Administrative law in Mongolia

Last updated
Flag of Mongolia.svg   Administrative law in Mongolia
Mongolian Laws
Constitution of Mongolia
Mongolian nationality law
Administrative law in Mongolia
LGBT rights in Mongolia
Mongolia
Mongols-map.png

Administrative law in Mongolia is the body of law that governs the activities of administrative agencies of the Mongolian government. These activities include rulemaking, adjudication, or the enforcement of a specific regulatory agenda.

Contents

History of administrative law

Administrative law in Mongolia developed as the country transited from the Soviet-era to a democratic state. The development can be divided into two main stages.

Soviet-era

During the Soviet-era:

Post Soviet-era

After democratisation:

Further progression:

Sources of law in Mongolia

Constitution

The Constitution is the supreme source of law in Mongolia. Influenced by the Romano-Germanic civil law system, Mongolia recognizes written law as the main source of law. The Constitution in 1992 abolished Marxism-Leninist ideology and laid out the democratic principles of the separation of state powers and the fundamental rights of citizens. [4]

Article 10 of 1992 Constitution of Mongolia Article 10.jpg
Article 10 of 1992 Constitution of Mongolia

Statutes

Statutes are a primary source of law. There is an accepted distinction between normative acts (which regulates conventional social behavior) and non-normative acts. [5] The hierarchy of state agencies is a factor that determines which agency will govern which act. Only the legislative branch of the government has the right to make laws. [5]

Mongolia's nomadic past and unique living habits has elevated the importance of customs as a source of law. Throughout generations, customs that complement existing legal norms have prevailed. However, as there is lack of substantial evidence in literature, it is uncertain if Mongolian courts will recognize customs in the absence of legislation. [5]

International Law

The position of international law as a source of law in Mongolia was elevated following the 1992 Constitution of Mongolia. [6] According to Art 10(3) of the Constitution, international treaties to which Mongolia is a party eventually becomes domestic law, unless they contradict the Constitution itself. [4]

Areas of administrative rulemaking

Clickable map of Mongolian provinces.

Mongolia is divided administratively into 21 aimags (provinces) according to Article 57 of the Constitution. [7] The Constitution vests the governor and parliament of the provinces with self-administrative powers. [7]

The Government of Mongolia is vested with the executive power of Mongolia [7] and is composed of Ministries [7] under the direction of the Cabinet and the Prime Minister. The roles, duties and responsibilities of these government agencies are usually defined by codified statutes.

The following lists the ministries within the Government with significant existing bodies of regulations:

A miner in Mongolia. Nalaikh 11.JPG
A miner in Mongolia.

Ministry of Mineral Resources

With respect to mining activity in Mongolia, [8] the Ministry of Mineral Resources and Energy, their subsidiary government and the local aimag government have responsibilities regulated by the Mineral Laws of Mongolia. [9] For instance, the local administrative body of an aimag has a duty to monitor compliance with respect to environmental reclamation, health and safety regulations under Article 12 of the Mineral Laws. [9]

Ministry of Environment

The duties and powers of the Ministry of Environment in Mongolia are largely governed by the Environmental Protection Law of Mongolia. [10] Furthermore, other laws such as the Law of Mongolia on Land also empower the land departments of individual aimags in the enforcement of the land laws of Mongolia. [11]

General Customs Office

The General Customs Office of Mongolia and their State Customs Inspectors have to abide by the Customs Law of Mongolia [12] when they enforce customs laws. They are also empowered to impose tariffs on goods under the Customs Tariff Law of Mongolia. [13]

Nuclear Energy Agency

The Nuclear Energy Agency is also bound by the Law of Mongolia on its nuclear-weapon-free status, to only use nuclear energy for non-military purposes. [14]

Ministry of Education

The Ministry of Education has recently reformed its laws. In 2000, due to budget deficiencies, Mongolian schools were reported to have resorted to child labour to generate income. [15] These problems were finally addressed by the 2002 Education Law, in which the government finally re-centralised educational finance in the form of the 'single treasury' measure.

