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Hate Crimes Legislation Before Mongolian Parliament: ​A Threat to Free Speech?

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Mongolia’s government has embarked upon a series of sweeping revisions to the country’s legal codes, an overhaul to include provisions which aim to prevent crimes of hate, bigotry and discrimination.

Among the proposals includes an ambitious review of the country’s anti- discrimination laws, with civil rights groups calling for the inclusion of provisions which include hated-based motivations as an aggravating factor in criminal sentencing.

Led by country’s beleaguered Justice Minister Kh. Temuujin, the government has embarked upon an ambitious legal reform agenda. One which places particular focus upon human rights and improved transparency from the country’s law enforcement agencies, in step with international legal conventions.

Yet among some of the draft law’s most ardent supporters have concerns emerged that the law may yet overreach, serving instead to criminalize all forms of criticism, including offensive, pernicious or legitimate difference of opinion.

Others have expressed concern that these inclusions could further threaten press freedom, with journalists already privy to sweeping anti- discrimination measures said, in some cases, to stifle legitimate critique.

‘Hate crimes’ had emerged as a serious issue in Mongolia, rising to international prominence in 2011 when nationalist groups – many of whom draw from neo-Nazi ideology and paraphernalia – were found responsible for numerous attacks against the country’s minority LGBT and foreign communities.

At present, no measures exist to further penalize perpetrators for suspected bias-motivated violence, nor are law enforcement agencies required to outline suspected intent.

While it is not yet clear what these draft measures would deploy as additional penalties for those found guilty of hate-motivated acts, the law would require training of law enforcement agencies to recognize and report cases of suspected hate.

An initial draft, produced by a working group made up of rights groups and the Justice Ministry officials, included in its recommendations specific provisions for crimes of ‘hate bias’. Provisions which would, in a similarly unprecedented move, establish penalties and reparation which would recognize psychological, as well as physical, damages caused by such crimes.

However the Ministry of Justice, responsible for submission of the draft to Parliament, has since remove hate-oriented provisions, replacing these with generalized references to ‘discrimination’.

Discrimination in Mongolia

“Anti-discrimination provisions are included to some extent in the laws of every sector; for instance, under labor and family laws,” explains Bataa Bayaraa, member of the working group and head of the Mongolian National Human Rights Commission’s Complaints and Inquiry Division.

The Commission lent its support to the inclusion of hate-based provisions in light of numerous complaints it received which found that, in such circumstances, “motivations are special and not like that of any other similar crimes,” says Bayaraa.

Many had hoped that the country’s anti-discrimination laws would be extended to include restriction to offend, insult or humiliate people due to their sexual identity and/or sexual orientation.

Instead, “they had intended to draft hate crimes into law,” explains Anaraa Nyamdorj, executive director of the country’s LGBT Center. “Instead they’ve codified discrimination, drafting it in a such a way – so broad, that it will be very difficult to bring down to an implementation level. It means that Mongolia could very well be one of the first countries in the world to criminalize the very concept of discrimination almost entirely.”

Yet he acknowledges that as it stands, the far-reaching law risks encouraging greater discrimination, veiled as a perceived threat to free speech. “It runs the risk of being seen in a negative light – people can’t even say what they want to, because then it will be considered discrimination,” Anaraa says. “Then if it’s discrimination, it’s a crime, so I can’t even fully express myself.”

Hate crimes in Mongolia

It remains difficult to assess just how many ‘crimes of hate’ take place in Mongolia each year. No statistical analysis are readily available, and while contention remains as to what determines a ‘hate-motivated’ crime, a task made especially difficult given there is no common-use equivalent term in Mongolian defining parameters for either ‘hate crimes’ or ‘hate speech’.

Yet discrimination, seen as a possible precursor to hate crimes, remains prominent. In 2013 Mongolia’s National Human Rights Commission released is annual rights report that found that in 2012, almost eighty percent of people surveyed who identify as LGBT had experienced some form of human rights abuse in the previous three year period. Almost three-quarters had considered suicide one or more times, “due to society’s intolerance and failure to understand them.”

Etched in recent memory as one of the country’s recent and inexplicable acts of hate-motivated violence. In September 2009, three transgendered women were kidnapped at one of the city’s most vibrant promenades, in broad daylight, by a local hyper-nationalist group.

In a 2011 documentary entitled ‘Lies of Liberty’, one of the victims testified that the group then drove them to a cemetery on the city’s outskirts. “Nine men were there,” she explains, “and were beating us in different ways.”

The report then outlines how the women were brutally beaten and sexual assaulted before being forced to conduct sexual acts upon their perpetrators.

The women believe they were targeted due to their sexual identity, with the men describing the vicious assaults as a ‘warning’ to “their kind”, the victim explained.

“And we are live human beings,” she said. “I just felt so sad about having to die at the hands of an uneducated bunch, without a chance to explain myself.” The women later received UN asylum, in recognition of both an ongoing threat of persecution and the gravity of crimes suffered.

Politics: the Minister for Justice

The country’s legal reform agenda is further complicated by recent efforts to remove the ‘reformist’ Minister for Justice, who has recently come under fire, facing allegations of drug-use and salacious behavior. In recent days local MPs lodged parliamentary petitions calling for his removal. Yet Kh. Temuujin, denying the claims, has since managed to maintain his position as the country’s Justice Minister.

Some, like one of the country’s leading political commentators, described the moves against the Justice Minister as “a plot devised by a political- business group that intentions to use legal means to remove from a position of power.”

“Mongolians want a legal system where the law applies the same to everyone regardless of reputation, wealth, power, and connections,” he wrote. “The legislature has to be an organization that serves rather than enforces.”

A polarizing figure, Temuujin enjoys broad, continued support among the country’s civil society groups. Many had feared that should he be removed, these legal reforms would be indefinitely postponed.

“Temuujin is a young politician, and one who is trying to transform the law,” says Altanchimeg Delegchoimbol, head of UNAIDS Mongolia. “Mongolia’s parliament is filled with many long-standing lawyers, who feel that the original criminal code – the one that they drafted – is the best. As a result, the criminal code of Mongolia has always been a law that is extremely difficult to amend.”

Yet Bataa believes the draft law, though likely to face substantive amendments throughout the course of parliamentary sessions, is likely to be passed. “Those who hold power in the government are the majority Mongolian Democratic Party (MDP). This party has been away from the power in the government for quite a long time, so that we can see that MDP is in rush to make changes.”

Others express uncertainty as to whether hate crimes legislation should be a priority, given its provisions serve for the protection of minorities. “I have two children, and I feel that even they are likely to experience serious, violent crimes in their life(times),” she says. “In some ways, we are all vulnerable.”

Yet for others, the changes cannot come soon enough. “An issue like this can no longer be ignored; it is a ‘must’,” says Anaraa.

“We cannot wait for this constitutional amendments to be passed. We need to take whatever we can, whatever we can use and run with it. Right now, lives are being affected irreversibly.”


SOURCE: Leese Gardner

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