Author: Uyanga Delger

Dr Uyanga Delger, attorney-at-law

The President of Mongolia has announced that an emergency will be declared because of air pollution, and the parliament should dissolve if things do not get better by the Lunar New Year, Defacto Gazette No. 28. The President‘s announcement coincides with the increased public anger triggered by air pollution, new income tax and financial pressure on families due to the Lunar New Year. This column covers a brief introduction to the presidential powers related to dissolution of the Parliament and delivers the author’s opinion. 

Legal provisions 

The Constitution of Mongolia and Law on State Great Khural (the Parliament) stipulate clear procedural rules. A proposal to dissolution of the Parliament, opening the way for an early election, may be initiated by the President. The President must, however, consult the Head of the Parliament first and obtain the agreement of the latter. The proposal should be then presented for the final decision to the Parliament itself. The dissolution is only possible if not less than 2/3 of MPs (51 or more out of 76) support the proposal.

Opinion 

Since July 2016, both the Parliament and the Executive are controlled with 65 of 76 seats in the State Great Khural by the Mongolian People’s Party (MPP). The 2017 Presidential election changed power relations in the Government. Mr. Battulga from the Democratic Party (DP) was elected as the President, although DP has only 9 seats in the Parliament. In Mongolia, the President does not lead the Executive and he is not accountable for the actions of the Executive, whereby he may give policy directions to the Executive. The President is, however, de facto head of the Judiciary and he possesses powers in relation to the criminal investigation, anti-corruption, defence and secret service authorities.

The President is elected by the people directly. He is the only leader of the country who has direct mandate from the entire nation, whereas the Prime Minister, the head of the Executive, is appointed by the Parliament. The President has, therefore, more powers in gaining the support of the people compared to the Prime Minister. The direct mandate from the people, combined with his powers in the judiciary and other related areas, brings the President in the position of exercising powers in relation to the Executive and the Parliament towards implementation of his own election promises and political interests.

The threat to dissolve the Parliament by the President is a new precedent in Mongolia. This is a risky precedent. This strong language might be caused for the simple reason that the President’s own party is weak in the Parliament with just 9 seats and the President might have difficulties in asserting towards the Parliament (and the Executive). The President has de jure the right to initiate the procedure to dissolve the Parliament. He is, however, de facto not in this position due to the overwhelming majority of MPP in the Parliament.

It seems that the President is playing with fire. The President’s announcement should not be considered as an ‘empty threat’. Every word of a person in this powerful position has effects on the minds of the ordinary people. This political game is dangerous because it is may have an effect of mobilizing the narrow, radical supporters of the President against the Parliament.

In future, Mongolia should correct it’s system in order to exclude the incidents, in which the President may mobilize the population against the Parliament, that has full capacity to rule due the presence of a clear parliamentary majority. Giving to a person, who may not rely on support of the parliamentary majority, powers in relation to the Judiciary and the criminal investigation, anti-corruption, defence and secret service authorities, causes remembering the German history of Weimer Republic, where the power distribution between the President, Chancellor and Reichstag (the Parliament) was one of the mistakes in the Weimer Constitution (the so-called triangle structure), as acknowledged later. Mentioning this, let us hope that the Mongolian economy recovers faster by leaving a little room for mobilising the people against the Parliament with clear majority and that the times are different than in 1930’s Germany.

January 2018

First published in The Defacto Gazette No. 30, 26 Jan 2018

Dr Uyanga Delger, attorney-at-law

​​“… human rights and fundamental freedoms are all the better safeguarded to the extent that the judiciary and the legal professions are protected from interference and pressure.”,[1]

Mongolia has only around 4000 practicing lawyers registered at the Mongolian Lawyers’ Association (MLA). Last week new draft laws to regulate the legal profession was introduced to the public discussion. This column covers the main features of the draft laws.

• Poor should not become a lawyer

Whereas the law should promote diversity and social mobility in the legal profession, the draft laws do not bother with the matter of ‘little people’. In Mongolia, young people spend at least six to seven years of their life with none or very little income in order to obtain lawyer’s qualification. State aid or labour law protection for ensuring a fair access to the legal profession does not exist. Despite this fact, the draft laws require that law school absolvents shall complete further 18 months of “qualifying study” at law schools  in addition to their four to five years of law study. MLA shall act hereby as a supervising authority.

