Today is the 24th of June 2020. Wednesday. The day of the Mongolia’s eighth parliamentary election and a public holiday. The 76 members of the Parliament are going to be elected by plurality-at-large voting in multi-member constituencies (2-3 members will be elected from 29 constituencies), according to the amendment (20.12.2019) to the Electoral Law, made by the Mongolian People’s Party, which possessed 65 seats in the previous Parliament. Altogether 606 candidates are officially registered at the General Election Committee of Mongolia, of whom 121 are independents and the rest representing 17 different political parties and coalitions.
During the 21 days of election campaigning, six of the candidates are held in custody by the court’s decision including former Prime Minister J.Erdenebat from Mongolian People’s Party, former Finance Minister S.Bayartsogt from Democratic Party, former deputy Prime Minister Da.Ganbold, former CEO of Erdenes Mongol LLC B.Byambasaikhan, former MP N.Nomtoibayar and candidate citizen Kh.Bat-Yalalt.
Although these candidates had previously been investigated and detained for corruption, official misconduct and criminal offenses, there was no provision in the law to deny their registration as a candidate at General Election Commission, because the court had not yet concluded whether they committed a crime or not. However, some interesting questions are arising, following today’s election: What made political parties support them as a candidate, knowing that they still have been investigated? Being well aware of a potential arrest due to the investigation, for which exact purpose did these individuals nominate themselves as candidates and spent millions of MNT? Lastly, the President Khaltmaagiin Battulga, who has the biggest influence on the appointment of judges and the best observer of the whole situation, remain silent? Or is he behind all of this? If so, what is his final goal?
Democratic Backsliding
The answers to those questions will vary. In any case, one generally fitting answer would be that judicial institution in Mongolia became dependent on the executive branch (including the President). In political science, democratic backsliding refers to an institutional disintegration and weakening of political institutions. The backsliding of judicial institution was observed on following three occasions:
One. According to Election Law, it is prohibited to arrest and detain any candidate without consent from the General Election Commission, unless they are caught in the act of committing a criminal act or arrested with evidence at the crime scene. However, MP J.Erdenebat has been detained despite this provision and his immunity as a parliament member. Normally, the General Prosecutor must issues the dismissal of the involved member of parliament to the.
It is not a coincidence that all those six individuals were suddenly arrested exactly during the election campaign, after months of prolonged investigations. Although different judges were in charge of their cases, the proceedings were delayed repeatedly and a ridiculously high bail was demanded in the sum of 10 billion MNT prior to the arresting which no one can afford to pay, are indications that it has been planned in advance.
Two. Kh.Batsuren was appointed as a Chief Justice of the Supreme Court last year. But a month ago, he resigned at his own request, the reason will be explained in due time. The people of Mongolia have a right to scrutinize and demand answers for some questions: Under whose and what pressure did he make this decision? Did he possibly refuse from the “order” to arrest those candidates? Why has the President suddenly approved D.Ganzorig as Kh.Batsuren’s successor, whom he refused before? For whose benefit were such major cases halted in the court?
Three. The emergency session of the Constitutional Court held closed on 13th May, 2020 and declared 64th decree of the Parliament from 2014 “On some measures to ensure the implementation of state policy on railway transportation” is unconstitutional. It seems like constructing the railway with narrow gauge is indeed wrong and is changed into broad-gauge now. Lawyers, such as O.Munkhsaikhan and A.Byambajargal contended that this decision of the Constitutional Court has seriously violated the Constitution. In any case, the width of railway gauge is not regulated by the Constitution.
The three cases mentioned above are confirming that the court of Mongolia is de facto controlled by the executive branch and dishonoured the rule of law. Independent and fair judiciary play the most important role in strengthening constitutional democracy, ensuring civil and political rights in particular. An independent judiciary branch has the ability to avoid bias and any direct political interference, and must make decisions without any fear. Unfortunately, this is not the case in Mongolia.
The Judiciary of Mongolia is strongly influenced by the government, according to Heritage foundation report on the Index of Economic Freedom in 2017. By the World Justice Project’s Rule of Law Index 2018, the Mongolian Civil Court scored 0.52 and the criminal Court scored 0.39 (1 point means no influence by the government).
Halting the Backsliding
We mentioned that suppressing the voice of civil society is one example of democratic backsliding. Furthermore, unlawful court decisions are also indicating the collapse of another institution.
Four types of democratic backsliding include (Nancy Bermeo. Oxford University):
- Military coup
- Purposely swindling elections
- Weakening democratic institutions through law after certain political parties take power through election
- Executive power dominates legislature and judiciary
Thus, Mongolia is following: the second type of democratic backsliding by detaining candidates illegally; the third type by dismissing and replacing prosecutors and judges following the recommendation of the National Security Council; and lastly the fourth type by manipulating the judiciary.
We, the citizens, must have a heated discussion about how to halt democratic backsliding and save our democracy. The liberal democracy we chose in 1990 is not only about the elections. The most important task in strengthening democracy is to establish liberal political institutions, including the protection of the civil political right through the fair court.
Today is the day we Mongolians will make a historical choice. It is a chance to defeat the enemies of our democracy, freedom, and values. In this election, we need to elect a new, young, professional and ethical parliament, which can make urgent and necessary amendments on the Package of Law on Courts to strengthen our democracy. Long live the Mongolian democracy and civil liberties!
2020.06.24
Trans. by Riya.T and Sungerel.U