Universality of First Generation Rights in Mongolia
In mid 1988-1989 Mongolia was one of the most closed countries of socialist block and people of Mongolia lived under strict control of the state structures which censored all information, movement and businesses with ideological guide of the Mongolian People’s Revolutionary Party. Most people believed in everything state had to say including our own history. Most people did not know true stories of where our taxes go, and how much we depend on Soviet Union and its communist party and how much we were isolated from the rest of the world.
Many traditions were prohibited; Mongolian Universities were forced to teach in Russian. Society divided into classes where Russians and Ruling party elites were provided with special procurement and services, there were plenty of shops and goods where regular Mongolian had no access to. Reasons of such discriminations and acceptable to all forms of struggle for equality and national identity were unclear until few young graduates from Mongolian, Polish, Hungarian, German and Soviet Union universities began writing articles and essays about Mongolian reality and spread their essays out secretly.
From hand to hand, from door to door few, typed, crumbled pages were read by thousands of scattered men and women all over the vast territory of Mongolia and those pages made their readers shocked with truthfulness and power of their content. Among these information there was only one document not composed by a Mongolian author. It was the translated text of the Universal Declaration of Human Rights.
In this paper, I aim to describe current legitimacy of the civil and political rights (i.e. the first generation rights) in Mongolia, its origin and today’s situation. While being an Asian country with quite interesting and long history, Mongolia did not declare any official or unofficial interest in following or accepting so called “Asian values” which raise contradictory views about the first generation rights. Therefore, I also aim to dig for the reasons of embracing by Mongolia and its people the universality of the first generation rights over some restrictions of individual rights by the “Asian values”.
This paper contains three sections. The first section gives a brief introduction on the current legal basis of human rights including civil and political rights and the origin and history of emerging those rights in Mongolia. The second section is devoted to the case study of some violations of first generation rights where I attempted to display a pattern of human rights violations related to the first generation rights on the examples known by me personally thanks to my own experience of human rights activism during 2000-2003.
The third section of the paper aims to dig into the deeper history of Mongolia to search for the “cultural or value origin” of why universality is the most legitimate notion of human rights when it comes civil and political rights and/or why “individualistic” East did not and can not accept Asian values easily. By doing so I will try to find out why violation of civil and political rights are systematic event in current Mongolia while good legal commitment, deep cultural root allow it to embrace these rights. And I will argue that violations of civil and political rights are used by a ruling force as a weapon for getting or keeping power, wealth and control, but not because culture or locality make people “deserving” such a violation.
Legal Basis of Civil and Political Rights in Mongolia
As mentioned in the introduction, the text of the Universal declaration of Human Rights has become a popular document to advocate by many Mongolian people when it was first read from illegally distributed pages, then from the pages of newspapers. Especially its notions about freedom of expression and freedom of religion have found tremendous support immediately.
Young non-communist movements and organizations emerged by 1989-1990 advocated mainly these two rights as our traditional value and essential need for reviving our national self-determination. Democracy was advocated as a new way to get out of economic crisis and international isolation.
After six months of consequent political struggle including series of mass demonstrations and hunger-strikes in the midst of winter of 1989-1990, the first multi-party, two-stage, free election was held in May 26, 1990. It has elected 422 delegates of the State Great Hural ¹, the non-permanent but higher level body of the Parliament, by direct voting and it also had elected percentage of political parties to be represented in the Small Hural- permanent, lower level body of the Parliament.
Both Hurals were transitional bodies of the Parliament whose missions ended in two years by passing the new democratic constitution and other laws and rules necessary for
¹ In Mongolian “Hural” means meeting or convention. political and economical transformation of the country. One of the greatest contributions of the Parliament of the first two years of transition was an adoption of a whole new chapter on human rights and liberty, legalization of Mongolia’s commitment to international legal system and to the main first, second and third generation rights.
Article 16 of Mongolian Constitution guarantees certain fundamental rights and freedoms to the citizens of Mongolia. The rights guaranteed include, inter alia, the right to life, the right to property, equal rights to men and women, freedom from torture, freedom of religion and conscience and right to personal liberty and safety, right to own land and right to freedom of expression and association. The constitution also provides several procedural and legal guarantees such as equality before law and court, non-discrimination principle, the right to judicial appeal to protect fundamental rights, the right to be informed of the reason and grounds of arrest, not to have to testify against oneself, the right to defense and receive legal assistance, the right to fair trail, the right to appeal and presumption of innocence. According to Article 19, with the exception of the right to life, freedom of opinion, conscience and religion and freedom from torture, inhuman and cruel treatment, these rights maybe limited by law in case of a state of emergency or marital law.