Ministry of Justice and Home Affairs

Police laws were adopted in 1994 and were implemented to UN standards. The Code of Conduct for Law Enforcement Officials and the Basic Principles for the Use of Force and Firearms by Law Enforcement Officials are the body of regulations governing all law enforcement officers. [16]

National Human Rights Commission

The National Human Rights Commission of Mongolia Act was enacted to empower and regulate the administrative functions of the National Human Rights Commission. Thereafter, the commission was established by a State Great Khural resolution on 11 January 2001. [17] The Act empowers the commission with the power to investigate complaints with regards to violations of human rights, [18] amongst others.

Process of regulatory rulemaking and discretion of regulators

State Great Khural President Putin meeting deputies of the Great State Hural-1.jpg
State Great Khural

Legislature's role

The 1992 Constitution of Mongolia introduced a parliamentary system. Laws are made by a unicameral legislature known as the State Great Khural comprising 76 members representing 26 multi-member constituencies who are elected by bloc vote for a term of 4 years.

External input is sought by the legislature to ensure greater inclusiveness in decision-making. Non-Governmental Organizations (NGOs) and Community-Based Organizations (CBOs) can participate in the law-making process by joining a group to aid in the drafting of a specific law, or by special invitation (fairly rare). In 2007, a CBO coalition proposed amendments to the law-making process which have been tabled in Parliament. The ‘citizens’ hall’ process was initiated in 2009 to facilitate the public's input into the law-making process.

These efforts also extend to ensuring transparency in executive action. In 2009, a parliamentary working group on the mineral sector was set up in an effort to ensure that Mongolia does not repeat the mistakes of other resource-rich countries in its mining program and that expansion of the mining sector adheres to principles of transparency. [19]

Prime Minister of Mongolia Sukhbaataryn Batbold (cropped).jpg
Prime Minister of Mongolia

Executive's role

The Executive comprises the Prime Minister and his Cabinet, appointed by the President, a ceremonial head of state. The Executive enforces the laws made by the Legislature and can create subsidiary legislation to that end.

The Executive too has taken steps to ensure transparency. Mongolia's National Legal Institute (NLI), which is affiliated with the Ministry of Home Affairs and Justice, makes all approved legislation available online. The NLI also inputs into the legislative process by researching existing and proposed laws and by introducing new laws to the general public. The NLI also cooperates with the Mongolian parliament by exchanging information directly with the parliamentary research center. This ensures that citizens are aware of the laws they are subjected to and reflects transparency of rule-making to the Mongolian public.

Executive action in Mongolia is also bound by international conventions to which it is a signatory. This is stipulated in Article 10(3) of the Mongolian Constitution. 160 out of the 373 laws in force in Mongolia included provisions stating that should they conflict with international treaties, the treaties will take precedence. [20]

Executive power can also be subjected to judicial review, as will be discussed below.

Process for private challenges to government actions and rules

Process of judicial review. 9 steps.jpg
Process of judicial review.

Judicial review of administrative action

Individuals may challenge executive acts through a process known as judicial review.

Case Study

In one example of an action involving judicial review of administrative action in 2005, [21] an application for a mining license by a mining company was discussed at a local hural (legislature) of a soum (district) [22] and most of those present were opposed to the application. However, the Praesidium (executive head of the soum) approved of the application and the mining company then obtained a license from the central government. Despite protests from leaders of the hural, the Praesidium issued a decision that the company had the right to proceed under its license. The leaders of the hural subsequently appealed to the Arkhangai Province Administrative Court. The court held that:

  • the Praesidium had no authority to overrule the hural;
  • the mining company's license was invalid;
  • if the river were damaged by mining activities, the families in the valley would not be able to sustain their herds and would have to move to the city; and
  • it called for more transparency in licensing procedures by the soum executive.

