Prepared by
Ms. B. Delgermaa
The Project Document on the “Development of the National Human Rights Action
Programme“ was signed between the Government of Mongolia and UNDP during the
National Human Rights Conference held on the 9-10 December 2000.
Within the Project’s scope of activities a baseline study was conducted in 2001, aimed to perform an analysis on the human rights situation in Mongolia.
The main objective of the study, as defined by the Project Team, was “to present the human rights challenges faced in Mongolia with special emphasis on causation and circumstances leading to violation of human rights, to assess national capacities to ensure human rights, and consequently, to determine on the scope and directions of further action, and to promote the change in perceptions on human rights issues in general”.
The study covered 22 Aimags, 127 Soums, 314 Bagas and Khoro, independent surveys and face-to-face interviews were taken from 57, 579 respondents, 8, 822 households, 579 businesses and organizations which illustrates the enormous amount of work and contribution allocated for this particular exercise.
One may argue that the foundation for the baseline study was broad enough in terms of information resources to fully capture the human rights situation in the country given the wide national coverage of the endeavor to collect empirical data.
The report on the baseline study used several approaches as followed.
· Current state of an issue in concern;
· Related legislation;
· Statistics (tables and charts);
· Anecdotal evidence;
· Explanatory notes and conceptual background, and
· Historical overview.
It must be noted that application of these various tools makes the report an invaluable resource not only to practitioners but also to the broader audience in providing with an opportunity to gain information on the human rights situation.
The purpose of the current paper is to give a throughout analysis of the baseline study following the internal structure of the said report.
Chapter One. Situational Analysis on Political Rights and Freedoms in Mongolia
The chapter begins with a notation on the “right to participate in public administration”, and eventually declares that “the most crucial right of citizens to participate in public administration is the right to elect and be elected”.
A graphical depiction of voter activity and election polls of political parties in percentages and a brief summary serve to support the above statement. The summary argues that the following factors signal a tendency in decline of voter activity.
· The voters are not used to new forms of
elections;
· Shift in correlation of political parties and powers within representative
bodies;
· Gap in the election legislation, and
· Serious flaws in the organization of election campaigns.
The summary concludes with an observation that “in many cases these factors lead to human rights violation related to elections”.
Thus, the baseline study restricted the analysis of rights to elect and be elected only to the decline in voter activity (reasons for such decline not examined though), and left behind itself the forms and practices of voter rights violation. Only a single case when voters were not allowed to participate in elections due to lack of proper IDs was supported by anecdotal evidence. However, even this case was not representative for the whole country.
As mentioned earlier, the baseline study carried an objective to establish the situation on specific human rights issues and to reveal violations and flaws in the implementation of these rights in practice in order to evaluate and use the findings as grounds for follow-up measures in the National Action Plan. In other words, the document paper should have been designed to illustrate to competent authorities voters rights violations established by the baseline study, and propose specific measures to correct the present situation.
Unfortunately, the task was not performed at all. Since the first democratic elections in the 1990s we had evidenced 9 national elections, - three at each respective level being the Parliament, Presidential and local government elections. As the situation on voter rights violations during these elections were not covered in the study, I would like to bring to your attention the following pressing issues in this area.
1) The General Election Commission
It is important that the General Election Commission posses the capacity to conduct free and fair elections. It’s independent and self-governing status from the Parliament should be established by a legislative act. In this regard, Dr. Sue Nelson from the Democracy Foundation, USA, had questioned if “an election commission is an institution politically balanced and making decisions on the basis of consensus… (if not – author) then the structure of the institution shall influence its workings”.
Scams in the registration of voters became common practice. Election commissions and boards managing voter registration tempt to be politically biased in the process. Thus every country strives to establish an election commission on principles of equal representation from political parties.
A study conducted by the Voters Education Center shows that in 1996 party membership of Electoral District Administrators were 96% from the MPRP and 4% from other parties, and 97% from MPRP and 3% from the Democratic Party in the year 2000. These numbers would not require any further comment.
Changing the present structure of the General Election Commission that has a single party membership majority, and defining the status of the institution as an independent body should meet the interests of the voters in the first place. A well-organized, accountable and transparent General Election Commission will ensure a non-partisan and flawless elections.
2) Electoral Districts
“Though establishment of electoral borders are of more technical nature, incidents when these borders are defined in order to receive support from a particular group of the population or to ensure secured seats for a certain party may occur” maintains Dr. S. Nelson in his report.
