This article was published in
the Journal East European Law
Columbia University, New York
2000/ Vol. 7 Nos.3-4

Gombosuren Ganzorig

II. COMPARISON OF THE CONSTITUTIONAL COURT OF MONGOLIA AND THE CONSTITUTIONAL COUNCIL OF FRANCE

A. Establishment and Jurisdiction
Before examining the function of the Constitutional Court, I would like to make a brief comparison of the Mongolian Constitutional Court with the Conseil Constitutionnel (Constitutional Council) of France. The two institutions have many identical functions, despite their differences.
The constitutional courts are relatively new institutions in both countries. In Mongolia, the Constitutional Court was created by the Constitution of 1992, prior to which there was no judicial or government institution dealing with constitutional matters. The 1992 Constitution provides for review by the Constitutional Court of acts of the Ikh Khural (the parliament). Judicial review of the constitutionality of acts of Parliament is something of a novelty in France, since the concept was long rejected on the grounds of the absolute sovereignty of Parliament. The Constitutional Council was set up under Title VII of the Constitution of October 4, 1958, as the "expression of the will of the people" according to Article 6 of the Declaration of Human and Civic Rights of 1789.
Generally, a constitutional court exercises supreme supervision over the implementation of the constitution by passing judgments on the violation of its provisions by individuals and government entities and resolving constitutional disputes. The Constitutional Court serves as a guarantor of the strict observance of the Constitution. With similar authority, the Constitutional Council is also endowed with consultative powers, which is unusual for courts. The President of the Republic must consult with the Council in order to know whether any conditions exist for the "exercise of emergency powers" as well as about terms of other measures taken. Additionally, the Council has power to impeach the President.
B. Composition, Appointment and Removal
The 9 members of the Mongolian Constitutional Court are appointed by the National Parliament, for a term of six years, upon the nomination of three by the National Parliament, three by the President, and the remaining three by the Supreme Court. The Constitutional Council has the same number of members, but they are appointed by the President of the Republic and by the Presidents of each of the Parliamentary Assemblies for a non-renewable nine-year term. One-third of the members are replaced every three years. In addition, former Presidents of the Republic are de jure life members of the Constitutional Council. To date, only two Presidents of the Fourth Republic, Ren Coty and Vincent Auriol, have taken their seats. The Chairman of the Mongolian Constitutional Court is elected from among the 9 members for a term of three years by a majority vote of the members of Constitutional Court, and may be re-elected once. In contrast, the President of the French Republic appoints the President of the Constitutional Council from among the members he nominates.
If the Chairman or a member of the Mongolian Constitutional Court violates the law, he or she may be withdrawn by the National Parliament on the basis of the decision of the Constitutional Court and on the opinion of the institution which nominated him or her. On the other hand, "members of the Constitutional Council can freely relinquish their functions and can be compulsorily retired from office in the event of incompatibility or permanent physical incapacity as determined by the Constitutional Council." The institutional independence of both courts is therefore ensured by the fact that members can be removed from office only upon their own institution's determination.
The President, members of the National Parliament, the Prime Minister, members of the Government, and members of the Supreme Court may not be nominated to serve on the Constitutional Court of Mongolia. The same restrictions apply to the members of the Constitutional Council, where "the office is incompatible with that of member of the government, the parliament, the European Parliament, or the Economic and Social Council."
The Constitutional Court examines and settles constitutional disputes at the request of the National Parliament, the President, the Prime Minister, the Supreme Court, and the Prosecutor General, or "on its own initiative on the basis of petitions and information received from citizens." In France, in contrast, individuals who may refer constitutional disputes to the Council are limited to the President, the Prime Minister, the President of the National Assembly, the President of the Senate, or a group of sixty deputies or senators.
It is interesting to note that in Mongolia, bills passed by the Parliament become laws, at which point, if an interested person or institution challenges it, the law may be reviewed by the Constitutional Court. On the other hand, in France, bills being considered by the Houses of Parliament are submitted before enactment to the Constitutional Council, which then rules on their conformity with the Constitution. Thus, the principal procedural differences between the two courts are seen in their rules on standing and jurisdiction.
