Freedom of Expression in Mongolia

1. Freedom of Expression in Mongolia Munkhsaikhan O. Bayasgalan N.

2. The table of contents • Freedom of Expression under the Socialist Regime • Freedom of Expression protected by the Mongolian Constitution and other laws • Unconstitutional limitations on the freedom of expression and its limitation • More freedom of expression than today’s US (Constructive concept v. Instrumental concept)

3. I. Freedom of Expression under the Socialist Regime • The Socialist Constitutions included this freedom like Chinese one. However, it was not protected and did not exist in practice. • Many people were punished (some, killed) just because of their opinion (some against the socialist regime)

4. II. Freedom of Expression Protected by the Mongolian Constitution and other laws

5. The 1992 Liberal Constitution of Mongolia • Art.16.16: The citizens of Mongolia are guaranteed to enjoy…: “freedom of thought, opinion and expression, speech, press, peaceful assembly.” • Very broad expression

6. Constitutional Limits • Art. 19.2. “In case of a state of emergency or war, the human rights and freedoms as defined by the Constitution… shall be subject to limitation only by a law. • Art. 19.3. “In exercising his/her rights and freedoms one shall not infringe the national security, rights and freedoms of others and violate public order.“

7. The 1998 Media • Freedom of speech and of the press are protected by law in Mongolia, and the government generally respects these rights in practice. • Censorship of public information is banned under the 1998 Media Law, which also prohibits the government from owning or financing media outlets.

8. Seven Years after the 1998 Media Law • In 2005, the legislature transformed the state broadcast media called “Mongol TV and Radio” into a public broadcasting entity according to the 1998 Media Law.

9. The 2006 Anti-Corruption Law • Information related to the income of an official was classified as a personal secret, and journalists had no right to report it to the public. • However, according to the 2006 Anti-Corruption Law, public officials must disclose the full information related to their income.

10. The Protections by the Court • The Constitutianal Tsets (court) has not developed well the protections of freedom of expression except a few cases including the judgments protecting right to assembly. • The reason is that the Constitutional Tses does citizen's constitutional petition not on the violations of individual rights, but on the abstract issues such as law and governmental decrees.

11. Freedom of Expression in practice • Mongolian people are free because we can express ourselves freely in TV, internet, and any other instruments. • In Mongolian TV and newspapers, diversity of information exists. Many of them criticize the government, its policies, and public officials. • Academic freedom exists without any limitation.

12. Freedom to access to TV and internet • Mongolians have free access to any TV (local, privately owned television stations, English-language broadcasts (BBC, Voice of America, and in the capital city of Ulan Bator, foreign television programming via cable and commercial satellite systems) • Free access to internet Only 230,000 people of 2.6 million are internet users (Less than 10 %).

13. Problems In Countryside • Although independent print media outlets are common and popular in cities, the main source of news in the vast countryside is the state-owned Radio Mongolia. • Owing to widespread poverty in Mongolia, the internet has yet to serve as a significant source of information.

14. III. Unconstitutional limitations on the freedom of expression and its limitation

15. 1. The State Secrets Law • This Law limits access to government information because many archived historical records have been given as secrets. • Journalists are required to receive a signature of the head of a given organization to get access to the organization’s archives.

16. 2. The Criminal Code • Articles 110 and 111 are intended to guarantee the right to reputation (defamation is crime). • However, people in power use Article 111 as a means of censorship and persecution of journalists who criticize those in power. • For example, 18 people were punished under Article 111. More than 50 percent of them were journalists.

17. Libel charges are hard to defend against, because Mongolian law places the burden on the defendant to prove the truth of the statement at issue. To avoid being sued for libel, many independent publications practice a degree of self-censorship.

18. 3. The monitor on the content of information • The government monitors media content for compliance with antiviolence, antipornography, and antialcohol content restrictions as well as compliance with tax laws. For example, • Some Mongolian Clips are prohibited. • Mongolian vodka advertisement are prohibited. • However, in reality, people exercise their freedom due to lack of those law enforcement. But, it is enough.

19. 4. Other restrictions on freedom of expression • While no direct government censorship exists, NGOs tell that there are indirect forms of censorship such as harassment and intimidation on journalist.

20. Cases • • In April, D Arvin, a Member of Parliament, illegally removed from public distribution a newspaper containing a negative article about her. She claimed her political status authorized the action.

21. Because of those violations,… • Mongolia was listed as 86th of 168 countries in the Word according to the research of “Reporter Without Border” NGO • Why cannot those violations be tolerated in a liberal country?

22. IV. Constructive concept v. Instrumental concept • Instrumental Concept (Prof. Teilee explained) • Constructive Concept

23. What cannot Instrumental Concept provide? • Abrams et al v. US (1919) Holmos stated the free market of ideas • New York Times v. Sullivan (1964) • Texas v. Johnson (1989) (flag burning is freedom of speech)

24. New York Times v. Sullivan (1964) • “A public official cannot win a libel verdict against the press unless he proves no only that some statement about him was false and damaging, but also that it made that statement with “actual malice” that its journalists were knowing that it was false.” Burden to prove is on the public official. • It freed the US press, one of most free ones in the world (more than any other). • However, is it enough?

25. What cannot Instrumental Concept provide? • Free market place of ideas It cannot protect well freedom on arts, and social and personal opinion (sexually explicit literature). • Democracy Restricting New Nazi and Ku Klax Klan in US (hated speech). • Effective governance. Prof. Teilee told us how it is used to restrict the freedom of expression in China.

26. Why Constructive Conceptprotect more freedom? • It is valuable because it is an essential feature of a just political society that government treat all its adult member, except those who are incompetent, as responsible moral agents(Ronald Dworkin, Freedom’s Law, p. 199-200). • It has two meanings:

27. Morally responsible people demand: • “To make up their own minds about what is good or bad in life or in politics, or what is true and false in matters of justice or faith.” • “To express these to others, out of respect and concern for them, and out a compelling desire that truth be known, justice served, and the good secured.”

28. Conclusion Because we are free “to make up their own minds on any issue” and “to express those convictions to others, • “unclear state secrets”, “defamation as a crime (for public officials)”, monitor on antiviolence, anti-pornography, and anti-alcohol in Mongolian Laws are unconstitutional.