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UPDATE: The Mongolian Legal System and Laws: a Brief Overview

 

By Odgerel Tseveen and Ganbold Battsetseg

Update by Odgerel Tseveen and Badmaarag Shagdarsuren

 

 

Odgerel Tseveen received a law degree from the National University of Mongolia in 1999, an LL.M. in 2000, and is a Ph.D. Candidate at National University of Mongolia. She currently works as a Legal Counsel at the MoEnCo LLC of Mongolia in Ulaanbaatar, Mongolia and specializes in Foreign Investment Law, International Private Law and International Public Law. She is a member of Advocates Association and a certified lawyer in Mongolia.

 

Ganbold Battsetseg obtained a law degree from University of Bucharest, Romania, 2003. She worked as an attorney at Anderson & Anderson LLP, International Law Firm in Ulaanbaatar, and specialized in Commercial Law. She died in September 2007.

 

Badmaarag Shagdarsuren received a law degree from the National University of Mongolia in 1999 and an LL.M. in 2000. She currently works as an officer of law at the Ministry of Defense in Ulaanbaatar, Mongolia.

 

Published May 2009
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Table of Contents

1. Introduction

2. The Mongolian Legal System

2.1 Law of the Period of the Great Mongol State

2.2 Mongolian Law of the Sixteenth to Nineteenth Centuries

2.3 Mongolian Law of the Socialist Period (1921-1990)

3. The Modern System of Mongolian Law

3.1 Classification of Mongolian Law

3.2 Substantive and Procedural Law

3.3. Private and Public International Law

4. Sources of Law

4.1 The Constitution

4.2 Statutes

4.3 Legal Acts

4.4 Judicial Practice

4.5 Customary Law

4.6 International Law

4.7 Legal Doctrines

4.8 Publication and Entry into Force of Legislation

5. Interpretation of Laws

6. Judicial System

6.1 Introduction and Historical Aspects

6.2 Courts of Ordinary Jurisdiction

6.3 Administrative Cases Courts

6.4 Constitutional Court

6.5 The General Council of Courts

6.6 The Judges

6.7 Bailiffs

7. Legal Profession

7.1 The Prosecutors

7.2 The Advocates

7.3 The Notaries

8. Military Justice System

8.1 Sources of Mongolian Military Justice System

8.2 Criminal Proceedings

8.3 Policy and Legal Basis of Peacekeeping Operations of the Armed Forces

8.4 Law on Participation in UN Peacekeeping and International Missions

9. Legal Resources

 

 

1. Introduction

Mongolia is a landlocked country in the center of the Asian continent, located between China and Russia, sharing a western border with Kazakhstan. With an area of more than 1.5 million square kilometers and a population of 2.6 million, Mongolia has a population density of 1.5 people per square kilometer. Mongolia is classified as a developing nation.

Mongolia consists of 21 provinces and the capital city. Each province is further subdivided into “soums,” and each “soum” is subdivided into the lowest administrative unit, the “bag.” The capital city, Ulaanbaatar is divided into nine districts, further subdivided into a number of “khoroo.”

 

2. The Mongolian Legal System[i]

The development of Mongolian Law has been a volatile process, distinctively tied to the dissolution of a massive empire and its replacement by an independent, modern nation-state. The development of Law in Mongolia can be divided into three main historical stages.

 

First stage - This is the period of the formation of the legal system of the nation of Mongolians. The Great Mongol State was formed and conquered vast territories under the so-called Great Zasag Law (also known as “Vassa”) of Chinggis Khaan, the first integrated written code. The Law of the Yuan Empire became effective in the eastern part of the Mongolian Empire.

 

Second stage - This is the period of the second integration of such laws as the Mongolian-Oirat laws, Khalkh Juram law paper, the Ministry of Statehood Affairs legal document related to Outer Mongolia adopted by the Order, and the Mongolian legal document adopted by the Order.

 

Third stage - This is the Period of the formation and development of the modern system. The most important feature was the attempt by Mongolians to establish a national and socialist legal system with the aim of making the transition to industrial capitalism. Despite this, the fundamental character of the continental legal system remained intact.

 

2.1 Law of the Period of the Great Mongol State[ii]

Mongolians, however, know that their legal tradition embodies more than merely the writing of Chinggis Khaan. The Great Zasag Law, written sometime between 1206 and 1218, was for the most part a codification of the general principles of law already held by the tribes under his command. Except for the military and administrative innovations of Chinggis, it does not represent a sudden invention of the rule of law. Written and unwritten, laws had likely always played a significant role in the lives of Central Asia’s nomadic peoples, even reportedly as far back as the Third Century BC. Mongolia may not have existed as a single nation prior to its unification under Chinggis Khaan, but it did exist in the form of nomadic tribes, each of which had some form of unwritten traditional law. Chinggis Khaan had the foresight to have some of them recorded for posterity.

 

The influence of the Great Zasag Law in the development of the Mongolian and world legal system can be summarized below.

 

In 1264, Hubilai Khaan and his successors promulgated a total of 2539 laws and ordinances, which appeared in 1320 as the “Complete Collection of Laws of the Great Yuan Empire.” It is significant to legal history that in this collection, the function and application of law regulating and ordering social life was worked out and that account was taken of the prevailing legal culture in society as well as of theoretical legal concepts.[iii]

 

In the preface to the “Complete Collection of Laws of the Great Yuan Empire” it is stated: “Ever since ancient times, the great rulers of the world have not been able to rule by punishment alone. Wisdom is also necessary… If men are not wise, then laws are necessary. If men break the laws, then that must result in the severest punishment and death. Previous rulers have accordingly prescribed punishment not to demonstrate their power but to promote the good of the State.”[iv]

 

The “Complete Collection” unmistakably contains Mongolian and not Chinese laws.

 

A special feature of the legal system of the Yuan Empire consisted of the fact that, unlike the Great Zasag Law of Chinggis Khaan, its territorial extent was limited. The Great Zasag Law was effective in all parts of Chinggis Khaan’s world empire, whereas the “Complete Collection” was applied only in the eastern part of the Mongolian world empire, i.e. in Mongolia, China, and Korea.

