By Julian Dierkes and Boldsaikhan Sambuu
Mongolians have voiced strong reactions to the proposal and the passage of a series of amendments to the laws governing the appointment and dismissal of judges, the Prosecutor General, and the Head of the Independent Agency Against Corruption. These amendments were hastily proposed by President Battulga and passed within a day by the special session of parliament on March 27. The vote came down to 34 MPs voting for and 6 against with 35 abstentions. Some, including legal experts, former MPs and ministers are speaking of the beginning of the end of democracy in this context.
Хуулийн салбарт Ц.Элбэгдорж “би чамайг томилсон, надад үнэнч байгаарай” гэх өв үлдээсэн бол Х.Баттулга “би чамайг оролдож чадна, надад үнэнч байна шүү!” гэх дүрэм зохиож байна! pic.twitter.com/RacnP0dgjE
— Temuujin Kh (@Temuujin_Kh) March 27, 2019
Given Mongolians simmering frustrations with political parties, perhaps it’s not surprising that many observers are on edge when it comes to second-guessing Pres Battulga’s intentions in reconfiguring institutional structures. So, what’s behind the proposal on judicial dismissal and what do we make of it?
The March 26 Proposal
The amendments to the Law on the Legal Status of Judges grants the power to dismiss all judges to the National Security Council (NSC), which is made up of the President, PM, and the Speaker of Parliament. On the face of it, the amendments do not exactly grant this power to the council literally. Instead, they state that judges shall be removed if the NSC makes such a recommendation based on the request of the Judicial General Council of Mongolia, which is a constitutional body that is responsible for ensuring the impartiality of the judiciary. However, a closer reading of the relevant laws reveal that all five members of the General Council are appointed by the president. Consequently, these amendments might expand the power of the NSC and especially that of the president over the judiciary to the extent that judges may not be able to operate independently of political influence.
The new law also allows the NSC to ask Parliament to dismiss the Head of the IAAC and the Prosecutor General before their terms of office expire. Previously, these offices were appointed by parliament for a fixed term of 6 years so that they may remain independent of elections and of undue political influence. Although Parliament still retains a final say, the new law may make these institutions vulnerable to political pressure.
The Argument for this Proposal
Pres Battulga justified his proposal by arguing that the judicial system of Mongolia is directly controlled by a “political-economic” interest group, and alleged that judges, prosecutors, and other law enforcement authorities serve only the interests of those who have appointed them. He claimed that this politicization of the judiciary intensified under his predecessor’s tenure. It is worth noting that Battulga has repeatedly requested the Prosecutor General to investigate ex-president Ts Elbegdorj. The country’s top prosecutor has so far resisted the president’s pleas by insisting that his office must remain independent of political meddling.
Pres Battulga further argued that law enforcement authorities create false criminal charges for political reasons while ignoring many legitimate and serious crimes. He cited, among others, Erdenet and Tavan Tolgoi cases as examples. However, what seems to really made the difference among the MPs was the revelation of the previously classified video tape that allegedly shows law enforcement authorities using torture of the get confession from the suspects of Zorig’s case. The video seems to have convinced enough MPs of the narrative that the judicial authorities act with impunity and helped make the case that more oversight is necessary. Just precisely how and why the NSC is the best institution to provide that oversight was not effectively argued by the president or by his supporters in parliament. Instead, speaking in favour of the proposal, MPs like J Batzandan vaguely but passionately spoke about the need for taking control of the judiciary in order to fight against the so-called “MAHAH mafia.” Moreover, since the video was not shown to the public, it is difficult to say whether the MPs who spoke about changing their mind after seeing the tape were indeed genuine. It is also worth noting that the so-called “unresolved cases” the president listed strangely excluded the Small and Medium Enterprise scandal, nor does it mention the railroad embezzlement scandal for which Battulga himself was once being investigated by the very institutions he is now targeting.
Reaction on Twitter was swift and harsh while Facebook was dead silent, a pattern that also prevailed in the early days of the SME Fund scandal. Mongolian lawyers were nearly unanimous in their condemnation of the amendments with some even calling them a soft coup. There were a plethora of claims that the new law violates the Constitution, which explicitly guarantees judicial independence. The DP issued an official statement rejecting the proposal and boycotted the subsequent vote.
What Does this Proposal Mean?
All evidence suggests that Mongolians remain devoted to democracy in the abstract. Yet, frustrations are mounting to the extent that major institutional upheavals seem likely in coming years. One of the scenarios and perhaps the least attractive one is of a gradual take-over of state structures by some kind of “strong man”. Few would dispute that Pres Battulga would like to propose himself as just such a strong man and few would disagree that he is probably actively looking for opportunities to increase presidential power whether or not that leads to some kind of soft coup. It is worth noting that Battulga has criticized “western style democracy” for Mongolian economic woes and advocated in favour of a presidential system via his surrogates. His chief of staff, Z Enkhbold, recently spoke about the need for Mongolia to join the Shanghai Cooperation Organization, a move that according to some foreign policy experts will rebuke Mongolia’s long-standing third neighbour policy.
A violent overthrow of any kind seems highly unlikely, so for anyone who does fear a slide into authoritarianism, it’s democracy’s death by a thousand cuts that one might be concerned about.
Yet, corruption is one of the main factors undermining democracy, so are more executive powers to act against corruption in the bureaucracy not a good thing?
To make that case, one would have to be convinced that something is to be gained in a fight against corruption by reducing the independence of the judiciary. The new law certainly seems to do that by giving the National Security Council more direct powers to dismiss individuals. But does that not imply that no official would want to investigate anything that touches on any of the three members of the National Security Council lest that leads to the official’s dismissal? Whether justified or not, Pres Battulga’s reputation when it comes to corruption is not squeaky clean, so it seems difficult to argue that his proposal to reduce judicial independence would be seen as a positive step by many Mongolians.