All of these rights are first generation rights mentioned in the Constitution and with exception of freedom of religion and equality of men and women; they were legalized in Mongolia for the first time. Equality of men and women was legalized in previous Constitutions of 1924, 1960 and 1966 along with extensive second generation rights which are guaranteed in the new Constitution as well. As to the freedom of religion, it was prohibited during communist regime of 1924-1990 although Mongolia was the fist nation in the world to legally allow religious freedom in 1218¹ on its own territory and on the conquered territories.
International norms and standards are becoming more and more adapted by the state. Mongolia is State Party to the International Covenant on Civil and Political Rights, and its Optional Protocol, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and the International Convention of All Forms of Racial Discrimination. Mongolia is not a party to the International Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. Mongolia joined the International Criminal Court in 2003.
Following adoption of the new Constitution of 1992 and international treaties it has ratified, Mongolia undertook series of legal reforms allowing freedom of bar association, political parties, free press, non-governmental organizations, private education and privatized of all kinds of property. Currently, Mongolia is providing reform in judicial system and police. There are several state structures that receive complaints about past and current human rights violation: The National Human Rights Commission (established in 2001), the Parliamentary Sub-Committee on Human Rights (active since 1996), Commission on Rehabilitation of Victims of Political Repression (temporary structure
¹ p.XIII. The history and the Life of Chinggis Khaan translated by Urgunge Onon.working since 1990 dealing with the victims of political repression occurred in communist regime).
In addition to state structures, Mongolian and international civil society, mass media, political parties, individual-activists, international government organizations, government - donors make up significant parts of human rights regime in the country. Thanks to this network of domestic-international human rights regime, Mongolia keeps maintaining its commitment to universal civil and political rights despite constant hurdle especially during the years of one-party rule.
Pattern of Violations of First Generations Rights in 2001-2003
Although Mongolia pursues democratic path and multi-party system for last 14 years, seven years of them were under one-party rule in fact. The Mongolian People’s Revolutionary Party, formerly communist party which had been ruling the country during 1921-1990, has won two elections of 1992 and 2000 with 93.4 % and 94.7% of parliamentary seats respectfully.
The period considered in the current study belongs to the general election period of 2000-2004 where MPRP dominates absolutely in all elected positions in the central and rural government. Analysis of violations of civil and political rights of this period is interesting also because of the history of the MPRP itself. In its history of 82 years of existence, the Mongolian People’s Revolutionary Party has changed its platforms several times and thus, it is hard to judge or predict the MPRP behavior on the basis of its traditional core values because the party lacked a consistent one except its survival philosophy in historical context.
In order to understand human rights violations occurred during the MPRP rule, it is important to have an idea of the party’s inclination to certain habits. Table 1 shows major changes in the MPRP platforms as time and external environment changed.
As one can see from Table 1, despite its past adversary attitude toward all kinds of opposition, and its present aim to “unity within the party” the MPRP has recently announced that the universal human rights are the Party’s strong commitment now.
A member of the Socialist International since 2003, the MPRP holds a position to fight against any kind of event that leads to “government crisis”, and by doing so it aims to strengthen a “true democracy” consistent to its description of democracy. The term ‘true democracy’ is not explained explicitly, but it sometimes is used against opposition and freedom when it comes to civil and political rights. The pattern of the violations of civil and political rights under the MPRP rule reveals some picture on what kind of ‘true democracy’ the Party wants and what kind of ‘government crisis’ they fight against.
Liberty Center, a non-governmental organization dedicated to strengthening civil and political rights in Mongolia, has received numerous complaints regarding human rights violations since 2000. Many of the complaints were not publicized according to the clients’ requests, but some of the cases are available on the website of the center. This study analyses character of victims, offenders, defenders of 37 violation cases and the main problems directly causing or linked to frequent human rights violations. It also aims to measure the government dedication to defend human rights by its level of responsiveness to the alerts on violations occurred.
The graph 1. shows the most common ten categories of victims of the HR violation selected out of 22 different types of victims mentioned in all 37 cases.
According to the Graph 1, journalists, rural people and demonstrators have often claimed that their rights were violated or threatened under the MPRP rule.