In fact, these techniques were competently employed by the MPRP, which at that time had 93% of seats in the Parliament, to devise the electoral districts in the 1996 Election Law. Neighboring Soums in both Khenti and Dornod Aimags with predominant buriad population, a nationality who were the most to suffer during the political repression in the 1930s, were artificially separated and joined into electoral districts with other Soums in geographically remote areas. Such practice had been preserved even at present time.
Furthermore within the 76 districts of the Great Ikh Khural, Aimag centers are usually divided and joined into two different electoral districts. Succeeding national elections prove such division to be advantageous to the MPRP, - the ruling party of the day during the adoption of the Election Law.
Another example on breach of principles for equitable
elections is that electoral districts do not reflect equal representation from
the population. Taking into account the accelerated path of migration (urban
centered) in the past ten years it’s unfortunate to notice that the issue on
change of electoral districts is not concerned around protection of voter
interests. The debate among political powers in the Parliament still rests on
the appropriateness of the election system. Thus on average an elect from UB
represents 30,000 voters whereas an elect from the countryside will represent
twice as low of that number.
3) Other Issues
Another mainstream issue that was not raised in the baseline study is the financial aspect of election campaigns. Competition at each subsequent election campaign requires more and more financial commitment, and costing of an event raises enormously.
As such only wealthy individuals and prosperous parties could afford to run in the elections. Corrupt practices of voter buy-outs through offering give-away and gifts, maintenance work for schools and kindergartens, charities and donations as well as of candidates and political parties becoming influenced by wealthy benefactors are common. However mechanisms to monitor the flow of donations, financing and expenditure lack at present.
Thus the study did not address the issue of voter rights for equitable, fair and free elections, and as such related violations were not detected and evaluated.
Study on the Public Service
According to the “Law on Public Service” adopted in 1994 Mongolia has 135, 931 public servants as of the year 2000, among which 2, 651 or 1,9% hold political offices. Holders of these offices would change according to the shift in power correlation after the elections.
However, such shift should not affect employees at the public management, special and service categories. Nonetheless, it may be argued that the baseline study, though with reference to the provision in the legislation prohibiting “discrimination on personal believes and party membership”, limited the survey on the situation in only 2-3 Aimags and had not done a full investigation to this regard.
The nine positions for State Secretaries in the 1996-2000 Democratic Coalition Government were assigned to individuals with membership in political parties as followed.
· 2 from the National Democratic Party of
Mongolia;
· 2 from the Social Democratic Party of Mongolia;
· 2 from the Mongolian Peoples Revolutionary Party;
· 1 from the Green Party, and
· 2 from non-membership background.
On the contrary, the assignment of State Secretaries at each 12 Ministries of the government-of-the-day is based on MPRP membership. A practice has been established to rotate the majority of servants from the public administration category. Moreover, the fact that some ministries and agencies had sacked public servants employed after 1996 by conducting so called professional performance evaluation was not covered in the baseline study at all, and this publicly exposed fact of serious human rights violation was not given any appraisal. The study did not include the situation on replacement of professional servants at Aimag, Soum, District and Khoro level as well.
To that end, I would like to briefly cover a serious issue in the current state of public service. The 1994 “Law on Public Service” had defined four categories of public offices being political, public management, special and service categories. All categories of public servants except holders of political offices have the opportunity to make a carrier in their respective professions and advance through job position layers. Whereas future of individuals holding offices in the first category of public service is directly related to the outcomes of an election.
Within this framework an awkward practice exists where employees at the public management and service level run in elections. For example, State Secretaries who are at the top of their carrier development and Judges of the Supreme Court run in political elections. Indeed, enjoying the right to be elected is a human rights issue. However, if they have chosen to run in elections then they should give up their professional carriers in the public service.
Again this is not a question to restrict their respective rights to be elected. The paradox is that they keep holding to their offices till the last day of elections and tend to use all the opportunities that their respective position accommodates in the election campaign. This practice is common not only for ministerial and agency office holders but also for Aimag and Soum level officials.
The other side of the coin deserves a better look as well. The issue of succession and enduring public service is deteriorating with the practice of sacking carrier professionals after the elections. On the other hand, what happens to the public administration and service office holders who loose at the elections? The answer must be straightforward. As choosing to run in the elections for offices in the political category they must bear the risk themselves.
An Aimag scenario is chosen for illustrative purposes. As an Aimag Administrator the person holds a political office. Managers at department, section and desk levels are at the public management category. For the sake of the exercise all of the candidates have membership in different parties. The party that took over the elections shall appoint its Aimag Administrator. The fresh Administrator desires to keep the previous staff members to ensure succession and endurance of the public service. However, the mid-level managers had participated in the election from the opposition party. Would the Administrators office be efficient anymore?
