‘Bill submitted by president violates the Constitution’

Over the last 30 years, there have been many conferences and discussions on judicial reform. Some people believe that all these meetings were ineffective. What is your position on this?

Let us recall all the events related to the court since the adoption of the Constitution in 1992. The year after the adoption of the Constitution, the first Law on the Court was drafted and implemented. The law was revised in 2002.

In 2013, legal reforms were introduced, including the adoption of a package of laws on the court. Of course, there are successes and failures in this reform.

In 2019, the amendments to the Constitution was passed. In this regard, lawyers are working to bring the package of laws on the court in line with amendments to the Constitution. Most importantly, there is a lot of discussion about how to reform the judiciary to ensure the right of citizens to a fair trial.

In general, legal reforms have been carried out in the context of judicial reform.

Instead of a fair court, citizens want a law that is realistic and a good government that does not influence judges. In other words, citizens criticize politicians for passing legislation with loopholes that could affect judges. We can only discuss justice afterwards.

The judicial system and the independence of judges will also be guaranteed by judicial reform. A package law on court allows citizens to have a fair trial. But this is not enough.

In general, it is important to enact laws and regulations that are used to resolve cases and disputes for judges.

For example, the General Law of Taxation of Mongolia is used to resolve civil disputes related to the tax. In resolving a dispute, a judge must abide by the law that governs that relationship. If good laws are passed by Parliament, judges will protect the violated rights of citizens and make fair and correct decisions. There is a constant need to update the laws applied by judges.

The Civil Code of Mongolia was passed in 2002. This law has not been amended for almost 20 years. During this time, social and economic relations changed. There is such a problem. Poor content and form do not protect civil rights.

In short, justice cannot be established without good laws.

In accordance with the Constitution, a judicial disciplinary committee (JDC) will be established. The current Ethics Committee of the Judicial General Council (JGC) has no legal capacity to elect a chair of the committee and members, and no regularity in operation. What are the roles and responsibilities of the new committee?

According to the Constitution, the responsibility of the JDC is clear. This includes resolving issues such as dismissal, imposition of disciplinary sanctions and suspension of judges. In doing so, the powers of its members are regulated by law.

The independence of the court and the accountability of judges must be balanced. In this context, a JDC should be established.

What were the advantages and disadvantages of the two bills initiated by President Kh.Battulga and Kh.Nyamdorj, drafted by the Bar Association and the Ministry of Justice and Internal Affairs?

There are good regulations in both bills. Most importantly, there were positive decisions regarding the appointment of judges. There are some things that were not mentioned at all. The president often refuses candidates for judge.

However, he never explained why he rejected appointments. If it is viewed that a candidate for judge does not meet the legal requirements, the president must return the application to the JGC and formally state the reason for rejection. Candidates for a judge are now evaluated by the Judicial Qualifications Committee.

There is a lot of criticism that the JGC is politicized. Does this mean that the people do not believe that a politicized organization will make an independent choice in the selection of judges?

In accordance with the Constitution, judges are appointed by the president on the recommendation of the JGC.

However, since 2013, the president has appointed the director and members of the council, which has increased his influence in the court. Prior to that, the composition of the council was also changed. Due to such issues, the Constitution was amended to keep the number of members of the council stable and to have a balanced representation.

Currently, five members are appointed by the president on the recommendation of specific areas. According to the law, to change this appointment, the other five members of the JGC must be selected from among judges.

How is this solved in international practice?

At the request of the JGC, the OSCE Office for Democratic Institutions and Human Rights drafted a report on the Law on Judiciary, Judicial Administration and the Legal Status of Judges in Mongolia last March.

The report made a clear recommendation that the provision stating that the JGC elects the person to be appointed as a judge by voting should be repealed.

Today, in the world, there is a common system that a particular body selects a judge and nominate him or her.

Most importantly, the appointment of judges internationally requires openness and transparency. The grounds for the appointment of a judge must be transparent and understandable to the public. In addition, it is important to clearly state how to address the issue of evaluation rankings.

The distribution of internal judicial power is not enshrined in the Constitution. For example, citizens do not trust the case distribution mechanism. The lack of legaliza

tion and transparency of this issue raises suspicions.

A bill submitted by the government provides for the adoption of a common procedure for the distribution of cases. The bill submitted by the president does not include such a provision.

Under the current law, members of the council have the right to approve the procedure for allocating cases and claims to judges. Although cases and lawsuits are distributed with the help of a software, and each court sets different rules. After reviewing and studying the procedures for allocating court cases, I found that it is impossible to classify all claims and cases programmatically.

For example, if a judge is temporarily appointed from another place, the council will discuss and transfer a number of cases to the judge.

In addition, if a judge refuses to accept a claim or complaint, a claimant can rewrite and change his or her claim.

In this case, the software sometimes assigns the case to the judge who first received the case. There will be a suspicion that cases and lawsuits are deliberately assigned to certain judges.

The distribution of cases and claims is overseen by the court's information and technology department, as well as by a court official.

In general, the allocation of cases to judges should be audited by a third-party information technology company and made public on a quarterly basis to determine whether the cases were randomly assigned by a computer program or deliberately adjusted to one judge.

The existing Information Technology Department of the JGC has four to five members. With this structure, it is impossible for information on the distribution of cases and claims to be made public.

According to your research, the judges themselves are the biggest enemy of their independence. Why?

...The grounds for the appointment of a judge must be transparent and understandable to the public. In addition, it is important to clearly state how to address the issue of

evaluation rankings...

A recent study by our organization found that judges themselves are the most important factor in protecting the independence of judges. It is a judge's fault that he or she is unethical and incapable of defending his or her independence. A judge must defend his or her independence and integrity. Judges must maintain their independence in any relationship. They have a responsibility to be ethical. It is up to the judge to do so.

Based on Articles 17.1-8 of the Law on the Legal Status of Judges, some judges were suspended by the president at the proposal of the JGC. These articles of the law are considered by the public to be the most detrimental to a judge's independence. Lawyers are also openly criticizing it. Is this provision reflected in the two bills submitted by the president and the government?

On the recommendation of the National Security Council of Mongolia, the provision on the suspension of judges was removed from both bills. The Ministry of Justice and Internal Affairs and the president have stated that it will not to be included in the bill.

Are there any unconstitutional provisions in the bills submitted by the president and the government?

A specific provision in the bill submitted by the president violates the Constitution. The Constitution clearly states that the JGC will elect five members of the council from judges. However, the bill submitted by the president stipulates that judges and other members will be appointed by Parliament.