This article was published in
the Journal East European Law
Columbia University, New York
2000/ Vol. 7 Nos.3-4
Gombosuren Ganzorig
A. The Supreme Court Request to the Constitutional Court
The Constitution and relevant statutes have established special procedures to
regulate the interaction of the two high courts. Depending on the parties to
the action, the procedures may involve three different communications that would
result in the cooperation of two high courts. First, the Supreme Court could
refer a constitutional dispute to the Constitutional Court. Second, the Constitutional
Court also has the authority to send a request to the Supreme Court. Both requests
lead to the voluntary interaction of the courts. Third, an individual citizen
who brings a petition to the Constitutional Court, claiming that the Supreme
Court ruling violates his constitutional rights, could create an involuntary
interaction of the two courts.
There are several ways for a case that is before the Supreme Court to reach
the Constitutional Court, allowing the Supreme Court varying degrees of discretion.
In article 66(1) of the Constitution, the Supreme Court is listed as one of
the institutions that may refer a matter directly to the Constitutional Court.
In addition, according to article 66(2)(3), the Constitutional Court, in response
to a request by any of the institutions mentioned in section 1 or a petition
by a citizen, shall review any "breach of law" by the Chief Justice
of the Supreme Court. However, since most cases brought before the courts are
regulated by the Criminal or Civil Procedure Codes, decisions of the Chief Justice
of the Supreme Court are unlikely to reach to the Constitutional Court for review.
Therefore, this opportunity for interaction is almost impossible.
However, there is a second option: the Supreme Court itself may refer a dispute
to the Constitutional Court, in accordance with article 66(1). In my opinion,
this is the only means of effective interaction between the high courts. The
Law on Courts provides a detailed description of application of this Constitutional
provision in article 23, which states that if a court finds that the laws as
applied are not consistent with the Constitution, then the court shall suspend
the hearing on the case and shall submit it to the Supreme Court for discussion.
If the motion has grounds, the Supreme Court may transfer it to the Constitutional
Court. The Constitution, the Law on Courts, and the Law Examining and Resolving
Disputes at the Constitutional Court were adopted in 1992 and 1997 [?]. Despite
this regulatory legislation, the Supreme Court has yet to make a reference to
the Constitutional Court regarding the conformity of a law with the Constitution.
The procedure for referral to the Constitutional Court lacks effectiveness for
several reasons, even though it is clear that the laws that passed by the Parliament
are not always perfectly in accord with the Constitution.
1. Why are the courts reluctant to make request to the Constitutional Court?
Although a judge can raise the question of constitutionality from an early stage
of court proceedings-namely, at the trial and appellate level, as well as after
reaching the Supreme Court-there are certain reasons that prevent the Supreme
Court from sending a request to the Constitution Court.
The complexity of analysis regarding the inconsistency of laws with the Constitution,
however, seems to be the primary problem. A judge must make an initial ruling
explaining why he considers a particular law to be unconstitutional. This is
clearly very challenging for judges who have never dealt with a constitutional
matter. In order to overrule the decision of Parliament, one needs to be both
an experienced judge and a scholar. Moreover, the judge must be confident that
his reasoning will convince the Supreme Court justices and the members of the
Constitutional Court that the law in question is contrary to the Constitution.
If a majority of the seventeen Supreme Court justices vote in favor of a referral
motion, then the Supreme Court sends the request to the Constitutional Court.
The law does not specify that a judge must appear before the Constitutional
Court, it only says that the Court shall inform parties of date and place of
hearing, however, if parties did not appear before the Court, it can proceed
and rule on the case . In addition, the procedure is completely new, established
only by the Law on Courts , and is not contained in either the Criminal Procedure
Code or the Civil Procedure Code.
The court procedural codes, which date from the 1960s, although subsequently
amended, do not contain these new procedures. Because of this inconsistency,
a court must apply both the Law on Courts and Criminal Procedure Code in criminal
proceedings. For example, when the Supreme Court hears a criminal case on appeal,
its rule of procedure shall be the Criminal Procedure Code. On the other hand,
it will apply the Law on Courts for mandatory death sentence hearings.
Next, it is not quite clear what should be done with the underlying case or
dispute that is before the lower court while the constitutional question is
being addressed. It is likely that the court will suspend the proceedings for
indefinite time, because it is impossible to predict if the case will reach
the Constitutional Court and whether the Constitutional Court will choose to
consider it. On the other hand, judges naturally do not like to cause a significant
delay in proceedings or keep the defendant in jail for an indefinite period
of time, by requesting a referral to the Constitutional Court. Therefore, judges
prefer to hear a case without raising questions of constitutionality.
2. Does the Supreme Court have any discretionary power?
As provided by the Law on Courts, the Supreme Court is authorized to refer issues
to the Constitutional Court. In this scenario, the Supreme Court has discretion
over whether or not to initiate interaction with the Constitutional Court. Nevertheless,
the Constitutional Court may either accept or reject the request for consideration
at its own discretion. If the Constitutional Court believes that insufficient
grounds exist to raise a constitutional question, then it will simply return
the matter to the Supreme Court and the interaction between the two courts comes
to an end.
B. The Constitutional Court Request to the Supreme Court
In accordance with the Constitution, the Constitutional Court has authority
to transfer a dispute to the Supreme Court. But, in contrast to the rule established
by the Law on Courts, the Constitution provides for a one-way communication,
from the Constitutional Court to the Supreme Court. In this situation, the Supreme
Court is obliged to hear the referred issue and make a ruling, even if it considers
that the matter transferred is not within its jurisdiction.
C. A Supreme Court Final Ruling and Consequent Constitutional Vacuum
According to Article 50(3) of the Constitution, citizens as well as a number
of government bodies may petition the Constitutional Court. Nonetheless, this
paper will focus only on complaints brought by ordinary citizens to the Constitutional
Court.
