The office of the President of Mongolia, Public Relations & Communications Division
CONCEPTS OF DRAFT LAW ON COURT AND OTHER RELEVANT DRAFT LAWS OF MONGOLIA
1. Grounds and demands for drafting the laws
The Constitution of Mongolia contains many provisions in connection with the Judiciary including independence of court and impartiality of judge, allowance of citizens’ representative to participate in court hearings, and provisions on the status of judge, Supreme Court and General Council of Courts.
Legislations and policy documents on judiciary have been revised, amended and implemented for the last twenty years. However, there is persisting number of criticisms towards weak rule of law and justice, and loss of independence of courts and impartiality of judge, which shows public non-satisfaction in independence and activities of the Judiciary. It was also proven simultaneously by foreign and domestic studies held in several times. On the other hand, we have noticed willingness of judges, who are implementing the judicial power, to make reform during the process of drafting and discussion of the laws on judiciary. In other word, all parties want to strengthen judicial reform and the momentum for reform has arrived.
Therefore, it is pressing need to set up an objective to strengthen the judicial reform by taking achievements and shortcomings of last twenty years of judicial reform, interest of development, and further trends into consideration. In order to solve it, drafts of law on court /revised version/, law on court administration, law on legal status of judges, law on legal status of citizens’ representative in court, law on reconciliation and mediation will be formulated which are intending to enhance guarantees of independence of the Judiciary and improve working conditions in compliance with needs and demands of our country’s development and tendency in international development. On the other hand, the laws are aimed at advancing the qualifications and accountability of judicial staff, elevating level of outcome and transparency of court operation and setting up system to solve cases and disputes fairly.
In order to implement Article 49.3 of Constitution of Mongolia as stated “A General Council of Courts shall function for the purpose of ensuring the independence of the judiciary.”, the article 49.5 of the Constitution as stated “The structure and procedures of the General Council of Courts shall be defined by law” and the article 49.4 of the Constitution as stated “The General Council of Courts, without interfering in the activities of courts and judges, shall deal exclusively with the selection of judges from among lawyers, protection of their rights and other matters pertaining to the ensurance of conditions guaranteeing the independence of the judiciary”, the concept on increasing institutional capacity/organizational status, mandate to the level that is adequate to implement its key functions of provision of information, material and technical support, funding, human resource, and improving judicial management and organization was governed in the draft laws. Moreover in order to implement concretely, the article 52.2 of Constitution as stated “In passing a collective decision on cases and disputes, the courts of first instance shall allow representatives of citizens to participate in the proceedings in accordance with the procedures prescribed by law.”, the regulation for competence of citizens’ representatives, their participation mechanism and organization by independent law was governed.
The provisions 4.1.4, 4.1.5, and 4.1.13 of Action plan from 2008 till 2012 of the Government of Mongolia enacted by State Great Khural Resolution No 35 of 2009, the provisions 91, 94, 96, and 12 of “Basic Guidelines on Renovating of legislations until 2012” enacted by State Great Khural Resolution No 38 of 2009, the provisions 3.1-3.3 of Policy and action plan of the President of Mongolia enacted by President Decree No105 of 2009, and the provisions 7, 8, 15, 16, and 48 of the “National Programme on ensuring human rights” adopted by the Government Decree No 69 of 2009 were also governed.
It’s been essential to fulfill objectives on strengthening the judicial reform and its activities set forth in the “Legal Reform Program” adopted by State Great Khural Resolution No 12 of 1998 and Judicial Strategic Plan of Mongolia adopted by State Great Khural Resolution of 2000.
In drafting of the laws, it aimed to comply with global public tendency through international legal rules such as Basic Principles on the Independence of the Judiciary issued by the United Nations on the matters involving basic principles on independence of judiciary and judges, mechanisms and guarantee for ensuring them, making court closer to the public, simplifying the activities of court, and making it transparent and suitable for the public, and European charter on the statute for judges; legislations and practice on judiciary of foreign countries including USA, Germany, France, Japan and South Korea; and guidelines on judiciary system of countries of the world .
The practical grounds for drafting the laws are evaluation and monitoring report made to the “Judiciary Strategic plan of Mongolia” adopted by Resolution of State Great Khural in 2000; study conclusions made by government organization including Supreme Court, National Legal Center and by non government organization including Open Society Forum; recommendation and comments issued from National Legal Forum; and several meetings with judicial staff and law enforcements officers.
