1. Constitutionalism in Mongolia and its new Constitution
The Constitutionalism in Mongolia has been developed through many decades. Although at some times it has been forgotten for political reasons. But it has been around 100 years since Mongolians started to talk about constitutionalism on state level. At time of adoption of it first democratic constitution in 1992 , Mongolia had its experiences and traditions for developing constitutionalism.
After separation from Manchurian occupation and declaration of Mongolian independence by Bogd Khan in the beginning of XIX century, the Prime minister Namnansuren had ordered scholars to study the constitutions of western countries and use them as an example for Mongolian first constitution. Researcher Tseveen Jamsranow as it has been requested prepared and published research paper on Constitutional law, State and law of developed countries. Also establishment of special commission for legal research consisted of high state councilors has showed the wish to develop constitutionalism in beginning of XX century in Mongolia.
The idea of adopting constitution had a strong state support in beginning of 1921s. The temporary government has ordered to establish special commission responsible for preparing draft of the Mongolian constitution. This commission was established in May of 1922 and has worked for 8 months. It had made researches on constitutions of UK, USA, Belgium, Netherlands, Japan and Soviet Russia. This example shows that Mongolia from early 1900s was trying to establish some roots for Constitutionalism and for this reason wanted to use examples of countries with democratic approach. But the communist revolution with support from Soviet Russia removed government powers and determined its directions of policy for building communist state and society.
The constitutionalism development has been stopped in Mongolia for almost 70 years and only democratic movement started in 1990s has restored democratic constitutionalism in Mongolia after 70 years of communist idea domination . For 70 years Mongolia has been ruled by communist regime and ideology. The Constitutions of Mongolia of 1924, 1940, and 1960 were influenced in total by socialist and soviet ideology. The historical development of Mongolia of that time has influenced the whole legal system of Mongolia. Most provisions of these constitutions were declarative and were not enforced. The main specifics of these time constitutions were that they reflected the idea to set up and ensure state centralized power, social order, movement to communism, domination of one ideology, discrimination of some classes of society and refusal to place human rights above party ideology. These four constitutions thus have stopped the development of constitutionalism, which has been started in the beginning of XX century in Mongolia for 70 years. The dissolvement of special committee established in 1922 and establishment of new commission consisting of pro-communist researchers in 1924 clearly shows that approach. The first Constitution of Mongolia adopted in 1924 mostly duplicated the Soviet Russian Constitution and its draft was prepared in a very short time in 3 months. This shows that Mongolian drafters of Constitution did not spend much time on own research but just duplicated the Soviet ideology.
The next Constitutions of 1940 and 1960 also reflected the soviet communist and socialist ideology. Only at the end of 1980s Mongolian revolutionary party with purpose to amend the constitution of 1960 with socialist approach, set up the special commission has studied approximately constitutions of 20 countries . But the beginning of democratic movement in 1990s is Mongolia has stopped works of this commission.
Beginning of 1990s had an important historical impact in Mongolia. The democratic movements have influenced to set up idea of constitutionalism in Mongolia. The new ideology of new political movements, peaceful demonstration of people of Mongolia for democratic changes, the conflict of old political and new political forces, laws with democratic approach approved at late 1980s and beginning of 1990s all influenced for setting totally new political and social atmosphere which was characterized Mongolia society as ravening for democracy and changes. Followed by this peaceful movements and demands, Mongolia has started to change its political, economic and social structures and it resulted to adoption of its new or fourth Constitution in 1992, which was fundamentally different from previous constitutions of Mongolia. The new political movements demanded to abolish domination and ruling one political party, respect of human rights, set up parliament as representative of people, ensure participation of people in making decisions concerning national interests, as well as social, political and economic issues, participation of local citizens in governing of local territories. In addition to demands political movements, Mongolian researchers have studied the Constitutions of many countries. This time the purpose was not simply copy the Constitution of other country but to study and learn about distribution of state powers, provisions of human rights and allocation of central and local powers.
According to the new Constitution of Mongolia, Mongolia is a state, which shall secure democracy, justice, freedom, equality, national unity and rule of law. Mongolia is democratic state with pluralism of parties, open market economy and recognizing all forms of ownership.
