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2011-09-01




INTRODUCTION ON DRAFT LAW ON JUDICIARY AND OTHER RELEVANT DRAFT LAWS OF MONGOLIA


In last twenty years, huge numbers of legislations have been enacted and implemented in the legal sector of Mongolia. The operation of courts advances and its impact on development of the country increases as the court administration and infrastructure strengthens.

For example, the following specific policy documents have been enacted and implemented for the past period in order to strengthen the legal environment in the Judiciary sector.

Within the framework of Legal Reform Program of Mongolia adopted by the State Great Hural in 1998, the Law on Court of Mongolia was newly adopted in 2002 and the legal ground of current Judiciary activities was determined.

The adoption of the first policy document for the judicial reform, the “Judicial Strategic Plan of Mongolia”, by State Great Hural Resolution No 39 of 2000 was crucial in advancement in the implementation of the legal reform, especially, to the strengthening of the Judiciary.

However, number of important issues is still pending for the solution. Different international studies have shown that one of the determining factors to the fast development of the country and its efficient economy is fair, independent and effective courts. In other words, if the judiciary is weak and ineffective, the GDP per capita and investment decreases by 10 percent. Thus, judiciary as guarantee for human rights and freedom, democracy and socio-economic development of the country; its strengthened transparency and accountability, increased institutional effectiveness and improved performance has become essential demand of not only judicial sector itself, but society in general. And there is growing demand for advancement of the judiciary performance, amendments to the relevant legislation aiming at reducing the bureaucracy, ensuring the independence and impartiality.

In this regard, the “Program on Judicial Reform Strengthening” developed by the President of Mongolia was discussed and approved by the National Security Council on the 15th of April 2010.

Moreover, the National Legal Forum held on 14-15, April 2011 in Ulaanbaatar has collected valuable comments and recommendations on legal reform and changes to organization and structure of the judiciary provided by representatives of judiciary and law enforcement agencies, civil society, academia and citizens.

As a result, drafts of Law on Judiciary /Revised version/, Law on Judicial Administration, Law on Legal Status of Judges, Law on Legal Status of Citizens’ representatives, and Law on Reconciliation and Mediation were developed in order to reform judiciary by ensuring the independence and impartiality and establishing a system for fair dispute settlement and solution of cases.

Additionally draft Law on Legal Status of Lawyers is developed with purpose of regulating the definition of legal status of lawyers, licensing of lawyers, its legal consequences, professional ethical standards, accountability mechanisms and principles and structure of self-governing organization.

These draft laws will provide opportunity to implement right to fair and independent trial guaranteed by the Constitution of Mongolia by ensuring the independence, openness, and transparency of courts, managing the work balance of the courts, specialization of judges and ensuring the budget and administrative independence.

Draft laws are introduced in the following:

1. Draft Law on Judiciary

Unbalanced work load between courts in capital city and provinces creates economic disadvantage. Further, courts subject to influence by local administration due to its structure that courts are based in local administrative unit. In order to tackle these problems, it proposes to restructure the court system in accordance with circle principle by taking into consideration important factors such as territory, population density and number of cases and disputes.

Specialization and precise knowledge on the relevant subject matter of judges are essential in adjudicating any type of civil, criminal and administrative cases and it is crucial element of the right to fair trial. In this regard, the draft law proposes to institute specialized courts of appellate and first instances in civil, criminal, administrative and other areas.

The draft law consists of the following 8 chapters and total of 33 articles:
- General Provisions;
- Principles of Judiciary Performance;
- Court of Mongolia;
- The Supreme Court of Mongolia;
- Appellate Court;
- Court of First Instance;
- Guarantee of Judiciary; and
- Miscellaneous.

The draft law regulates relations in connection with determination of legal grounds for judiciary system, organization, mandate, operation and guarantee for the judiciary power.

2. Draft Law on Judicial Administration

Until today, general concept, competence and mandate of judicial management and administration that is in charge of day-to-day operation of the judiciary has remained unclear. Administrative mandate and functions of the General Council of Court and administrative offices of other courts are particularly vague. Court operations face various hindrances due to lack of proper attention on judicial administration.

This draft law consists of the following 6 chapters and 32 articles:
- General provisions;
- Powers and mandate of General Council of Court;
- Composition and Structure of General Council of Court;
- Court Administration Organization;
- Legal Status of Staff of Court Administration; and
- Miscellaneous.

The purpose of this draft law is 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 mechanism to prevent from any undue influence will be completed by ensuring the independence of court and judge without any interference from General Council of Courts and the Secretariat of court but only providing with favorable condition with funding and other administrative support.