 

2.2 Mongolian Law of the Sixteenth to Nineteenth Centuries[v]

The collection of laws from this period has survived in the Mongolian-Oirat Laws of 1640 and the Khalkh Juram Law of 1709. These laws legally strengthened and guaranteed social relations in Mongolian society.

 

 

The Mongol-Oirat Law:

The main objectives of the Mongolian-Oirat laws were to halt the dissolution of the Empire by strengthening internal solidarity and order, and to protect the nation from foreign invasion. As a result, many norms served the purpose of improving the defense capacity of the country by discouraging internal fighting, encouraging people to warn one another in cases of invasion, conscripting fighters to come to the defense of the empire when summoned, preparing at least one armed soldier for every ten households, and marshalling forces together very quickly when a warning signal had been sounded. Those found to have broken these provisions were severely punished.

 

One of the most distinctive characters of this law was how it codified the class structure of Mongolian society at the time. Including the introduction, the Mongolian-Oirat Laws contained 186 articles, with almost half of them related to criminal law.

 

The Khalkh Juram Law:

The Khalkh Juram Law was the unified code that kept the legal tradition from the earlier ages, but also regulated increasingly complex social relationships. As a result, it has come under great scrutiny by scholars and researchers. It was intended to regulate social life and is significant for the study of legal tradition and the culture of Mongolians in the middle ages. This law was in effect until the beginning of the twentieth century.

 

While Khalkh Juram Law was intended to regulate Mongolians as a whole, the Mongolian-Oirat Laws regulated interrelationships between the tribes. The Khalkh Juram Law is in substance and structure a typical medieval legal compilation. It gathers together many laws from different fields and was promulgated as a Collection of laws at different places and at different times. Thus, norms of the state, as well as administrative, civil, family, and criminal laws, were stipulated in the Khalkh Juram law.

 

After the disintegration of the Empire in the eighteenth century, the Manchu dynasty ruled over China and Mongolia, the first instance of rule by a foreign state, which would last for two hundred years. The Collection of Mongolian Laws was adopted in 1789, and is a legal document reflecting years of policy implemented toward Outer Mongolia by the Manchurian state. In 1815, the Ministry for Outer Mongolia issued a new collection of laws made up of sixty-three volumes which reflected the legal tradition of the former Mongolian empire. Under the influence of the Manchu’s legal policy and culture, specific aspects of legal thought included understanding, preserving and strengthening the historical basis for national legacy, as well as restoring some kind of national consciousness. Also, their legal culture was developed by a permanent civilization, which possessed the methods and technology necessary to process and classify traditional laws. Finally, this legal system also established cruel long term punishments.

 

The National Freedom Movement of 1911 held in Mongolia led to some freedom in reforming the legal system.

 

2.3 Mongolian Law of the Socialist Period (1921-1990)

The Russian Revolution of 1917 had a great impact on events in Mongolia, inspiring spontaneous uprisings. In the 1920s, after the death of the Bogd Khaan, Mongolia had an alternative to repression and executions following the revolutionary events. The idea of development along the path of national democracy was extremely popular among leaders of the Mongolian People’s Party and government. Western countries’ legal systems were a kind of orientation to the Ruler at that time after the revolution years. According to the decree of the Government on the “drafting legislation” of 19 May 1922, “Even though our country has a republican government, the thing that a constitution’s provisions have not been decided is an inaccurate part to decide any matters. Thus, from now on a special commission should be appointed and analyze right or wrong on the legal documents planned during the previous autonomous government which had not been finalized. The special commission should redraft laws of any judicial issues in accordance with the policies of the current government considering European countries’ laws since our country adjudicates foreign nationals’ disputes.”[vi]

 

The socialist constitution of 1924 greatly influenced the implementation of law in Mongolia, which became an “instrument of the proletarian dictatorship, to stipulate order in society, to have a class character, to reject private property, and to eventually eliminate the state and law.” This concept became the basis for the Constitution of the People’s Republic of Mongolia of 1924. Provisions included: “the Supreme power of the State shall be kept by the true people,” private property will not be established, titles of king or nobleman and an order of holy people will be eliminated, and authority will be granted to confiscate people’s property, to introduce socialism and communism, to exclude the right to elect and be elected those people who live by exploiting others or who hire moneylenders or ex-Khans, and holy people and monks permanently living in temples. This constitution was the beginning of the latter Constitution of the development stage of the People’s Republic of Mongolia.[vii]

 

One important achievement of this Constitution was to declare and guarantee civil rights and freedoms including freedom of religion, freedom of the press, freedom of demonstration, freedom of celebration, freedom of association, right to free education, and freedom of equal rights without discrimination based on origin, religion, age, or sex.[viii]

 

The Constitution of the Republic of Mongolia of 1940 has a socialist and class-based character. It states that “to develop a non-socialist way,” the “Mongolian People’s Revolutionary Party is the main force for leading all the organs of the country.” It will abolish the right to vote of any “person who gains profit from other people’s labor, moneylenders, ex-saints, high ranking monks, Governor lords and lords without chair, princes, noblemen who had subjects, influential shamans, and participants actively involved with the white army and counterrevolutionary activities.”[ix]

 

The major achievement of the Constitution of 1960 is that it realized and guaranteed the social and economic rights of the citizen, including the rights to work, to receive a fair salary, to receive welfare assistance in cases of old age, sickness, or unemployment, and the right to a free education.[x]

 

All Constitutions and laws of the People’s Republic of Mongolia were of a socialist nature, with the issue of class expressly stated. Provisions in those Constitutions mentioned scientific communist ideology as being a significant part of the country’s life. Only state and cooperative property, not private property, were recognized as the foundation of the economic system of the country.

 

3. The Modern System of Mongolian Law[xi]

In 1990, the Mongolian people abolished the totalitarian regime, rejected the planned economy, and began a comprehensive transition toward a new political system. This new choice was to develop a country respecting human rights, democratic values, the market economy, and the rule of law. From a narrow perspective, this led to the complete reform of the legislative system and structure; this reform did not taken place all at one time but was rather an on-going and gradual process.