C. Landmark Cases
Initially, the French Constitutional Council's principal powers seemed to be to determine the respective areas covered by acts of Parliament and executive regulation and to monitor presidential and parliamentary elections and referendums under Articles 58, 59 and 60 of the Constitution. No one foresaw that France's Constitutional Council, like constitutional courts elsewhere in Europe or America, would come to occupy the prominent place it now has in the government and in the protection of fundamental freedoms.
One of the factors that greatly contributed to this prominence was a landmark ruling in 1971, in which the Constitutional Council settled a difference of opinion as to the legal status of the preamble to the 1958 Constitution, which makes reference to the preamble to the Constitution of the Fourth Republic of 1946 and to the Declaration of Human and Civic Rights of 1789. While some legal authorities and draftsmen of the Constitution had regarded the principles contained in these texts as mere affirmations without direct force of law, the Constitutional Council recognized their legal status in 1970 and on July 16, 1971, when it relied on the preamble to the 1946 Constitution to establish that the freedom of association had constitutional status -- a fundamental principle recognized by the laws of the Republic.
Thus, the Council was transformed into a judge of the consistency of the law with the totality of rules and principles of constitutional status. This is the typical development process of the constitutional courts in various countries. The Constitutional Court of Mongolia is no exception, as it continues to struggle to establish its authority. A recent ruling dealt with Article 29(1) of the Constitution, which provides that Members of the National Parliament receive remuneration from the State budget during their tenure and may not concurrently hold any posts and employment other than those assigned by law. After the 1996 election, during negotiations on the establishment of the government, the parliamentary majority, the Democratic Coalition, proposed to appoint some Members of Parliament as governmental ministers. Mr. R. Lamzav, one of the well-known leaders of the Social Democratic movement, challenged this action as contrary to the Constitution.
The Constitutional Court reviewed the dispute and ruled that the action was unconstitutional and that a Member of Parliament may not hold the position of Minister. This was without doubt a very important political decision. The Parliamentary majority was composed of brand new members of the young Democratic Coalition and were eager to become Ministers in the Government, but the opposition Mongolian People's Revolutionary Party (MPRP) members angered the majority by blocking this attempt.
The Constitutional Court upheld the MPRP's position in a decision that contributed greatly to the popularization of the Constitutional Court. Moreover, the ruling made the Parliament change the existing practice of Government formation, as Members of Parliament could no longer be appointed to the soft, comfortable position of Minister. Parliament in turn reacted strongly to this decision and on December 24, 1999, adopted the First Amendment to the Constitution. The Amendment was designed to realize the Parliamentarians' chance to be at the same time a Member of Parliament and a minister in the Government. Article 29(1) now states: "Members of the National Parliament receive remuneration from the State budget during their tenure. A member of Parliament may not hold concurrently any posts and employment other than those assigned by law, except the position of Prime Minister and a member of Government."
The President strongly opposed the First Amendment, which he then vetoed. According to the procedure established by the Constitution, the Parliament considered the President's veto and rejected it by a two-thirds vote. Surprisingly, that was not the final solution to the problem. A group of citizens, among them former Member of Parliament Mr. S. Narangerel, brought the dispute to the Constitutional Court. Article 68(1) of the Constitution states that the Constitutional Court may propose an amendment to the National Parliament. The petitioners claim that the Parliament has infringed on the Constitution, since the Parliament did not present an opportunity for the Constitutional Court to submit an Amendment. The issue is therefore still being considered by the Constitutional Court.
While the historical ruling of the Constitutional Court in the Lamzav case caused much controversy, it ultimately led to a Constitutional Amendment. The Constitutional Court is in theory the only institution in Mongolia, that is authorized to exercise judicial review over actions of the legislative and executive branches and to determine whether those actions in accordance with the Constitution. Since this power has not been exercised previously, there is a lack of experienced and well-educated constitutional law professionals in Mongolia; however, the Constitutional Court has demonstrated, though its actions in the Lamzav case that it can function properly. I believe that this indicates that the Constitutional Court is assuming its proper position in the in the Mongolian governmental hierarchy.