3. Draft Law on Legal Status of Judges

Qualification and loyalty of judges are often subject to doubt and suspicion for corruption is in place due to non-satisfactory regulation of selection of judges, qualification criteria, ethical standards and disciplinary mechanism. On the other hand, several studies show that absence of mechanisms for protecting the independence of judges and preventing from influence leads to this negative perception. Therefore it is important to ensure the condition for specialized and qualified service by judges, establish thoroughly regulated selection criteria, qualification and procedure, and adopt the guarantees for impartiality of judges.

This draft law consists of the following 7 chapters and 40 articles totally:
- General provisions;
- General Provisions on Legal Status of Judge;
- Powers of Judge, Procedures for Granting and terminating poer
- Independence of Judge and its Guarantees
- Accountability of judges;
- Sanctions; and
- Miscellaneous.

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 power, grounds, procedures for termination, and guarantee for impartiality, sanctions for violators of the law.
It will also regulate the legal grounds for adhering the ethical norms of judges, respect for rule of law, ensuring competence, independence and accountability of all instances of courts of Mongolia.
4. Draft law on legal status of representatives of citizens in court

As stated in the article 52.2 of the Constitution of Mongolia, in passing a collective decision on cases and disputes, the courts of first instance shall allow citizens’ representatives to participate in the proceedings in accordance with the procedures prescribed by law. This guarantees that citizens’ representatives are the important participants of the judicial proceedings.
The competence of citizens’ representatives and other relations are regulated by the Law on Court, Criminal Procedure Code, Civil Procedure Code and Administrative Procedure Code.
Despite citizens’ representatives’ powers to participate in the court proceedings by evaluating evidences, asking question from defendant, witness, and victim, and giving written or oral statement, the important issues such as selection procedure, procedure for participation in court proceedings, compensation are not regulated in enough detail. Consequently, this Constitutional provision of participation of the citizens’ in trial process becomes formal and ineffective. The adoption of separate law with detailed regulation is essential in realizing the Constitutional provisions.

There are two models of citizen participation in the court proceeding: “jury” and “lay judge” existing in the international practice. Difference between them is for the jury, certain numbers of citizens determine fact of the case without any participation of judges, and but for the lay-judge model, lay judge will participate in fact finding as well as questions of law together with the professional judge.
The jury model is common in North America, Great Britain and its former colonies. The lay judge participation model exists in the European countries with continental legal systems such as Germany, Finland, Sweden, and Poland. Also post communist countries which made transition such as Ukraine, Georgia, Azerbaijan, Kazakhstan, Uzbekistan, Tajikistan, and Russian Federation included participation mechanism of representative of citizens into their court system.
Countries including South Korea and Japan recently launched jury system and People’s Republic of China is modified its citizen’s participation system.
One of the fundamental human rights is a right to have fair trial by legally instituted, independent and impartial court. The important principles of fair court is openness and transparency of court activities. Participation of citizens’ representatives is important factor in ensuring openness and transparency of courts. In implementing this principle, the counter balance with principle of independence of judiciary shall be taken into careful consideration.
In this regard, strengthening the institution of citizen’s representative shall serve as an important step towards ensuring the democracy and openness within the judiciary and implementing the judicial reform.
Relevant legislation and studies from Germany, France, USA and South Korea were studied in the drafting of this law.
This draft law regulates relations pertaining to strengthening the principle of democratic and open judicature, selection of citizens’ representative participating in judicial proceedings for the purpose of creating mechanism of ensuring public control in judicial proceedings, determining legal grounds of citizens’ representative’s activity and their implementation.
In this law, status and criteria of citizens’ representatives are defined and concrete procedures to allow them in court proceedings effectively is formulated thoroughly. It also determines function of the General Council of Court for ensuring participation of citizens’ representative in court proceedings.

This draft law consists of the following 7 chapters and 23 articles totally:
- General provisions;
- Competence of citizens’ representative and their qualifications;
- Selection of citizens’ representative;
- Participation of citizens’ representative in court proceedings;
- Working condition and renumeration of citizens’ representative; and
- Sanctions.

By determining competence of citizens’ representative precisely, public perception on court activities in terms of independence, transparency and fairness will be improved, and public trust in court will be increased. Moreover, there will be positive impact on developing legal consciousness of public.