These issues would eventually raise other questions requiring throughout analysis and decision-making, and needs elaboration in more detail at some point in the future.
Besides these two major problems in relation to political rights and freedoms, other issues not covered in the baseline study have to be mentioned here as well.
In regard to the right for free expression, a survey on the human rights situation of the conflicting status of journalists, and media as a whole to that matter, might have gave the baseline study more credibility.
Such a survey might have covered the number of occasions, grounds for summoning at court or interviews by the police, corrective measures applied on representatives to tabloids or free press, as they prefer to be named. In other words, the situation of media immunity in a civil society and related status protection issues, and facts of infringed personal dignity caused by inaccurate information were not collected. In short, it should be more than appropriate to criticize the baseline study to not cover the situation on how the judiciary establishes the boundaries for freedom of expression, and on the social status of media as an inalienable part of civil society, a powerful tool to monitor the activities of authorities and the state, and as such named as the fourth branch of power.
On the other hand, existence of certain interviews, articles and even newspapers paid by or serving interests of lobby groups, political and economic powers or particular leaders is not an unknown fact. This is especially true during election campaigns, and best international practice prohibits dissemination of asymmetrical information on candidates or political parties. Absence of due consideration on this issue in the baseline study is certainly another drawback. It must be noted that while such vital elements as journalist ethics code, censorship boards and legislation eliminating information monopoly are missing out of the picture, lack of relevant sections investigating these issues makes the baseline study partial in terms of covering the situation on political rights and freedoms.
The only criticism on the political right for freedom of demonstration and assembly was on a single provision in the relevant legislative norm regulating the issue, and that was the 6-day limitation for receiving an approval for conducting such public event. While mentioning that the approval process was too long, the reporters never raised the conceptual side of the issue – whether this particular right should be enjoyed through an approval or registration process. The right and freedom of citizens for peaceful demonstration and assembly that does not disturb public security and order must be enjoyed through registration of a particular event with state authorities, and not by asking for approvals as in the present legislation. However, this crucial problem was not raised in the study at all.
Chapter Two. Situational Analysis on Economic Rights in Mongolia
The rights for private ownership and labor were adequately addressed in this chapter of the baseline study. Especially facts on violations of citizen’s rights for ownership caused by the prolonged debate over the issue of land privatization, and damages of individuals inflicted by the state in relation to property rights were properly documented with illustration of genuine cases. The unique approach used in the baseline study to show the bureaucratic stages that a business should overcome in order to manufacture, conduct trade or provide services and all the obstacles and red tape that an honest enterprise is usually challenged with in practice is commendable.
Along with these advantageous aspects of the chapter, the following issues should also be considered.
In the section describing state intrusion to private ownership, the case of shutting down kiosks by compulsion was demonstrated extensively and in great detail. Indeed, there are many other cases when the state violates the right for private ownership in a discourteous manner.
Unfortunately, the baseline study does not reveal the volume of compensation claims lodged with the courts, or whether there are cases where the state and the proprietor had resolved the dispute in a mutually satisfying manner through mediation. For example, in the case with kiosks it must be noted that this form of entrepreneurship is quite obsolete in the context of present-day business development.
One of the substantial problems to be addressed in our society is food safety issue. Every food item would require certain levels of conservation temperature, moisture level and freshening, and sanitation and hygiene in food outlets have to meet the highest applicable standards.
To that end, food safety concerns are not fully met in wholesale markets, containers and kiosks. Eventually the food trade industry would migrate to more civilized forms (e.g. supermarkets) to meet those safety concerns, and its quite partial to blame the state in its phased campaign to shut down the kiosks even if its done for the sake of city improvement and urban planning.
On the other hand, its quite evident that shutting down the small outlets by compulsion does not meet much public support given the fact that many households would earn their income and basically sustain operating those kiosks. The state intrusion to their property would in a sense destroy their single lifetime investment accumulated with great strive. Thus problem-solving methods should be sought in order to compensate the market value of property, to make available areas and bear the cost for relocation in each case when the state is intruding the right for private ownership.
In the context of right for labor, the triangle income - standard of living – respectful existence was not adequately attended in the chapter concerning economic rights. In other words, it was important to survey on whether an average income is sufficient not only to meet ends but also to support a family and raise children.