 

In March 1990, one-party rule was abolished. Political pluralism was recognized and the shift toward a multi-party system commenced. In May 1990, an Amendment Law with two separate charters, “Amendments to the Constitution of Mongolia,” was adopted. Based on this Amendment Law the first ever democratic elections of the State Great Hural took place in July 1990 and a permanently operating Parliament called the Small Hural, with a multi-party system, was established. The Small Hural proclaimed the legitimacy of private property, and determined new financial, economic, and loan relationships through the adoption of 35 new laws and amendments. All of these laws became a solid base in the process of adopting the 1992 Constitution. The 1992 Constitution, as it was pointed out, “mobilized the intellectual capacity of the country.”

 

The Constitution of Mongolia reflects the following principles and concepts:

  • In the preamble of the Constitution, it is stated, “Aspiring toward the supreme objective of developing a humane, civil, democratic society in the country,”
  • Human rights and freedom are accepted as the highest value. “The State shall be responsible to the citizens for the creation of economic, social, legal and other guarantees for ensuring human rights and freedoms, to right against violations of human rights and freedoms and to restore infringed rights,”[xii]
  • Sovereignty and legitimacy will reside with the people. “State power shall be vested in the people of Mongolia”[xiii]
  • All forms of state and private ownership were recognized and are equally protected. “The State recognizes all forms of both public and private property and shall protect the rights of the owner by law”[xiv]
  • State power is exercised based on the allocation of legislative, executive and judiciary power,[xv]
  • Pluralism and a multiparty system are recognized and no particular ideology shall be declared as that of the state or mandatory,
  • Universally recognized principles of international law and international treaties are recognized as part of the Mongolian legal system. “Adhering to the universally recognized norms and principles of international law … The international treaties to which Mongolia is a party, shall become effective as domestic legislation upon the entry into force of the laws or on their ratification or accession,”[xvi]
  • Principle of respect of law became the supreme principle of the activities of the State.[xvii] “However, this does not mean ‘legal despotism,’ but rather a respect and adherence to universally recognized laws, abiding by a new legal awareness and legal protection of the interest of the individual,”[xviii]
  • The court shall be independent and subject to law,[xix]
  • Establishing a judicial supervision system over the implementation of the Constitution, it founded a special Constitutional Court.[xx]

 

The Constitution serves to aid in the transition from totalitarianism and socialism to a post-socialist legal structure, as well as to bring about the formation of a civil society and a State ruled by Law. The Constitution combines a “legal-axiomatic” approach with a “natural law” approach.

 

Many laws have been adopted with the goal of regulating new social relationships, in addition to reforming old laws and trying to make and revise legislation to conform to the Constitution. In just the first decade following Mongolia’s reforms, the nation saw four free and fair elections, the smooth transfer of power after multi-party elections, the establishment of a legal framework for ongoing political and economic reform, and the emergence of a concerned and committed community of NGOs. In terms of institution building, the magnitude of the changes during the first ten years of reform is reflected by the five hundred new laws adopted by the State Great Hural during this period.

 

The legal system of Mongolia is part of the Romano-Germanic legal tradition. Cultural and historical constraints also play a role in access to the legal system. As a legacy of the totalitarian period, socialist legality saw law as a means to an end, namely the creation of a communist society. There was no inherent virtue in the law, apart from its role in building socialism.

 

3.1 Classification of Mongolian Law

Despite the fact that, in theory, all Mongolian laws are of equal status within a unified system of law, the Mongolian legal system has been influenced by the Romano-Germanic legal system’s division between civil and public law.[xxi] Although criminal law is sometimes also classified as a separate division, it must be regarded as a specialized part of public law.

 

Public law is concerned with the legal relationships between the citizen and the state, or the manifestations of the state in the form of public authorities. Most public law actions take place in the administrative courts.

 

Civil law contains a concentration of legal principles concerned with the regulation of civil life, or in other words, the affairs between private individuals. Transactions undertaken between a public body and an individual are governed by civil law and not public law rules.

 

(Editorial note: In Mongolia, there have never been special publishers for the legal field. Also, in Mongolia, a few codes were translated in English by the Ministry of Justice and Home Affairs. They have an interest just to sell an official translation of codes. The Civil Code's translation costs 150 USD.)

 

3.2 Substantive and Procedural Law

While substantive law is made up of those rules which relate to rights and duties amongst citizen, procedural law regulates the stages in the progress of a civil action or criminal prosecution. In the case of civil and criminal procedure the same courts hear each type of proceeding. However, at higher levels of the judicial system, special divisions are created for civil and criminal cases.

 

The 1992 Constitution of Mongolia lays down procedural principles and guarantees that are applicable to all court proceedings: the right to use the national language, the independence of judges and their subordination only to law, the equality of citizen before the law, and the open examination of cases in all courts.

 

In addition, the legal system of Mongolia is divided into branches of laws, similar to those of other countries which follow the Romano-Germanic legal tradition, such as constitutional, administrative, criminal, civil, and international law. Some branches of law, for example, civil and administrative laws, are divided into sub-branches and institutions.

3.3 Private and Public International Law

Private law can be described as the domestic law that operates within a state. Private international law is the body of rules which regulates private legal relations with a foreign element. In contrast, public international law is the body of rules that regulate legal relations between sovereign states and other entities that have been granted international personality.

 

4. Sources of Law

4.1 The Constitution

Mongolian law originated from the Romano-Germanic, or continental, legal system. The source of law is written law and the courts apply laws only in settling cases or disputes.

 

The Constitution, the supreme source of law in Mongolia, lays out the leading principles of the state, its organization, and the basic rights of the individual. Article 3 of the 1992 Constitution of Mongolia proclaims that the sole source of state power is the people of Mongolia. The people exercise this through their direct participation in state affairs as well as through the representative bodies of state power elected by them. State power, in turn, is effectuated on the basis of separating the legislature, the executive, and the activities of all other organizations and citizens.

 

The Mongolian Constitution in 1992 reflects the reforms of the 1980s and early 1990s. It abolished the system in which different members of the population were distinguished by class; eliminated Marxist-Leninist ideology and the objective of creating a socialist or communist system; and established a system for private ownership and freedom of entrepreneurship. In addition, it accepted human rights and freedoms in accordance with universally accepted principles and norms of international law, and set up the separation of powers and the new structure of the state, while strengthening the principle of local self-governance.