Mongolia is a unitary state and territory is divided into administrative units. State power belongs to people of Mongolia and is vested to Parliament of Mongolia, President, Government and Courts of Mongolia. People of Mongolia shall participate in governing of the state directly and indirectly through elected representatives (Article 3 of the Constitution). People of Mongolia are entitled to assemble and form political parties, nongovernmental organizations to pursue their interests (Article 16.10) .
Human rights and freedoms which are provided in Chapter 2 of the Constitution of Mongolia are based on international human rights standards as Universal human rights declaration , International covenant on Civil and political rights. Mongolia is a party to more than thirty international human rights agreements and regularly reports on their implementations to international human rights organizations. Adoption of the new constitution was aimed to ensure human rights not only by written documents but to create effective mechanism for protection of human rights.
Mongolian Parliament has only one chamber and is the highest organ of state power. People of Mongolia through universal elections elect the members of Parliament. The Parliament is legislative organ in Mongolia and sole organ, which adopts, enacts, and amends laws. President of Mongolia is also elected by direct universal election of People of Mongolia. President is the head of the State.
Only courts of Mongolia exercise Justice power . The main goal of justice power is ensuring and protection of rights, freedoms and legal interests of individuals and legal entities, resolving of disputes between members of society, control on legitimacy of decisions of state power and officials, applying of arbitrary legal measures for legal breaches and offences. As it has been provided in Constitution of Mongolia justice power is exercised through civil, criminal, administrative and other forms of court trials.
Mongolian court system consists of
o High Court of Mongolia
o Courts of aimaq and capital city
o Court of somons and district
o Special courts
The High court of Mongolia consists of 24 people and is highest appellate body and monitoring organ of the court system of Mongolia. High court of Mongolia plays significant role in ensuring law and its development. Court consists of civil law, administrative law and criminal law chambers. The functions of this court are to exercise the monitoring of court decisions and gives official interpretation on correct application of laws, except the Constitution of Mongolia. The decision of High court is final and is binding for all courts and persons.
Aimaq and capital city courts are appeal courts for decisions of somon and district court’s decision. Somon and district courts are first instance courts and hear civil and criminal law cases. The court power is exercised through the principle of collegiality. Judge can hear and resolve the cases alone only if it is provided by law. Judges are appointed by the President.
The new Constitution of Mongolia has formed grounds for establishing total new institution in Mongolia, the Constitutional court. The Constitutional court’s goal is to ensure the obedience of the Constitution and protection of human rights and freedoms in Mongolia.
In general concluding above-mentioned Mongolia has moved in 1990s from totalitarian regime into democratic regime, abolished class discrimination and guaranteed respect and protection of human rights, abolished of one party ruling, and transferred into state ruling of pluralism of parties. From economic aspects, discontinued the system which was allowing only public property and was prohibiting private ownership and transferred into system with all types of ownership, refused from state total economic planning, state monopoly in all spheres of economy and changed into competition market based on open market economy and limited state participation in economy and business. From social aspects, allowed other ideologies, guaranteed freedom of thoughts and religion. Mongolia also did not want any more to limit its foreign relations with one minded socialist countries and expanded its peaceful relations with all countries of the world . The Constitution of Mongolia is like with Constitutions of other democratic countries has provided establishment of Constitutional court to protect Constitution and monitor its enforcement . One of most important thing is by adoption of the democratic Constitution of Mongolia in 1992 Mongolia moved forward to rule of law, defined and limited powers of state organs by the Constitution and other related laws. Guaranteed the domination of Constitution over state activities and overt other Mongolian legislations. This period can be described as starting development of constitutionalism of Mongolia on all levels.
2. Current states and issues of constitutional adjudication in Mongolia
One of guarantees to protect Constitution is establishment of a Constitutional court, mostly described in legal literature as Constitutional guard.
The Constitutional court is the highest organ, which controls the enforcement of the Constitution and makes conclusion on violation of its provisions, hears and resolves disputes related to the violation of Constitution. The Constitutional court is the one of the new institution in Mongolia and its main function is also protection of human rights and freedoms. The Constitutional court was established first time in Mongolia in 1992. The Constitutional court’s status is defined by the Constitution and Law of Mongolia on Constitutional court (1992) . The Constitutional court is obeyed only to the Constitution. International standards and norms also have high power in Mongolia. As it said in article 10 of the Constitution, “Mongolia shall adhere to the universally recognized norms and principles of international law and pursue a peaceful foreign policy. Mongolia shall fulfill in good faith its obligations under international treaties to which it is a Party. The international treaties, to which Mongolia is a Party, shall become effective as domestic legislation upon the entry into force of the laws on their ratification or accession. Mongolia shall not abide by any international treaty or other instruments incompatible with its Constitution”. As it is can be seen from here, the Constitutional court shall obey international treaties only if it is compatible with its Constitution. This article arises many disputes between scholars and academics. Although most agree that Mongolia has to obey to universally recognized norms and standards.