As a consequence, questions are not answered when asked on the real standard of living in the country or on the basic needs supposedly met by earned income. Comparing salary scales in public and private institutions, and determining the value of the consumer basket in each income level might have assisted to clarify these issues.
Mr. S. Tserendorj Chief Commissioner, NHRCM in his interview at “Century News” on the 22 April 2002 claims that “average salaries of public servants are between 35-36K per month. Would one be able to exist on this income? Certainly not. Maintaining wage levels sufficient to support a family should be a responsibility of the State”.
“At the end of 2001 the price level of consumer goods and services had risen by 11.2% when compared to the beginning of the year. The average growth of the consumer price index comprised 8.2 percent. From the beginning of the year all product groups except cultural, education and service items had risen by 0.2-21.5 %. During the financial year prices for 54.8 % of products and services from the total of 239 items included in the consumer basket had risen. The highest level of price rise of 25.1 % was in fuel due to price rise in water and electricity supplies. Food items that comprise the bulk of the consumer basket had risen on average by 15.1 %, from which meat and meat products by 22.4 %, vegetables by 13.9 %, milk and dairy products by 12.3 %”. Source: The Bank of Mongolia 2001 Annual Report.
Its quite extraordinary that while delivering the above piece of information the baseline study never attempted to look at the correlation between the inflation rate and salary increase in real terms, or whether wages are pegged to some index to any extent.
Chapter Three. Situational Analysis on Social and Cultural Rights
In regard to social and cultural rights highlighting the following two issues would have given more weigh to the baseline study. Firstly, the study hadn’t looked carefully on the issue of differential pension policies, which is the most criticized human rights violation issue in the context of social welfare when pension rates are established according to a certain benchmark year. The baseline study didn’t scrutinize the issue on human rights violation of individuals who had their pension rates determined prior to 1995, on the measures undertaken by the state to restore those violated rights and whether the consequences of differential payments was cleared at present. On the other hand, the 1998 legislation on pension funds adopted by the Great Ikh Khural established to open individual accounts to insurers born only after the year 1960, which in turn might cause serious violations in the future. These welfare aspects were not raised in the baseline study.
Though survey on the healthcare system and quality of medical services was undertaken by the baseline study, the paper never mentions the fact that the most acute problem facing the system is death and bodily injuries suffered by patients due to negligence and professional malpractice of medical personnel.
At present tens of thousands of school aged kids are dropping out mainly because of social and wealth differentiation. The statement that “the causation for 79 % of school drop-outs or 10, 782 school aged kids are uncertain” is astonishing, as if the objective of the baseline study was not intended to determine that “causation” and propose a plan of action.
Chapter Four. Personal Rights and Freedoms
The chapter on personal rights and freedoms deserves to be recognized as the best. Hopefully the drafters of the new criminal codes had studied the lessons learned in this part of the baseline study. In fact, a proposed measure to prevent human rights violation at the pre-trial stage by arresting or detaining a person only by a judicial decision found its place in the new criminal procedure code.
An issue not covered in the chapter is the need for review of the courts’ appellate instance. Individuals are overwhelmed by the conflicting judicial decision at different court instances that eventually damages the reputation of the judiciary as the main human rights protection institution and, in fact, places the judges as being ranked third in the list of corrupted offices compiled from public opinion poles.
During my previous job as the Chair of the Human Rights Subcommittee at the State Ikh Khural back in 1998, I was part of a team that conducted a survey on social and education background of prisoners. The survey revealed that from 600 inmates at the Darit high security prison only one prisoner had higher education training. This example might serve as an illustration how the right for fair trial is not equally enjoyed, and how deterioration of the principle for equitable justice causes the judicial machinery to serve for the wealthy and dignitaries.
Another important issue absent in this chapter is the situation on enjoyment of such crucial personal rights and freedoms as the rights for immunity of domicile and correspondence. The number of agencies sanctioned with undercover activity calls for a need of an expert examination on the present state of surveillance legislation.
Chapter Five. Situational Analysis on Rights of Vulnerable Groups
This chapter contains a full range of studies related to issues of poverty, unemployment, vulnerable children, women and the elder. The study itself is done professionally with a systematic approach supported with relevant statistics and graphics, and illustrates that the study was done with knowledge of the problem. And there is a reasonable explanation to this particular expertise.
Several years had passed since Mongolia adopted and implements the National Plan of Action for Poverty Reduction. On top of this, several NGOs are actively involved in research and protection of rights of vulnerable children and women. The pool of knowledge and expertise in the field was employed in this chapter.
