“When we were kids, we still had trust in the state. We could run to the police station to get help. Today, people don’t report crimes; they remain silent even when questioned.”

-Head police officer of a remote district in Ulaanbaatar

This column gives an overview of one of the structural challenges surrounding the public’s trust in justice, namely the impartiality of judges.

Socialist Times

Before the reforms of the 1990s, courts were subordinate to the Ministry of Courts and the Communist Party. Judges were elected by local citizens’ assemblies for three-year terms. Legal education was not a requirement for appointment. Civil and criminal cases were distributed to judges by the heads of the local, regional and Supreme courts.

In this system, the primary role of judges was the defence of socialist ideology. Judges were obliged to follow the instructions given by state-attorneys, who represented the state in court proceedings, and by the local Communist party. Higher courts reserved the authority to withdraw a case from a lower court to itself. As a result, lower court judges used to seek “advice” from the higher court in order to back up their decisions.

Reforms of 1994 and 2002

Following the 1992 Constitution, which declared independence and impartiality of judges as constitutional principles, a judicial system that was separate from the executive branch was created. Since then, the law has required legal education and a state qualification exam for the lifetime appointment of judges.

But the judiciary remained under the excessive influence of political incumbents, namely the President of Mongolia and the Parliament with respect to annual courts’ budget. The President gained the authority to appoint and remove judges based on recommendations by the Judicial General Council (JGC), an independent body controlled by the judges themselves, with the Chief Justice of the Supreme Court acting as its head. The President’s power vis-à-vis the JGC was restricted to the appointment of only one of the fourteen JGC members. Furthermore, a new system to distribute cases amongst judges, based on a randomized and equal distribution of cases filed to the court, was introduced with the assistance of German experts.

The authority of higher courts to withdraw a case to itself, which was seen as an interference in the independence of lower court judges, was removed—only to be restored later, in 2011. According to Article 15.4 of the Law on Administrative Court Procedure, the Supreme Court could withdraw any cases from the lower instance administrative courts and decide by itself as the first instance court.

Reforms of 2013

New laws passed in 2013—the so-called “Judicial Reforms Package”—changed the previous system radically. For example, the President of Mongolia’s powers to appoint and remove judges were expanded: the JGC is no longer controlled by the judges themselves, and the number of members has been reduced from fourteen to five, all of whom are appointed by the President. Consequently, the JGC today more resembles the Ministry of Courts during socialist times (see Defacto Gazette No. 13). Ostensibly, the system of randomized and equal distribution of cases is maintained, but in practice modifications still occur.

Outcome

Although the reforms of 2013 were branded as a “decisive fight against corruption in the judiciary”, the results are difficult to see. Indeed, judges, lawyers, and law enforcement officers deserve their fair share of credit for the peaceful transition to democracy in the 1990s. But nowadays, as described by the remark of the police officer at the beginning of this column, they have to deal with a citizenry lacking in trust in the institutions they represent.

June 2018