Populism and the Judiciary

By Julian Dierkes

Populists around the world seem to be targeting the judiciary as some kind of obstacle to implementing the “people’s will”.

Most recently, this is happening in Poland, where the governing party PiS is trying to usurp rights of appointment and dismissal over judges. It also happened last year in Turkey where the increasingly autocratic Recep Tayyip Erdoğan has been arresting judges and lawyers along with tens of thousands of others since the attempted coup d’état last year. And, perhaps most surprising of all, that grandmaster of populism, Donald Trump, dared to attack one of the most treasures elements in the U.S. balance of powers, “so-called judges”.

Why is this relevant to Mongolia?

The President and the Judiciary

Appointments of judges, but also of heads of various law enforcement agencies are one of the prerogatives of the Mongolian president afforded him by the constitution.

Just recently, I have argued that Mongolians have elected a populist in Pres. Battulga, not despite his populism, not because of it.

Pres. Battulga’s actions in appointments to the justice and security apparatus will thus be especially important to watch. So far at least, there have not been arguments in Mongolia that judicial decisions somehow stand in the way of the popular will. But, if Pres. Battulga finds himself accused of or attacked on corruption, he might lash out against those attacks by a) questioning the legitimacy of any court decisions, and b) using his control over parts of the judiciary to discredit or worse opponents. That would be a terrible direction to take, as the examples of the U.S., Turkey and also Poland show.

The independence of the Mongolian judiciary has been under some suspicion in any case. Many thought that Pres. Elbegdorj tended to employ parts of the security apparatus, including – ever-ironically – the Anti-Corruption Agency, for his political aims.

This has led to the resignation of judges in the past, but it also has led to the instrumentalization of the courts for political purposes. One example of that with direct relevance to democracy was the High Court decision against proportional representation in April 2016, just weeks ahead of the parliamentary election.

As many discussions of any judicial systems have emphasized, a judicial system is only as good as its independence, from politicians, from businesses, from all kinds of interests. In a country like Mongolia that continues to be plagued by corruption, this is especially important to uphold.

The coming months are also likely to see some conflict between Pres. Battulga and the Ikh Khural. Some of the opening shots have already been fired in regards to the recall of Ambassadors Bayar and Enkhsaikhan. In this conflict, the judiciary is likely to play some role, again because it is the area where the presidency has the most authority.

I can only hope that Pres. Battulga does not take actions in countries like Poland as a blueprint or example for his own relationship with the judiciary.

 

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2 Responses to Populism and the Judiciary

  1. mccorj says:

    What reason given to recall Bayar and Enkhsaikhan?
    Was it Battulga or or another of Z’s plots?

    • Formal reason given was that the two ambassadors participated in the MPP election effort. Since ambassadors are public servants, they are not allowed to participate in campaigns. Not sure that there is any kind of plot involved here.

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