Chronology, and main stages
Distinctive
character of development of Mongolian law is volatile, and sometimes failed to
keep interrelationship. There was the history that once an Empire of the World,
then decomposed and become dependent from foreign state, after that
strengthened national independence. Therefore, laws and its institutions in
some historical stages have lost its historical traditions. In contrast, in
some states of the world, there are no classifications such as law after
revolution, law after new constitution. However, Mongolians endured in its
history many times prosperity, disorder and decomposition. These are directly
affected to the development of law itself.
The
History of development of law in Mongolia can be divided into three main
stages.
First stage:
Period of formation of legal system of entire nation of Mongolians. Mongolian
ethnic state established, and traced from this Great Ikh Zasag law of the
Chinggis Khaan. Taking tradition of Ikh Zasag law, the Law of the Yuan Empire
became effective in the east part of the territory of Mongolian Empire.
Second stage: This period is the period of second integration of laws such
as laws of Mongol-Oirat, Khalkh Juram, Mongolian law paper, Statehood affairs
Ministry legal document of Outer Mongolia adopted by the Order, Mongolian legal
document adopted by the Order.
Third stage:
Period of formation and development of Modern legal system. Distinctive
character of this period is Mongolians attempted to establish national and
socialist legal system and after that aimed to establish legal system that
meets the transition to industrial capitalism. However in this period nature of
Continental legal system was basically being kept during the development of
socialism and capitalism.
Development of Modern
Mongolian legal Structure
Western
countries legal system was orientation to the Ruler at that time after the
revolution years of 1921. In the decree of the Government on the "Drafting
legislation" of 19 May 1922, "Even though our country has republican
government, the thing that constitution's provisions haven't been decided is an
inaccurate part to decide any matters. Thus from now on special commission
should be appointed and analyze right or wrong on the laws documents planned
during previous autonomous government but hadn't finalized. The special
commission should redraft laws of any judicial issues in accordance with the
policies of the current government considering European countries' laws because
om country adjudicates foreign people's disputes" From the content of the
decree, it can be noted the importance of considering not only sole country's
law but also many European countries' laws for drafting constitution and civil
code.
In
the interpretation of article 14 of the Constitution of the People's Republic
of Mongolia of 1924, the provision saying "to be at peace with any foreign
country considering situation" draws particular attention. At that time,
scholars noted that constitution of many countries were being translated and
studied. It based on the Constitution of Soviet Socialist Republic of Russia of
1918 drafted in a "capitalist legal methodology" It can be seen from
the provisions like "all the government bodies should be under law",
"Soviet Republic is legal state" of the Constitution. Drafting
process of Mongolian Constitution started from autumn of 1921.
However,
during the discussion of the Constitution, there were adopted several
Constitutional character Acts and being followed For instance, these are
"Pledge Agreement" (Agreement concluded between People's Government
and Bogd Khaan (King), "Charter on limitation of rights and power of
Governor lords and Lords without chair of Mongolia" (1922), "Charter
on Government representative" (1922), "Charter on local
administration of Mongolia" (1923), "Charter on administration of Ikh
shavi" Constitution of 1924 greatly influenced to the implementation of
constitutionalism in Mongolia.
This
Constitution had character of socialist form of constitution. Under the concept
of socialist law, law was based on the mean of proletarian dictatorship, to
stipulate order in a society, to have class character, unacceptance of private
property, and banishment of the state and law. This concept became a base to
the Constitution of People's Republic of Mongolia of 1924. For instance, there
were provisions like "Supreme power of the State shall be kept to the true
people", "not to establish private property", "liquidating
a title of king, nobleman, an order of saints as well as power to invade people's
property and intend socialism and communism", "to exclude right to
elect and be elected of people who live from exploitation or who hire somebody,
moneylender, ex Khan, saints and monks permanently lives in temples" in
this Constitution is the proof of previously mentioned.
This
Constitution was beginning of the latter Constitutions of the development stage
of People's Republic of Mongolia. Some scholars of our country concluded the
significance of this Constitution as a "document that has historical
significance declaring independent country to the world legally ensuring
completely new political structure, core principles of the law, national
democratic transformation, by abolishing monarchy for the first time in
Mongolian state history" Very important achievement of this Constitution
is issue of declaring and guaranteeing civil rights and freedom.
