DELGER IP MONGOLIA

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  • Mongolia’s new patent law and practice

    Mongolia’s new patent law and practice

    The Parliament of Mongolia approved a sweeping patent law reform package in April 2021, along with reforms on the country’s trademark law. The new patent law has been in force since September 23, 2021.

    The reforms brought substantial changes to the patenting process by strengthening applicants’ rights in relation to the Intellectual Property Office of Mongolia (IPOM). A new application and examination guideline was issued by IPOM decision No. A/119 of 19th October 2021. IPOM has adapted work to the new procedural rules, whereas publication of patent applications is expected to be implemented.

    Background of the 2021 reforms

    Mongolia is member of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the Patent Cooperation Treaty (PCT) since the 1990s. The mining boom of the 2000s brought global companies to the country.

    Compared to 1990s, the number of patent applications tripled in the 2000s, especially for patent applications filed by non-residents. Since 2006, on average, every second patent application in Mongolia has been filed from abroad through the PCT, according to the World Intellectual Property Organization (WIPO).

    The 2010s shed light on reality in the ‘frontier market’, when disputes related to patent grants and intellectual property enforcement started being initiated on behalf of foreign companies and investors.

    The 2021 reforms address patent grant process before IPOM to introduce procedure closer to PCT standards. The reforms did not aim at reforming patent enforcement.

    Mongolia received legislative assistance from WIPO for drafting the 2021 reforms.

    Origins of the current law

    Patent law was introduced to Mongolia by the Civil Law of 1963, when Mongolia was a satellite state of the former Soviet Union. The economy was owned and controlled by the state.

    Patents were granted for industrially applicable inventions in the technical field if they were novel and beneficial to the state economy. The law did not contain a definition of prior art, on the basis of which novelty should be examined. In fact, such a definition was not ‘desirable’. The systematic issue of data reliability and a centrally planned economy’s pricing system required space for subjective assessment on patentability by the examining authority.

    The patenting process was implemented under the state authority. Overall, the patenting process was determined by the state as if the state was the applicant itself. The law did not facilitate prompt filing by setting minimum standards for filing. In a state-planned economy, where both private enterprise and market competition were eliminated, such facilitation was not necessary.

    After confirmation of receipt of the application, a further written notice was usually not given to the applicant from the examining authority. The law did not regulate communication between the applicant and the examining office. A search report was not issued. The substantive examination was performed ex officio; filing of a separate request for substantive examination was not required. The applicant was not asked to respond to examiner’s opinion before the decision on patentability was adopted. The final decision of the examining authority on patentability was not controlled by courts.

    When the examining authority decided for grant of patent, the description and claims were published. Invalidation was possible for patents, but was not used in practice.

    Patent enforcement was a foreign term at that time, because the economy was owned by the state, and individuals did not have right to challenge the state.

    After the collapse of the former Eastern Bloc, Mongolia joined the PCT in 1991 and the World Trade Organization (WTO) in 1997. A new patent law was enacted in 1993 and was reformed several times. Until the 2021 reforms, these reforms did not change the previous patenting process in its main feature.

    The definition on prior art was, for example, not included in the law until the 2021 reforms. IPOM examined a patent application based on its own application and patent grant database, whereas it accepted international preliminary reports on patentability for PCT national entries. This practice resulted in different patentability criteria and patenting process for direct and PCT applications.

    A brand new phenomenon of the 1990s was that patent enforcement became legally and factually possible in the competition economy created by privatization and liberalization. Nevertheless, Mongolia still follows the tradition deeply rooted in the previous system. Patents are enforced in administrative procedure before IPOM and the General Customs Authority. In this law enforcement system, civil courts do not play a role.

    Patentability criteria

    Patents are granted today for industrially applicable inventions in the technical field if they are novel and involve an inventive step. The inventive step criteria was introduced by the 1993 law. In the 1990s and early 2000s, the term ‘inventive step’ was partly understood and applied more closely to the previous term ‘beneficial’. Today, inventive step should be understood and applied in the same meaning as Article 33(3) of the PCT.

