HISTORICAL OUTLINE OF DEVELOPMENT OF MONGOLIAN LEGAL SYSTEM
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.