Some politicians say that Constitutional court is not a court, in Mongolian language it is read as “Tsets”. But lawyers and many legal scholars stand that Tsets or Mongolian constitutional court is a court. The honorary lawyer of Mongolia G.Sovd said, “Constitutional court is court provided by law with right to resolve disputes on basis of applications and complains of falling under its jurisdiction. The Constitutional court cannot initiate resolvement of disputes otherwise it shall become a prosecuting organization” .
The Constitution court consists of 9 members, where 3 of them are appointed by proposal of Parliament, 3 by President, 3 by High court for duration of 6 years. Members of the Constitutional courts are citizens of Mongolia, possessing high legal and political qualifications and reached forty years.
The Constitutional court reviews the cases on violation of the Constitution by petitions and complaints of citizens, by the request of Parliament, President, Prime minister, High Court and General prosecutor.
Hearings of Constitutional court are exercised on basis of principles of court proceedings. The Constitutional court has made conclusions on around 100 cases since its establishment.
The Constitutional court makes conclusion on following issues:
• On Compliance of laws, orders, decisions of Parliament and President, decisions of Government and international treaties of Mongolia
• On compliance of decisions of central election organ on general referendum, on elections to Parliament, its members and President,
• On violation of the Constitution by the President, Head of Parliament, Prime minister, Members of Government, General judge of High court and General prosecutor,
• On grounds for removal of president, head of Parliament, Prime Minister and member of Parliaments from their posts.
As it’s provided in Article 2 of the Law on Constitutional court, the Court shall be governed by following principles:
• Obeying only to the Constitution of Mongolia;
• Independence of members;
• Equality of members;
• Transparency of activities.
Since its establishment Constitutional court of Mongolia has gained respect and trust among majority of citizens. Although even after more than 20 years of its establishment, there are several issues on role of this organization in Mongolia. I would like to point some issues, which are very important for efficiency of Constitutional court and its role for establishing constitutionalism.
The Constitutional court of Mongolia as it has been mentioned above makes conclusions on violation of the provisions of Constitution. It can review decisions, law and orders of President, Government, and Parliament and make conclusions on its constitutionality.
This model is very common in many countries. But in Mongolia we have specific regulation on relations between Parliament and Constitutional court. For instance the Constitutional court can make conclusions whether laws passed by Parliament are violating the norms of Constitution. In legislations of many countries, if the Constitutional court made decision on violation of decisions of Parliament, President, Government, international treaties, then related law, order and decision on ratification of agreement shall be invalid. According to Mongolian law we have also similar regulation. But as said in article 66.3 of the Constitution of Mongolia, if the Parliament does not agree with the decision of Constitutional court, then the Court shall review again the dispute and make its final decision. The sentence that if parliament does not agree with conclusions of Constitutional court raise many discussions on relations between them.
Article 20 of Mongolian Constitution says that state highest power shall be vested to Parliament or State Great khural. This article is interpreted in wrong way by many politicians. This article means that Mongolia has parliamentary system of governing. Although some members of Parliament think that Parliament is higher than Constitutional court by interpreting this article 20 of the Constitution. This wrongful interpretation causes sometimes conflicts between Constitutional court and Parliament. Some parliamentarians believe that Parliament can review the decisions of Constitutional court, but many examples and dispute hearings show without any doubt role of Constitutional court and that is guided only by rule of law. Many lawyers and researchers think that this article violates the independence of Constitutional court. As former Chairman of Constitutional court said the introducing conclusions of Constitutional Court is aimed not to make Parliament as appellate body of Constitutional court but gives opportunity to law makers to review its decisions and correct them . On the other hand it is believed by some that introducing to Parliament conclusions of Constitutional court is considered to protect the political or other influence on members of this Court. Parliament as representative organ has a right not to admit conclusions of Constitutional court basing only on legal norms and principles; it gives opportunity to re-check the conclusions of Tsets. As professor and member of Constitutional court Ts.Sarantuya said, such regulation would not be found in many legislations of other countries, but the lawyers in Mongolia say that they give opportunities for the Parliament to check its flaws /defects/ or it would be appropriate to respect the legislative organ and listen to its comments .