• More bureaucracy towards advocates 

All lawyers – judges, prosecutors, advocates, notaries and employed and other lawyers – hold currently statutory membership at MLA, that was established by the reforms of 2012. In other words, the lawyers, who’s role is defending the interests of their clients before courts and state prosecution offices, are brought under one roof together with judges and prosecutors. 

The current structure of MLA does not fulfil the basic requirement of institutional protection of lawyers, who defend interests of individuals and enterprises before courts and state authorities (The Defacto Gazette No. 22). Unfortunately, the draft laws are not intending to abolish the system introduced by the 2012 reforms and proposes instead more bureaucracy towards advocates. 

• Two separate legal service markets

2012 Law on Legal Status of Lawyers changed the previous institutions and regulations radically. The Mongolian Association of Advocates (AMA), the successor of the former “Advocates Collegium”, lost its public law competence of licencing lawyers as advocates (The Defacto Gazette No. 22).

Since 2013, AMA is actively lobbying to regain its public law competences as a self-governing organisation with mandatory membership and disciplinary competences. At the same time, there are lawyers who are energetically opposing AMA. These lawyers render primarily legal consulting services.

The draft laws are intending to split the legal service market into two sectors. The term “legal advisor” is introduced by the drafts. Legal advisors will be licensed and disciplined by MLA directly. Their business will be primarily in legal consulting service. They may represent clients in the procedures before state agencies except from court and administrative offence procedures.

The draft laws purpose reintroduction of the Law on Advocacy that was abolished by the 2012 reforms. AMA will hereby obtain it’s previous competences of licensing of and disciplinary measures against advocates. AMA’s lawyers will be providing legal advice to clients and represents them in state administration, court and administrative offence procedures.

• Perspectives 

The institutional regulations purposed by the draft laws are complex and bureaucratic. If the draft laws passed by Parliament, the access to the legal profession might be hindered by the obligation of 18 months additional legal studies and licensing by both MLA and AMA.

In future, advocates might hold membership to two different organisations and might need to contribute to their financing. It could have been better if advocates and legal counsels were organised under a single self-governing organisation and all independent legal services providers were called as advocates. The fees of around 4000 lawyers would make much more sense to financing of a single organisation and hence to its financial independence.

Finally, legal advice and representation are “connected vessels” that mostly a continuous relationship is necessary. The draft laws do not respect this and purposing instead a division of the legal service market. It is questionable if this would have positive impacts on strengthening the judiciary and the rule of law, especially in a country, where state agencies tend to interpret laws according to their own opinion and courts are still struggling to be recognized and respected within the government system.

March 2018

First published in The Defacto Gazette No. 38, 24 Mar 2018

[1] UN doc. E/CN.4/Sub.2/1993/25, Report on the independence of the judiciary and the protection of practicing lawyers, para. 1.

Dr Uyanga Delger, attorney-at-law

“The principles of the free market ought to have made state ownership smaller, but Mongolia’s state ownership has been growing bigger. The so-called state-owned companies have actually become political-party owned companies.”

The most fundamental issue in Mongolia is, undoubtfully, the question on how to limit unfair competition practices of state owned or political party-linked companies and distortion of competition by state (international) aid and party-linked companies’ investments. In other words, Mongolia has reached the development stage that the state’s economic participation should be discussed from the perspectives of equal opportunity, free and fair competition and incentives for innovation.

Constitution of 1992

The rule of law principle did not emerge in 1990’s Mongolia from private enterprise capital and investment protection claims. Mongolia was previously a socialist country, where the state was considered as the sole legitimated proprietor. Mongolian understanding of private property and free competition was, therefore, limited to the notion that these are the prerequisites of a market economy. The documentation of the parliamentary debates on the Constitution of 1992 shows evidences that the legislator was not fully aware of the importance of the constitutional protection of private property and entrepreneurial freedoms.[1] During the parliamentary debates, Mr. Chimid, who acted as a member of the advisory committee, was representing the opinion that the property issues should be regulated by civil law. Consequently, the current Constitution of Mongolia provides for frameworks that are formulated from the historical perspectives rather than the private enterprise interests on private capital and investment.[2] The Constitution of 1992 distinguishes state property from private property. Article 5 determines that the state shall regulate the economy “with a view to ensure the development of all forms of property.” In practice, Article 5 could serve to some extent as limits to state regulations and practices eroding competition and the market economy itself. Unfortunately, Article 5 did not have any practical relevance in the past.