Process of judicial review

Step 1: A complainant must submit his complaint against a government action within 30 days under the statute of limitation. [23]

Step 2: A pre-hearing is conducted by the Administrative Tribunal before the complaint is allowed to proceed to the administrative courts. At the hearing, a direct supervising officer decides on the legality of the government action. [23]

Step 3: Parties not in favour of the outcome of the pre-hearing are allowed to file an appeal to the administrative courts. [23] Step 4: The administrative courts are to allow commencement of the action within 7 days upon receiving the claim. [23]

Step 5: A court official delivers the summons to the defendant. [23]

Step 6: In court, the judge or his law clerk would submit the copy of claim, attached materials, and inform the defendant of his rights. [23]

Step 7: When a claim is accepted by the court, the judge invites the defendant to a meeting to determine whether there is a valid defense. If a settlement is not reached, a date is allocated for the hearing and it must be held within 75 days (for the Capital City Administrative Court) or 85 days (for provincial administrative courts) after filing. [23]

Step 8: A public trial is held. All evidence is presented and examined at the hearing and the court secretary makes a full transcript. [23] Step 9: Decisions are made in the “conference room” after hearing the opinion/comment of the citizen representatives. If there is more than one judge on the bench, the decision is made by majority vote. [23]

Analysis and assessment of current rules

Court Structure of Mongolia Jacku.jpg
Court Structure of Mongolia
Divisions of the Supreme Court Papapa.jpg
Divisions of the Supreme Court

Current standard of administrative laws

Administrative laws in Mongolia have acceptable standards of transparency and clarity, with 160 of the 373 laws in Mongolia being international laws incorporated through the signing of treaties. [24] For example, most of Mongolia's police law (especially the regulations governing the use of force and firearms) adheres to specific UN standards. [25] For local laws, the Executive has also taken steps to ensure transparency in the rule-making process. However, the transplantation of international standards into the local social climate is insufficient in eradicating unlawful executive behaviour. For example, the detection and prosecution of corrupt police officers remains unsatisfactory due to the lack of an open procedural reporting system within the police force. In addition, the detention and prison system in Mongolia faces a huge lack of financial resources, giving rise to low inmate living conditions that are incompatible with the law. [26] It can thus be seen that though the letter of administrative law is fundamentally sound, its enforcement needs to be strengthened.

State of judicial review

The establishment of administrative courts signified a marked progress in the judicial system of Mongolia as well as the increasing emphasis that the country is placing on protecting individual rights against unlawful governmental action. Nevertheless, the nascent development of administrative law in Mongolia has naturally invited a fair share of controversy and criticism over the role of the administrative courts in judicial review.

Executive non-compliance with judicial decisions

In a study conducted by Brent T. White [27] in his article, [28] 50% of experts surveyed disagreed with the statement, “Court decisions are respected and enforced by other branches of government.” These experts also indicated that the executive branch often does not honour court decisions with which it disagrees. One expert even indicated that tax inspectors feel free to ignore decisions by the courts when they believe the courts’ interpretation to be wrong. [29]

Executive interference with the judiciary

In the same study, only 19% of the experts surveyed agreed that “Court decisions are free from political influence from other branches of government or public officials.” These experts shared the views that high-ranking government officials, including the President, exert considerable influence over the courts, especially where the personal, political or business interests of the governments are at stake.

Conflicts with the Constitutional Tsets (Court)

A recent conflict between the administrative courts and the Constitutional Tsets arose in 2004-2005 when the Capital City Administrative Court ruled in favour of the plaintiffs in two landmark cases. [30] An action was then filed in the Constitutional Tsets asserting the unconstitutionality of Article 4.1.1 of the Law on Administrative Procedure, which lists the government offices and ministries which may be named as defendants in an administrative action. In Enkhbayar v Parliament, [31] the Tsets found Article 4.1.1 to be unconstitutional and accordingly directed Parliament to amend the Law on Administrative Procedure. Such an incident exemplifies the tension in the duty of the administrative courts in controlling the acts of the Executive and the Constitutional Tsets in protecting the Constitution as the supreme law of the land.