 

According to Article 40(1) of the Constitution, laws, decrees and other decisions of state bodies, as well as the activities of all other organizations and citizens, must fully conform to the Constitution.

 

4.2 Statutes

Statutes are the main source of law in Mongolia. As of 2009, more than 390 laws exist. The right to make laws is granted solely to the legislative branch of government. Law is enacted solely by the State Great Hural (Parliament) pursuant to its constitutional authority, by prescribed means and such that it becomes the law governing conduct within its scope. Only members of the State Great Hural, the Government, and the President of Mongolia may initiate a draft of a law.

 

4.3 Legal Acts

In Mongolia, legal acts in the broad sense of the term can take any number of forms, including parliamentary resolutions, presidential decrees, cabinet ministry resolutions, and ministry rules and orders.

 

Parliamentary resolutions are governed by Article 30 of the law on the State Great Hural. This provision specifically grants the State Great Hural the authority to issue decisions which have the title of resolution. Parliamentary resolutions may regulate the government and other organizations. Parliamentary resolutions are often concerned which specific topics for the implementation of a broad range of Government activities.

 

Executive power in Mongolia is the responsibility of the Government, which, limited by the Constitution, laws, and normative acts of the State Great Hural, issues resolutions and ordinances. Cabinet Ministry resolutions have many forms and functions. In their simplest from they are a formality used to adopt decisions by a higher level of Government. For example, the Government may issue a resolution formerly adopting a piece of law which has already been voted on by the State Great Hural. Resolutions can, however, also rise to the level of regulation. If these resolutions and ordinances are incompatible with laws and regulations, the government itself or the State Great Hural invalidates them.

 

The President is specifically authorized to issue decrees in accordance with the Constitution and Mongolian law. Presidential decrees must conform to the rights granted by the Law on the Presidency. These rights were originally listed in the Constitution and again in the Law on the Presidency.

 

All Ministries and Agencies have the power to issue normative acts pursuant to specific delegations of authority from the State Great Hural and Government. The acts of ministries and other government offices of Mongolia are sometimes called instructions, instructive regulations, and others. Ministries issue, as a rule, an order or instruction.

 

Only laws, Parliamentary resolutions, and Cabinet Ministry resolutions may be implemented nationwide. All other normative acts are restricted to the sector for which a given ministry is responsible.

 

As declared by the Constitution, legal acts may be issued by the Governors of the Aimags, Capital city, Soums, Duuregs, Bags, and Horoos. These legal acts are to be called “ordinances” and must conform to the laws of the nation.

 

4.4 Judicial Practice

As precedent is not considered to be a source of law, the courts in the modern Mongolian legal system play no formal role as a source of law. In Mongolia, judges are supposed to only apply law, not create it. The court system in Mongolia is based on the continental legal system as practiced in Russia and Germany. It is not a common law system and therefore decisions issued by the various courts do not have precedential value (no stare decisis). Judicial decisions by the Supreme Court of Mongolia, by contrast, are limited to individual cases. Although they are binding upon all courts and other persons for the particular purpose of that case, they have no further effect on legislation. Therefore, they do not become “law” in a general sense.

 

4.5 Customary Law

Legal customs are considered to be a limited, not principal, source of law. While studying existing legislation in Mongolia, one can find some evidence of the importance of legal tradition. For Mongolia, with its nomadic civilization and certain objects used in daily life vastly different than those of other nations, it is necessary to follow customary norms bequeathed from ancient times when solving certain cases and disputes.

 

4.6 International Law

The status of international law in the Mongolian legal system was dramatically transformed by the 1992 Constitution of Mongolia. The 1992 Constitution of Mongolia provides that “the international treaties to which Mongolia is a party, shall become effective as domestic legislation upon the entry into force of the laws or on their ratification or accession. Mongolia shall not abide by any international treaty or other instruments incompatible with its Constitution.”

 

International treaties to which Mongolia is party to are bilateral or multilateral written agreements to be regulated by international law. These determine the rights and responsibilities of Mongolia, the State Great Hural of Mongolia, the Government of Mongolia, as well as single or multiple foreign countries, their governments, or international organizations with regard to certain issues.

 

The term international treaties refer to all interstate, intergovernmental, or interdepartmental documents irrespective of their form and appellation.

 

4.7 Legal Doctrines

Legal doctrines are not considered as a source of law. Therefore, Mongolian and foreign academic opinions are not taken into account when a court makes a decision.

 

It is not the practice of Mongolian courts to cite the published works of jurists when issuing a judgment. In many ways, jurisprudence is still in its infancy.

 

4.8 Publication and Entry into Force of Legislation

The State Great Hural officially promulgates national laws through their publication and, unless a law provides otherwise, it becomes effective ten days after the date of publication. Legal information is disseminated through national newspapers, Mongol TV, Mongol Radio and the State Bulletin periodical.

 

The State Bulletin is the official publisher of all laws and Parliamentary resolutions. In 2002, to increase public access to laws, the Ministry of Justice and Home Affairs ran an open competition and granted to the daily newspaper Century and what was then the Legal Information Centre (now an arm of the National Legal Center) the exclusive right to publish the official text of all new legislation.

 

5. Interpretation of Laws

Pursuant to Article 50.1.4 of the Constitution of Mongolia, the Supreme Court provides official interpretations related to the correct application of all laws other than the Constitution. The formal interpretations of the Supreme Court take the form of resolutions which, once issued, are to be considered a part of the laws. At present, there is no specific law which requires the promulgation of explanations according to a standardized system. In practice, the impetus for assurance of interpretations comes from both experience within the court system and the result of research conducted by legal professionals. In Mongolian law, the interpretation of legal norms is considered a special type of legal activity, which is intended to discover the content of the meaning of legal norms. The interpretation of law is classified by its method as grammatical, logical, systematic, historical or special legal interpretation. In addition, it is classified as colloquial, detailed, or brief.