5. Draft law on reconciliation and mediation

The growing population density and migration to urban city cause increased workloads of courts and accordingly the access to court service is getting more limited, and becoming burdensome, court inefficiency in both finance and time is increased. It cannot be solved only by adding quantity of court employees and human resources and advanced solution for eliminating the abovementioned problems shall be sought. Solution for this could be launching the reconciliation and mediation mechanism in court practice.
Forceful dispute resolution without finding agreement between disputing parties will lead to further complication or blurriness than ending the disputes. Thus, active participation by disputing parties in the dispute resolution proceedings is beneficial for all parties concerned.
The dispute resolution between parties by using mediation method has many benefits including decrease of workload of courts and state burden, simplified process for remedy of rights of victims and compensation of occurred damages.
According to the court statistics, 30-40 percent of more than 30 thousand civil cases decided by courts of first instances annually were decided under court adaptation/judicial adaptation. This shows mediation can meet the broad need in Mongolia.
Introduction of mediation method in Mongolia is a crucial element of the judicial reform. The establishment of a new dispute resolution mechanism solving the disputes prior to court proceedings amicably will positively affect to the quality of court activities by reducing the workload of court drastically. The benefits on introduction of mediation method were stated in the comments and advices issued from National legal forum held from 14 to 15 April 2011.
However, mediation activities in court are relatively new for judicial practice in other countries; it has being introduced broadly to the judicial practice of countries with different legal systems. According to the studies, by introducing the mediation activities, workload of the court was reduced by 70 percent in Japan. Laws on mediation of Japan, Australia, Russian Federation, Kazakhstan and Moldavia were studied in drafting of this law.

This draft law consists of the following 7 chapters and 32 articles totally:
- General provisions;
- Types of reconciliation and mediation;
- Participants in reconciliation and mediation;
- Reconciliation and mediation organizations;
- Reconciliation and mediation working procedures;
- Reconciliation and mediation on some type of disputes; and
- Miscellaneous.

This draft law regulates 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.
Principles governed in mediation proceedings shall be mutual negotiation of interests between parties; voluntary; equal right; ensuring immunity and independence of mediator; and confidentiality.
Mediation proceeding based on court is the part of the judiciary system and the General Council of Court will be responsible for its organization and reflecting the related mediation proceeding cost in the court budget.

The 19 comments out of 20 comments submitted by the Government of Mongolia on 14 February 2011 regarding to draft laws developed within the framework of strengthening the judicial reform in Mongolia were accepted and reflected in the draft laws in following manner:

1. Changed commonly used term of “the Judiciary organization” in the draft law, deleted provisions related to functions of the Constitutional court and Prosecutor’s office;
2. Deleted regulation on “practicing judge” which stated in the draft law as a form of reducing overload of court and improving professional qualification of judges;
3. By accepting the comments in connection with articles on competence of the Supreme Court and Courts, the provision on decision making of the certain cases and disputes prescribed by the law as a court of first or appellate instance; and provision on originating cases to impose criminal sanction to the convicted person by court were deleted;
4. By analyzing the comment to review legal status of “Amicable judge”, the articles on the “amicable judge” were deleted from the draft law and the Draft law on Mediation as an alternative dispute resolution was developed as a specialized law;
5. The comment to delete provisions on diplomatic privilege and immunity of Judges, property and income statement of Judges, and inclusion of the Judge’s assistant and court secretary to the classification of special public servant was accepted, and the relevant regulation included in current law on Court is remained the same;
6. Excluded Draft law on Judge’s association entirely;
7. Social and economical estimation which will be needed in connection with adoption of the draft laws is stated in the Concepts of the draft laws. /Economical estimation was attached/
8. Made relevant changes upon acceptance of the comments in regards with terminology, wording and grammar of the draft laws

The Draft laws were discussed in the Citizen’s Hall at the Office of the President of Mongolia 6 times; proposals of the Government, comments and conclusions issued from National legal forum, advices made by the leading professors and researchers from Mongolia and abroad, and ideas and thoughts of law enforcement agencies as well as civil society were reflected; and official meetings and deliberations with Members of State Great Khural were also held. In addition to receiving ideas and thoughts from citizens by posting the draft laws in the websites, related domestic and international resources were studied and experience of foreign countries were explored.

Also the comments and advices on reform and changes needed to be made and elaboration of legal environment and organization issued from the “Judiciary and Justice” National forum were stated in the Draft Law on Court and other relevant draft laws.

In regards with above mentioned draft laws, Amendment draft laws to the Criminal procedure code, Civil procedure code, Administrative procedure code, Law on Prosecutors, Law on Advocacy, Law on Arbitration, Law on Public Service, Law on Labor, Law on Family, Law on International treaties, and Law on Civil health insurance were formulated.

In terms of economic guarantee of judiciary the regulation on direct submission of the court budget by General Council of Court to the State Great Khural as stated in the draft law on Court /revised edition/. In connection with it, relevant amendments to the General Budget Law and Law on management and budgeting of state organizations are required. The discussion of draft law on state budget submitted by the Government to the State Great Khural of Mongolia is the process; those drafts have not been drafted yet. Therefore, we are requesting the same treatment for Judiciary as to the State Great Khural in order to ensure the budgetary independence of the Judiciary.

INITIATOR OF LAW