    The 2021 reforms introduced a definition on ‘prior art‘ in Article 5.2.1 of the Patent Law (PL). According to the new law, the prior art comprises of all knowledge available to the public anywhere in the world by written or oral disclosures and any published patent and utility model application or patented invention or utility model prior to the filing or priority date of the patent application.

    Today, one may conclude that Mongolia’s law is harmonized to the PCT standards as result of evolution of the patentability criteria over the past three decades and the inclusion of the prior art definition into the law.

    Patenting process

    The 2021 reforms introduced substantial changes to the law and made the patenting process closer to the global standards set by the PCT. The patenting process consists of the following phases:

    1. Direct application or PCT national phase entry

    Art. 16.7 PL makes clear that assignment deed, inventor declaration and power of attorney for representation by a local agent may be filed later. IPOM may not reject the receipt of an application if, for example, the power of attorney is not included in the initial filing. Likewise, priority of an earlier application in a member of the Paris Union and/or WTO can be claimed after the application filing (Art. 21.3 PL).

    For direct application or PCT national phase entry, the request for registration, the description, the claims, and the abstract should be filed for obtaining a filing receipt. According to Art. 22.1 PL, IPOM should issue a filing receipt within three working days. Application number with the indication of the date of receipt shall be given with the filing receipt.

    • Formality checks for recognition of the filing date

    For recognition of the filing date, all patent documents prescribed in Art. 16 and Art. 21 should be filed with IPOM. Art. 22.2 stipulates that formality check should be performed within 10 working days from the date of the application filing. The office shall give a notice to the applicant if the filing date is accorded. In case of a deficiency, IPOM shall issue a notice and demand the applicant to respond within two months with the possibility of extending the deadline to further three months.

    • Examination of certain aspects of substantive requirement and the formality examination

    If all documents prescribed in Art. 16 and Art. 21 are provided and the filing date is accorded, IPOM should start with examination to prepare the application for search report. The examination at this stage includes the list of non-technical subject matter listed in Art. 6 PL and exceptions to patentability defined in Art. 7 PL and formality requirements on description, claims, abstract and drawings according to Art. 17, 18, 19 and 20 PL.

    Art. 22.10 PL makes clear that IPOM should give a notice to the applicant if formal requirements are not met, and the applicant shall have opportunity to respond to the notice and to amend the application documents within two months from the receipt of the notice.

    If the formal requirements according to Art. 17, 18, 19 and 20 PL are satisfied, IPOM shall give a notice to the applicant.

    • Search

    The new Patent Law introduced rules on search to make it an independent phase of the patenting process. The applicants shall receive a search report according to Art. 24.2 PL.

    • Publication

    Since the 1990s, IPOM has been publishing the abstract, claims and drawings when the decision for grant of patent was issued. The description was not published.

    The new law prescribes that the patent specification, including the description and the search report, shall be published before the substantive examination. According to Art. 24.6 PL, the publication should take place within 30 days from the date of the notice of the search report to the applicant.

    Art. 24.6 PL has not been implemented until today. A published statement on implementation date does not exist.

    • Substantive examination

    Until the 2021 reforms, applicants were not required to file a request to substantive examination. IPOM performed the substantive examination ex officio after the recognition of the filing date.

    According to the new law, a demand for examination shall be filed and the examination fee shall be paid within 15 months from the filing date. IPOM shall perform the substantive examination within 12 months from the date of the publication of the search report.

    The relevant forms for communication between IPOM and the applicant are published in the Guideline of IPOM (Decision No. A/119 of 19th October 2021). The applicants are receiving IPOM notices according to the new Patent Law for all patent applications filed on and after 23 September 2021.

    Patent enforcement

    Patents have been enforceable in Mongolia since 1990s. Today, product piracy is becoming a challenging issue, alongside with counterfeits. The Organization for Economic Cooperation and Development (OECD) noted in its 2017 report the prevalence of transhipment of fake sunglasses, optical products and medical equipment en route to the EU via Mongolia.

    In Mongolia, law enforcement is dispersed across state agencies. Courts do not play a direct role in the areas that were traditionally reserved to state agencies. An example of such an area is patent enforcement. The factual consequence of this system is that patents are not enforced by civil courts.