 

There are two approaches to interpretation: the objective interpretation, which considers what the law requires, and the subjective interpretation, which concentrates on the purpose and intent of the law from the point of view of the legislator. In spite of academic disputes about objective and subjective interpretation, it is commonly accepted that the aim of any interpretation is to find the purpose or aim of the provision. Judges often employ a combination of both general approaches to legal problems along with the following more precise techniques of interpretation. These techniques are not so different from the rules of legislative interpretation. Briefly, they are:

  • Grammatical interpretation, which gives the words used their literal meaning, or attempts to respect their internal consistency and ordinary meaning.
  • Logical and systematic interpretations are sometimes considered separately, but together form a kind of contextual rule to interpret the provision in the context or light of the system of rules or the provisions as a whole.

 

Should these rather objective rules fail to render a clear decision, the following subjective rules are employed:

  • The historical rule considers the state of affairs at the time the provision was drafted in order to determine what the draftsman or legislator wanted or was seeking to protect or correct.
  • The teleological rule aims to determine the meaning of the provision in light of the purpose or aim of the provision or provisions. This, however, should not distract from the fact that all interpretation must strive to find the aim or purpose of the law.

 

6. Judicial System

6.1 Introduction and Historical Aspects

The courts have undergone several transformations in recent history. To understand today’s situation requires some knowledge of Mongolia’s judicial past. Judges in Mongolia have not always had the position and powers they now enjoy. From 1926 to 1990, judges and courts occupied one of the lowest governmental levels. This position was dictated by communist theory, which held that laws and the judicial system were part of the bourgeois society and would not be needed in a truly proletariat state. The court system would, with time, simply “wither away.”

 

In reality, the court system remained a necessity and was tightly controlled by the state. Judges were appointed by committees of the Mongolian People’s Revolutionary Party (MPRP), not by the President or Parliament as provided under the 1992 Constitution. Membership in the MPRP was not required, but the MPRP did review all candidates. Although in theory judges acted independently, party members exercised a certain amount of oversight and control. For example, although the MPRP lacked the power to overrule judicial decisions, it could summon a judge to appear before a local party committee to explain a decision. In practice, judges were responsible to the party which often influenced judicial decisions. Citizen also commonly attempted to influence judicial decisions through personal contacts with high ranking party officials. Under the communist system, prosecutors were more powerful than judges and ran trials, as well as supervised and controlled the judiciary’s activities. They effectively decided cases in conformity with the political party line. In place of the old court system, the first official legislative act created the people’s courts and a system of judge’s directly elevated, with two assessors. The latter were laymen who served on a part-time basis.

 

Today, judges are subject only to the Constitution. Judicial power is vested exclusively in the courts while extra-judicial interference is strictly prohibited.

 

The process is intensifying for changing judicial control into a system that controls whether activities and decisions of the legislature and executive are in accordance with human rights. However, judicial powers are not yet politically or economically independent. The composition of judges are not fully developed, technical provisions are not sufficient, their specialization is very low, and the independence of the judicial branch is being eroded, all of which make many people have unfavorable attitudes towards courts.[xxii]

 

6.2 Courts of Ordinary Jurisdiction

Mongolia has three levels of ordinary courts:

  • Soum, intersoum and district courts have jurisdiction only at first instance and deal with misdemeanors and less serious crimes and civil disputes where the amount in dispute is less than Tug 10 million ($22,000).
  • Aimag courts, found in the aimag capitals, and the Capital City Court in Ulaanbaatar have first instance jurisdiction in cases of more serious crimes and in civil matters where the amount in dispute is over Tug 10 million. They also deal with appeals from the lower level courts. The judges of these courts sit in both first instance and appeal cases.
  • At the highest level is the Supreme Court in Ulaanbaatar which deals with any matters at first instance that are not specifically within the jurisdiction of the other courts, as well as appeals from decisions of the aimag courts and the Capital City Court.

 

The procedure for these courts is discussed later in this chapter.

 

6.3 Administrative Cases Courts

These courts deal with matters relating to public law that are outside purely constitutional matters. The Administrative Cases Courts (ACCs) were first introduced piecemeal in some of the larger states in the late-nineteenth century with other reforms aimed at the administration of justice. Reviews were made by an independent body of all administrative acts affecting the citizenry. The main function of the ACC is to review the constitutionality of the entire range of administrative action, particularly where it encroaches on basic rights. The ACC of Mongolia was established by the State Great Hural in June 2004. The establishment of an independent ACC is an example of significant progress in the improvement of the national judicial system, thus securing and protecting human rights. They deal with the area of law concerned with disputes between the public authorities and individuals arising from the exercise of public authority, including citizens and legal persons. This is regulated by the Law on Administrative Procedure. Any disputes which arise from an administrative act and which may affect a person’s rights may be challenged before these courts. All areas of public life are covered: police, school regulations, roads, and the civil service.

 

6.4 Constitutional Court

Mongolia has followed the example of some other civil law countries and has established a constitutional court known as the Tsets. This court examines and settles constitutional disputes at the request of the Great Hural, the President, the Prime Minister, the Supreme Court, the General Prosecutor, on its own initiative, or on the basis of petitions received from citizens. Most of its work involves the latter and it receives around 150 petitions and requests a year. However, a substantial number of these do not fall within its jurisdiction and are transferred to the ordinary courts or other institutions. Most of the petitions that are considered concern human rights violations by state officials. For example, a recent case concerned the issue of whether the General Prosecutor breached the Constitution in the procedure adopted to investigate a complaint against a police officer.

 

The nine judges of the Tsets panel are appointed by the Great Hural for a term of six years. Members must be at least forty years old and experienced in politics and law. At present, eight are lawyers and one is a geologist. Four are full-time and five are part-time members. Hearings are conducted before a panel of five. Decisions on the conformity of laws, decrees or international treaties with the Constitution must be submitted to the Great Hural for approval. If the approval is refused, the Tsets will reconsider with a full panel. The decision is then final and binding. Judgments of the Constitutional Court are published in the government gazette and the government newspaper.

 

Some members of the legal community doubt the usefulness of having a separate court for constitutional matters and consider that its work would be better dealt with by the Supreme Court.

 

6.5 The General Council of Courts

In order to help ensure the independence of the judiciary, the General Council of Courts was created. It has twelve members: the Chief Justice, the General Prosecutor, the Minister of Justice, a secretary appointed by the President, two members appointed by the Supreme Court, two by the Ikh Khural, two representing the aimag and Capital City courts, and two representing the courts of first instance.