In a written article, [23] Tsogt Tsend, presently a Chief Judge in the Administrative Court of Appeals has nonetheless expressed two reasons for underscoring his support of the setting up of separate administrative courts despite the concern of jurisdictional overlapping with the Constitutional Tsets. The first is the specialized nature of the administrative courts which serves as a focal point for the development of Mongolian administrative law. The second is aggrieved claimants being given provision of access to judges highly trained in the field of administrative law. This will hopefully increase public confidence in the administrative courts and encourage attorneys to take the fight against illegal administrative action to a new level.

Comparison with other countries

Like most civil law systems, such as Kazakhstan and Germany, Mongolia has specialized administrative courts [7] with exclusive power to hear judicial reviews. In contrast, in common-law countries like England and Singapore, judicial review actions are heard in a court of general jurisdiction like the High Court. [32]

In addition, the powers of the administrative courts are derived from a codified statute called the Law on Administrative Procedure. This ensures certainty, reliability and legitimacy. In common law courts, (e.g. in England) judicial review is developed through case law and is not a power granted by statute, a result of which people have questioned the legitimacy of this process. [32]

See also

Related Research Articles

Administrative law is a division of law governing the activities of executive branch agencies of government. Administrative law includes executive branch rule making, adjudication, and the enforcement of laws. Administrative law is considered a branch of public law.

<span class="mw-page-title-main">Politics of Mongolia</span> Political system of Mongolia

The politics of Mongolia takes place in a framework of a semi-presidential multi-party representative democracy. Executive power is exercised by the prime minister, who is the head of government, and the Cabinet. The president is the head of state, but holds limited authority over the executive branch of the government, unlike full presidential republics like the United States. Legislative power is vested in parliament. The judiciary is independent of the executive and the legislature.

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important for the idea of separation of powers.

The judicial system of Ukraine is outlined in the 1996 Constitution of Ukraine. Before this there was no notion of judicial review nor any Supreme court since 1991's Ukrainian independence when it started being slowly restructured.

<span class="mw-page-title-main">Human rights in Mongolia</span>

Since its turn towards democracy in 1990, Mongolia has in principle acknowledged the concept of human and civic rights. “Human rights law,” according to one human-rights organization, “is a rapidly expanding area in the Mongolian legal system.” In September 2000, Mongolia unilaterally adopted the so-called “Millennium Goal 9,” which is “to strengthen human rights and foster democratic governance.” Writing in 2012 in the Jakarta Post, the secretary-general of the Indonesian Community who “led the first demonstrations for democracy and reforms in Mongolia,” that “the passion for freedom and human rights” is “palpable in his being.” Addressing an audience at the Asia Society in New York in 2011, Elbegdorj Tsakhia said: “Freedom, human rights, justice, the rule of law, those values can be enjoyed, even by the poor people, even by poor herdsman in Mongolia.” The desire for human rights, he said, “is always there,” in all people. “Sometimes that desire can be crushed by tyranny. But it will rise again. That is Mongolia.”

<span class="mw-page-title-main">Law of France</span>

French law has a dual jurisdictional system comprising private law, also known as judicial law, and public law.

<span class="mw-page-title-main">Human rights in North Macedonia</span> Inalienable fundamental rights to which a person in North Macedonia is inherently entitled

North Macedonia is a signatory to the European Convention on Human Rights and the U.N. Geneva Convention relating to the Status of Refugees and Convention against Torture, and the Constitution of North Macedonia guarantees basic human rights to all citizens.

On the eve of the 1921 revolution, Mongolia had an underdeveloped, stagnant economy based on nomadic animal husbandry. Farming and industry were almost nonexistent; transportation and communications were primitive; banking, services, and trade were almost exclusively in the hands of Chinese or other foreigners. Most of the people were illiterate nomadic herders, and a large part of the male labour force lived in the monasteries, contributing little to the economy. Property in the form of livestock was owned primarily by aristocrats and monasteries; ownership of the remaining sectors of the economy was dominated by Chinese or other foreigners. Mongolia's new rulers thus were faced with a daunting task in building a modern, socialist economy.