The major issue facing the Constitutional and Supreme Courts is whether a Supreme
Court ruling is final. According to Article 50(2) of the Constitution:
the decision made by the Supreme Court is a final judicial decision and binding
upon all courts and other persons. If a decision made by the Supreme Court is
incompatible with law, the Supreme Court itself repeals it. If an interpretation
made by the Supreme Court is incompatible with a law, the latter has precedence.
Many legal professionals and research scholars have commented that under this
provision, the Supreme Court makes the final judicial decision and any other
government institution or individual would not have the authority to review
its last decision. However, the author does not agree that the Constitutional
Court's lack of review authority stems directly from Article 50. Both Mr. Sovd,
former Chairman of the Constitutional Court, and Mr. Dembereltseren, former
Chief Justice of the Supreme Court agree that the Supreme Court's ruling must
be the final decision. In other words, although the concept is not stated in
the Constitution, there is still a common understanding that the Constitutional
Court would not review the final ruling of the Supreme Court.
So far no citizen or governmental entity has challenged a Supreme Court ruling
before the Constitutional Court. A comment on the scope of specific jurisdiction
of Mongolian ordinary courts is necessary here. The Criminal and Civil Procedure
Codes have established procedures by which a party may make an appeal to the
Supreme Court to reconsider his/her case. The Supreme Court is therefore obliged
to review every criminal case or civil dispute in which such an appeal is made
and make a final ruling. In turn, this ruling nullifies any Constitutional Court
review, since it is considered that the Constitutional Court has no power to
review the Supreme Court's final decision.
This analysis is based on the views of the above mentioned distinguished lawyers
and the fact that many statutes such as the Criminal and Civil Procedures, the
Penal Code, and the Administrative Procedure Code contain direct and exact quotations
from the Constitution. Therefore, my conclusion is that the Constitutional Court
does not have the power to review the Supreme Court final ruling, which creates
a serious gap in the interaction between the Supreme Court and the Constitutional
Court. This vacuum thus creates a situation that can lead to serious human rights
violations, which can be seen very clearly from the following hypothetical example.
While applying and interpreting legislation, the Supreme Court also indirectly
applies the Constitution. Article 16(14) of the Constitution states that citizens
have the right to defense and to receive legal assistance and it is prohibited
to compel defendants to testify against themselves. Articles 44 and 50 of the
Criminal Procedure Code have similar provision on these issues. If a defendant
raises questions about inadequate legal aid and violation of the Criminal Procedure
Code, the Supreme Court will consider the issue and at the same time rule on
whether there was violation of the constitutional right to defense. Of course,
the Court would be careful enough to rule in accordance with the provision of
the Criminal Procedure Code and refrain from application of the Constitution.
Because the Supreme Court's decision is final, the Constitutional Court would
reject a petition from this defendant on the same issue. Thus, this defendant's
complaint about the violation of his constitutional right to legal aid will
not reach the Constitutional Court, and as a result, his right to submit a petition
to the Constitutional Court will be seriously violated.
D. International Experiences of Different Constitutional Courts
The experiences of other Constitutional Courts may be helpful in analyzing the
unusual consequences of a final ruling by the Mongolian Supreme Court. In Germany,
for example, in 1993 the Federal Constitutional Court extended the jurisdiction
of its Second Panel to include the review of specific laws and constitutional
complaints involving, among other matters, asylum and nationality law, military
and civil alternative service, some aspects of criminal law and criminal procedure,
and "the execution of remand in custody and imprisonment and of custodial
measures . . ., as well as the ordering and execution of other forms of deprivation
of liberty.
The Constitutional Council of France in 1973 established the principle of equality
before the law as contained in the 1789 Declaration. Moreover, between 1979
and 1995, in series of decisions concerning vehicle searches, voluntary termination
of pregnancy, and strikes in radio and television services, the Council guaranteed
individual freedom, the right to strike, and respect and freedom of conscience,
thus protecting those rights from infringement by the lower courts.
Unlike Mongolia or France, in common law countries such as the United States
the Supreme Court or highest court handles constitutional issues. Article 3
of the Constitution states that the judicial power in the United States is vested
in one Supreme Court, and the Supreme Court has original and appellate jurisdiction.
A constitutional question raised by a party in a dispute before lower federal
or state courts may reach the Supreme Court, if it chooses to grant certiorari,
meaning it decides to review the issue in question. In the more than two hundred
years of its history, the U.S. Supreme Court has established an enormous amount
of outstanding precedents that serve as a rule of procedure for lower courts.
One of the landmark US Supreme Court cases that is related to the problem discussed
here is Miranda v. Arizona, in which the Supreme Court held that a confession
is not admissible at trial if it has been taken from an individual in custody
in violation of the Fifth Amendment guarantee that "no person shall . .
. be compelled in any criminal case to be a witness against himself . . . ."
This remarkable precedent creating the Miranda Rule has remained in effect for
some 37 years.
Before the case reached the U.S. Supreme Court, the Arizona Supreme Court had
held that the defendant Ernesto Miranda's constitutional rights had not been
violated when police obtained a signed statement containing a written "waiver
clause." The US Supreme Court reversed the decision of the state Supreme
Court, holding that the statement was inadmissible because "it is clear
that Miranda was not in any way apprised of his right to consult with an attorney
and to have one present during the interrogation, nor was his right not to be
compelled to incriminate himself effectively protected in any other manner."
This landmark ruling made history in the US criminal procedure and it is an
excellent example of how the Supreme Court, which is empowered to rule on constitutional
matters, may successfully intervene in an ordinary criminal case when a lower
court's ruling contradicts the Constitution.
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