Will judicial reform set us back?

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It has become clear that the judicial reform being carried out by the authorities as per the constitutional amendment will return things to the previous form. In other words, the Constitutional Court is working to reverse recent reforms.

The Judiciary General Council (JGC), which is responsible for the election of judges and the independence of the judiciary, previously consisted of five members.

In accordance with the amendment to the Constitution, the council will have 10 members. Its members have been appointed by the president in the past. However, five members of the JGC will be elected from among judges and the other five non-judge members will be nominated openly and appointed by Parliament.

A working group set up by the Standing Committee on Justice is responsible for selecting non-judge members of the JGC and the Judicial Disciplinary Committee (JDC).

In accordance with Article 77.2 of the revised Law on Courts of Mongolia, which came into force on March 1, 2021, the standing committee approved members of the working group, consisting of representatives recommended by the majority and minority in Parliament, the president, government, National Human Rights Commission, Mongolian Bar Association, Association of Mongolian Advocates, legal training and research institutions, and law schools.

The members are working on selection of the non-judges of the council and the committee.

This means Parliament has taken over the power of the president to appoint five people to the JGC. However, the constitutional provision that all judges at all levels are appointed by the president remains.

Legislators restricted the president’s powers and involvement in the establishment of the JDC. In particular, the JDC shall consist of nine members, with one judge elected from the supervisory court, two judges from the appellate court and one judge from the primary court through a secret ballot by the JGC, and the other five members of the committee will be appointed by Parliament on the basis of an open selection.

When the JDC served as the Judicial Ethics Committee, the president previously appointed its chair and approved its rules of procedure.

In connection with the law regulation, on April 28, the Constitutional Court concluded that Article 76.2, from articles 77.1 to 77.11 and Articles 95.4, 95.5 and 95.7 of the Law on Courts of Mongolia violated the Constitution. The court ruled that the above-mentioned regulations violated the constitutional principle of the allocation of state power. However, Parliament rejected to accept Conclusion No. 3 of the Constitutional Court of 2021.

The law initiator B.Enkhbayar noted that it is regrettable that the Constitutional Court did not understand the provisions of the Constitution, saying, “The open nomination and selection of non-judge members of the JGC and JDC means that no one can nominate anyone. Only citizens can nominate themselves. Based on this, a selection will be made and the standing committee will hold an appointment hearing. All of these activities will be carried out with the participation of the media, citizens and the public. In accordance with the law, Parliament will discuss and appoint them.”

In connection with the parliamentary decision, the Constitutional Court will convene again to review this issue. In other words, after the official decision of Parliament to reject the Constitutional Court conclusion is published in the State Information magazine, the Constitutional Court should prepare for its meeting and announce the date.

In any case, it can be said that the court will hold this meeting without waiting and confirm its previous decision. This is because a standard has been set that the court confirms its decision of the previous meeting at the next stage. If the Constitutional Court decides that the above provisions of the Law on Courts are unconstitutional, Parliament must comply with it.

Therefore, Parliament will not be able to select non-judge members of the JGC and the JDC through open selection. In other words, many activities that have been started in accordance with the revised Law on Courts will be stripped back.

For instance, the establishment of a parliamentary working group for appointing non-judge members, nomination for its members, the race for JGC and JDC membership, and the work to get feedback from the public will not happen. In accordance with the Law on Courts, which brought judicial reform to Mongolia, the establishment of the JGC and JDC will cease altogether.

Originally, the huge selection process was set to be completed by July 1, 2021, and the JGC and JDC would be operating with new members from then on.

The law initiators and lawmakers emphasize that these provisions of the Law on Courts are the essence of judicial reform. Judicial reform is one of the biggest topics discussed and debated over the past few years in the context of constitutional amendments.

The current dominant party won the last two parliamentary elections by talking about judicial reform. It was a weapon to resurrect the “fight for justice”. Enduring two election cycles, the reform was a major endeavor. It will be a big task to re-develop it.

According to the Constitutional Court, if the selection of some members of the JGC and JDC by Parliament violates the allocation of state power, should this right be returned to the president? If this right is not given to Parliament, who else should be given this right? 

The role of the JGC is to elect judges and ensure the independence of the judiciary. Prior to the judicial reform, the president appointed members of the JGC based on the recommendations of primary, appellate and the supervisory courts, the Bar Association and the state central administrative body in charge of legal affairs.

 Criticisms that the appointment of judges and even council members by the head of state have made the judiciary dependent on one person have led to the current reform.

Moreover, in accordance with the revised law, one judge from the supervisory court, four judges from the appellate and primary courts will be elected as members of the JGC though a secret ballot at the general assembly of all judges. Therefore, it does not depend on the president. If the relevant changes are to be made to the Law on Courts in connection with the decision of the Constitutional Court, it is important to consider whether this provision, which has not yet been implemented, should be re-enacted.

In addition, the JDC is a structure that should be more influential and powerful in terms of its rights and responsibilities under the constitutional amendment. The Judicial Ethics Committee, which used to decide whether or not to impose disciplinary sanctions on judges, became a constitutional body and was changed into the JDC. It can impose suspension, dismissal and other disciplinary sanctions in accordance with the grounds and procedures provided by the law, and will have an independent budget. It will consist of nine members. A judge member of the committee must have served as a judge for
at least 10 years and must not have been subject to disciplinary action. Other members, who must be citizens of Mongolia, must have a higher degree in law, have worked in a legal profession for at least 10 years, have not reached the age limit
for public service, have not held the position of judge, political office or political party chair in the past, and were not prosecuted in the last five years. The term of office of a member of the committee shall be six years and they will serve for only one term.

As mentioned earlier, judge members of the committee are to be elected through a secret ballot by the JGC, and the other five members will be appointed by Parliament on the basis of an open selection.

However, according to the decision of the Constitutional Court, there is no guarantee that some judicial powers will not be transferred to the president as before. Even if it is not given in full, some appointments that Parliament has already received will be transferred to the president.

In accordance with the Law on the Procedure for Amending the Constitution, the provisions adopted in 2019 are prohibited from being re-amended in the next eight years. Therefore, the possible amendments to the Law on Courts in connection with the decision of the court have attracted attention.

In this election year, the issue of whether the next president will “take over” the judiciary should not be left out of the spotlight of anyone who wants justice. Furthermore, many questions will arise, such as who will be elected as president, which party will win, and whether the legislature, the executive, and the judiciary will be in the hands of one political party if the candidate of the Mongolian People’s Party wins the support of the majority.

Misheel Lkhasuren

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