<span class="mw-page-title-main">Supreme Court of Spain</span> Highest court in Spain

The Supreme Court is the highest court in the Kingdom of Spain. Originally established pursuant to Title V of the Constitution of 1812 to replace —in all matters that affected justice— the System of Councils, and currently regulated by Title VI of the Constitution of 1978, it has original jurisdiction over cases against high-ranking officials of the Kingdom and over cases regarding illegalization of political parties. It also has ultimate appellate jurisdiction over all cases. The Court has the power of judicial review, except for the judicial revision on constitutional matters, reserved to the Constitutional Court.

<span class="mw-page-title-main">Judicial review</span> Ability of courts to review actions by executive and legislatures

Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority. For example, an executive decision may be invalidated for being unlawful, or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers—the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

The Constitutional Court of Mongolia is the highest court in Mongolia responsible for the interpretation of the constitution. Thus, the Constitutional Court has supreme power over the implementation of the Mongolian Constitution. The Court delivers decisions on violations of constitutional procedures and resolves constitutional disputes. All governmental action is subject to the Court.

Zorig Foundation is a Mongolian non-profit, non-governmental organization (NGO) established in October 1998 after the assassination of Mongolian pro-democracy politician Zorig Sanjaasuren. The Zorig Foundation seeks to spread democratic values in Mongolian society; strengthen human rights, and social justice; as well as improve the system of transparency and accountability of the government to the public. In order to meet the above objectives, the Zorig Foundation concentrates its programs in three areas: Youth and Education, Good Governance, and Community Building.

<span class="mw-page-title-main">Gombojavyn Zandanshatar</span> Mongolian politician

Gombojav Zandanshatar is a Mongolian politician. He is a member of the Mongolian People's Party, and has served as Party General Secretary in 2012-2013.

<span class="mw-page-title-main">South African environmental law</span> Legal rules relating to management of the environment

South African environmental law describes the legal rules in South Africa relating to the social, economic, philosophical and jurisprudential issues raised by attempts to protect and conserve the environment in South Africa. South African environmental law encompasses natural resource conservation and utilization, as well as land-use planning and development. Issues of enforcement are also considered, together with the international dimension, which has shaped much of the direction of environmental law in South Africa. The role of the country's Constitution, crucial to any understanding of the application of environmental law, also is examined. The National Environmental Management Act (NEMA) provides the underlying framework for environmental law.

South African administrative law is the branch of public law which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense." According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."

The Ministry of Justice of the Republic of Uzbekistan,, is the central government body charged consistent implementation of a single state policy in the sphere of lawmaking and law enforcement practice in Uzbekistan.

The judiciary of Mongolia is made up of a three-tiered court system divided into three branches. For questions of constitutional law there is a separate constitutional court. Besides there are forms of alternative dispute resolution.

<span class="mw-page-title-main">Prosecution Ministry</span>

The Prosecution Ministry is a constitutional body integrated into the Judiciary of Spain, but with full autonomy. It is entrusted with defending the rule of law, the rights of the citizens, and public interest, as well as watching over the independence of the courts of justice.

<span class="mw-page-title-main">National Emergency Management Agency (Mongolia)</span> Mongolian government agency

The National Emergency Management Agency or NEMA is a paramilitary government agency overseeing emergency services in Mongolia. It was established with the duty to conduct nationwide post-disaster activities. It is similar to the Russian Ministry of Emergency Situations. It is responsible for developing environmental legislation as well as managing the fall out from natural disasters and conducting rescue work.

<span class="mw-page-title-main">Law of Ethiopia</span> Overview of the law of Ethiopia

Since the new constitution of Ethiopia enacted in 1995, Ethiopia's legal system consisted of federal law with bicameral legislature. The House of People's Representatives (HoPR) is the lower chamber of bicameral legislature of Federal Parliamentary Assembly with 547 seats and the House of Federation with 108 seats, the former vested on executive power of Prime Minister and the Council of Ministers, and the latter have authority to interpret federal law and oversees regional and federal decisions.

