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

Gombosuren Ganzorig

V. CONCLUSION

In Mongolia there are very works written specifically on the relationship between the Constitutional and Supreme Courts. As a result, it is difficult to make any ultimate conclusions. However, I believe that we must continue to debate this issue in order to reach an appropriate solution.
Within scope of its jurisdiction provided in the Constitution, the Supreme Court has the capacity to interpret all laws except the Constitution. However, an abstract comment by the Supreme Court about the law, in turn, seems to allow the Supreme Court to indirectly interpret the Constitution itself, thus successfully avoiding a conflict with the Constitutional Court's specific jurisdiction.
The experiences of the Constitutional Courts in France and Germany and the United States Supreme Court clearly demonstrate that Constitutional Courts or similar organizations may strictly ensure that lower courts' rulings are in conformity with the national Constitution, without interfering with the independence of the judiciary and its exercise of exclusive judicial power. Mongolia values democracy and human rights and has adopted many international standards for human rights. Hence when the question of the Constitutional Court's authority to review a ruling of the Supreme Court arises, internationally recognized democratic practices and traditions must be taken into account and observed in addressing the problem.
The Mongolian Constitution declares respect for "the accomplishments of human civilization, and move[s] toward the supreme objective of building a humane, civil and democratic society." We must make sure that these fundamental purposes have been implemented by every governmental institution, including the Constitutional Court and Supreme Court. These two high courts currently appear inactive, which is not the best means of protecting human rights. A final ruling by the Supreme Court that is challenged by an individual citizen or another authorized body for violation of the Constitution must be reviewed by the Constitutional Court. As the Constitution provides, the Constitutional Court is the ultimate guarantor of the constitutional rights and freedoms that are provided in the Constitution, and no person or institution, including the Supreme Court, is above the supervision of the Constitutional Court.
The key issue here is that the institutions of the state and all of its citizens are equal before the law and courts. Most importantly, when the Supreme Court, even though it is a governmental institution, violates the Constitution, it will be held accountable, just as citizens and lower governmental institutions would be. Therefore, the Constitutional Court must exercise its sole power to review every constitutional dispute involving human rights issues and it must make the final ruling on whether the Supreme Court's decision is contrary to the Constitution.
Only through the immediate action and effective intervention by the Constitutional Court will the protections of the constitution be realized and guaranteed in the future. Only by establishing this concept clearly and publicly can the two courts can keep alive the Constitution and further Mongolia's participation in the global movement of human rights protection. In an interview published in 1996, the former President of the Constitutional Court, Mr. Sovd, espoused an idea which caused much controversy among law professors and practicing lawyers. He stated that "the Constitutional Court must be on the top of the judicial power." Indeed, this rings true more so today.

back