It may surprise some readers to learn that there are still institutions in Mongolia that have not yet transitioned to democracy. These associations which once were controlled by communist party members, are today governed by a small groups of individuals. But the first generation of Mongolians born since the democratic transition has come of age. And this generation, the oldest of whom are now in their late-30s, has only ever known the ideals of democracy, human rights and the rule of law. And as this generation begins to take part in the direction of our country, Mongolia’s associations must begin to reflect the values they’ve come to expect. In this column, we will explore this idea through the lens of Mongolia’s law associations and their lack of internal democratic structure.

Bar Associations in Europe 

The bar associations in Austria and Estonia serve as good starting points for comparison. Their organization and membership are typical for Europe and may place elsewhere.

As of 2017, there were 6,238 attorneys-at-law in Austria, and as a precondition to practising law these lawyers have a statutory obligation to maintain membership with one of the nine regional bar associations in the country (the largest of which, the Vienna Bar Association, has more than 2900 members). Each of the nine bars has the status of a public law body. Each bar is responsible for licensing lawyers in its territory and maintaining professional ethics through a Disciplinary Council. There is an association at the national level, the Austrian Bar, but its powers are limited. Very generally it serves as a national moderator among the nine bars. Estonia, on the other hand, is a much smaller country in size and population, relative to Austria. Its 1,020 lawyers are united under one main entity, the Estonian Bar Association.

The powers of the bars in both Austria and Estonia are held by general meetings that take place at least once a year. The procedural rules make sure that each of the bar members are informed about the general meeting well in advance. The Estonian Bar Association Act stipulates that the general meeting has a quorum only “if more than one-half of the attorneys with the right to vote participate”. In Austria, the quorum is regulated but the rules are a little more complex. But the takeaway here is that, in both countries, in principle, each bar member has the opportunity and the right to participate in the general meetings of the bar associations.

Lawyers’ Associations in Mongolia

Things are a little different in Mongolia. The Mongolian Lawyers Association (MBA) is not an association of independent legal professionals (as was argued in a previous column). Judges and state prosecution officers hold statutory membership in the MBA. As of September 2017, there were 5,303 lawyers registered with the MBA (517 judges, 506 prosecutors, 2,077 advocates, 2,203 other lawyers). The MBA holds licensing authority for new advocates (attorneys-at-law).

The general meeting of the MBA normally takes place once every two years. The general meeting is held by representatives of the association’s members, although every member of the MBA has the right to nominate himself/herself as a representative (the election for which is via online balloting). The number of representatives may vary. In October of last year, 534 representatives were elected to the general meeting, at which they cast votes for President and members of the Board.

Another lawyer’s association, the Association of Mongolian Advocates (AMA), has roughly 1,200 members, but it no longer holds licensing authority. The highest governing body of this association is the general meeting of the representatives that is organised normally once every three years.

The organisational structures of the MBA and the AMA are hierarchical; their decision making and controlling functions are centralised at the national level and are in the hands of their Presidents and Boards (the governing board of the MBA is comprised of around 30 members while the AMA’s has nine). Importantly, unlike their counterparts in Europe, the majority of members of both organisations do not have the opportunity to participate directly in the decision-making of either association.

Outlook

Earlier this year, the Defacto Institute published a report on the internal democratic structures of Mongolia’s political parties. Their findings suggested the parties have a ways to go before they are properly participatory. Likewise with Mongolia’s law associations. This begs the question: How can the democracy of our country grow and strengthen if such foundational institutions are not themselves democratic?

No matter how hard the Presidents and the Boards of public associations such as the MBA and the AMA work, they will not be able to gain the support of Mongolia’s “democracy” generation unless the associations allow greater participation by their members. Gaining and maintaining the public’s support is essential to the survival of these institutions. The 2013 law that stripped the AMA of it’s authority to license advocates is an example of what is at stake. In light of the organizational structures of Europe’s bar associations and democratic participation of their members, Mongolia’s law associations have no good reason not to work toward this as a goal.

September 2018