Louis XIV, king of France, is told to have said this 350 years ago. However, now the state is made up not of one person, but of three main institutions. It includes the impersonal state itself, the rule of law and the mechanisms of democratic accountability (F.Fukuyama “The origins of political order”). While the state builds and operates using power, the rule of law and mechanisms of accountability control and balance that power. Modern democracy is able to function only under the condition that these three institutions work together.
However, the state of Mongolia is facing corruption which has been the biggest obstacle for development. Our country gained 35 points and ranked 106th out of 180 countries in the 2019 Corruption Perceptions Index. Corruption is not decreasing worldwide. According to Transparency International, the main reason is the money’s powerful exertion of influence on politics. The financing of political parties poses the corruption, therefore the faith of the citizens in the state is fading away and justice is critically demanded worldwide. In countries with more than 70 points, the law on election financing is clear and systematic, while in countries with less than 35 points (corrupted), such regulations are weak or absent.
The source: https://www.transparency.org/
Typically, a corrupt country is governed by a non-party, small or sole interest. The Mongolian People’s Party and Democratic Party, which have been exercising state power in Mongolia, claimed over the years that the “state is their party”.
The rule of law
Magna Carta, a document limiting the power of one person, was adopted in England in 1215 and was signed by King John. History has shown the rapid growth of mankind as man follows the law accepted by everyone.
In the simplest sense, the rule of law is defined as all individuals are subject to the law, no matter how high-powered they are. The rule of social life is the law that is set out on paper. Above all, the law is the Constitution, not the Constitutional Court. In Mongolia, the rule of law is not established and drowning in corruption since it is related to the formulation, adoption, and implementation of the law.
In Mongolia, consultation with the political, social and business representatives in the process of lawmaking takes place insufficiently. Furthermore, the law is not based on research. As a result, the ones at the top are used to changing laws. By the example of the US, the law may be named after the member who initiated the law.
It is doubtful that each member of parliament is voting in the passage of the law. If a parliament member is not in the standing committee, he/she has less impact on the lawmaking process. However, this also may be linked to the qualifications and education level. Citizens must be allowed to access the information about who participated, supported and opposed the bill.
The most problematic part is the implementation. Even N. Altankhuyag, the former Prime Minister, said: “does the law really matter”. You can read about this in the article “We’re going through democratic backsliding”. Countries often primarily take down the rule of law when they are moving backwards on democracy.
Authorities are continuing to degrade the rule of law in Mongolia. The legislature and judiciary have been attacked through the National Security Council (NSC). The recently passed law of writing off loans of all pensioners was basically governed by the NSC. It is no secret that the Parliament was pushed then to make direct decisions. And that is how our parliament has lost its legislative power. United Nations Special Rapporteur Michel Forst and Diego Garcia-Sayan stated that the independent court disappears when the executive branch enters the judicial process; and that the release of judges and prosecutors on the recommendation of the NSC is an indicator. The NSC of Mongolia consists of the President and the Prime Minister, two entitles in the executive branch, and one in the legislative body, the Speaker of the Parliament.
Measuring the rule of law
World Justice Project is one of the ten organizations that are involved in the Corruption Perception Index. It is a non-profit, independent organization that ranks countries the annual Rule of Law Index. According to the 2019 report, Mongolia was ranked 53rd from 126 countries with 55 point, a decrease 2 point from 2016.
The rule of law is measured by the degree to which the country’s laws and institutions implement the following principles. These include:
- Accountability; the government as well as private actors are accountable under the law
- Just laws; the laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons, contract and property rights, and certain core human rights.
- Open government; the processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
- Accessible and Impartial dispute resolution; justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.
Source: Rule of Law Index
As can be seen from the graph above, while Mongolia has the highest social order and security factor, the two factors for the absence of corruption and regulatory enforcement are weaker than others.
Establishing the rule of law
The rule of law does not come by itself, it is a long, subtle and very difficult process. In England, the longtime struggle between kings and noblemen has played a key role in the transition from customary law and universal law. The influence of religion was great as well. There was a principle that no high priesthood was superior to the Bible. This created the cultural ground for the writing down of the law on paper, and authorities had to submit to it as well.
In a developing country such as Mongolia, to establish a rule of law it is necessary to “develop and strengthen the civil service” (F.Fukuyama. “Deep state”). With the development of civil service, civil society and the media require better performance. Finally, the rule of law is a matter for everyone, not just the lawyer. In countries where the rule of law is implemented effectively, corruption is low, poverty and unemployment are relatively small, and justice is in effect. Without the rule of law, the government would be corrupt, the freedom of the citizens would be curtailed, well educated people are weakened, and it would slip into a dark society.
2020.01.29
Trans. by Riya.T and Sungerel.U