Several practices on relations between Mongolian parliament and Constitutional court, when Parliament did admit conclusions of Court has lead to understanding that Constitutional court is not organ to make final decisions on violation of Constitution. For example when Constitutional court has made a final decision on the basis of evidencing documents that the official breached the Constitution and there is a ground for his resignation, the Parliament considered that it is possible not to charge responsibility and remove him. This Example shows that when it considers right Parliament shall not be obeyed to decision of Court .
The other is issue who has right to interpret the Constitution of Mongolia. As it was mentioned above there is no official organ, which shall eligible to interpret the Constitution. The Parliament of Mongolia gave interpretation to the Constitution in 1993 and 2000 in a very general view. Many criticized this, that Constitution must be interpreted by legal organization, with people with legal knowledge. There is increasing need for interpretation of the Constitution for resolving many issues in society. Because of the lack of official document whose interpretation shall be final, many issues still are open.
Second one is requirement to members of Constitutional court. As it is specified in article 4.1 of the Law of Mongolia on Constitutional court, members must be citizens of Mongolian with high knowledge of jurisprudence and politics, with no criminal records and achieved forty years old. Because of this requirement, any person with any profession if knows law and politics can be elected as member of Court. In Mongolia, some members of Constitutional court politicians and former parliamentarians, but this is also criticized by many, because members of the Court should be people with legal backgrounds able to resolve issues related with legal matters.
Third is the requirement to achieve forty years to be elected for member of Constitutional court. But it is due to mention that there is no upper requirement. This issue was raised several times by Parliament. If you compare with other states, as Hungary, Austria the member of the Constitutional court must be less those seventy years old.
The other issue was that Constitutional court’s conclusion is not reviewed in time by Parliament. If to look at the statistics from 70 conclusions submitted to Parliament 20 were reviewed in time. Failure to review constitutional disputes in time results to continuing violation basic principles of Constitution and diminishes its role. Although the amendment made to
These are only few issues that I have pointed out here to be resolved to improve the efficiency of this Court and discussed in Parliament. There are many questions that are needed to be clarified also, as the dominance of international treaties, the use of international treaties in Constitutional court practice, the appointment procedures of members.
Although from its establishment the Constitutional court has played significant role for protection of Constitution in Mongolia, on compatibility of Mongolian laws and other legal acts to the Constitution. Only for 20 years of its existence almost 1000 complains were submitted to this court and it has admitted almost 100 complaints and made its conclusion.
This court has played important role for interpreting Constitutional norms. Although it is due to mention, that Constitutional court had very few practice on using international standards and norms in giving its conclusions. The increasing number of conclusions of Constitutional Court of Mongolia shows the growing trust of Mongolian citizens and organizations to important organ of Mongolia, which is obliged to stand for human rights in Mongolia. Only in 20 years of its experience the Constitutional court has proven its role for maintaining constitutionalism in Mongolia and protecting Constitution.
3. Constitutionalism and social integration
The importance of social integration for developing constitutionalism has been topic for many researchers. Social integration can be described as the state or process of inclusion of individual human into society. For this integration we need special regulation on co-existence and relations of social actors. The second is more depends on beliefs, views, education and approaches of that individual. Based on this two aspects individuals can integrate into society. The Constitution can play an important role for social integration and role of its actors inside that society. From one side Constitution along with international norms and standards as the highest legislative document can play important role for social environment, by dividing and balancing state powers, protection of human rights. On the other hand Constitution cannot be enforced without support from citizens and society. Also Constitution is not written paper that is easy and idealistic. For implementation and enforcement of its provisions we need social environment for its efficiency. Mongolia with its unique history had its own experience of constitutionalism and social integration.
Mongolia, which was ruled by 70 years of Communist regime, had to face totally new system. All members of society had to obey law not political ideology or decisions of specific political person. As you may heard Mongolia is single country into world, which was transferred from feudalism directly to communism. Thus in 1992, Mongolia had to learn about totally new system. In beginning of 1990s, Mongolia was a country with poor economy and left alone after a collapse of socialist system in many post socialist countries.
