could not hold its session due to constitutional quorum requirements. This has continued for over a month and therefore, Parliament’s Special Committee on Ethics has not been in session and did not make any decision on the compliant which were submitted by these “online” protestors.

So far, the online protesters have received a response from the Constitutional Court, but the court declined to open a case. The court explained they declined to open a case as “during the pre-examination of the court before opening cases, when they checked whether if there are cases that are opened in accordance with the Criminal Code of Mongolia and Code on Investigation Crimes, the Department of General Prosecutor of Mongolia responded that there are cases against the members of Parliament mentioned in your claim with regard to their abuse of power to take advantage for themselves or other related people (parties).”

It is because of the “principal of parallel” that a judiciary branch shall not examine a case if it is being examined or investigated by another branch.

On the other hand, with regard to the immunity of members of Parliament, no law enforcement authority can investigate members of Parliament unless they were captured in their act of a crime with supporting evidence. Article 29.3 states that the immunity of Parliament member as “the legal immunity of members of the State Ikh Khural (Parliament) shall be protected by law”.

The prosecutor must request that Parliament discuss whether there are justifiable reasons to waive a member of Parliament’s immunity for investigation according to the Article 29.4 of the Constitution, which states, “Questions concerning the involvement of a member of the State Ikh Khural in a crime shall be considered by the session of the State Ikh Khural, which shall decide whether to suspend his/her mandate. If a court rules the member in question to be guilty of a crime, the State IkhKhural shall terminate his/her membership in the legislature”.

However, as mentioned above, Parliament has been unable to hold sessions to a lack of quorum.

In conclusion, there are some legal measures that had to be taken at some point, but which are now I na deadlock due to certain members of Parliament refusing to participate Parliament sessions. This is now is the key action that must be taken with regard to investigating the SME fund misappropriation. The protesters have done all they could do, and now they have no other power or choice except to wait for Parliament to hold its session and decide whether they shall waive the members of Parliament’s immunity for the investigation.

Myagmardorj Buyanjargal
Myagmardorj is a freelance writer who holds a Bachelor of Law Degree from the National University of Mongolia and Bachelor of Science Degree in engineering in mining technology from the Mongolian University of Science and Technology.