Kara Sears
The Mongolian legal system has a long and complex history, with roots in the Mongol Empire and the rule of Chinggis Khan. While the country's legal tradition has evolved over time, it is primarily a civil law system, influenced by Soviet and Romano-Germanic legal traditions. This system is based on written codes and legislation, with the Constitution as the supreme source of law. Interestingly, Mongolia has also adopted certain principles of common law, such as the notion of that which is not prohibited is permitted, allowing for creativity and flexibility in commercial transactions. This blend of civil and common law elements contributes to the unique nature of Mongolia's legal framework.
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What You'll Learn
The influence of Genghis Khan's Yassa decrees
The Mongolian legal system has its roots in the Mongol Empire Period, particularly during the reign of Genghis Khan, who is credited with creating a code of laws known as the Yassa. This collection of decrees, established sometime between 1206 and 1218, was a combination of Genghis Khan's will and the general principles of law already held by the tribes under his command. While no original scroll or codex of Yassa has been discovered, scholars have reconstructed its contents from numerous sources, including the Secret History and the Tarikh-i Jahangushay of Juvyani.
The Yassa was designed to serve three main purposes: to ensure obedience to Genghis Khan, to unite the nomadic clans, and to impose harsh punishment for wrongdoing. Notably, it focused on people rather than property, and guilt required a confession or being caught in the act. The decrees encompassed various aspects of life, such as the distribution of spoils and property, judicial matters, taxation, and the organisation of the army. The Yassa also reflected Mongol cultural norms, such as the ban on cattle raiding.
One notable aspect of the Yassa's influence is its contribution to the development of administrative law in Mongolia. The establishment of administrative courts signified progress in the country's judicial system and emphasised the protection of individual rights against unlawful government actions. While controversy exists regarding the role of administrative courts in judicial review, these courts contribute to the evolution of administrative law in Mongolia.
Additionally, the Yassa's emphasis on unity and the codification of laws has had a lasting impact on Mongolia's legal tradition. The country's current legal system aims to adapt to social and political changes while preserving its rich legal heritage. The influence of Genghis Khan's Yassa decrees, therefore, continues to shape the legal consciousness of Mongolia, blending historical traditions with modern developments.
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Mongolia's hybrid civil law-common law system
Mongolia has a hybrid civil law-common law system. The country's legal system has its roots in the Mongol Empire Period, with the influence of Chinggis Khan's Ikh Zasag Law, or Yassa, still felt in the form of customs and mores. During the Socialist Period from 1924 to 1992, Mongolia adopted a socialist constitution that established a civil law tradition and enshrined communism as the guiding ideology. The current Constitution, adopted in 1992, abolished the previous socialist system and established a democratic society.
The main sources of law in Mongolia are the Constitution, international treaties, parliamentary laws, other types of legislative acts, and interpretations (resolutions) of the Supreme Court. The Constitution is the supreme source of law and lays out the leading principles of the state, its organisation, and the basic rights of individuals. It proclaims that the sole source of state power is the people of Mongolia, who exercise this power through their direct participation in state affairs and through elected representative bodies.
The Civil Code in Mongolia sets out the principle that commercial acts are lawful as long as they do not conflict with existing laws. This is similar to the common law notion of "that which is not prohibited is permitted," allowing for creativity and liberality in structuring commercial transactions. Mongolia's Civil Code also allows for the freedom to rely on non-Mongolian law and dispute resolution, with parties to a contract able to select the law of a foreign jurisdiction to govern the interpretation of its terms.
Administrative laws in Mongolia have acceptable standards of transparency and clarity, with 160 of the country's 373 laws being international laws incorporated through signed treaties. The country's transition from a Soviet-era to a democratic state has resulted in the development of administrative law, which governs the activities of administrative agencies, including rulemaking, adjudication, and the enforcement of regulatory agendas. External input is sought by the legislature to ensure inclusiveness in decision-making, with Non-Governmental Organizations (NGOs) and Community-Based Organizations (CBOs) able to participate in the law-making process.
While Mongolia's legal system has elements of both civil law and common law, it also faces challenges. There have been criticisms of a lack of transparency and inconsistent enforcement of laws, particularly in the areas of investment and competition. The country's Investment Law, for example, has been criticised by foreign investors for not delivering the promised national treatment, with restrictions on foreign ownership of real estate and unilateral regulatory requirements for minimum investment amounts.
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The role of NGOs and CBOs in law-making
The Mongolian legal system has a rich history, dating back to the Mongol Empire Period and the establishment of Chinggis Khan's Ikh Zasag Law, also known as Yassa. Over the centuries, Mongolia's legal system has been influenced by various traditions, including socialist and democratic ideologies. Today, Mongolia adheres to a civil law system, influenced by Soviet and Romano-Germanic legal traditions, with its Constitution serving as the supreme source of law.
When it comes to the role of NGOs and CBOs in law-making, these organizations play a crucial part in promoting positive societal change and addressing various issues. NGOs, or non-governmental organizations, are independent entities that operate partially outside of government control. They often tackle broader, global challenges and have diverse funding sources, including donations, government grants, corporate donations, and international aid. NGOs have the advantage of a wider reach and resources, allowing them to address complex issues that require collaboration between various organizations, including government agencies.
On the other hand, CBOs, or community-based organizations, focus on localized issues within specific communities or neighborhoods. CBOs emphasize community involvement, participation, and ownership of initiatives. They are driven by the belief that sustainable change is best achieved when initiated and led by the community itself. CBOs have an inherent understanding of local culture and traditions, ensuring that interventions are aligned with community values. Their impact often results in improved living conditions and enhanced community well-being.