D. Submission of Petition to the Constitutional Court
There are two types of petitioners that can bring a dispute to the Constitutional Court. First and most importantly, all citizens of Mongolia are eligible to petition directly, skipping the ordinary courts and proceeding directly to the Constitutional Court if they believe that their constitutional rights have been violated. Thus, the Constitution puts in the hands of the Mongolian people a powerful instrument for the protection of their rights. Through this instrument, they have been able to successfully challenge a bill that has been adopted by Parliament.
On August 21, 1992, the Parliament passed Law No. 24 "Joining of some Provincial Cities", which allowed the merger of several small provinces in the northern and southern parts of Mongolia. However, people in these provinces were unhappy with the law, as a result of which Mr. I. Badarch and some other citizens petitioned the Constitutional Court, complaining that the law violated their constitutional rights, since the merger was not consistent with the will of local people. The Constitutional Court determined that because Parliament did not meet with local residents to assess public opinion before passing the Law, it had disregarded the autonomy of the local administration and people. The Court thus upheld the claim, stating that while passing this law, the Parliament had violated article 57(3) of the Constitution, which provides that revision of an administrative and territorial unit shall be considered and decided by the National Parliament on the basis of a proposal by a respective local parliament and local population. This was the first case decided by the Constitutional Court after its creation in 1992.
Rules governing the procedure of communication with the Constitutional Courts differ in various states. In France, only certain officials such as the President, the Prime Minister, the Speakers of the two Houses of Parliament, or a group of 60 senators are entitled to apply to the Constitutional Council, whereas in the United States, the Supreme Court may rule on constitutional matters raised by parties in the course of proceedings before lower federal or state courts.
In Mongolia, the Law on Constitutional Court Procedure determines who has standing before the Court. Article 16(2) says that foreign citizens and stateless persons residing lawfully in Mongolia shall enjoy the right to forward petitions and information. The Law also states that Mongolian citizens are "entitled to submit petitions"; the President and other high officials are "entitled to forward requests"; and foreign people "enjoy the right to forward petitions". Despite the different use of words, it seems that the very idea of the Constitution is that all people in Mongolia, without any discrimination, shall have equal rights to petition to the Constitutional Court.
According to Article 66(1) of the Constitution, there is also a limited number of governmental officials and governmental institutions such as the National Parliament, the President, the Prime Minister, the Supreme Court, and the Prosecutor General that are authorized to refer a dispute to the Constitutional Court. Upon request by one of these bodies, the Constitutional Court shall render an intermediate ruling on 1) the constitutionality of laws, decrees, and other decisions by the National Parliament and the President, as well as Government decisions and international treaties signed by Mongolia; and 2) the constitutionality of national referendums and decisions of the central election authority on the elections of the National Parliament and its members as well as on presidential elections.
The Constitutional Court then presents its opinion to the Parliament for consideration. Despite this procedure, the interference from the Parliament has only a symbolic meaning, since, if the Parliament does not agree with its opinion, the Constitutional Court will re-consider the matter again and make the final decision, in which it may uphold its previous intermediate ruling.
In addition, there is a second type of area that illustrates a combined or shared function. Article 66 (2) of the Constitution also authorizes the Constitutional Court to rule on whether the President, Chairman and members of the National Parliament, the Prime Minister, members of the Government, the Chief Justice and the Prosecutor General have breached the Constitution; and whether there are good grounds for the removal of the President, Chairman of the National Parliament, and the Prime Minister and for the recall of members of Parliament. Despite the fact that the Constitutional Court rules on these matters, it is not the final decision. After the finding of the Constitutional Court, the institution that is authorized to request the Constitutional Court's opinion makes the final decision about the removal of high governmental officials.

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