Should Government Be Under Jurisdiction of Administrative Court?

The proposed amendment to the Administrative General Law has been passed and approved by the Standing Committee on Legal Affairs, and is now awaiting to be debated in Parliament. With regard to the recent political situation, namely the demand by members of Parliament for the speaker to resign at his own request, Parliament had to postpone matters that were supposed to be debated in its fall session.

The impacts the amendment will have is quite serious - it would alter the jurisdiction of the Administrative Court. In fact, the amendment's only objective would be to exempt any decision made by the government of Mongolia from the Administrative Court's review.

Article 5.1 of the Administrative General Law, which is the proposed amendment, defines what should be considered an administration affair. Article 5.1.1 is the controversial one, which states that all regional and central state administrative bodies are considered to be administrative organizations. In other words, at this moment, the Administrative Court of Mongolia can review and annul some of the government's decisions. Why is it 'some' that are subject to the law, on the other hand, it does not apply to decision-making for political affairs as stated in Article 3.1.7. But the current Cabinet and some members of Parliament do not want the Administrative Court to have oversight over the government's non-political decisions to determine whether they are legitimate or not.

Let's take a look at some historical background. As it is stated in the Constitution of Mongolia that 'Specialized courts such as criminal, civil and administrative courts may be formed' in Article 48.1, the Law on Administrative File Procedure and Law of Establishing Administrative Court were passed by the Parliament on December 26, 2002 and have been in force since June 1, 2004. It was the very first time that Mongolia started judicial review of administrative (public) organizations to determine whether they had violated the rights and legal interests of citizens and legal entities.

From the establishment of the court until March 31, 2005, the Administrative Court had been examining the legitimacy of the government's decision. Yet the Constitutional Court of Mongolia then concluded that to have the Administrative Court have the power to examine and reverse the government's decisions (whether legitimate or not) would be in violation of the Constitution of Mongolia.

Furthermore, the Constitutional Court concluded...