Conclusion
In whole the baseline study has been an invaluable exercise. Its important to appreciate the fact that this kind of study requiring substantial human and financial resources has been conducted in Mongolia for the first time.
While paying due respect to the titanic labor
involved in the production of the baseline study, I would like to outline some
comments of principle nature on the paper.
1. The struggle for human rights, its development and historical evolution was
a process to ensure personal rights and freedoms and to protect an individual
from the state. Taking this into account, the first impression from the
baseline study was to give it more credibility, if it had been conducted by a
team of independent experts rather by a team under the Ministry of Justice and
Home Affairs. Originally the task was to be given to the National Coordination
Committee comprising of state and non-government organization resources, and
with an aim to develop the NHRAP. Unfortunately, the functions and
responsibilities of the NCC have not been defined up till now, and the
Programme is basically developed on the baseline study. The baseline study
might have been done more thoroughly and objectively, especially the chapter on
political rights, if the management of the exercise was given to an independent
institution, e.g. the National Human Rights Commission of Mongolia.
2. Contemporary Human Rights issues had significantly advanced since the
post-war period and cold war era when the Universal Declaration on Human Rights
and the two Pacts were adopted. Off course the Bill on Rights and established
principles and institutions are not influenced by the change in time. However,
traditional classification and categories of human rights are integrating and
evolving. The baseline study had not paid due attention to this fact. This may
be one of reasons for lack of structural integrity and internal cohesion in the
study report. For example, the issue of trade unions was raised while referring
to the right for assembly in chapter one of the report. It would be partial to
consider the trade unions only within the scope of the right for assembly. Its
more important to review this institution in the context of employee interests,
labor conditions, wages, disputes, unemployment and other related economic
rights. Another perspective on this issue may be that in the transition period
the general public perceives the role of trade unions in protecting workers
rights in the private sector to be weakened and as such undermines the
importance of the institution. Hence the trade union paradigm of employer -
state – employee is circumvented, and the institution viewed in the traditional
context of rights for assembly. Another example is that cultural rights tend to
be integrated with the third generation of rights – collective rights and
rights for development, whereas the baseline study using the traditional
approach still classifies cultural rights together with social rights. Overall,
political rights should not be restricted to a certain framework, and may be
associated with national economic capacities and resources. The Project Team
did not cover third generation rights – collective rights, which are more
important for a small nation as Mongolia. Few arguments on this would follow in
this next comment.
3. The process of modern urbanization started in Mongolia from the 1960s and
the population had eventually moved to community lifestyles. These first steps
of broad communal habitation were followed by social initiatives transplanted
from communist behavior doctrines. Transition to a civil society calls for
collective decision making mechanisms in order to preserve and better ones
neighborhood. The idea behind the Civic Communal Khurals and Citizens
Representatives Khurals was to establish frameworks for self-governance, but
these institutions are still weak and do not fully appreciate their intended
purpose. The reason for elaborating on this issue is that the baseline study
did not capture the essence of collective rights. After all, the most
vulnerable issue today is to ensure the norms of collective habitation and safe
personal environment. Its quite misfortunate that the study did not raise
issues of collective rights such as air pollution in UB, land usage, chaotic
construction works, water pollution by gold mining companies, pasture
devastation, desertification and steppe fires to name a few.
4. At present Mongolia is a party to more than 30 international treaties and
covenants related to protection of human rights. During the old system joining
to these international instruments was a matter of ideology rather than actual
fulfillment of obligations. In 1998 Ms. M. Albright was asked during her visit
to the country by women representatives “why the US has still not joined the
CEDAW”, to which she replied to ask the gentlemen at the Congress on this
regard. She followed the joke with a line that the US had not ratified the
Child Convention as well simply because they couldn’t afford to meet the
obligations under this treaty. The morale of this story is that even wealthy
nations, safeguards of democracy and promoters of human rights concepts would
think twice before committing themselves to international obligations. Is it to
show that Mongolia is too neglectful in assessing its national capacities? To
that end, a survey on implementation of international treaties, and analysis on
compatibility of national legislation adopted after 1996 with international
human rights norms and standards would have only enriched the baseline study.
This exercise may have also facilitated more accurate and objective report
preparing systems to the UN specialized agencies.
Human rights is a broad field to be explored. At present most issues in social life will have reference to human rights issues. The baseline study was an initial attempt to assess our standing. From this viewpoint, it was impossible to cover all aspects in concern. Now at least we have a paper to discuss and work on. Its important to conduct such studies on an ongoing basis.