Opposition in this graph constitutes a combined number of complaints of opposition parties and an internal opposition group within the MPRP. Vulnerable social groups such as old, disabled and unemployed people and poor families (“families” in this graph means poor families) are highly targeted by violators in contrast to the MPRP main platform to alienate poverty.
One of surprisingly highly targeted victim is a category of cameraman which does not include regular journalists. It is then interesting to know why these categories are highly targeted and who are the offenders. Graph 2 shows top-10 violators of human rights selected from 24 types of offenders.
Most frequent complaints were about Police. The category police includes policemen, police officers and investigators. The next aggressive category is local government bodies which includes city or province level governors offices, and sum¹ governor’s office. Often the latter offices mobilize police for removal of families, small businesses from land or to establish ‘order’ in the city.
Judges were frequently mentioned as deciding cases against complainers without legal ground. At the same time independence of court system in a whole was not a subject to complaint. Judges from Selenge and Tuv province and Sukhbaatar disctrict were the most frequent offenders. The Mongolian National TV has become a big offender of pluralism since it began to operate under direct control of the Prime Minister of Mongolia in August 2000.
As the national TV acts more like a government agency rather than press, it is not considered as media in my subsequent analysis about media’s role in defending the first generation rights. Some changes in laws, especially on parliamentary pluralism and media are often mentioned as a tool for restricting human rights.
Therefore, the category law/rule ranks quite high among offenders. Central government body is less mentioned than local government bodies, but combined with the high officials involved in violations, it would rank almost the same with the local ones. Central government body and high officials are criticized often in cases with press and journalists. They are the most persistent complainers in libel cases and often demand to jail journalists or fine them at least several millions of tugriks. Prison officers, doctors and teachers/employers follow high government officials in their rank. The list of offenders is long (24 categories) and diverse, and there was even a monk among them.
This diversity is a surprising fact, especially when one talks about civil and political rights. Initial intuition suggests that government and government controlled agencies could be the most aggressive violators of human rights. For example, it is not uneasy to understand how a doctor and a monk can be involved into human rights violations? The answer to it can be found from analysis of problems and issues that victims and offenders face on the same case. The graph 3 shows top-10 issues related to the current human rights violations.
As graph 3 shows, the hottest issue is censorship. The next issue is land division and private property related problems. According to the Laws of Mongolia, land registration and licensing of private business lie under local governor’s authority. The fourth issue reveals that often victims face chain of violations on the same case. One example of such violations include offence from customs officer, police, doctor, prosecutor, judge, and a monk and another victim found a notary to be a beginning of a chain of violation.
Usually chains of violations occur for cases related to property, tax and money. Torture is one of serious issues of today’s Mongolian police and prison practice. Libel is an issue often raised by government and high officials which becomes grounds for filing a criminal case against journalists and media. Tax accountant became a victim of series of violations, short time licensing system creates chains of violations including bribery and forceful removal of private property. But fight over place for demonstration and violations during election campaign and parliamentary opening sessions are very unique for this particular time period.
Graph 4 and 5 show that there are several channels that reveal violations, alert people and influence to government behavior. In fact, in 47% of all government related cases, the government position was positive, i.e. government took some measure to stop the violation or it accused the offenders.
The category “media” in graph 4 does not include position of the government controlled national TV and radio, and it expresses that media mostly uncovers violations and rallies to defend rights. E.mail support to victims’ address, Mongolian human rights NGO’s group actions and international watch are also common methods to defend first generation rights. Press conferences announced by victims, raising issues till he parliament, protest-demonstration, statements of opposition
From above set of information one can see quite simple pattern of current human rights situations under the MPRP rule in Mongolia. Freedom of speech is the crucial topic of 2001-2003 human rights struggle and it also is the crucial element to defend human rights. It confirms Michael Freeman’s note that “there is a paradox that, unless certain human rights are secure, no effective dialogue about human rights can take place…the need to interpret human rights principles requires dialogue. Genuine dialogue requires the protection of certain human rights. Thus, paradoxically, rights and dialogue seem to be preconditions for each other”. (Human Rights and Asian values, p.55)
Indeed, as it shown in Graph 5, the current ruling party is struggling to shut down press at the same time being positive in it responses to pressures from human rights defenders. The main dilemma within the MPRP can be explained as conflict between its habit with greed for control and future commitments. There are number of habits for the MPRP to oppose rights to speech and number of reasons for why MPRP is prone to accept universal first generation rights in practice. The old bad habits of the MPRP include: 1) discrimination by political partisanship; 2) discipline to reach its goal by any means-good or evil; 3) hypocrisy; 4) misuse of power and resource.