Competition law The first law on competition regulation was enacted in 1993. A competition authority was established end 2005. The current Unfair Competition and Consumer Protection Agency (CA) does not conduct general market enquiries by assessing access to a market sector and competition in the relevant sector or in Mongolia overall. CA is an enforcement authority that investigates against companies and state administration bodies primarily on the basis of private complaints. The number of private complaints increased substantially over the last decade.  CA is, however, not an independent, quasi-judicial body. 

Intellectual property laws Patent, trademark and copyright laws are enforced by the Intellectual Property and State Registration Agency  (IPO), General Customs Office (GCO) and courts. A registration with the IPO is necessary for patent and trademark enforcement. A copyright registration is currently recommendable. 

For the patent and trademark protection, IPO examines novelty and other requirements. The examination quality is very low so that the registration itself may create market restriction to honest businesses. Additionally, the Mongolian trademark law does not provide for adequate protection of businesses from unfair use of registered trademarks.Overall, the intellectual property enforcement is a huge issue to businesses. IPO has the authority to stop an infringement. In case of enforcement on the border, the right owner should request before IPO and GCO actions to hinder the entry to the domestic market. The IPO and GCO procedures are not regulated sufficiently so that the right owner may rely on efficient and impartial enforcement. The right owner should lodge a complaint before administrative court if IPO and/or GCO did not act or if the owner did not agree with IPO and/or GCO decisions. The damages should be claimed before civil court. In other words, the system is complicated, costly and unfair especially in relation to independent private businesses. 

In future, civil courts should be entrusted with intellectual property enforcement. IPO’s authority should be limited to it’s capacity as a registrar. In case of GCO, it’s authority should be limited to execution of civil court orders.

April 2018

First published in The Defacto Gazette No. 43, 30 Apr 2018

[1] Hans-Seidel-Stiftung, Documents on the Constitution of Mongolia of 1992, Vol. 90, p. 10, 264 (in Mongolian)

[2] Uyanga Delger, Das Patentrecht in der Mongolei, Carl Heymanns Verlag 2011, p. 82 (in German).

Dr Uyanga Delger, attorney-at-law

The Mongolian constitutional system makes the Judiciary vulnerable to political horse-trading, The Defacto Gazette No. 13. A recent conflict between the Tsets of the Constitution (Tsets) and the Supreme Court shows a further example of this vulnerability.

The Tsets is the body responsible for constitutional control in Mongolia. The nature of this institution has been much disputed over the past 25 years. The Tsets names itself as the Constitutional Court of Mongolia. From a European procedural law perspective, this institution is closer to a parliamentary petition committee than to a constitutional court, The Defacto Gazette, No. 17. Nevertheless, the nine members of the Tsets could play a powerful role as means of pressure if it may rely on support of the Parliament.

In 2005, Tsets decided that administrative courts did not have competence of reviewing the decisions of the Prime Minister (PM) and his Cabinet (the Government). The relevant law provisions were consequently repealed. In the time of the previous Parliament, new laws allowing administrative court review of the Government’ decisions had been enacted. Since 2016, the administrative courts started reviewing decisions such as 49 percent of shares of “Erdenet” mining or Winter/Spring horse race.

On 2 April 2018, Mr. Odbayar, the Head of the Tsets, demanded the Supreme Court to correct the “wrong practice of judicial review of the Government‘s decisions by administrative courts.” This letter was published and public discussions including a TV debate took place. On 4 May, the Supreme Court responded to Mr. Odbayar stating that it “refuses to satisfy the demand.”

Opinion

There is no doubt that the Government’s decisions should be reviewed by administrative courts if rule of law and human rights should be enforced. The question on scope of judicial review is a complicated issue. Generally, one should ask first why the system makes this open confrontation between the Tsets and the Supreme Court possible before diving into details on scope of judicial review.

In Mongolia, the Tsets proceedings are launched by simple citizens’ petition (a complaint or report), The Defacto Gazette, No. 17. This is a bizarre system that provides for a rear door to narrow-interests political and business groups so that they may re-start political negations at a given time by simply sending a “citizen” to the Tsets with a report.