For
instance, according to this Constitution, freedom of religion, freedom of the
press, freedom of demonstration, freedom of celebration, freedom of
association, freedom of free education, freedom of equal rights without
discrimination on origin, religion, age and sex were being legalized. Thanks to
this Constitution, Mongolians who were universally illiterate become educated
and legal environment was taken place so that man and woman be equal.
After
the adoption of the Constitution of 1924, huge work of drafting and adopting
major laws began. From 1926-1929 Civil and Criminal Codes, in 1926 Court
Procedure Code were being adopted. Some scholars of our country wrote, "It
is clear that terms and techniques of Continental law family are in some part
being used reflecting concept, principles, structures of the family in those
codes".
It
can be mentioned many legal acts that has law status regulating multisided
social relationships such as "Charter on power of State lower assembly
representatives" (1925), "Charter on Presidium of the State lower
assembly" (1925), "Charter on establishing judicial bodies of
People's Republic of Mongolia" (1926), "Law on separation of state
and religious affairs" (1926), "Charter on Labor force" (1925),
"Temporary charter on Hunting" (1926), "Charter of Cooperatives
to improve economy".
Decision
to reform legislation in accordance with the socialist idea made the country to
copy "Soviet socialism model" under the direct pressure of Soviet
Comintern in the early of 1930's because legislation up to 30's followed
capitalistic character. Scholars calculated that according to this decision,
around 300 legal acts such as laws, charters, decrees of Government were "being
drafted reflecting non-capitalistic development agenda" during the
1932-1935.
Stalin
who was the strong follower of the ideology of Marxism-Leninism on Proletarian
dictatorship said that "Communist party shouldn't share power with any
other political party and only one political party should be leader in the
proletarian dictatorship system", seeing "state is the machine in the
hand of ruling class to repress the struggle of the class enemies" that is
saying class struggle will be critical. In the history of the socialist legal
science, a first conference on the soviet state and legal science took
important position.
Organizer
and head of this conference according to the order of Stalin was Director of
the State and Law Institute and Prosecutor General of the SSSR A. Ya Vishinski.
The main agenda of this conference, which had soviet-wide character, was to
justify theoretically a punitive practice of the dictatorship. Following
definition was given to the Soviet law in the conference document.
"Soviet
law is aimed to establish communism, abolishing remains of the capitalism
itself and its remains in the economy, conscience and psychology of the people,
as well as protecting, strengthening, developing useful and needed relations
and rules, ensured by the all the energy of the state force, in addition to sum
of behavior rules expressing will of workers enacted from the labor state"
On this theoretical soil, danger of universal political repression was being
covered over not only SSSR but also the People's Republic of Mongolia.
Legislation
of 1930's in the People’s Republic of Mongolia especially criminal laws put a
legal base of bloody assassination like middle ages ignoring principles of
legitimacy, altruism and justice. In the following way the characters of that
time criminal laws pushed to such situation. It violated principle of
legitimacy calling "people's enemy",
"counterrevolutionary", "saints", "monks",
"feudal" using grounds of criminal liability based on the
"dangerous behavior of person" even if person didn't committed crime.
For
the belief, and view of the person very harsh punishment were being imposed
Criminal liability was being imposed to other people (family members) who are
innocent violating principle to impose criminal liability only to the accused
who had committed crime. There were some provisions against principle of
altruism loosing opportunity to impose sentencing differently by the court by
stipulating absolute definite sanction in the Criminal Code. Court didn't have
power to decide but just copy in the court decision the punishment in the
provisions of the criminal code. According to the official statistics, 20474
persons had capital punishment, more than 5000 persons taken into prison for
the false political crime during the detentions, chastise of 1937-1937. It
shouldn't be forgotten the fact that lot of people's right to life, to be free,
to immunity couldn't be protected by this horrible repression.
The
Constitution of Republic of Mongolia of 1940 was the socialistic and class
character Constitution. This can be proven from "to develop non-
capitalistic way", "Mongolian People's Revolutionary party is the
main force for leading all the organs of the country", to liquidate right
to election of "person who gains profit from other people's labor,
moneylenders, ex saints, higher rank monks, Governor lords and lords without
chair, princes, noblemen who had subjects, influential shamans, participants
who actively involved with white army and counterrevolutionary activities"
According to this Constitution, civil rights and freedom expanded considerably.
