Recently, Mongolia has seen its Democracy in peril, posing a great risk for backsliding. Currently, Freedom House has categorized Mongolia as a “free nation.” But, as The Washington Post and ForeignPolicy.com note, President Khaltmaa Battulga has taken drastic measures to reduce the freedom the country sees, attacking both the constitution and the judicial system.
On March 27, an overwhelming majority of the Mongolia Parliament voted to amend the existing anti-corruption law, which gives Battulga an immense amount of power to stack the courts in his favor, according to ForeignPolicy.com. The post also states that the only check on this abuse of power, now that the court will be packed with Battulga enthusiasts, is through the 2020 election. But, it is hard to imagine that two years from now a free and fair election will take place with the current trend towards an eroding democracy. What the new laws allow for is for the National Security Council, made up of Battulga, the prime minister, the speaker, and the Judicial General Council, which is appointed by the President. Seeming as the President can pack these positions with his political counterparts, he can essentially control the judge presiding over every Supreme Court Case. While not explicitly stated, getting to seize control over the judge of each case would essentially allow Battulga to put people in power who he knows will side with him.
This decision essentially ends any freedom of the courts that Mongolia had to rely on as part of its democratic values. Utilizing the court to erode democracy is seen as a form of executive aggrandizement, which we discussed in lecture. When looking at the United States and their longstanding Democracy, these principles are often rooted in the independence of the Supreme Court of the United States. While the current president has the power to nominate a candidate, and Congress has the duty of confirming the nominee, the court remains the most independent branch of government that the United States has. With no re-election and no term limit, the justices appointed, while they may be fundamentally liberal or conservative, have only the letter of the law to please.
Under the new Mongolian laws, judges have no incentive to strictly rule based on what the constitution and existing laws spell out. These judges will now operate under the idea that either they rule with what President Khaltmaa Battulga wants, or they will be replaced. There is just no circumstance in which a country can operate as a free democracy with a president wielding such ultimate power like this.
Battulga has also used this new found power to directly impact pending prosecution against other government officials. Under the new law, Battulga dismissed the prosecutor general who was investigating the prime minister and several other members of the parliament for embezzling funds. The Washington Post notes that not a single member of parliament being investigated objected to the new laws.
Essentially, Mongolia has moved from one of the few democratic countries in central-Asia to having a weaponized judicial system. Rather than allowing judges to freely operate and rule on the law, these judges are now appointed under the idea of appeasing Battulga and his party. If this doesn’t happen Battulga will simply replace the judge and appoint someone who will rule in his favor. There is no longer any incentive to keep democracy in place as judges now need to rule for their jobs and not the future of their country.
Photo by Wikipedia
Had not realized this about Mongolia’s democracy – great piece. The first thing that came to mind when reading was the Varol’s idea of stealth authoritarianism that we discussed. Especially with such a narrow focus on judicial reform, what is happening in Mongolia seems like a textbook example of what Varol means when he talks about once democratic institutions being undermined to the point where it is difficult to tell what actions are legitimate and which are not. Every decision made by that high court will be made under the knowledge that Mongolia’s president has a wide breath of authority to punish judges that he feels have acted out of turn. At the same time, because there is no guarantee he will take this action – judges technically still retain the freedom to decide cases how they wish… even if doing so may doom their career prospects. This piece is great in acknowledging that democratic institutions can be made to serve authoritarians and leaders that we would otherwise consider to be actively eroding democracy. I think you will find that the Varol piece we read for class echoes many of your same ideas – would have loved to have seen it incorporated here.