By Julian Dierkes
On March 27 2019, the Mongolian parliament passed legislation giving the National Security Council greater authority over judicial appointments and dismissals.
This very sudden decision has caused a great deal concern among international observers of Mongolia and some Mongolians themselves. Along with a number of media reports, I wrote about this decision in a previous blog post, c0-authored with Boldsaikhan S.
Since then I had the chance to travel to Mongolia which is always an opportunity to get a somewhat more complete picture of a situation that from afar.
A General Disclaimer/Digression
Before I try to disentangle and complexify the current situation, let me mention that one of the on-going frustrations with tracking legislative decisions and parliamentary debates is that decisions are often very difficult to fully understand and/or to get accurate information on decisions. This has baffled me for some years. I will see a piece of news (most likely on Twitter, my main source for these kind of breaking news in Mongolia) and will take a stab at understanding what is going on. My Mongolian is generally not good enough for details/specifics of legislation for example, so I turn to contacts to try to understand. To my surprise, my contacts often respond with different, sometimes even contradictory information. Frequently, this leaves me very cautious in discussing a decision as I am uncertain of its details.
I should note that such uncertainty generally does not come with political news in Canada, Germany, or Japan, the other contexts where I pay close attention to current events. Why not? Because governments and political parties can be relied on to clearly communicate these kind of decisions and the media quickly and decisively analyze such communications. Neither is consistently the case with Mongolian legislation, at least in my experience.
Take the quasi-editorial that Mungunchimeg G wrote for the Mongol Messenger three weeks after the parliamentary vote as an English example.
— Julian Dierkes (@jdierkes) April 19, 2019
This is much more of an editorial than reporting and it does not really clarify any questions one might have about the legislation.
In recent developments, the general lack of communication and analysis has been compounded by the fact that legislation was introduced, amended, and voted on very suddenly, virtually overnight. This has happened with several other very important pieces of legislation, going all the way back to the Windfall Profits Tax which was passed by a half-empty parliament on a Friday in 2006. This kind of overnight appearance of major legislation is not good parliamentary practice and certainly does not inspire much confidence in the intent of the legislation, particularly when other pieces of legislation linger for months before being added to parliamentary agendas.
Back to the Main Issue: Checks and Balances
Among the reasons why the recent legislation has prompted strong responses is that it is perceived by some to undermine one of the essential ingredients of a functioning democracy: the independence of the judiciary. As far as I can tell, the legislation gives the National Security Council (consisting of president, prime minister and speaker of the Ikh Khural) the power to dismiss judges and other appointed officials in the judicial system on request of the Judicial Council. The Judicial Council is appointed by the president, of course.
Proponents argue that a) the legislation is constitutional (as the constitution provides for judicial law to specify details, though the constitutional court will rule on that), b) the current situation (corruption, torture, lack of performance of the judicial system) is so bad that it called for drastic measures, and c) the increase of the power of the National Security Council strengthens democratic oversight by requiring ascent of its three members, rather than weakening democratic control over judiciary appointments as others have argued.
While appointments were previously controlled by the president (via nomination and the Judicial Council), dismissals are now possible, though only via the National Security Council, that is, with the agreement of at least the prime minister or the speaker of parliament.
Many Mongolians seem to approve of this change having been convinced by the argument that the judicial system has become so corrupted that it needs to be “cleaned up” in a hurry and thoroughly. It is the cumulation of corruption cases that go seemingly un-prosecuted that has convinced many people of the need to reform. Add to this the appearance of video-taped evidence of corruption, and it seems that many Mongolians are eager for action to be taken on this issue.
By contrast, many foreign observers and some Mongolians emphasize that the power of dismissal is a dangerous power because it allows those in power to undercut investigations against themselves easily. While the appointment of an official might make someone hope that the appointed official will be grateful for their appointment and go easy on themselves, any appointed official could be seen as a threat to subsequently elected officials. Yet, this is the very essence of the independence of the judiciary, namely that it is able to also investigate those currently in power. To a limited extent, the judiciary “guards the guardians”. With the current changes, that guardianship does appear to be weakened.
Leap of Faith
Many observers worry that the current change places a significant measure of faith in current office holders to “clean up” the judiciary. While the case for these changes includes references to the presumed corruption of former president Elbegdorj and his appointees, it has to be taken on faith that the current president, prime minister and speaker will not be corrupt. Most constitutional structures are constructed precisely so that such faith is not required.
There is also a lot of faith placed in the current constellation of actors. In typical fashion, there was much discussion in Ulaanbaatar last week about the different alliances and coalitions that people see among politicians. But, constitutional structures should not be built around the question of whether President Battulga and Prime Minister Khurelsukh are primarily rivals (presumably turning the National Security Council’s involvement into judicial dismissals into a limit on the president’s power), or whether they are secretly collaborating. Constitutional checks and balances are precisely intended to be resilient in the face of different governing constellations.
One of the suppositions I heard most frequently in Ulaanbaatar was that Khurelsukh and his MPP traded support for the judicial dismissal bill for restrictions on presidential power that constitutional reform might propose. Constitutional reform has been discussed for some years now. I would have to guess that it is unlikely to come to parliament this year and would be caught up in electioneering if it is not introduced this year. However, just like the judicial dismissal legislation, who knows how suddenly constitutional amendments might be introduced.
Yet, I do recognize that these changes appear to have the support of many Mongolians and that ultimately it is up to Mongolian voters to determine whether they support the parties and individuals who have initiated these changes or to vote them out of office in the next election.
Thinking Out Loud
My recent visit points to a number of topics that I will try to address in subsequent posts:
- Why did everyone accuse me of being biased, all of a sudden?
- How to avoid emotional reactions to political developments?
- What are “red lines” that should not be crossed to maintain Mongolian democracy?
- Have I underestimated the important of the rule of law in past assessments of political developments?