It has been nearly two years since Mongolia adopted and implemented the Law on Prevention, Combat, and Reduction of Social and Economic Impacts of the COVID-19 (known as the COVID-19 Law). The following interview is with B.Narantsetseg, CEO and attorney of Fidelitas Partners LLP, which has studied and evaluated the COVID-19 Law. This firm provides consulting for IT companies and conducts legal research.
Can you provide information on the implementation of the Law on Legislation of Mongolia and the results of an assessment of the COVID-19 Law?
We raised the issue that Mongolia may have violated the Law on Legislation by adopting a law to be followed amid the pandemic. Adopting bills in violation of the relevant legislation is a ground for human rights violations. Therefore, we studied this law to a certain extent in order to assess the human rights violations caused by the non-implementation of the Law on Legislation.
The enactment of any legislation must be in compliance with the Law on Legislation. The government’s guidelines for enacting legislation should also be followed. Preliminary surveys are conducted in accordance with the approved methodology for drafting a law. No detailed calculations were made before the COVID-19 Law was passed. Pursuant to Article 12.1 of the Law on Legislation, the six processes to pass bills were not used, such as drafting legislation, anticipating needs and requirements, evaluating the impact, and estimating implementation costs. However, at that time, the list of bills to be approved added a bill to eliminate the conditions specified in Article 6.4 of the Law on Mobilization and Law on Disaster Protection. In particular, 20 days before the enactment of the COVID-19 Law, such an amendment was made to the Law on Legislation. In this regard, during the pandemic, laws regulating social and economic relations and some resolutions of Parliament were approved without research. It was concluded that the law was not in line with the research-based principle.
COVID-19 is a global issue. Therefore, every country had to regulate the social and economic relations caused by the pandemic by law. Have you studied similar laws of other countries?
The order and timing of drafting, discussing, and approving laws vary from country to country, but they have taken common measures such as simplifying the study of bills and expediting the discussion process. In Germany, for example, it took 21 weeks or more for the federal government, Bundesregierung, to initiate and develop the bill on pandemics, but it was passed in just three days. We observed that countries spent less time than usual in drafting and discussing new anti-pandemic measures. However, there is no other country like ours that has changed its methodology and adopted it without any calculations and research. Other countries conducted the necessary surveillance and drafted the law in accordance with the appropriate methodology. They conducted the research of bills in accordance with the relevant legislation and methodology. This has a significant impact on preventing human rights violations and misunderstandings, as well as achieving the main goal of regulating social relations.
Two studies have also been conducted in the field of public interest advocacy. Can you tell me more about this?
Amid the pandemic, many citizens and businesses made donations to the Ministry of Health, National Emergency Management Agency (NEMA), Ulaanbaatar Emergency Commission (UEC), and National Center for Communicable Diseases (NCCD). Because they are government agencies, donations from the public are taken in as part of the state budget. Therefore, their expenditures should be reported through a glass account. However, we observed that these organizations reported on only monetary donations and did not report on any non-monetary donations. Therefore, a project has been launched to improve the transparency and accountability of government agencies by ensuring the right to receive information. As of today, we have filed a complaint with the Mongolian National Audit Office and received a response. In particular, in accordance with our complaint, the office inspected the glass accounts and expenditures of the Ministry of Health, NEMA, NCCD and UEC and identified certain violations. The audit office also submitted its report. The Ministry of Health did not report on 17.5 percent of the total cash donations, 2.2 percent of donation expenditures, 11.2 percent of tangible (non-monetary) donations, and 90.9 percent of their expenditures.
Moreover, a project for compensation for damages caused to citizens due to illegal administrative decisions amid the pandemic is being implemented to monitor the decision of NEMA. Our country initially isolated people from abroad who did not even show signs of coronavirus infection for 21 days. We found that this decision was not reviewed by the Ministry of Justice and Internal Affairs and was not registered in the unified register of state normative acts. Therefore, a complaint was filed with the National Human Rights Commission (NHRC). The commission sent a formal request to Deputy Prime Minister S.Amarsaikhan on September 28 to resolve our complaint. NEMA and relevant organizations violated the citizens’ rights by an invalid decision. We requested them to pay damages but to date, they have not complied. The Ministry of Justice and Internal Affairs informed that from March 26 to December 9, 2020, six temporary regulations and orders used to isolate more than 24,000 people in 40 hotels were unregistered and legally invalid. NHRC mentioned this in its official request.
I am deeply saddened that so many civil rights have been violated by invalid decisions and that the relevant organizations have not accepted the demands and instead, responded, “It is not possible to implement it due to many problems. Go to court.” In principle, lawyers saw and proved the shortcomings, and NHRC confirmed them, but NEMA has continued to ignore them. The procedure for isolating people from abroad for 10 days has been re-issued. This is just one of many erroneous decisions made by NEMA, the Ministry of Health and Ministry of Education and Science regarding measures to be taken during the pandemic.
The COVID-19 Law has been amended several times since its enactment. Exactly how many articles and provisions have been changed?
The law has been amended four times in one and a half years since its enactment. A total of 95 articles, sections and provisions were re-discussed on duplicate counting. Besides technical changes, 46 articles, sections and provisions have been added to the law. Unfortunately, important regulations were added much later.
Are there any other cases where the law has been amended so many times in such a short period of time?
On April 9, 2020, the Law on Exemption from Social Insurance Contributions was adopted, and 15 days later, the Law on Archives was revised. These laws, which were passed in the same period as the COVID-19 Law, have not yet been amended. I think it is because they were developed, researched, discussed and approved in accordance with the law. Parliament must not approve an imperfect law that may need to be amended several times in a short period of time. This shows that the COVID-19 Law was not studied and analyzed at all.
Did they make such a mistake because it was approved in a short period of time due to force majeure? Or have they been sloppy in drafting this law from the beginning? What do you think?
It is true that the coronavirus was sudden, so there was a need to respond to it quickly. However, public institutions must operate in accordance with the law. If certain powers are provided by law, the procedures set forth in the law must be followed when exercising them. The events of this time have clearly shown that it is wrong to start working illegally and that human rights are being violated.
There are three reasons why the law is problematic. First, the amendment to the Law on Legislation violated the basic principle that it should be based on research. Second, the right to adopt normative acts was given to the Ministry of Health and Ministry of Education and Science in violation of the law. Third, the temporary committee in charge of monitoring the implementation of the COVID-19 Law is very inadequate. There have been a number of human rights violations related to the implementation of the law. However, the committee has not fully fulfilled its legal obligations or monitored its implementation. Members of this committee must monitor, study, and report on the implementation of the law. They should discuss it openly every month.
Are there any articles or provisions that seriously violate human rights or other laws?
We believe that human rights violations are more related to the implementation of the law than provisions of the law. In particular, citizens have lost their lives, health and safety as a result of inconsistent decisions of administrative bodies and officials. Although Clause 2 of Article 11.1 of the COVID-19 Law states that decisions made by authorized bodies and officials must not infringe on the right to life, the relevant provisions of the Constitution have been violated. The law stipulates that the principle of minimal human rights restrictions will be followed amid the pandemic, but it has not been implemented. Therefore, lawyers and human rights organizations need to monitor the implementation of this law, as well as study and disclose the human rights violations in detail.
Out of many cases, our firm has selected only two and is advocating for the public interest. The purpose of public interest advocacy is not only to expose and identify violations of human rights that people have not noticed but also to raise awareness of the possibility of protecting those rights and disseminate human rights knowledge and information.
