A/HRC/43/51/Add.2
amendments allow the National Security Council – chaired by the President of Mongolia
and composed of the Speaker of the Parliament and the Prime Minister as core members –
to make recommendations to revoke judges and the heads of the public prosecutor’s office
and the anti-corruption agency.
26.
One day after the amendments were passed, the Chief Justice of the Supreme Court,
the Prosecutor-General and the Deputy Prosecutor were dismissed by presidential order,
issued upon recommendation of the National Security Council. Later, on 2 May 2019, the
head of the anti-corruption agency was also dismissed. Reportedly, this initiative came at a
time when several parliamentarians were being investigated by public prosecutors and the
anti-corruption agency over allegations that they embezzled public funds in the context of a
scandal involving small and medium-sized enterprises.
27.
The Special Rapporteur is gravely concerned that the involvement of the National
Security Council in the procedure for the dismissal of judges constitutes a serious breach to
the principles of independence of the judiciary and separation of powers, which in turn can
have a detrimental impact on democracy and human rights. 2 The Special Rapporteur is
seriously concerned that these reforms may deter judges and prosecutors from taking action
against corruption, as they may feel compelled, in politically sensitive cases, to follow the
instructions received from the executive branch to avoid or minimize the risk of being
dismissed. He recalls that in its general comment No. 32 (2007) on the right to equality
before courts and tribunals and to fair trial, the Human Rights Committee stressed that the
requirement of competence, independence and impartiality of a tribunal, in the sense of
article 14 (1) of the International Covenant on Civil and Political Rights, is an absolute
right that is not subject to any exception. In general comment No. 32, the Committee made
it clear that the dismissal of judges by the executive – for example, before the expiry of the
term for which they have been appointed – without any specific reasons given to them and
without effective judicial protection being available to contest the dismissal, was
incompatible with the independence of the judiciary (para. 20).
28.
The Special Rapporteur wholeheartedly supports efforts to fight corruption that are
in line with international human rights law. He notes positively that the rank of Mongolia
on the Transparency International Index has improved from 103rd place in 2017 to 93rd
place in 2018. He firmly believes that combating corruption is paramount to generating
indispensable public revenue and to restoring public trust in the ability of the State to hold
perpetrators of malpractice into account. However, he believes that the amendments made
to the law on the legal status of judges, the law on the public prosecutor’s office and the
anti-corruption law constitute a wrong remedy to a real problem. He has serious concerns
that those reforms could prevent defenders from addressing or even speaking out against
human rights violations. They present a serious risk of limiting the capacity of the judiciary
to combat corruption and impunity. He underscores that appropriate measures need to be
put in place to ensure legitimate action against corruption does not adversely affect judicial
independence, which is a fundamental pillar of any democracy.
29.
Transparency and accountability are indispensable in addressing the key challenges
facing Mongolia for the future, which include irresponsible mining investments, rural
exodus and related air pollution, preservation of the nomadic culture and environmental
protection. The Special Rapporteur is convinced that a professional, accountable and
transparent public service, upholding the highest standards of efficiency, competence and
integrity, is one of the essential components of good governance and human rights
protection. In turn, good governance is essential for sustained economic growth and
sustainable development.
2
See the communication sent by the Special Rapporteur, together with the Special Rapporteur on the
independence of judges and lawyers, after his visit to Mongolia, OL MNG 1/2019, 14 May 2019.
Available at
spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24599.
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