    IPOM is the primary state authority responsible for patent enforcement, whereas criminal police, the competition authority, the customs authority and other authorities may be involved in an enforcement action. All these authorities have separate infringement procedures. An attempt to codify the inspection procedures before the state agencies was made in 2017.

    The 2017 reforms on administrative inspection procedure brought IPOM under the control of the State Prosecution Office. From the perspective of human rights protection, the reforms may have been positive. An efficient law enforcement is, however, not created by these reforms.

    A typical patent infringement case is normally complex. It may have aspects of consumer protection or competition law issues. Additionally, rights should be enforced on the border. If many agencies are involved, an infringement case could circulate in the state bureaucracy without settling the dispute and bringing results. It may become unreasonably complicated and costly to right holders.

    In the future, efficient law enforcement is only thinkable if civil courts play the major role in patent enforcement. Mongolia has a modern civil law and civil procedural code that comply with standards set by the TRIPS Agreement. A regulatory change or reform for transition to the civil court-centred law enforcement is barely needed.

    Mongolia’s real challenge is the lack of political will to encourage the courts in the areas that are traditionally reserved to the government. The reforms for reducing the overload of civil courts or creating a trade court may additionally accelerate the transition.

    The original version of this article was published in the November 2021 edition of the ASIA IP Magazine. The author thanks for the editorial work and publication.

  • Chances of a stable government

    Chances of a stable government

    Dr Uyanga Delger, attorney-at-law

    Last Wednesday, on 23 August 2017, 30 MPs of the Mongolian People’s Party (MPP) submitted a proposal for dissolving the Government by way of the resignation of Mr. Erdenebat, the Prime Minister, despite the fact that MPP has been controlling both the Parliament and the Government with 65 seats in the State Great Khural since July 2016. The parliament’s vote on the resignation of the Prime Minister is expected in the coming days.

    The resignation proposal was submitted several weeks after Mr. Battulga, the candidate of the Democratic Party (DP), was elected as the President of Mongolia.

    Mongolia has been suffering from chronic government instability caused primarily by splitting the powers of the executive branch between the Prime Minister and the President. Even if Mr. Erdenebat survives the vote, the fundamental governing issues will remain unresolved. Rethinking, discussing and reforming the Mongolian governmental system is welcomed more than ever. 

    Draft constitutional amendment 

    The working committee established by Mr. Enkhbold, the Chairman of the State Great Khural, proposed a draft constitutional amendment (Resolution No. 39 of 2 June 2017 of the State Great Khural). Public debates on the draft are currently being organised across the country.

    The Mongolian President has the constitutional power to initiate legislation. The President’s power is further strengthened by his constitutional right to give instructions to the executive branch of the Government led by the Prime Minister.

    The Mongolian President does not have the power to appoint and/or to dismiss the Prime Minister. The Prime Minister is responsible for his actions before Parliament.

    In practice, the presidency has evolved in Mongolia as an executive branch that coexists parallel to the Government led by the Prime Minister. It is clear that the authors of the Constitution of 1992 did not intend this evolution.

    The Mongolian President enjoys the direct mandate of the people that makes him the most influential political leader in the country, whereas the Prime Minister is appointed by the Parliament.

    The draft amendment is an attempt to limit the presidential powers in the executive branch. The draft proposes to remove the presidential powers to initiate legislation and to give instructions to the executive branch of the Government led by the Prime Minister.

    These amendments to the constitution will enter into force from July 2020 if passed by the State Great Khural.

    Opinion

    The draft constitutional amendment of resolution No. 39 of 2 June 2017 does not intend to change the Presidential election procedure. According to the draft, the President will still be elected directly by the people.

    The deadlock in the Mongolian Government system will remain. A broader approach to reform is necessary for breaking the deadlock.

    Today’s system creates a concentration of government powers in the hands of a few competing political and business groups. With only 76 members, the number of MPs at the State Great Khural is low. Around 20 MPs already have the power to legislate laws. This democratic deficiency needs to be corrected by increasing the number of MPs to a level that is suitable for the population of 3 million, i.e. up to 150 members as suggested by some legal scholars.

