Democracy vs. Demoncracy in Mongolia
- By Myagmardorj Buyanjargal -
- Dec 30,2020
Mongolia’s democracy is considered one of the youngest and most successful democracies in Asia. Unfortunately, it has started digging a grave for its democracy and judiciary on March 26, 2019.
On this day, Parliament adopted a legislation which allows the National Security Council of Mongolia to dismiss judges, prosecutors and overhead personnel of anti-corruption agency of Mongolia. Basically, the watchdogs of democracy have been given a new master.
Since the National Security Council has so much influence over the judiciary and an investigative function in Mongolia, a “hunt” began for the potential “enemies” of the three members of the council.
At the top of the list of “victims” tried by the courts of Mongolia for potentially political reasons include J.Erdenebat (former prime minister and current member of Parliament), N.Nomtoibayar (former minister and member of Parliament), Ts.Elbegdorj (former president), M.Enkhsaikhan (former prime minister), and G.Erdenebat (former deputy attorney general).
The Inter-Parliamentary Union (IPU) adopted a decision by the Committee on the Human Rights of Parliamentarians at its 162nd session, held virtually on October 31, regarding human right violation in Mongolia on former Prime Minister and current Member of Parliament J.Erdenebat’s case. IPU notes that alleged human rights violations are lack of due process at the investigation stage, lack of fair trial proceedings, and failure to respect parliamentary immunity.
I am not afraid to say that whoever is behind J.Erdenebat’s case is obviously shamelessly politically motivated because it’s crystal clear that the arrest of J.Erdenebat was not in compliance with the law.
Here is why.
Members of the legislature are granted immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed by Parliament. This is to reduce the possibility of leveraging a member of Parliament to change their vote through fear of prosecution. This also reduces the possibility of the law enforcement to detain lawmakers when Parliament is discussing important and serious issues.
Mongolia has legalized immunity of lawmakers in the Act of Parliament. Article 34.7 of the Act of Parliament reads, “Except as provided in Article 6.9.1 of this Law, it shall be prohibited to put in custody or detain, or to impose administrative sanctions on a member (of Parliament) through a court procedure, or inspect their home, office, vehicle, or body”.
According to articles 6.9 and 6.9.1, Parliament will decide whether to suspend a member’s power/immunity if the Prosecutor General requests Parliament to lift a member’s immunity if the member was arrested in the course of committing a crime or at the scene of the crime with evidence.
In other words, any of the legal actions that J.Erdenebat is involved in currently are not possible without Parliament’s consent and there has been no such decision by Parliament, or at least one made publically. Yet, J.Erdenebat was arrested during his election campaign for the parliamentary election in 2020. At least he should have enjoyed the immunity under election laws. However, the General Election Committee confirms that J.Erdenebat’s arrest was not authorized by the committee. What is even more ridiculous is that the court ordered him to pay 10 billion MNT (approximately 3.5 million USD) for bail in a single day.
There are obvious violations of basic principles of criminal law that are legalized in the Criminal Code of Mongolia in the case of the former Deputy General Prosecutor G.Erdenebat’s case. However, this will require a whole other article to explain in full detail.
All of these cases, except Ts.Elbegdorj’s, were tried by the court and all were found guilty and sentenced to prison time. Ts.Elbegdorj’s case will be tried soon since the prosecutor’s conclusion to indict has been issued recently. I believe it’s worth paying close attention to his case since he is one of the key leaders of Mongolia’s 1990 democratic revolution and best known for leaving a valuable legacy of a strong stance against the death penalty.
Another reason why we should pay close attention to the case is that it has 152 files (each file possibly consisting of 250 pages). Yet the numbers of requests and complaints submitted to the prosecutor’s office by Ts.Elbegdorj but not yet responded is many, he says. For example, in the last three months, he submitted five requests and complaints, but the prosecutor has not officially responded to any of them yet.
According to what’s written on www.news.mn, the charges laid against Ts.Elbegdorj are based on the facts he acquired 10 percent of the company that runs the American School of Ulaanbaatar in 2007, a year before he got elected as president of Mongolia, and he had allegedly organized the crime related to 49 percent acquisition of Erdenet Mining Corporation. Ts.Elbegdorj said the acquiring of 10 percent shares in the limited liability company that owns the school occurred when he was not employed or elected in any state position, and secondly, as the president of Mongolia does not have any power to influence over the government’s decision, especially decisions over whether to hold negotiations with an external party over a state enterprise like Erdenet Mining corporations.
President Kh.Battulga handed over 178 pages of materials to the Prosecutor General to open a criminal case against Ts.Elbegdorj based on the fact that he intended to submit an investment agreement to Parliament for the Tavan Tolgoi coal deposit, claiming the agreement was not favorable to Mongolia. Yet, after months of investigation and collecting 152 files each consisting up to 250 pages, they could not find anything substantial to charge the formal president with.
It’s been debated whether Ts.Elbegdorj is legally able to run for Mongolia’s presidential election in 2021 following the amendment made to the Constitution of Mongolia in 2019. Some experts name him as a potential candidate for the election and argue that it very well may be the reason why he is being tried.
Arguably, in all those trails that found former and current high-rank state officials guilty since the National Security Council obtained power over the judiciary, there are obvious violations of laws in the procedure of investigation, and use and interpretation of laws and its basic principles. Thus, it is reasonable to doubt the legitimacy of those trails and urge human rights’ watchdogs to pay close attention to them and future trials of a similar nature.
I clearly remember the day I wrote my article that I titled “Separation of Powers and Constitutionalism undermined” on March 27, 2019. On this day, a non-constitutional state organ seized illegitimate power to influence the judiciary, a constitutional state organ. Now we are witnessing Mongolia’s departure from democracy, with existing laws and liberties trampled and due process flouted.
The power over the judiciary was not taken by accident. It was taken by a few to target political enemies and potential rivals. Yet there may be hope. Parliament is currently discussing a bill on courts, which regulates the judiciary, which needs public scrutiny and participation to restore the independence of the judiciary, a key pillar of Mongolia’s democracy.