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

Gombosuren Ganzorig

III. THE SUPREME COURT

A. Judicial Power
As discussed above, the Mongolian Constitution contains certain provisions designed to regulate the relationship between the two high courts, the Constitutional and Supreme Courts. Chapter Three, section four of the Constitution focuses on the judiciary, whereas Chapter Five contains provisions regarding the Constitutional Court. Article 47 provides that the judicial power is vested exclusively in courts and "exercise of judicial power by any other organization but courts is prohibited." However, the phrase "judicial power" should be interpreted more narrowly in the Mongolian context than it is elsewhere.
"Judicial power . . . is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision," according to Mr. Justice Miller, in writing about the U.S. Constitution. Black's Law Dictionary defines judicial power as "the authority exercised by that department of government which is charged with declaration of what law is and its construction." This is the essence of the judicial power vested in courts and judges, as distinguished from executive and legislative power.
Courts have general powers to decide and pronounce a judgment and carry it into effect between the persons and parties who bring a case before it for decision, as well as such specific powers as contempt powers, power to control admission and disbarment of attorneys, and power to adopt rules of court. This power involves the exercise of judgment and discretion in determination of questions of right in specific cases affecting interests of person or property, as distinguished from ministerial power involving no discretion. The Mongolian Supreme Court's power to declare "of what law is and its construction" is limited to the scope of ordinary laws and does not enable the Supreme Court to apply this authority to the Constitution. Additionally, a member of the Government (through the Ministry of Justice), has the "power to control admission and disbarment of attorneys" and the "power to adopt rules of court" has been vested in the Parliament.
These provisions in the Mongolian context make the Supreme Court weaker in comparison to the Parliament and other branches of government. As a result, the Supreme Court of Mongolia is not as powerful as its counterparts in Western countries.
B. The Supreme Court Jurisdiction
Article 50 of the Constitution, which defines the jurisdiction of the Supreme Court, states that it exercises the following powers:
1) according to relevant law, to try at first instance criminal cases and legal disputes under its jurisdiction;
2) to examine decisions of lower instance courts through appeal and supervision;
3) to make decisions on human rights and freedoms protection issues transferred to it by the Constitutional Court and the Prosecutor General;
4) to provide official interpretations for the correct application of all other laws except the Constitution; and
5) to make decision on all other matters assigned to it by law.
The wording of Article 50 seems to raise two important issues. First, it is possible to derive the significant and logical conclusion that a court in Mongolia has limited jurisdiction. It can hear only cases and disputes assigned to it by a law, while all other cases and disputes are not within the jurisdiction of an ordinary court. The very first constitutional case, I. Badarch v. Parliament, mentioned in section I (D), clearly illustrates this procedure. Mr. I. Badarch petitioned the Constitutional Court directly, without filing a complaint with an ordinary court. According to Article 50, even if I. Badarch had brought the petition to an ordinary court, it would have considered the issue out of its jurisdiction and directed the petition to the Constitutional Court. Currently, the Parliament has passed about 250 laws that in some way refer disputes to the judiciary in case of conflict. As a result, the courts have enough cases and disputes to keep their 360 judges extremely busy. Nevertheless, an appropriate Mongolian proverb says that "life is always richer than man's imagination." Whatever the rule is, there will always be areas that are not administered or covered by a law. Second, Article 50 excludes constitutional interpretation from the power of the Supreme Court, but fails to vest this power in either the Constitutional Court or the Parliament. Nor does it says who will exercise this extremely important power and how it will be exercised. Hence, it leaves a vacuum in power, causing extraordinary controversy.
C. The Supreme Court Interpretation of the Constitution
It is important to mention that while explaining certain definitions in the statutory laws, the Supreme Court is also establishing precedent on the interpretation of the Constitution, which would be considered indirect interpretation. For example, Article 33 states that the President enjoys certain prerogatives, including the right to propose candidates for the appointment to the post of Prime Minister, in consultation with the majority party or parties. Describing President's power in the Law on President, the legislature used the same word, "consultation," as in the Constitution. In 1995, President Ochirbat Punsalmaa requested the Supreme Court to give an official interpretation of the word "consultation" in the context of the Law on President.
In response, the Supreme Court rendered a short resolution explaining the word "consultation." An interpretation of legislation in Mongolia is quite different than in the US or common law countries, where the highest court determines, through the application of law at the court hearing, what the law is. Traditionally, the Supreme Court of Mongolia makes an abstract interpretation, describing the legal meaning of certain words or sentences in a particular law. The interpretation is in effect a guideline or advisory opinion on how to understand or apply a certain provision of law in future judicial proceedings or in general. The Supreme Court interpretation of "consultation" was considered satisfactory, since it did not cause any controversy among the lawmakers and presidential office members and the Constitutional Court did not complain that the Supreme Court was interfering with its exclusive function.
As I was sitting on the Supreme Court at the time, I naturally took part in the deliberations on this official interpretation. Although the issue as to whether the Supreme Court has the power to make interpretations of legal language contained in both the Constitution and statutory law caused enormous discussion at the Supreme Court hearing, we arrived at a compromise through which our explanation would apply only to the Law on the President and not to the Constitution. Therefore, we mentioned in our explanation only the provision of the Law on President, not the Constitutional provision on this matter. In addition, the interpretation was strictly limited by article 50 of the Constitution, which states that the Supreme Court interprets all laws except the Constitution. In my opinion, the rendering of this resolution was one of the first important steps that the Mongolian Supreme Court took towards establishing the leadership role that belongs to the judiciary in a democratic society.
It therefore must be acknowledged that, despite Article 50, the Supreme Court is able to interpret the Constitution while acting in its ordinary court capacity. In addition, there is one essential nuance in the interpretation of laws that makes the Supreme Court equal with the Constitutional Court. The Supreme Court, in exercising its constitutional power, shall interpret all laws, including the Law on the Constitutional Court. In contrast, the Constitutional Court has no power to interpret laws and it cannot interfere with this exclusive prerogative.

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