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The present Authorities of Mongolia (GOM) is appointing plenipotentiaries in state-owned enterprises, whereas claiming a particular regime beneath which the topic entities are totally and solely managed by the federal government itself, with out adhering to widespread guidelines and legal guidelines relevant to their operation. It began with Erdenet Manufacturing facility SOE and is additional persevering with with Tavantolgoi JSC and Tavantolgoi Railway LLC and turning into a extra often exercised apply.
But, there aren’t any provisions in any efficient legal guidelines on the time, together with the Legislation on State and Native Property and the Legislation on the Authorities of Mongolia, permitting the GOM for this apply.
Thus, it raises many questions akin to “Is the declaration of particular regime and appointment of plenipotentiary authorized?” and “What might be the explanation or motive behind the GOM working towards this often?”.
Officers clarify that the authorized floor of this apply is Article 1 of the Legislation on Granting Proper to the Authorities of the Mongolian Individuals’s Republic (the 1991 Legislation), handed by the State Little or Baga Khural of Mongolian Individuals’s Republic (MPR) on Jan 4, 1991.
That article reads “Whether it is deemed essential for particular industrial institutions and organizations that play a significant function in sustaining the traditional circumstances of the nation’s financial life and public providers, the federal government of the Mongolian Individuals’s Republic shall have the precise to determine a separate particular regime for a interval of as much as 6 months with out adhering to the generally utilized guidelines and legal guidelines and to have these institutions and organizations beneath the direct management of the federal government, no matter jurisdiction.”
In different phrases, the GOM believes that the 1991 Legislation continues to be in power and efficient up to now, subsequently, it’s declaring particular and “outlaw” particular regime and appointing plenipotentiaries on the premise of that legislation.
Alternatively, not solely that the 1991 Legislation has turn into inconceivable to implement, however it is also believed to be invalidated. Right here is why:
First, beneath the 1991 Legislation, the Authorities of the Mongolian Individuals’s Republic (“MPR”) was granted the precise to determine the particular regime. Nonetheless, Article 1.3 of the “Annex Legislation on the Transition from the Structure of the Mongolian Individuals’s Republic to Absolutely Adhere to the Structure of Mongolia,” dated January 16, 1992 (“Annex Legislation”), stipulates that the continuity of the MPR authorities shall stay in impact till the brand new authorities is established by the State Nice Khural (the present Parliament). Throughout this era, the MPR authorities shall train the powers specified beneath the Structure of Mongolia. It is value noting that the Annex Legislation is an integral half of the present Structure, as said in Article 9.1 of the Annex Legislation.
Which means that as soon as the Parliament establishes the brand new Authorities, the powers of the MPR Authorities are terminated. In July 1992, the Parliament appointed P.Jasrai because the Prime Minister and established the brand new authorities by appointing all the cupboard members in August 1992. Subsequently, the MPR Authorities was totally terminated by then.
For the reason that very existence of the MPR Authorities was terminated, and there was not a authorities of MPR, all of the powers particularly granted to that authorities beneath the then ‘system’ ought to instantly stop, together with the precise to declare a particular regime.
Second, not solely that the powers granted to the MPR authorities terminated, however the 1991 Legislation in its entirety is taken into account to be invalidated upon the adoption of the brand new Structure in 1992.
As a result of Article 5.3 of the Annex Legislation stipulates that legal guidelines and any provisions of legal guidelines that existed earlier than the brand new Structure shall be invalidated if the legislation or their provisions usually are not in conformity with the Structure.
There are, the truth is, a number of causes to consider that the 1991 Legislation shouldn’t be in conformity with the brand new Structure. As an illustration, the 1991 Legislation states that the MPR Authorities shall be obligated to report back to the State Baga Khural on a month-to-month foundation concerning the particular regime and its implementation standing. Nonetheless, the State Baga Khural was terminated and there’s no longer any entity like that because the new Parliament was shaped in 1992 following the primary democratic parliamentary election of Mongolia beneath the brand new Structure. In different phrases, the 1991 Legislation had turn into inconceivable to be applied “as-is,” and, subsequently, it doesn’t conform with the Structure. Not solely is the 1991 Legislation unenforceable, however the nature of the provisions of the 1991 Legislation granting the precise/energy to the MPR Authorities and their content material contradicts the Structure.
To be particular, I cite the related elements’ extraction of Article 1 of the 1991 Legislation right here as follows: “Whether it is deemed essential …, the federal government of the Mongolian Individuals’s Republic shall have the precise to determine a separate particular regime … with out adhering to the generally utilized guidelines and legal guidelines and to have these institutions and organizations beneath the direct management of the federal government, no matter jurisdiction.”
Based on this, the MPR Authorities was entitled to declare a particular regime and take management over any entity, no matter jurisdiction, whether or not it is state-owned or non-public property. Consequently, ‘with out adhering to the generally/usually utilized laws’ represents a contradiction of the ideas of the rule of legislation and being based mostly on legislation. In different phrases, it clearly contradicts the ideas of the rule of legislation in authorities actions and the authorized safety of the rights of property house owners of any sort, as stipulated within the Structure.
From this standpoint, the truth that the present authorities, shaped beneath the brand new Structure dated 1992, is assuming the rights granted to the MPR Authorities in 1991 when its full powers had already terminated way back, and the 1991 Legislation, which existed earlier than the structure, is meant to be invalidated on account of its non-conformity with the structure. This does increase legitimate suspicions that these in energy could also be neglecting the rule of legislation and imposing a legislation that ought to be thought of invalid to pursue their very own slender pursuits.
This suspicion is additional strengthened by the truth that they don’t even observe the procedures stipulated within the legislation. For instance, in keeping with the 1991 Legislation, the MPR Authorities is required to offer month-to-month studies to the State Baga Khural and the general public concerning the particular regime and its implementation standing. Moreover, the MPR Authorities shouldn’t be approved to increase the particular regime by itself; it will probably solely suggest an extension to the State Baga Khural. If deemed essential, the State Baga Khural might lengthen the regime, however this may solely be accomplished as soon as and for a most of six months.
Nonetheless, the GOM doesn’t present such studies to the parliament or the general public, and they’re extending the regime independently.
When will the federal government, which has triggered quite a few critical issues and operates in a way clearly opposite to the Structure and different legal guidelines, stop its actions that defy the legislation? Is it not excessive time for the related establishments to scrutinize the actions and choices of this authorities, which is arbitrarily implementing what it labels as a “particular regime” with none oversight or adherence to the rule of legislation?
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