 

The role of the Council includes submitting proposals to the Great Hural about the judiciary’s budget, personnel and court buildings, recommending candidates for appointment to the judiciary, organizing training courses for judges, and making rank and other additional payments to judges and court officials.

 

6.6 The Judges

Mongolia has about 360 positions for judges who are appointed for life by the President upon the recommendation of the General Council of Courts. This is in contrast to the previous system in which appointments were for a fixed term. The Supreme Court selects one of its members to be Chief Justice. Appointment for the six year term is made by the President. On the recommendation of the Chief Justice, the President also appoints the two Senior Judges who preside over the Supreme Court’s civil and criminal chambers.

 

All judges must have a law degree, although not necessarily from Mongolia. In the lower courts, judges must be at least 25 years old and have three years legal experience. Judges of the Supreme Court must be at least 35 years old with ten years experience. These constitutional requirements came into force in 1992. Approximately one-fifth of the judges at that time did not meet the necessary requirements but were permitted to stay in office, as there were no replacements available. Failure to meet the education requirement is being overcome by courses provided by the Ministry of Justice in cooperation with the Institute of Law of the State University of Mongolia.

 

Approximately three-quarters of present graduate judges studied at the former Law Faculty of the State University of Mongolia, the others at Irkutsk and other universities in the former Soviet Union.

Mongolian judges are generally young, especially when compared with judges in common law countries. Most are aged between 30 and 35. The average age was even lower before the introduction of the age requirement and it was not unusual to become a judge after graduation from the legal high school at the age of 21. Sixty percent of Mongolia's judges are women.

 

The workload of judges has increased substantially over the last few years and the types of case they deal with have changed. Under the socialist system, most of their work was criminal. Now two-thirds of the cases are civil, primarily involving contractual disputes, although criminal matters still make up the bulk of appeals.

Under the previous system, judges worked with a limited number of laws and legal publications, but they have now had to adjust to a rapidly changing legislative environment, particularly in the civil area. Although most of the judges have attempted to familiarize themselves with the new legislation, there are still some who base decisions on their old knowledge as they find it difficult to keep up with the changes. Their experience in the application of commercial laws is limited, and many find the unfamiliar situations of a market economy that they are faced with confusing.

 

This has been alleviated with some training in commercial, contract and company law and exposure to market economy concepts, although most of these courses had a general, elementary character and were not specifically designed for the judicial practice. More training is necessary, particularly in the commercial law area. Not all judges, however, need to develop expertise in commercial matters, and it is recommended that, at least initially, training could be given to one judge in each aimag and a greater number from Ulaanbaatar’s courts. The presence of more junior judges, presumably more inclined to embark on a tedious and difficult learning program in language and new substantive domains could facilitate the emergence of such specialist judges, dealing primarily with business-related cases.

 

All judges meet at least once a year in Ulaanbaatar for a conference or training course. The Chief Judges of the aimag courts and the Capital City and Supreme Court judges meet more often. Occasionally, judges of neighboring aimags have regional meetings and judges of the Supreme Court regularly make observation visits to the courts in the aimags.

 

6.7 The Bailiffs

There are about 150 bailiffs to enforce all judicial decisions not voluntarily executed by the parties. With the large increase in civil claims over the last few years, their workload has substantially increased. They may seize goods from judgment debtors, often livestock or other bulky items such as electronic equipment or carpets, and can also take funds from bank accounts. However, seizure of goods has become difficult because of lack of transport and storage facilities. The role of the bailiffs also brings them a lot of abuse from the public which sometimes takes the form of physical violence, and they would like to see this alleviated by the provision of uniforms and defensive weapons. Another way of avoiding this problem might be to use the services of the police, which could also enhance the status of the bailiffs as part of the judicial process.

 

7. The Legal Profession

There are three branches of the legal profession - prosecutors, advocates and notaries. Currently, the prosecutors need training in the mechanisms of a market economy and in how to deal with economic crime. They also need research facilities. To some extent these various needs may be met by their own plans. As yet, there is a limited market for advocates working in commercial law and so training in this field is probably not a pressing need. However, they would benefit from some training in the adversarial process, arbitration and alternative dispute resolution. The notaries will probably have their role enlarged when laws on the privatization of housing are implemented.

 

Both in the socialist period and today there have been three groups of lawyers making up what could be called the legal profession in Mongolia: those who represent the state - the prosecutors; those who provide legal advice to the public and represent people in court - the advocates; and those who witness or authenticate documents - the notaries. As these groups have separate structures and rules and different admission requirements, each group will be considered separately. Despite the differences between these groups, however, there seems to be great fluidity in the legal profession, and its members do not expect to stay in one branch of it for their entire career. Rather, they move easily between roles as prosecutors, judges, advocates and government advisors, as well as to less strictly legal roles such as the police or tax inspection.

 

7.1 The Prosecutors

The General Prosecutor's Office was set up in 1930. As noted previously, it was a very powerful organization in the judicial system and prosecutors retained substantial control over the trial process.

 

It now has two main functions. The first is supervisory. Prosecutors supervise inquiries by the police in both criminal and civil cases, and by customs and administrative organs. They do not do any actual investigatory work themselves, as their role is to ensure that investigations are carried out according to law. All investigations must be registered with the General Prosecutor's Office at the outset and prosecutors are then involved at every stage. The investigator must obtain the permission of the General Prosecutor's Office before any search or inquiry can be made that infringes on the liberty of the subject. Investigations must be completed within two weeks. Prosecutors also supervise the execution of criminal penalties.

 

The other role of the General Prosecutor's Office is to represent the state in both civil and criminal proceedings. It can also take part in civil cases in which the state is not a party and can appeal decisions in cases in which it has not appeared if it believes that the decision is contrary to law. The General Prosecutor sits in all plenary sessions of the Supreme Court.

 

The General Prosecutor and his two deputies are appointed for a term of six years by the President in consultation with the Ikh Khural. All other prosecutors are appointed by the General Prosecutor. They must have a higher education in law. At present, 60 percent of them graduated in the former Soviet Union and the rest from the State University of Mongolia. The General Prosecutor must be at least 35 years old with ten years of legal experience. Chief prosecutors at the aimag and capital city level must have five years of professional experience. Approximately half the prosecutors are women.