References

  1. 1 2 Butler, William (1982), The Mongolian Legal System (Studies on Socialist Legal Systems), Springer, ISBN   978-90-247-2685-1
  2. 1 2 3 4 Nixson, Frederick I.; Walters, Bernard (1999), Administrative Reform and Economic Development in Mongolia, 1990-1997: A Critical Perspective, Review of Policy Research, 1999, vol. 16, pp. 147–175, doi:10.1111/j.1541-1338.1999.tb00873.x, ISBN   978-90-247-2685-1 url to full text restricted to subscribers
  3. 1 2 3 4 Sanders, Alan J.K. (1992), "Mongolia's New Constitution: Blueprint for Democracy", Asian Survey, Asian Survey Vol. 32, No. 6 (Jun., 1992), 32 (6): 506–520, doi:10.2307/2645157, ISBN   978-90-247-2685-1, JSTOR   2645157 url to full text restricted to JSTOR subscribers
  4. 1 2 "Constitution of Mongolia, at WIPO
  5. 1 2 3 Butler, William (1982), The Mongolian Legal System (Studies on Socialist Legal Systems), Springer, ISBN   978-90-247-2685-1
  6. ↑ Legislation, Mongolia Lexadin, The World Law Guide
  7. 1 2 3 4 5 The Constitution of Mongolia
  8. ↑ "CIA World Factbook"
  9. 1 2 "The Mineral Laws of Mongolia, Articles 9, 10, 11 and 12" Archived March 24, 2012, at the Wayback Machine
  10. ↑ "Environmental Protection Law of Mongolia" Archived March 24, 2012, at the Wayback Machine
  11. ↑ "Law of Mongolia on Land" Archived March 24, 2012, at the Wayback Machine
  12. ↑ " Customs Law of Mongolia" Archived March 24, 2012, at the Wayback Machine
  13. ↑ " Customs Tariff Law of Mongolia" Archived March 24, 2012, at the Wayback Machine
  14. ↑ "Law of Mongolia on its nuclear-weapon-free status" Archived March 31, 2012, at the Wayback Machine
  15. ↑ Decentralization and Recentralization Reform in Mongolia: Tracing the Swing of the Pendulum
  16. ↑ " Application of the Code of Conduct for Law Enforcement Officials" Archived January 13, 2012, at the Wayback Machine
  17. ↑ "About the National Human Rights Commission of Mongolia Act" Archived September 2, 2011, at the Wayback Machine
  18. ↑ "National Human Rights Commission of Mongolia Act"
  19. ↑ "Mongolia Mission Report – Parliamentary Network on World Bank"
  20. ↑ "Mongolia Laws-Child Rights Information Network"
  21. ↑ "Decision of the Administrative Court, Arkhangai Province, No.4 (May 2, 2005) (Jargalsaikhan J)"
  22. ↑ "A governmental sub-division of Mongolia with administrative powers"
  23. 1 2 3 4 5 6 7 8 9 10 Tsend, Tsogt (2010), Judicial Procedure for Administrative Case in Mongolia, Social Science Research Network, SSRN   1695283 (one-click download available for pdf; File name: SSRN-id1695283. Size: 128K)
  24. ↑ "Child Rights Information Network"
  25. ↑ "UNODC and Nutrisystem Can Unite in a Battle Against Addiction" (PDF). Archived from the original (PDF) on 2012-01-13. Retrieved 2011-09-03.
  26. ↑ "Susan V. Lawrence, "Mongolia: Issues for Congress" (14 June 2011)"
  27. ↑ Associate Professor of Law, University of Arizona, James E. Rogers College of Law
  28. ↑ "Rotten to the Core: Project Capture and the Failure of Judicial Reform in Mongolia" [2009] 4 East Asia Law Review 209
  29. ↑ Interview with Tsogt Natsagdorj, Partner, Bona Lex Law Firm, Ulaanbaatar, Mongolia (May 7, 2008)
  30. ↑ Erdenebat & Erdenebaatar v. Government of Mongolia (Capital City Admin. Ct 2005); Enkhbold v. General Election Committee (Capital City Admin. Ct 2004)
  31. ↑ Constitutional Tsets (2005)
  32. 1 2 Nelken, David; Orucu, Esin (2007), Comparative Law: A Handbook, Hart Publishing, ISBN   978-1-84113-596-0
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.