On the other hand, there are reasons for the MPRP to change its bad habits: 1) survival among domestic multiparty system where the Democratic Party, the main rival of the MPRP, gains mass support from its consistent commitment to universality of human rights and freedoms; 2) The MPRP has a new commitment before the Socialist International which it joined in 2003; 3) MPRP had greatest ever loss in its popularity when it pursued the “neutral” platform which was an attempt to adapt the Confucian ideology and Asian originated communal values in 1990s. As a result of these situations, Mongolia has some window of legitimacy to accept universality of first generation rights even during the most authoritarian type of Party’s rule.
Culture and Rights: Absence of Asian Values Talk in Mongolia
Universality of human rights is not challenged by any official and unofficial statements of any political force in Mongolia. But, the notion of eliminating state “crisis”(as MPRP determined during election campaigns, a state crisis is frequent resignation of the government cabinet), establishing stability in society is used as a tool for loosening human rights commitments.
The role of state is often the matter of dispute between the ruling MPRP and the opposition parties. The ruling party looks for theoretical approach to defend its position of maintaining a ‘crisis’-free state. Maybe there is some answer in Asian values:
“...The picture emerging from what may be labeled the new Asian approach is that the State is first and foremost, and that individual rights are at least temporarily subordinated to the common good to be gained by the order and stability provided by the state. From the Singaporean version the first impression is even that the subservient position of the individual should be structural, and that as long as the West insists upon the primacy of human rights with the individual as their object, there will be no consensus. (Fried van Hoof, p9)
But advocating an above mentioned version of Asian approach will be also hard for the MPRP because then it has to change its platform once again. Its current self-image of being “social democrat” does not fit well into restricting first generation rights. Also, as shown in the previous section of this paper, the MPRP did not have much success when it attempted to introduce Asian type of philosophy of neutralism in early1990s. The fact that Mongolian voters appreciate individualistic approach and individualistic guarantee of rights prior to any other rights is consistent to the culture and geographical location of the country and educational background of Mongolians.
Mongolia is a landlocked country surrounded by Russia and China. Its territory is over 600,000 square miles and 4,450 miles of borders, 2,500 of which are with China and 1,850 with Russia. Mongolian language is distinct from both Russian and Chinese and the way of life if also different from its neighbors’. Geographers face a great deal of difficulty to decide whether Mongolia has a common culture with the rest of Asia, and which cultural region Mongolia locates exactly. So far, there is no universally accepted geo-cultural region that encompasses Mongolia. Historians also wonder about many logics of political choice of today’s Mongolia. For example, Tom Ginsburg wrote in his article:
“Several questions remain outstanding about this second [of 1990s] transformation. If the changes were revolutionary, why were they led by the MPRP? Why did all elites turn so eagerly to the West when Soviet aid dried up? After years of double-digit growth, China would seem to have been a natural partner for development aid, trade, and regime support for the MPRP once the Russian support disappeared. But such an option was not apparently considered by the leadership.
Another outstanding question concerns why the transition went so smoothly compared with other post-communist countries? This was despite the fact that the economic shock caused by the Soviet pullout was among the most severe ever recorded. The rapid economic reforms themselves had severe social consequences, but the basic consensus on reform has remained intact. How are we to understand this smooth transition?” (Landlocked Cosmopolitian, p.249).
The answers to both geographical and historical puzzles are still unclear. It seems that the study of the Mongolian traditional mentality can suggest a clue to the answer. Firstly, Mongolia locates in East, but Mongolians appreciate individualism. Thus, if there is any cultural region that is labeled as “individualistic east”, Mongolia can be categorized to such a region. As to smoothness of transition during the hardest economic challenge, the change perfectly fitted to the psychology of nomad people. Change itself is a constant reality of traditional way of life in Mongolia.
The transition of 1990s brought the most important thing Mongolians wanted for a long time – freedom, and hurdles in free society seemed manageable although it still continues today. As Baabar wrote in his book “Twentieth century Mongolia’: “Nomads love their freedom. The free-wheeling life that these dwellers of vast expanses led through all four seasons, communicating only with nature, shaped them as a people unruly, proud, and uninhibited, with little sense of time. Born into a world of constant change, they developed an ability to adapt easily to new conditions. Since pastoral nomads were at the mercy of nature and were forced to keep peace with it, human interdependence was relatively low.”
