Adoption of administrative legislation secures Mongolia’s constitutional rights


Trans. by B.Dulguun 

The new General Administrative Law and revised Administrative Procedure Law took effect on July 1, 2016. Presiding Justice of the Chamber for Administrative Cases M.Batsuuri, who was part of  the working group in charge of bills for these two legislations, gave an interview to help the public learn about the significance of these new laws.

Can you tell our readers the general concepts of the newly enacted General Administrative Law and Administrative Procedure Law?

First of all, let me briefly introduce these two laws. People might believe that the General Administrative Law isn’t significant for ordinary people and only relevant to the state, administrative organizations, and government officials. It’s actually the opposite. The law regulates legal relations between the government and the public by specifying time limits for submitting petitions and requests, addressing regulations, the settlement of issues, the role of the state and ordinary people in decision making, and methods for announcing decisions.

The Constitution gives the state supreme power but doesn’t regulate everyday relations  between the state and the public. The General Administrative Law, on the other hand, provides regulations for it. In this sense, it could be described as “a more specific Constitution”. The Administrative Procedure Law provides the substantive right to file a claim for compensation against an administrative agency if an individual believes that their rights have been violated. It’s impossible for the one of these two legislations to take effect without the other.

You described the General Administrative Law as “a more specific Constitution”. Can you explain what this means?

Article 1.2 in the Constitution of Mongolia states that the fundamental principles of the activities of the state must be consistent with democracy. This means that the state must make its decisions transparent, involve the public in the decision making process, listen to public opinion, as well as to have administrative agencies introduce proposals that could potentially harm the rights of the public before making final decisions on their implementation. Administrative agencies must get feedback from the public and include public opinion in the final decision. However, the state and administrative agencies do not fulfill this responsibility to a satisfactory level because there hasn’t been a legal regulation for it. Government organizations and officials must follow democratic principles according to the General Administrative Law. This is the reason why some lawmakers and I define the General Administrative Law as “a more specific Constitution”, or the  “Democratic Breakdown Law”.

If these legislations are that important, why weren’t they enacted before?

Mongolian Parliament passed the Law on Procedure for Administrative Cases in 2002. Since then, many justice ministers have tried to draft and pass the General Administrative Law, but they couldn’t get the bills past the Cabinet level. At the time, the Cabinet feared the potential threats of the General Administrative Law, which they believed could lead to state activities “stagnating”. It can be said that the administrative court didn’t have a law to follow until the General Administrative Law was adopted in 2015.

The President of Mongolia said that even though the Traffic Police had been established, their rules and regulations hadn’t been enacted. The President personally led the working group in charge of developing a draft of the General Administrative Law to speed up the process. He revised the draft developed by the Ministry of Justice and submitted it to Parliament. I was very pleased when Parliament members passed the bill without a single bit of hesitation.

Is the General Administrative Law disadvantageous or harmful to the Cabinet?

Looking at laws approved in the past, most laws provide more advantages and authority to government organizations and officials. They generally specify the roles and responsibilities of the public. The General Administrative Law regulates the relationship between government officials and citizens, specifies the roles of officials, and provides rights to ordinary people. It might seem harmful to administrators, but from another side, it enables officials to exercise their full power by legalizing the standard relations they should maintain with the public, and ways to exercise their power. This is an advantage because it reduces the likelihood of misunderstandings. I’m confident that administrators will look at it from this point of view and accept the law in a positive way.

The Law on Procedure for Administrative Cases was revised, evolving into the Administrative Procedure Law. What’s the difference between the two?

The fundamental law is the General Administrative Law. It promotes greater accountability for government administrative agencies, as well as more opportunities for public participation in the regulatory process. In conjunction with the enactment of the General Administrative Law, revision of the Law on Procedure for Administrative Cases was also required. The Administrative Procedure Law has several features if we summarize its concept and principles. For instance, the law provides greater  opportunities for the public to address the court. In the past, the public was only allowed to file claims against administrative decisions violating the rights of the public. Now, they can make claims about potentially harmful plans that restrict the rights and legitimate interests of an individual and make claims about the activities of NGOs, and violations of the public’s rights concerning the environment, children, public health, and public property.

Let me give you an example. Municipal planning wasn’t conducted under legal regulations before. The General Administrative Law states that the municipality must ask for public opinion before making plans concerning the public. Before the General Administrative Law took effect, the court couldn’t process lawsuits directly against planning because they didn’t violate the rights of the people on their own. The new law introduces a new concept of “rights that could be harmed”, creating opportunities for the public to protect rights of this concern. This provides a suitable environment for ensuring rights specified in the fundamental law, the General Administrative Law.

According to official announcements, the General Administrative Law introduces a concept of “new standards” for court services. Can you elaborate on this?

The court is a government body that provides services to assist the public in reclaiming lost and violated rights. For this reason, judicial bodies focus on improving the quality and accessibility of this service, as well as enhancing productivity, reducing bureaucracy, and speeding up  their processes. The General Administrative Law made an important change to the judicial environment by introducing a special regulation which requires administrative agencies to make certain legal determinations prior to specific decision making. They must examine each case considering relevant conditions and evidence.

Some administrative cases, particularly those related to elections and tenders, are required to be resolved within a short period of time. In the past, election related conflict would continue for years and years. A recent example shows that courts at two levels settled a conflict connected to the registration of a particular party in just 23 days. This is a brand new trend in court practices in Mongolia. Another important change is the condition of resolving cases through constant deliberation. The court differs from administrative authorities, who make decisions while sitting around a table, by the fact that it makes decisions based on claims and presentations from both sides. This has also been included in the law. In line with this, provisions allowing the delay of trials and decision making based on groundless claims have been removed, creating opportunities to resolve claims made by members of the public within a short amount of time.

Most state services have been adapting to digital procedures. People have to submit tons of documents to take legal action. How will this be resolved? Will court services make a digital transition?

The new law introduces the new term “e-document”. This allows people to submit evidence for claims online and have it assessed by the court. This might seem like a small change, but it actually leads to the major concept of an “e-Court” for the bigger picture. For starters, we will stop the requirement to have documents certified by notaries, and if both sides agree, parties can present documents as evidence after submitting notification beforehand.

In the future, we can introduce an e-Court application for smart phones when the state’s  budget can afford it. This way, people will not have to hand in documents in person or make claims in written formats. They can just send documents online. People can come in person on the day of the actual trial. Mongolia has opportunities to introduce online trials for people unable to attend in person, whether it’s because they live afar or can’t afford the travel costs. For certain, using technological advancements for court services will require a considerable amount of time and money. Even so, the Administrative Procedure Law sets the foundation for this. I’m very content with this achievement.