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.
2017.12.02