 

7.2 The Advocates

When the economy and society were heavily regulated by the state, citizens had little need for legal advice unless they were party to a criminal case. As a result, there seems to be no tradition of seeking professional advice and little regard for its potential usefulness. Advice is rarely sought before entering into a contract. In addition, there is an expectation that advice will be free, and certainly it appears that general legal advice is sought from places such as the General Prosecutor's Office, local governments, and ministries.

 

There has been an advocacy profession in Mongolia since the early socialist period. In 1928 a body of advocates was set up and its members were authorized to act as defense counsel and to prepare legal documents. The right of a defendant to retain counsel was later enshrined in the Constitution. However, there was no monopoly on those activities and any adult could represent someone in court. The work of advocates was largely confined to criminal matters, although they were sometimes called on to advise state enterprises and organizations such as agricultural cooperatives.

 

The Law on Advocacy came into effect at the beginning of 1995 and outlines the structure of the advocacy profession. It does not regulate government legal advisors who are specifically prohibited from joining the Association of Mongolian Advocates. Under the new law, advocates can give legal advice, prepare legal documents, represent their clients in court and before administrative organs and participate in investigations. However, they still have no monopoly on these activities and a defendant may choose to be represented in court by a lay person.

 

The precise number of advocates in Mongolia - and of lawyers generally - has not been easy to establish. Most were working in the courts on criminal matters. To qualify as an advocate, it is necessary to have a law degree, no criminal record, and to pass an examination administered by the Association of Mongolian Advocates and the Ministry of Justice. It is possible for judges and prosecutors to become advocates after a gap of one year from their previous position. Foreigners may also conduct advocacy activities in Mongolia, although the law is not clear on what requirements there are before this can be done.

 

It is difficult to make any specific recommendations as to the needs of advocates, partly because advocates do not form an especially cohesive body. In addition, although they seem on the whole to have little commercial or market economy experience, the demand for advice on commercial matters is developing slowly and at present seems to be met by the few advocates practicing in that area, as well as by bodies such as the Mongolian Chamber of Commerce and Industry which provides legal advice to its members. What advocates may need to foster at this particular stage is a greater public awareness of what assistance they can give and in what sort of situations they can help, but recommendations as to this sort of marketing are beyond the scope of this report. Advocates may also be assisted by greater interaction among themselves, and between themselves and other members of the legal profession.

 

One area in which training might be useful is in the use of the adversarial process, which is still unfamiliar to advocates and judges alike. A second is in developing skills in arbitration and alternative dispute resolution. As noted previously, however, arbitration is limited in its availability and there is not much incentive at present for litigants to use alternatives to a court system which is relatively inexpensive and quick. Both of these factors will undoubtedly change, and there is already some request for training in arbitration.

 

7.3 The Notaries

Notaries have been used in Mongolia for some time. Unlike the laws that apply to prosecutors and advocates, the Law on Notaries has not been substantively changed since the transition to a market economy began, although a draft law is in preparation. There is a feeling among notaries that a new law would help to clarify their role.

 

Notaries generally form part of the local aimag administrations with one notary per aimag, and their offices are financed and their salaries paid out of the aimag budget. There are also at least five independent notaries in Ulaanbaatar.

 

Notaries are used to authenticate documents. They are not involved in drafting or in advising the parties of a document’s contents, but simply in checking that documents are in order and signing or stamping them. The types of transaction for which notarization is required are bank loans and agreements for the sale and purchase of items such as livestock. With the emergence of a leasehold market and the anticipated privatization of housing, it is expected that notaries' responsibilities will increase.

 

 

8. Military Justice System

 

The legal system of Mongolia has been influenced by the Roman-Germanic legal system division between civil and public law. In 1924, after the declaration of the First Constitution of Mongolia, the nation established military justice systems with the assistance Soviet military legal advisers. There were some changes in the military justice system after the changing of Constitution in 1940 and 1992. Until 1992, Mongolia shared a military justice system with Russia, but basic changes began in 1992 after the enactment of a Constitution based on democracy and freedom. Today, Mongolia has military justice systems based on disciplinary rules of the Armed Forces of Mongolia; these rules are approved by the President, as are those of non-judicial punishment. All criminal and civil cases are dealt with by the civilian justice system.

 

8.1 Sources of Mongolian Military Justice System

 

·       International law

·       Constitution of Mongolia

·       Military laws, regulations:

o   Law on Defense

o   Law on the Armed

o   Law on military obligation of citizen and legal status of the servicemen

o   Mobilization law

o   Law of material responsibility of military member

o   Law on War

o   The Disciplinary rule

o   The Manual of military base service maintenance, security and patrol

o   The Rule of Internal Procedures

o   The Procedure of the officer service

o   The Procedure of the enlisted service

o   The Procedure of the contract service. etc

·       Civilian law:

o   The Criminal law

o   The Criminal Procedure law

o   The Administrative law

o   The Civilian law. Etc

 

There are no prosecutors specifically for the military in Mongolia. Rather, civilian prosecutors who meet the legal education requirements serve as prosecutors in the military justice system as well. The prosecutor must be citizen of Mongolia, have received at least a Bachelor degree of law, have some professional legal, preferably, prosecutorial, experience, meet the professional qualification requirements and have no criminal record.

 

The duties of the prosecutor in the military justice system include supervision over administrative cases, supervision over inquiry and investigation in criminal cases, supervision over undercover actions and operations, supervision of the implementation of punishment, and providing counsel during trial.

 

There are also no defense counselors specifically designated for the military justice system. Anyone who meets the qualifications to be a civilian advocate may also serve as defense counsel in the military. The role of the defense counsel includes advising and providing references to legal questions, composing applications, appeals, petitions, and other types of legal documents, participation as a representative or defender of the client in administrative proceedings, and participation as defender of the client in criminal trials.

8.2 Criminal Proceedings

 

Definition of Crime

In order for an action to be considered a crime, the act must be expressly prohibited by the Criminal Code alone, it must be socially dangerous, and it must be committed with guilt.

