Will legal reform ensure judicial independence?
Last year, the Constitution of Mongolia was amended, and one of the stated reasons for it was to “ensure the independence of judges and judiciary”. In this regard, a package of laws on courts needs to be updated.
The current court laws are viewed as not being able to meet the needs of society, especially in terms of strengthening the accountability and ethics of judges.
The president and government have submitted the amendments to the Law on Courts of Mongolia, Law on the Legal Status, Discipline and Responsibility of Judges, and Law on the Legal Status of Lawyers to Parliament, respectively, in order to align them with the amendments to the Constitution. Specifically, the Law on Courts of Mongolia, Law on Court Administration, Law on the Legal Status of Citizens' Representatives, Law on the Legal Status of Judges, and Law on the Legal Status of Lawyers are to be changed.
However, the president announced to withdraw his draft revisions during the plenary session on November 27.
Therefore, it is time for the opposition and legal scholars to demand proper regulation, as only bills on courts drafted by the government will be discussed.
Some lawyers have argued that the bills will enable the judiciary to be politicized if enacted.
Professor of the National University of Mongolia (NUM) A.Erdenetsogt said, “Politicians have enshrined in their bills the power to participate in the appointments of the three major pillars of the judiciary: the court, the Judicial General Council (JGC), and the Disciplinary Committee. The judiciary itself can be independent by regulating the appointments of these bodies in very strict terms.”
JUDICIARY APPOINTMENTS IN MONGOLIA
The president appoints chief justice and judges of the Supreme Court and other courts in Mongolia. In particular, in accordance with the Constitution of Mongolia, judges of the Supreme Court nominated by the JGC are first introduced to Parliament and then appointed by the president. Judges of other courts are also appointed by the president on the recommendation of the JGC, while the chief justice is appointed from among Supreme Court judges for a term of six years upon nomination by the Supreme Court. Some lawyers argue that centralizing the power of judicial appointments to one political official undermines the independence of the judiciary and judges.
In the US, the chief justice is nominated by the president and confirmed to office by the US Senate.
Article 3.1 of the Constitution of the US specifies that they "shall hold their offices during good behavior". This means that the appointments are effectively for life and that once in office, a justice's tenure ends only when the justice dies, retires, resigns, or is removed from office through an impeachment process. Some scholars believe that this ensures that judges act responsibly and ethically.
Some lawyers have suggested that such an arrangement would be appropriate for Mongolian judicial appointments. The appointment of judges should be carefully considered and reflected in the bills submitted by the government based on international examples and research. This is one of the major issues of judicial reform.
Article 3.49.3 of the Constitution stipulates that the JGC shall function to ensure the independence of judges and the judiciary. According to this, in addition to the appointment of judges, the JGC’s member appointment affects the independence of the judiciary.
In accordance with the amendments to the Constitution, five members of the JGC shall be elected from among judges and the other five shall be nominated openly.
“A report of the council's activities related to ensuring the independence of judges shall be submitted to the Supreme Court. The organization and procedures of the council, the requirements for its composition, and the procedure for its appointment shall be determined by law,” the Constitution states.
The bill on courts submitted by the government stipulates that the five member of the council who are to be openly nominated be appointed by the president, Standing Committee on Justice and the Ministry of Justice and Internal Affairs, respectively, while the president’s bill gave the Mongolian Bar Association, president and the Ministry of Justice the right to appoint five JGC members. In other words, politicians or the president, Standing Committee on Justice, and Ministry of Justice will elect the remaining five members of the JGC under the guise of “open” selection. It seems clear now that the amendments to the Constitution served this specific purpose.
In fact, the JGC is obliged to protect the interests of judges without interfering in the judicial process and ensure the independence of the judiciary. However, if its members are elected from the above three political and government bodies, the JGC will not be able to fulfill its constitutional obligations. Therefore, the judicial selection system would be “unfair” and “conspiratorial”.
Some lawyers have suggested that the five members of the council be openly elected by some sectors, not politicians. Particularly, Professor of NUM O.Munkhsaikhan said, “There is one common thing in both the government and the president's bills that seriously violates Article 33.4 of the Constitution. The president's bill states that president will nominate only one member of the JGC, while the government’s bill provides for the appointment of one member of the council by the president. This power cannot be delegated to the president.”
“Article 33.4 of the Constitution prohibits the president from nominating or appointing members of the JGC. The provision on the power to appoint or nominate member of the JGC should be removed from the bills. Appointments should be balanced,” he added.
In addition, the Constitution provides for the establishment of a judicial disciplinary committee.
Article 49.6 of the Constitution stipulates, “The Judicial Disciplinary Committee shall impose suspension, dismissal and other disciplinary sanctions in accordance with the grounds and procedures provided by law. Its powers, organization, operating procedures, staffing requirements, and appointment procedures shall be established by law.”
The appointment of a disciplinary committee member was also politicized. The government and president included the appointment of members in their bills. The president has included a provision to strengthen his authority over the judiciary, while the government wants supremacy.
A member of the committee should be reputable, ethical, and recognized professional. However, the bill initiators included a provision that the Ministry of Justice, Standing Committee on Justice and president will “recommend” a member of the committee. In other words, it does not meet the requirement of judicial independence from political authorities.
Member of the Judicial Ethics Committee, Professor of NUM T.Munkh-Erdene said, “The involvement of the legislature and the executive branch in the composition of the Judicial Disciplinary Committee should be kept to a minimum. There should also be a separate process for investigating and imposing disciplinary sanctions on judges. However, the bill submitted by the government does not include these two recommendations. In other words, the high level of participation of Parliament and the government is not in line with international principles.”
This means the constitutional amendment and the bills on court submitted by the government and president provide for the appointment of half of the JGC and members of the Judicial Disciplinary Committee by politicians.
CONFLICTING PROVISIONS IN BILLS ON COURT
Based on the recommendation of the National Security Council (NSC) of Mongolia, in accordance with Article 17.1.8 of the current Law on the Legal Status of Judges, the president suspended the rights of 17 judges last year.
In connection with this, lawmaker B.Enkhbayar and some 13 members initiated a bill. They argued that dismissal of the head of the judiciary and judges on the recommendation of the NSC violates the constitutional provision on the right to a fair trial. In other words, the judiciary is losing its independence.
The suspension of a judge is not the issue but who gets the power to do it. A judge can be suspended in connection with a crime. However, the issue should be resolved in accordance with the Law on Courts and the Criminal Procedure Code. According to international standards, judges involved in criminal cases are suspended. However, the NSC recommended for some judges to be suspend without justification to the JGC. In other words, some judges were suspended when there were no legal grounds.
In this context, a judicial reform bill with major “errors” and “improvement” is under review. The Global Competitiveness Index ranks the independence of the judiciary in more than 140 countries each year. Mongolia was ranked 122nd in 2011 with a score of 2.6, but this rating has gradually increased to 3.2 in 2016, landing Mongolia in 100th place. However, in 2017, Mongolia was ranked 110th with 3 points, 113rd with 2.8 point in 2018, and 120th with 2.6 point in 2019. This study of judicial independence is based on the business community.
The ongoing attempt at legal reform will show whether Mongolia progresses or stagnates in terms of judicial independence in the eyes of the world as well as its people.