    The concentration of government power in the hands of a few groups is further strengthened by the fact that MPs may hold the office of a minister (the so-called “davkhar (double) deel”). People assume that the “davkhar deel” incentivizes political struggle between special interest groups competing for control over the Government. The “Davkhar deel” is, however, not an issue if the number of MPs is increased substantially.

    A clear separation of powers between the executive and legislative branches of the Government is important. In this regard, the power of MPs to initiate laws should be limited. The power to initiate legislation should be accumulated in the hands of the Executive. Today’s system, which gives MPs the power to initiate legislation, has been a contributing factor to inconsistency within the Mongolian legal system.

    In principle, the separation of powers between the executive and the legislative branches should strengthen the executive branch.  By doing so, the system should provide the conditions for political leadership instead of competition and trading between incumbents. Political leadership means a policy that is presented by the head of the executive, in respect of which he or she may rely on support from a majority of the Parliament.

    A transformation to a system similar to that in France may be an option. In France, the President is elected directly by the people. Parliamentary elections take place shortly after the Presidential elections, making coordination between the President and the Prime Minister unlikely. The French President has the power to appoint and/or dismiss the Prime Minister. He or she leads the executive branch of the Government, and is hence the undisputable leader of the country.

    Another option would be transformation to a system similar to that of Germany, by clarification of the original principles of the Constitution of Mongolia of 1992. In Germany, the President is not elected by the people directly, but by the Parliament. The executive branch of the German Government is led by the Chancellor (the Prime Minister). The true political leader is the Chancellor and the President has only formal representative powers.

    The draft constitutional amendment by the resolution No. 39 of 2 June 2017 does not suggest reforms for strengthening parliamentary democracy. Even if the President would no longer hold the power to initiate legislation and to give instructions to the Government, as foreseen by the draft amendment, the President would remain powerful due to his direct mandate from the people.

    The transformation of the Presidential institution to representative powers as in Germany or to real executive power as in France by strengthening parliamentary democracy, is necessary for overcoming Government instability.

    August 2017

    First published in The Defacto Gazette No. 9, August 2017

  • Who will revive constitutionalism and humanity?

    Dr Uyanga Delger, attorney-at-law

    On 12 October 2017, Mr. Battulga, the President of Mongolia, withdrew his nomination for a vacancy for one of the 9 members of the “Tsets of the Constitution” (“the Tsets”) following a public outcry. The huge public interest in the candidacy can be understood as a reflection of the open struggle for power between the Tsets and the Parliament in recent years. This column covers a brief introduction to the institutional challenges revolving around the Tsets.

    The Tsets as the ‘Constitutional Court’ 

    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.

    There are different types of proceedings before the Tsets. Except for a very few cases, the proceedings before the Tsets have been initiated exclusively by citizen’s petition. The Supreme Court of Mongolia has referred matters to the Tsets with questions on constitutional conformity only six times since 1992, according to a 2016 study.[1] 

    Neither the citizen’s petition nor the Supreme Court referrals are comparable with the constitutional court proceedings in countries such as Germany, Austria or France, although Mongolian scholars sometimes write that the Constitution of 1992 was influenced by these countries. In practice, the Tsets does not resolve disputes between the Parliament and the Government or the central and provincial governments on competence issues. Moreover, the Tsets does not reverse an unconstitutional court decision and remit it to a competent court if it has the opinion that fundamental rights of the complainant are violated. In other words, the German or Austrian type of individual complaint procedure does not exist in Mongolia.  

    Petition about constitutional uniformity 

    The Tsets petition proceeding is unique. From a European perspective it is difficult to envisage. One should, however, try to forget about the notions of popular or parliamentary sovereignty or even judicial protection and imagine instead a parliamentary petition committee that is, however, not a part of the Parliament itself.  

    In practice, the Tsets proceedings are launched by citizens’ petition (a complaint or report). An ordinary citizen may refer to the Tsets either with a complaint about breach of his own fundamental rights (citizen’s complaint) or he may submit a report to the Tsets for the defence of the ‘public’ interest but not of his own fundamental rights (citizen’s report).  Over the past 25 years, the citizen’s petition has been submitted to the Tsets primarily on grounds of violation of the Constitution by a legal provision of a law passed by the Parliament, according to the 2016 study.The Tsets does not review the constitutional conformity of laws before their promulgation. Generally, the Tsets only decides on constitutional conformity when the relevant law is already in force. 