In Mongolia, both NGOs and CBOs can participate in the law-making process. They can join groups that aid in drafting specific laws or, less commonly, be invited to participate. For example, in 2007, a CBO coalition proposed amendments to the law-making process, demonstrating the ability of CBOs to influence legislation. Additionally, the 'citizens' hall' process was initiated in 2009 to facilitate public input into law-making, further highlighting the country's efforts toward inclusiveness and transparency in decision-making.
The involvement of NGOs and CBOs in law-making is essential for ensuring that laws are tailored to the specific needs and values of the communities they serve. By collaborating with these organizations, governments can benefit from their on-the-ground expertise and grassroots connections, ultimately resulting in more effective and socially responsible legislation.
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International treaties and their influence
The Mongolian legal system is a civil law system influenced by Soviet and Romano-Germanic legal traditions. The country's constitution, which came into force on 12 February 1992, is the supreme source of law in Mongolia. However, international treaties are also a source of law in the country.
Mongolia has a long history of international treaties and agreements, dating back to the Yassa decrees of Chinggis Khan, which established a basic rule of law throughout his conquered territories. In the 20th century, Mongolia was heavily influenced by the Soviet Union, becoming the second socialist state in the world in 1924 with the adoption of a socialist constitution. This period saw the country adopt three socialist constitutions (in 1924, 1940, and 1960), which established communism as the guiding ideology.
Since the end of the Mongolian People's Republic in 1992, Mongolia has continued to engage in international treaties and agreements. The country is a party to various international investment agreements (IIAs) and has participated in UNCTAD's Work Programme on IIAs, which aims to reform these agreements to make them more conducive to sustainable development and inclusive growth. Mongolia has also established administrative courts, which protect individual rights against unlawful governmental action and adhere to international standards, such as UN regulations on the use of force and firearms by law enforcement.
In addition, Mongolia has sought external input in its law-making processes, inviting non-governmental organizations (NGOs) and community-based organizations (CBOs) to participate in drafting laws. The country has also initiated the 'citizens' hall' process to facilitate public input into law-making, demonstrating a commitment to transparency and inclusiveness in decision-making.
Overall, international treaties and agreements have significantly influenced the development of Mongolia's legal system, shaping its economic, political, and social landscape. The country's engagement in international law reflects its desire to adapt to a changing world while preserving its rich legal traditions.
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The country's transition from Soviet-era to democratic state
Mongolia's transition from a Soviet-era state to a democratic state was a significant shift that occurred over a period of years. The country had close political and economic ties with the Soviet Union and was a part of the Eastern Bloc. Here is an overview of this transitional period:
The End of One-Party Rule and Calls for Reform
The Mongolian People's Revolutionary Party (MPRP) ruled Mongolia as a one-party state until 1990. In the winter of 1989–1990, a series of protests and hunger strikes led by young people and social democratic organizations demanded political freedom and an end to one-party rule. The MPRP leaders refused to use force and resigned, marking a pivotal moment in Mongolia's transition.
Constitutional Reforms and Democratic Elections
In May 1990, the constitution was amended to remove references to the MPRP's dominance, legalize opposition parties, and establish the offices of the president and a standing legislature. This amendment paved the way for Mongolia's first multiparty elections in July 1990, which the MPRP won majorities in both bodies. Despite this, the country was on a path towards democracy, with power now distributed among the legislative, executive, and judicial branches of the state.
Economic Challenges and Reforms
Mongolia faced significant economic challenges during its transition due to its structural dependency on the Soviet economy. The transition resulted in an economic crisis characterized by unemployment, hyperinflation, and a decline in foreign trade. Policymakers abandoned the planned economy model and embraced a market economy, seeking to attract foreign investment and promote economic growth. This shift was not without challenges, and the years after 1990 are often referred to as a "lost decade" for Mongolia economically.
Social and Legal Reforms
Mongolia's transition to democracy also brought about social and legal reforms. The country adopted a new constitution in 1992, proclaiming its vision to build a "humane, civil, and democratic society." This constitution abolished the previous socialist system, eliminated Communist ideology, and enshrined basic human rights and freedoms. The country also established administrative courts to protect individual rights and ensure transparency in executive action. Additionally, various social reforms were implemented, such as addressing issues in the education system and improving police laws to meet international standards.
International Relations
With the fall of the Soviet Union, Mongolia sought to assert its independence and sovereignty on the world stage. This included joining economic groups like COMECON to attract foreign investment and promote economic engagement. However, this also contributed to a significant increase in foreign debt. Mongolia had to capitalize on its natural resources and compete for financial and economic resources in this new era of independence.
In summary, Mongolia's transition from a Soviet-era state to a democratic state was a complex and challenging process. It involved political, economic, social, and legal reforms, as well as a reevaluation of the country's international relations. This transition allowed Mongolia to shape its own destiny, embrace democratic ideals, and adapt to the changing social and political landscape while preserving its rich legal traditions.
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Frequently asked questions
Mongolia has adopted a hybrid Civil Law-Common Law system of jurisprudence.
Common law is a type of legal system, often synonymous with English common law, which is the system of law in England and Wales in the UK. It is also in force in approximately 80 countries formerly part of or influenced by the former British Empire.
The foundation of English common law is "legal precedent", referred to as stare decisis, meaning "to stand by things decided".
Trial judges in Mongolia may use prior rulings to adjudicate cases similar to those that have come before them, but they are not obliged to respect legal precedent as such.
The main sources of law in Mongolia are: the Constitution, international treaties, parliamentary laws, other types of legislative acts, and interpretations of the Supreme Court.
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