Although the reform process occurred across various fields simultaneously, this article describes Mongolia’s judicial reforms by subject matter, for ease of understanding.  This approach paints a cogent picture of the overall path of Mongolia’s judicial reforms, but not necessarily a temporally accurate one.  

Judicial Independence:  Increasing the political, economic, organizational and decision-making independence of the judiciary is the first fundamental value of the parliament’s Strategic Plan for the Justice System of Mongolia.  Judicial independence is of course a necessary aspect of a procedurally minimalist rule of law.

In advance of the legal reform program, The Asia Foundation supported the Mongolia Group for Independence of Judges and Lawyers (MGIJL) seminar on judicial independence and ethics.[2]  As well, the JRP brought a consultant to Mongolia – Marie Milks, a retired Hawaii State Court Judge who has had prior experience in Mongolia –in September of 2005 to work on improving judicial independence. 

Mongolia has had some difficulties with judicial independence for two reasons.  First, during its socialist past, the executive controlled the judiciary, which the executive utilized as another way for the state to exercise control over the country.  Accordingly, judges occupied a lower status and decided cases and implemented decisions based on party lines and executive directives.  Secondly, the continuity of the Mongolian communist party and continued party affiliation negatively affect judicial independence.  The MPRP continues to be in power (although under a reformulated democratic basis) and many of the present judges on the bench were and continue as MPRP members.  Thus, there is a close interrelation between the past and the present, and the executive and legislative branches continue to influence the attitudes and decisions of some judges.  Indeed, the International Commission of Jurists relates a fairly recent incident where the independence of the approval of judges was compromised by executive interference:

Ganzorig Gombosuren – Retired Judge of the Supreme Court of Mongolia: Mr. Ganzorig Gombosuren served as a Judge of the Supreme Court of Mongolia for eight years and left the Court in 1998 to take a master in law degree in the United States. When he returned to Mongolia in March 2001 he was nominated by the Supreme Court to be appointed as a judge again. In spite of his prior service, he had to take a test that the Judicial Professional Committee has established as a first step in order to ensure the adequate qualification of candidates. He was unsuccessful on the test and was therefore not recommended by the General Council of Courts to the President for renewed appointment. The General Council of Courts rejected his request to reconsider this decision. Reportedly, the majority of the members of the General Council of Courts at first voted in his favour, but after the Minister of Justice, who was Chairman of this body, made comments to his disadvantage, the second round of voting confirmed the negative decision not to renew his nomination. . . . According to Ganzorig Gombosuren, the de facto reason behind his rejection is that he has been active in promoting the independence of the judiciary in Mongolia. In December 1993 he and his colleagues established the Mongolian Group for the Independence of Judges and Lawyers to support judicial independence and legal reform in Mongolia. He has also written a number of articles in newspapers and law journals, spoken on TV and on the radio, and in law schools and conferences.[3]

As this anecdote demonstrates, judicial independence is precarious in Mongolia, in part because of executive oversight of the judiciary.  The third main factor affecting judicial independence is the difficulty in changing legal psychology from communist times. 

While not directly characterized as “judicial independence” projects, much of the work that donors engage in ensures the vibrant growth of the judiciary and its independent capacity.  In this respect, a great deal of the capacity building has focused on the General Council of Courts (GCC), which controls the management of the judiciary, including the budget, selects judges and undertakes disciplinary proceedings of justice sector employees.  As mentioned above, the creation and implementation of a judicial council supports an independent judiciary and embodies it with the freedom and strength to challenge governmental actions that hinder the rule of law. 

The General Council of Courts, mandated by Article 49 of the Constitution of Mongolia to assure judicial independence, has twelve members: the Chief Justice, the General Prosecutor, the Minister of Justice and Home Affairs (MOJHA), a Secretary appointed by the President, two members appointed by the Supreme Court, two by the Parliament, two representing the Aimag and Capital City courts, and two representing the courts of first instance.[4] 

Although the majority of the membership comes from the judiciary, there is significant representation by the executive and legislative branches, thus possibly compromising the independence of this body and the judiciary branch.  There has not been any indication that the membership composition will change in the near future.  Indeed, as shown above, Ganzorig Gombosuren, a former Supreme Court Justice, argued that this executive oversight influenced the GCC and reduced its independent decision-making capacity, resulting in its decision not to renew his nomination.  Donors have had to implement reforms within the reality of this framework, and have thus focused on increasing transparency and accountability and improving public relations. 

Judicial Corruption:  Corruption in the judicial system is a root of corruption throughout society, as it reduces the ability of a judiciary to freely mete out justice.  Corruption displaces the natural process of decision-making, and makes access to justice insignificant.  In a 2005 Transparency International corruption survey, Mongolia scored a 3.0 out of 10 on the corruption scale, indicating Rampant Corruption.[5]  As well, Mongolian surveys and public opinion polls indicate that after Customs, participants ranked Judicial Institutions as the most corrupt institution.[6]  Judicial corruption greatly impacts the rule of law in that it operates as a disincentive for the public to take complaints to judicial institutions for resolution.  It impacts meaningful access to justice principles, and negatively affects the rule of law in that it prevents laws from being an actual guide, decreases the stability of the law and renders the law far from supreme. 

The new Law on the Courts changes the process of judicial discipline by including public participation.[7]  However, the implementation of this aspect has yet to be realized.  Robert La Mont has suggested a suite of solution to address judicial corruption, as a first step to dealing with society-wide corruption.[8] 

Transparency and disincentives are key tools to fight corruption.  La Mont indicates that the inquisitorial procedures of the Mongolian judiciary create a system where judges frequently meet ex parte with witnesses and parties.[9]  Thus, there is ample opportunity for the passing of bribes.  The new Judicial Code of Ethics, however, did not contain a prohibition on ex parte conversations, since an overwhelming majority of the judges objected. 

La Mont specifies that salary levels that allow judges to meet their needs would limit the possibility of bribe-taking.  However, he notes that donor activity may not have much affect, since the Mongolian government’s finances dictates judicial salary.[10] 

He also indicates that the cost of corruption has been nearly non-existent in Mongolia, since there has been little prosecution of judicial corruption, save for cases of drunkenness on the job.  Thus, dishonest judges and judicial employees have some incentives to act corruptly, but little in the way of disincentives. 

La Mont suggests that there are a number of additional steps that can be taken to limit judicial corruption:  require random assignment of cases;[11] require regular analysis of case reassignment; require public access terminals for all automated courts; require special rules of financial disclosure for judges, penalties in the Judicial Ethics Code, and random audits by the GCC Ethics Committee; prohibit ex parte conversations in the Judicial Ethics Code; train and provide equipment to the Judicial Disciplinary Committee; and train and provide equipment to the Prosecutor’s corruption investigation unit.[12]

The public perception of corruption also influences actual corruption regardless of whether those perceptions were mistaken.  The more the public perceives corrupt legal institutions, the more likely that the public will be induced to make corrupt overtures, rather than settle for legal mechanisms to resolve disputes.  To combat this ongoing danger, MFOS coordinates a public competition in conjunction with the Zorig Foundation.  Together, they seek to increase public awareness of corruption through the publication of anti-corruption essays and posters that are collected in a nationwide competition. 

The JRP released a report in August of 2005, which shows that public perception of the judiciary has improved significantly, and the JRP credits some of that increase to its work in the area.[13]  Indeed, the JRP has instituted many of La Mont’s suggestions, including equipping and training the new Judicial Disciplinary Committee, and equipping and training the new Special Investigative Unit of the Prosecutor General, empowered with investigating crimes in the judiciary.[14]

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