Constitution of Mongolia is a result of Mongolian people’s determined wish to establish democracy. Society plays more and more important role for providing constitutionalism. Civil society is one of strong mechanisms for watching and monitoring activities of government and politicians. As it is said in Preamble of Mongolian Constitution “the purpose of Mongolian people is to establish civil and democratic society”. Civil societies can also along with Constitutional court watch and remind the government and parliament about its mistakes and wrongful, illegal acts. In accordance with Article 16.10 of Constitution of Mongolia “citizens of Mongolia has right set up non governmental organizations based on their social and own interests”.
The non-governmental organizations are distinguished from profit oriented organizations. These organizations are non-profit and do not dependant on government and serve the interests of the society. Therefore the increase of the number of non-governmental organizations, definitely demonstrates the increasing role of citizens in political and social spheres. The active participation of citizens in political life unarguably shows the dvelopment of civil society. In modern society citizens can participate in state affair and express their opinion and views by joining non-governmental organizations.
Even though such social organizations existed in Mongolia, the status of non-governmental organizations after 1990 has changed, while their role and the activity have increased enormously. The adoption of the Law of Mongolia on non-governmental organizations in 1997 gave impetus to the intensive development of non-governmental organizations.
Today the non-governmental organizations in Mongolia can influence the state policy, monitor some of the government activities and call for accountabiltiy of the government. In short they try to play a role quite similar to that of non-governmental organizations in some western European countries.
The non-governmental organizations are active in many spheres of social life. They are required to register with the Ministry of Justice and Home affairs. Non-governmental organizations can be formed on wide range of interests.They can be formed with the purpose of influencing politics, monitoring state activity and conducting studies in various social areas. Many non-governmental organizations are formed for the protection of interests of specific group, for the well being of people, red cross associations, ngos of teachers, medicals and etc.
According to article 4.1 of the Law of Mongolia on Non-governmental organizations, other than state organizations /legislative, executive, justice authorities/ have the right to associate on voluntary basis by their social or other interests and create non-profit non-governmental organizations independent from the state. With reference to the above law, non-governmental organizations are divided into non-governmental organizations pursing social interests and non-governmental organizations pursuing interests of its membership. Interests.
The reform that touched almost all spheres of Mongolia and which started in the beginning of the 1990s did not leave untouched the civil society. The proclamation in the new Constitution of Mongolia that the fundamental principles for the country would be ensuring democracy, justice, freedom, equality, national unity and respect of law (Art.2.1) form the basis for building a democratic society in Mongolia. Also Article 3.1 states, “State power shall be vested in the people of Mongolia”. The people shall exercise it through their direct participation in state affairs as well as through the representative bodies of State power elected by them”. This shows that the people of Mongolia are entitled to exercise the rights to participate in political life, to the freedom of expression, speech, thought, peaceful assembly and to associate.
The adoption of the law of Mongolia on “Non-governmental organizations” in 1997 has become a landmark in developing civil society in Mongolia, as well as in maintaining non-governmental organizations independence, transparency and efficiency. The result of the dominance of one political party almost 70 years in the country was that there was a lack of interest of the population in political issues; they were required only to follow blindly all government decisions. Therefore it could be said that there was not a single non-governmental organization or any other associations of people, which was pursuing non-governmental interests. The adoption of the new law on non-governmental organizations not only proclaimed the rights, but also became the guarantee for practically enjoying the rights given by the Constitution.
The main principle of the law of Mongolia on non-governmental organizations is independence of non-governmental organizations from any political influence or other non-legal based influence as well as recognition of the rights of people to associate based on common interests. Although, there are some exceptions, where this right can be limited by law, grounds for such limitation may be to ensure public order, morality, health issues and security.
Even though small in number, some independent mass media organizations have started to serve as a bridge between citizen and decision makers, to monitor government and other organizations’ activities. Moreover they help maintain the practice of accountability of government before citizens, by informing the population of their activities. For example, several movements have been formed recently specifically to increase government accountability, to fight corruption, poverty and to follow-up on state obligations toward vulnerable members of society, such as children, the elderly and the disabled. Activities of some of these organizations are similar to those of many newly restored democracies.
In Mongolia today as we see from above mentioned, civil society and mass media plays significant role for promoting and establishing constitutionalism. Comparative young with its democratic history, Mongolia has done many steps forward ensuring rule of law and constitution in such a short time. Even though there are many mistakes and difficulties, I believe that Mongolia with its strong enthusiasm and will to build democracy can succeed in near future.