In Europe, for example, higher barriers to launching a procedure before the Constitutional Court are common. Constitutional courts in Europe are normally the very last court instance. A citizen should first go through the entire court system up until the Supreme Court in order to seek a protection of his or her rights. Only after three instances of court proceedings, he or she may lodge a complaint before the Constitutional Court. This way, the system ensures a clear positioning of the Constitutional Court in the constitutional and court systems and most importantly the application of the laws by courts consistent with the Constitutional Court readings.

In many countries in Europe, there is a possibility of abstract constitutional court review of laws (after or before promulgation) regardless of a specific legal dispute and of whether the applicant is affected. Different than in Mongolia, individual citizens are not entitled to file applications for this type of proceedings! The application may only be filed by a political authority such as the President or the Prime Minister (Cabinet) or a number of the members of the Parliament (in Germany, at least one quarter of MPs and in France, at least 60 MPs). This way, the procedural law prevents the abuse of the system that is happening in today’s Mongolia by means of the Tsets proceedings.

To summon up, the confrontation between the Tsets and the Supreme Court is a result of a system failure. In future, the Mongolian constitutional system should ensure checks and balances rather than confrontations and political horse-trading between the Tsets, the Parliament, the Government and the Supreme Court. A reform of the Tsets should be a priority of the constitutional reform debates. Open confrontations between the Tsets and the Supreme Court may not be carried on as they are damaging the public trust in law and order.

May 2018

First published in The Defacto Gazette No. 47, 28 May 2018

Dr Uyanga Delger, attorney-at-law

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“When we were kids, we still had trust in the state. We could run to the police station to get help. Today, people don’t report crimes; they remain silent even when questioned.”

-Head police officer of a remote district in Ulaanbaatar

This column gives an overview of one of the structural challenges surrounding the public’s trust in justice, namely the impartiality of judges.

Socialist Times

Before the reforms of the 1990s, courts were subordinate to the Ministry of Courts and the Communist Party. Judges were elected by local citizens’ assemblies for three-year terms. Legal education was not a requirement for appointment. Civil and criminal cases were distributed to judges by the heads of the local, regional and Supreme courts.

In this system, the primary role of judges was the defence of socialist ideology. Judges were obliged to follow the instructions given by state-attorneys, who represented the state in court proceedings, and by the local Communist party. Higher courts reserved the authority to withdraw a case from a lower court to itself. As a result, lower court judges used to seek “advice” from the higher court in order to back up their decisions.

Reforms of 1994 and 2002

Following the 1992 Constitution, which declared independence and impartiality of judges as constitutional principles, a judicial system that was separate from the executive branch was created. Since then, the law has required legal education and a state qualification exam for the lifetime appointment of judges.

But the judiciary remained under the excessive influence of political incumbents, namely the President of Mongolia and the Parliament with respect to annual courts’ budget. The President gained the authority to appoint and remove judges based on recommendations by the Judicial General Council (JGC), an independent body controlled by the judges themselves, with the Chief Justice of the Supreme Court acting as its head. The President’s power vis-à-vis the JGC was restricted to the appointment of only one of the fourteen JGC members. Furthermore, a new system to distribute cases amongst judges, based on a randomized and equal distribution of cases filed to the court, was introduced with the assistance of German experts.

The authority of higher courts to withdraw a case to itself, which was seen as an interference in the independence of lower court judges, was removed—only to be restored later, in 2011. According to Article 15.4 of the Law on Administrative Court Procedure, the Supreme Court could withdraw any cases from the lower instance administrative courts and decide by itself as the first instance court.

Reforms of 2013

New laws passed in 2013—the so-called “Judicial Reforms Package”—changed the previous system radically. For example, the President of Mongolia’s powers to appoint and remove judges were expanded: the JGC is no longer controlled by the judges themselves, and the number of members has been reduced from fourteen to five, all of whom are appointed by the President. Consequently, the JGC today more resembles the Ministry of Courts during socialist times (see Defacto Gazette No. 13). Ostensibly, the system of randomized and equal distribution of cases is maintained, but in practice modifications still occur.

Outcome

Although the reforms of 2013 were branded as a “decisive fight against corruption in the judiciary”, the results are difficult to see. Indeed, judges, lawyers, and law enforcement officers deserve their fair share of credit for the peaceful transition to democracy in the 1990s. But nowadays, as described by the remark of the police officer at the beginning of this column, they have to deal with a citizenry lacking in trust in the institutions they represent.

June 2018

First published in The Defacto Gazette No. 51, 25 Jun 2018