 

Rights of Accused

        The accused shall have the right to defend themselves

        Remain silent during trail

        To freely choose a defense lawyer

        To review the materials of their case before trial

        To participate in court proceedings personally

        In case the accused cannot afford attorney's fees, the state shall provide assistance

        Refuse defense counsel or a judge

        Right to present new evidence during trail

 

Criminal Punishment

Persons who have committed crimes may be subject to the following punishments: fine, deprivation of the right to hold specified positions or engage in specified business, confiscation of property, 100-500 hours of forced labor, arrest for 1-6 months, 1-25 years of imprisonment, or death. Individuals who are sentenced to death may, through presidential pardon, have their sentence reduced to 25 years imprisonment. Crimes for which a person may be sentenced to death include murdering or injuring political figures, the intentional murder of another person, rape committed in aggravating circumstances, terrorism, and genocide. The death penalty may not be assigned to women, persons under the age of 18, and men over the age of 60.

 

Military Investigation Service

The military investigation service works under the Criminal Investigation Department of the National Police Department. The investigators are civilian police who have been specially trained to investigate military crimes. The military criminal investigation procedure is the same as that of the civilian legal system.

 

 

Crimes against Military Service

There is a special part of the Criminal Code which defines particular crimes and punishments. The Criminal Code Article 274-296 sets out 22 crimes against military service, which include disobeying the orders of a Commanding Officer, assault against a Commanding Officer, use of force against subordinates, going AWOL, and intention to destroy military property, among others.

Commander’s Authority

According to military disciplinary rules, a commanding officer is authorized to place an individual in confinement for 10 days as a disciplinary punishment. Commanders do not have authority to initiate or investigate cases, but commanders do have authority to use non-judicial punishment. The maximum amount of time for which an individual may charged with and punished for a military offense is 6 months. If 6 months has passed, the offender may no longer be punished.

 

Disciplinary Punishment

 

In accordance with The Disciplinary rule of Armed Forces Members, the following punishments may be administered to conscripts: verbal or written reprimand or censure, limitation of liberty, reduction of rank, or up to ten days in a detention facility. The following punishments may be administered to officers and NCOs: verbal or written reprimand or censure, reduction of salary (maximum of 20% for up to 3 months), reduction of rank, reduction of military position, or discharge from the military, though women may not receive the punishment of reduction of military position. For both conscripts and officers, the maximum amount of time which may pass between the offence and imposition of punishment is 6 months. Soldiers have the right to submit an appeal for a commander’s punishment to be reviewed within 10 days.

8.3 Policy and Legal Basis of Peacekeeping Operations of the Armed Forces

 

The Government of Mongolia has supported and cooperated with the United Nations in peace operations and formulated its policies at every level. The 1992 Constitution of Mongolia, the State Policy of Defense (1998), the Law on Armed Forces (2002), the Law on Military and Police personnel participation in the UN Peacekeeping and International missions (2002), and the Law on Movement and Deployment of Foreign Military contingent in Mongolian territory (2002) all allow for the participation of Mongolia in United Nations peacekeeping operations. Furthermore, the Government of Mongolia has signed a Memorandum of Understanding with the United Nations (1999) and registered in the United Nations Statistical Analysis System (2000). A peacekeeping operations training program was approved by Chief of the General Staff (2003). The government has also simplified the border and customs service inspection of vehicles and equipment of foreign units assigned for peacekeeping field exercise in Mongolian territory as well as for aerial navigation and other services required; they have also formalized the procedure on type and quantity of supplies and equipment issued for personnel participating in peacekeeping and international missions. (2003).

 

The Constitution of Mongolia is broadly written, without specific language allowing for participation in international military operations. However, the Law on Armed Forces was amended in 2002 to allow for participation of the Mongolian Armed Forces in peacekeeping missions and international operations.

8.4 Law on Participation in UN Peacekeeping and International Missions

The purpose of these laws is to regulate matters of participation of the Mongolian Military and police personnel and units in UN peacekeeping and international missions. According to these laws, “United Nations Peacekeeping missions” entail multinational military police and civilian organization activity organized under the UN mandate, aimed at protecting and developing international peace and stability. “International mission” refers to the full spectrum of peace support operations including: peacekeeping, training, peace enforcement, military field exercises, disaster relief, rescue, and humanitarian assistance operations. International activities are organized by a respective international organization or state. “Participation in the United Nations peacekeeping and international missions” refers to an appointment of military and police personnel on a voluntary basis for overseas services.

9. Legal Resources

Online

 

Offline - Printed Legal Resources:

  • Legal System of Mongolia, by Narangerel.S, 2004
  • Conception of the Constitution of Mongolia, by B.Chimid, 2003
  • Mongolian and the World Legal System, by S.Narangerel
  • The Development of the Legal System of Mongolia and its Characteristics, by G.Sovd.

 

Laws in English:

  • If one wants to buy English translations of laws and treaties for business and other purpose, he or she can contact Odgerel Tseveen.

 



[i] see Legal System of Mongolia, S.Narangerel. 2004

[ii] see Legal System of Mongolia, S.Narangerel. 2004

[iii] Sovd.G, The Development of the Legal system of Mongolia and its characteristics

[iv] see Legal System of Mongolia, S.Narangerel. 2004

[v] see Legal System of Mongolia, S.Narangerel. 2004

[vi] Collection of Constitution and related legal acts of PRM, 1972

[vii] see Legal System of Mongolia, S.Narangerel. 2004

[viii] See Introduction to legal system of Mongolia, S.Narangerel, 2003

[ix] Constitutions of Mongolia, its amendments 19924-1992

[x] see Legal System of Mongolia, S.Narangerel. 2004

[xi] see Legal System of Mongolia, S.Narangerel. 2004

[xii] Article 19(1)

[xiii] Article 3

[xiv] Article 5

[xv] Article 3

[xvi] Article 10

[xvii] Article 1

[xviii] Article 3 B.Chimid, Zohistoi togtoltsoog barimjaalah ny erh zuin shinetgeliin ur nolootei hiih undes boloh ny, page-24

[xix] Article 47

[xx] Chapter 5

[xxi] Mongolian and World legal system, comparative law, S.Narangerel, 2001

[xxii] Prelude of Mongolian Law System, S.Narangerel