2. General structure and scope of the draft laws and relations to be regulated by the draft laws
The Draft law on Court has general structure including principles on implementing the judicial power; Courts of Mongolia, The Supreme Court of Mongolia, Appellate Court, Court of First Instance, guarantees for implementing the judicial power and it relations in connection with determination of legal grounds for judiciary system, organization, mandate, operation and guarantee for the judiciary power.
The Court Administration Draft law has general structure on competence and mandate of General Council of Court, structure and composition of General Council of Court, court administration organization, legal status of court employees, and miscellaneous. The purpose of the present draft law will be to regulate duties and functions of the General Council of Courts having the primary mandate to guarantee the independence of the judiciary, the impartiality of judges, and the day-to-day, operation of the judiciary, including its functions, organizational structure, operational principles of the court administration, and regulation of the legal status of court staff.
The Draft law on Legal status of Judge has general structure on general provision on legal status of judge, formation and termination of powers of judge, independence of judge, and guarantees for ensuring it, accountability of judges, and sanctions to be imposed. The purpose of the law is to regulate legal grounds for qualification of judges with judiciary mandate set forth in the Constitution of Mongolia, and ppower, grounds, procedures for termination, and guarantee for impartiality, sanctions for violators of the law. It will also regulate by defining legal basis on ensuring independence, immunity, competence, impartiality, and accountability of judges of courts of all instances and complying with rule of law and ethical conducts by the judges during course of their duties.
The Draft law on Legal Status of Representative of Citizens in court regulates relations regarding to determination of legal grounds on activities and selection of citizens’ representative participating in court proceedings, and implementation of them. According to the draft law, status and criteria of citizens’ representative are determined, opportunity to participate in court proceedings effectively and concretely by representative of citizen is formulated completely, and related regulations are included precisely. It also determines mandate of the General Council of Court in ensuring participation of citizens’ representative in court proceedings.
The Draft law on reconciliation and mediation relations on usage of reconciliation and mediation proceedings in disputes arising out of relations of civil code, specifically disputes in connection with commercial and other economic activities, moreover disputes arising out of labor and family law relations.
3. Social, economic, and legal consequences that may arise after adoption of the draft laws
The major outcome after adoption of the draft laws will be improvement of the public belief and attitude toward court and complete establishment of “fair and accountable judiciary” by renewing the current judiciary system of Mongolia within the concept of the Constitution and solving cases and disputes by the specialized judges or tribunal of judges. Furthermore by introducing circle principle in the judiciary system, there will be outcome to prevent court from improper influence by the administrative unit and balance workload of courts. Moreover, by introducing reconciliation and mediation proceedings, there will be positive outcome in terms of decreased workload along with new mechanism for dispute settlement at low cost.
By instituting courts specialized on certain subject matter including criminal, civil and administrative, the judges will become more specialized and quality of court decision will be improved, eventually contributing to right to a fair and public hearing by a fair and independent court.
Independent and effective judiciary is one of the guarantees of our country’s economic and social sustainable development and therefore the economic guarantees of the judiciary needs to be strengthened in principally advanced manner.
By enacting the draft laws, court administration will be stronger and courts will have own administration and management. Mandates of the General Council of Court will be further harmonized with the Constitution of Mongolia and the more detailed regulation will in place.
The legal grounds to protect court from any improper interference will be established by setting up higher level qualification and criteria on candidates for judge and regulating grounds for selection, nomination, appointment or removal of judges by making the procedures open to public. The immunity of judges will be legally determined and the ground for protecting security and protection of life, housing, office, transportation, communication equipments and property of judges from criminal attack and government adverse actions will be defined. Eventually judges will become fair and accountable and public trust and approach toward court will be changed.
By determining competence of citizens’ representative, public watch on court will be establshed, Constitutional concept will be realized, public perception on court activities in terms of independence, transparency and fairness will be improved and public trust and approach toward court will be raised. Moreover, there will be positive impact on developing legal consciousness of public.
4. Comments on Draft laws’ compliance with the Constitution and other laws, further laws to be enacted, amended, or annulled in relation with implementation of the laws
The draft laws are formulated in compliance with the concepts of the Constitution of Mongolia.
By adopting this draft law in line with draft law court administration, draft law on legal status of judges and other draft laws, the present law on court shall be annulled wholly. And also amendments accompanied to the other relevant draft laws should be formulated.
INITIATOR OF LAW