    In practice, the Tsets first issues an opinion on the constitutional conformity of a legal provision, when a proceeding was launched based on a citizen’s petition. The opinion of the Tsets confirming constitutional non-conformity has the effect of suspension of the provision and the Tsets remits the opinion to the Parliament. The Parliament has principally a legal obligation to decide on the opinion of the Tsets within 15 days. If the Parliament disagrees with the opinion, the Tsets makes a final decision and it may repeal the legal provision.Struggle between the Tsets and the Parliament 

    Under the given institutional provisions, it is predictable that the relationship between the Tsets and the Parliament has been a challenge to the Mongolian state. It is common that the Parliament does not respect the deadline of 15 days. In its 25 years of history, the Tsets has succeeded to issue final decisions in only 59 disputes, according to the 2016 study. Moreover, the study shows that the Parliament does not even respect in the legislative procedure the existence of previous final decisions by the Tsets. The power of the Tsets as a body of constitutional control is hence very limited.  Outlook 

    The current situation is distressing when one considers the public finance issues and widespread extreme poverty in Mongolia. Why should poor Mongolians finance members, staff and accommodation of the Tsets if it has produced only 59 final decisions in 25 years? Why should the state pay for an institution which is not capable of fulfilling its mission? Moreover, there is a state institution called the “National Human Rights Commission”. Why the state is paying to two separate institutions dealing with human rights complaints?  One should further ask why the Tsets should have the power to repeal a legal provision? Did the Mongolian people elect their representatives in the Parliament through a direct election? Is it justified that nine members of the Tsets decide on the validity of a law which was passed by the 76 members Parliament? How can one know that the so-called ‘citizens’, who submit a ‘report’ to the Tsets, are really intending to defend the interests of the ‘public’? If so, are they capable of understanding complex issues, although the legal provision that is attacked by them does not affect their rights directly? Last but not least, are the current proceedings before the Tsets further contributing to legal uncertainty? 

    In the short term, the selection of a recognisable candidate for a member of the Tsets seems to be important at least to Mr. Battulga, the President of Mongolia, who is surely interested in maintaining public support at the beginning of his mandate. In the long run, the country may not carry on with institutions such as the Tsets. Overall, one should ask if the country needs institutions that are capable of responding to changes by creating and redefining the fundamental values of the society and that protects individuals and businesses from arbitrary state actions. If yes, what kind of institution or state re-organisation would be possible?  

    October 2017

    Published in The Defacto Gazette No. 17, 28 Oct 2017

    [1] Enhbaatar and others, Assessment of the performance of the 1992 constitution of Mongolia, 2016, p. 179, available at www.mn.undp.org

  • Independence of lawyers in Mongolia

    Dr Uyanga Delger, attorney-at-law

    The UN Basic Principle on the Role of Lawyers stipulates that “adequate protection of the human rights and fundamental freedoms to which all persons are entitled… requires that all persons have effective access to legal services provided by an independent legal profession.” The independence of lawyers is, therefore, important not only to lawyers themselves but to everyone. This column explains why Mongolia does not provide for an institution to secure the independence of lawyers.  

    Looking back to the history: The socialist time “Advocates’ Collegium”  

    The Mongolian People’s Republic (MVR) was an authoritarian regime, where the economy was centrally planned, administrated and controlled. Freedom of property, enterprise and association as well as freedom of speech and expression were massively restricted because private undertakings would offer competition to the centrally planned economy and hence threaten the legitimacy of the regime.

    The former “Advocates’ Collegium” was a state controlled association, which can be defined today as the only “law firm” that existed in the MVR. The Collegium was managed according to the socialist enterprise financial and management rules. Legal service fees were fixed by the state. The advocates were employees of the “Advocates’ Collegium” and they were obliged to work at the Collegium full-time, according to the Statue of the Advocates’ Collegium (1978). The only exemption to this rule was applicable to law professors and legal scholars, who were allowed to work as part-time advocates.

    The system of a state controlled “law firm” and the position of advocates as the employees thereof made the lawyers dependent on the state. The omnipotent “Ministry of Courts” possessed statutory control powers over the Collegium.