Bat-Ochir Bold has the same conclusion in his book “Mongolian nomadic society” stating that “the nomadic livestock keeping lifestyle demands more flexibility, versatility, independence and initiative” (p.154).
In addition to the traditional inapprehension to changes, Mongolians enjoy high level of literacy. According to UNESCO Institute for Statistics, Mongolia’s literacy rate was 98,4% in 2000, and number of illiterate adult is 25.7 thousand which is to be reduced till 15 thousand or less by 2015. Information dissemination and freedom of expression played crucial role in making economic and political transformation rapid and smooth.
Problems, choices were put on open at all level of governance and civil activities. This meant that freedom of expression, multiparty system and guaranteeing the first generation rights at first level helped Mongolian governments mobilize individuals’ participation in economic and political transformation. In such circumstances of Mongolia, if any ruling party turns to Asian values, which reduces importance of the first generation rights, then it would mean a step backward from current level of achievement simply because first generation rights were the prerequisite for Mongolia to find its way to better economic solutions.
So the below conclusion of Peter R. Baehr has its distinct explanation in Mongolia’s situation. Baehr notes: “…the often heard view that certain human rights are not (or not yet) applicable to non-Western societies, is, in my view, a reflection of a rather paternalistic way of thinking.: “ freedom of expression may be important to Westerners, but people in the developing world have not yet reached that stage”. Thus it is often said that developing nations should first provide for basic commodities, such as food and medicine.
As long as these basic means are not sufficiently available, it is supposedly not necessary to guarantee respect for civil and political rights. Especially repressive regimes often argue that there is no need for the protection of fundamental civil and political rights in their countries, as long as the population is undernourished and the country economically underdeveloped. They emphasize instead the development of socio-economic rights.” (p.34)
Note that the argument of repressive regimes “that there is no need for the protection of fundamental civil and political rights in their countries as long as the population is undernourished and the country is economically underdeveloped.” is different in Mongolia’s case. Indeed, first generation rights are under frequent oppressions after economy has recovered and wealth ( land, property, license) is being distributed more abundantly.
Land to be privatized, privatized apartments, license for businesses and media are more often cause of human rights violations where mostly poor, helpless group of population is offended by more powerful ruling forces. Therefore, even though there will be some chance to accept “Asian values” by Mongolia, it will be used for advantage of powerful elites against more vulnerable people and thus, it would mean a step backward.
Mongolia has an extensive legal commitment to universal human rights, especially the first generation rights. It reached thanks to a national consensus made among all political parties in 190-1992. The formerly communist party had absolute domination in shaping seven years of democratic transformation out of last thirteen years. The period of 2001-2003 characterizes behavior of the former communist ruler in the light of recovering economy and new opportunities to distribute land to the population.
The violations of first generations rights occurred during this period show that political power and wealth distribution are the main origin of human rights violations, especially targeted free press, poor and vulnerable people and rural population. The similar to “Asian values” notion of state role for stability is becoming a reason for misusing power and resources by ruling elite. Mongolia enjoys many channels to defend human rights including wide media and grassroots participation. In each one case out of two they succeed to get the government change its behavior positively. It indicates that universality of first generation rights is accepted and advocated in Mongolia without cultural conflict.
Baabar (Bat-Erdene Batbayar), Twentieth Century Mongolia, White Horse Press, Cambridge, 1999
Bat-Ochir Bold, Mongolian Nomadic Society, Curzon press, Surrey, 2001
Human Rights: Chinese and Dutch Perspectives, editors-in-chief: Peter R. Baehr, Fried van Hoof, Liu Nanlai, Tao Zhenghua, ed. Jacqueline Smith, Martinus Nijhoff Publishers, The Hague/London/Boston. 1996
Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia, edited by Micheal Jacobsen and Ole Bruun
Mongolia in the Twentieth Century: Landlocked Cosmopolitan, edited by Stephen Kotkin and Bruce A.Elleman, M.E. Sharpe, Armonk, New-York, London, England, 1999
The History and the Life of Chinggis Khan, translated by Urgunge Onon, E.J.Brill, Leiden, New York, Kǿbenhaven, Köln, 1990Liberty Center’s Alerts: www.libertycenter.org.mn , March 1, 2004
Mongolia’s Literacy Policy on website: http://www.accu.or.jp/litdbase/policy/mng/, March 10, 2004