After enactment of this Constitution, very organized work to make and
strengthened. However, there were no Constitutional mechanism and guarantee to
exercise and ensure these rights.
The
Constitution of Mongolia of 1992 is the result of the political situation
during 1980-1990 in country, desire of, process of the development and struggle
of the people. The following principles and concepts are being reflected in the
Constitution of Mongolia. Concept of aspiring toward developing a civil,
democratic society is being clearly reflected. 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 being accepted as a 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 fight against violation
of human rights and freedoms and to restore infringed rights."
Sovereignty
of and source of the Government of Mongolia shall be people of Mongolia.
"State power shall be vested in the people of Mongolia" All the forms
of the state and private ownership are being 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." State power
shall be exercised based on the allocation of the legislative, executive and
judiciary power. Ideology, pluralism, multiparty system is recognized and any
particular ideology shouldn't be declared as a state or mandatory ideology.
Universally recognized international law principles and norms, international
treaties of Mongolia shall be 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."
Principle
of respect of law became the supreme principle of the activities of the
State." But this doesn't mean "legal despotism", but it means
following and respecting laws universally, abide by new legal awareness and
legally protect legalized interest of the person" Court shall be subject
only to law and it defined principles to be independent. Establishing judicial
supervision system over the implementation of the Constitution and it found
special Constitutional court.
At
present, there adopted many laws toward regulating new social relationships
besides reforming all the old laws, trying to make and revise legislation in
conformity with Constitution in Mongolia Legal system of Mongolia is part of
the Roman-German legal family.
Therefore,
national legal system is divided into public and private law. Besides this
legal system of Mongolia is divided into branch of laws like other countries
that are part of the Roman-German legal system. For instance, Constitutional,
administrative, criminal, civil, international law etc. Some branch of laws for
example, civil and administrative law is divided into sub branch and
institutions of law. Modem world tendency directly influences to the formation
of the new branch, sub branch of law and process of the development of legal
system.
Legal
Transaction and Rule of Law
Mongolia is only 22 years into the process of building a
democracy and free market economy, but Mongolia’s democracy has for some time
been considered well developed for a young democratic country. Upon Mongolia’s
rejection of the prior political socialist system, it developed a system
respecting human rights, democratic values, the market economy and the rule of
law. Since that time Mongolia has followed the example of other civil law based
countries, and this has led to the complete reformation of the legislative
system and structure.
This reform did not take place all at once but rather has
been an ongoing and gradual process. Mongolia had made good progress in
developing the necessary business laws, regulations, and institutions, but
important areas of reform are not complete or even fully understood yet. In
1990, the Constitution was adopted; this new Constitution of Mongolia reflected
the principle that the courts should be independent and subject to the law.
The legal system of Mongolia is divided into branches of laws
similar to that of other countries that are part of the Romano-Germanic legal
system, such as constitutional, administrative, criminal, civil, and
international courts. To understand today’s situation concerning lawsuits in
Mongolia requires some introduction to the previous legislative system. The
court system was tightly controlled by the state before 1990.
In practice, judges were responsible to the Mongolian’s
People’s Revolutionary Party (MPRP[ There was only one party in Mongolia between
the 1920’s and 1990.]) which often influenced judicial decisions. In 1990
Mongolia chose to become a civil law based country. In reality, the court
system remained controlled by the state. Since 2002, Mongolian courts system is
trying to be more independent and removed from political influence. Today,
judges are subject only to the Constitution. Judicial power is vested
exclusively in the courts while extra-judicial interference is strictly
prohibited. Mongolia is also making progress from their legislative
institutions since the end of the 1990’s as well; there are now independent
councils and committees whose job it is to evaluate the qualifications of
judges, to administer the judicial organizations, and to provide continuing
legal education for judges.
In an effort primarily intended to prevent Mongolia’s two
powerful neighbors from exercising influence on its politics, the framers of
the new 1992 constitution laid out a strong formal separation of power
mechanisms. However, amendments made in 2000 to the constitution allowed for
members of parliament to hold simultaneously posts in the cabinet. In the past,
critics have pointed out that such dual officeholders might compromise
horizontal accountability between legislative and executive branches of the
government. Cabinet posts are also used as political bargaining chips in
forming coalitions for a majority government, which further complicates the
separation of the legislative and executive branches.
Sincerely,
Unentugs Shagdar
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