    The Association of the Mongolian Advocates (AMA)

    AMA is the successor of the “Advocates‘ Collegium”. The Law on Advocacy of 1994 and 2002 and the reforms of procedural laws strengthened the position of lawyers as the defenders of human rights. Lawyers became independent professionals and the state stopped interfering in the lawyers’ service fees by giving them contractual freedom. Lawyers gained de facto more rights to express their opinion in the interests of their clients.

    Despite the progresses made since 1990s, the Laws of 1994 and 2002 allowed the influence of the Ministry of Justice. AMA was, therefore, not protected from direct interference from the Government and politics. Mr. Sanjaasuren, the lawyer of Mr. Enkhbat – who was kidnapped from France by Mongolian intelligence officers in 2003 – wrote, for instance, in an open letter that his advocate’s licence was confiscated in 2003 by the Justice Ministry on the suggestion of AMA. Mr. Sanjaasuren wrote that the AMA initiated disciplinary measures against him in connection with the affair of Mr. Enkhbat. In the case, which led to Amnesty International campaigns, Mr. Sanjaasuren was sentenced to 18 months imprisonment for helping Mr. Enkhbat to speak on television outlining the details of his kidnap and torture by intelligence officers. Mr. Sanjaasuren’s advocate’s licence was restored ten years later, in 2013, by Mr. Temuujin, the former Justice Minister of Democratic Party.

    Under the leadership of Mr. Temuujin, the judiciary was reformed drastically. The 2013 Law on the Status of Lawyers introduced a completely new institutional structure to legal services. The AMA lost, consequently, its public law competence of licensing of lawyers as advocates (attorney-at-law). The AMA is today a non-governmental and voluntary association.  

    The Mongolian Lawyers (Bar) Association 

    In the 1990s, the Mongolian higher education system was radically liberalised resulting in too many schools that offer law degree studies. A huge number of law degree holders started, consequently, offering legal services without any professional ethics standards and controls because AMA was reluctant to license them as advocates. The increased dissatisfaction of the younger generation of lawyers with the performance of AMA and the change of the government led then to the disempowerment of AMA by the 2013 Law and the creation of the Mongolian Lawyer’s Association (MLA).

    MLA names itself in English as the Mongolian Bar Association (MBA). MLA is, however, not an association of independent legal professionals. Judges and state prosecution officers hold statutory membership of the Association, as well as lawyers licensed to represent clients before the courts (advocates, attorney-at-law) and other lawyers (legal advisors or employee lawyers). The MLA has today 5303 members (517 judges, 506 prosecutors, 2077 advocates, 2203 other lawyers).

    The 2013 judicial reforms of Mr. Temuujin and the MLA have been energetically defended by young generation lawyers, who made their career with the MLA. Unfortunately, the reality is today cumbersome.  Lawyers, whoserole is defending the interests of their clients before the courts and state prosecution offices, are brought under one roof together with judges and state prosecutors. Moreover, the MLA has powers of disciplianary measures against advocates (attorneys-at-law) and other independent lawyers, whereby the judges and state prosecutors number 24 out of 30 members of the Disciplinary committee. This means that the disciplinary measures against advocates are in practice taken by judges and state prosecutors.   

    Furthermore, the provisions of the Law on Status of Lawyers regulating the lawyers licensed to represent clients before the courts (advocates) are drafted with the expectation that these lawyers would work as full-time professionals (as explained above this idea originates from the socialist time!). The current Law prohibits advocates from working in another profession. Only law professors and legal scholars are allowed to hold advocate licence at same time.

    The prohibition on another business or employment activity is impossible to enforce. In the provinces, lawyers are barely in a position to make a living by advocacy. Lawyers are normally employed in another enterprise and represent citizens before courts if there is a case. In Ulaanbaatar and other densely populated areas, the number of advocates who make their living from full-time legal service is limited too. The advocates complain about the fact that the current system makes them vulnerable with respect to their relationship with courts and state prosecution offices, and hence restricts their freedom of speech and expression.

    December 2017

    First published in The Defacto Gazette, No. 20 Dec 2017

  • How serious is the President ‘s threat to dissolve the Parliament?

    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