Law on Procedure for administrative case  (Mongolia)

December 26, 2002 the State Great Hural passed the Law on establishment of administrative court along with the Law on procedure for administrative cases in accordance with Article 48 (1) of the Constitution. It took almost ten years to convince the State Great Hural to pass this law with enormous work of lawyers, scholars, and support of international organizations.[1]

The law of Mongolia on procedure for administrative cases[2] entered into force on June 1, 2004. It divided into two sections: first – procedure for administrative tribunal(s) and higher administrative officials to pre-decide the original act based on the complaint submitted by citizen or legal entity, second – procedure for administrative courts.

The Government of Mongolia, in particularly drafting group of this law, has worked closely with German counterparts for long time in preparation of this procedural law and it is derivative work of German administrative procedural law with some national distinctions. Lawyers, judges and law professors from both countries worked together and exchanged their ideas in order to create the most proper administrative procedure for Mongolia. Prospective teachers for future judges and lawyers were prepared in Germany and Mongolia by German administrative law experts and judges as well as Mongolian professionals. The earliest example that “in criminal proceedings the canon law, in contrast to both the Roman law and Germanic systems, developed a science of judicial investigation of the facts of the case, whereby the judge was required to interrogate the parties and the witness according to principles of reason and conscience. One of these principles was that the judge must be convinced, in his own mind, of the judgment he rendered. The emphasis on judicial investigation was associated not only with a more rational procedure for eliciting proof but also with the development of concepts of probable truth and of principles of relevancy and materiality.”[3]

Extensive citations from Law on civil procedure, most of fundamental principles quoted directly from civil procedure. Particularly, the appellate process and enforcement of judgment of administrative courts are exactly same as civil courts. However, the law on civil procedure differs from it with some significant elements. For instance, followings are the most different parts of civil procedure: in civil case, the court cannot make deposition from witnesses in its initiative if the parties did not ask to do so and does not have burden of proof or gather the evidence.

By defining the types of disputes, parties and their rights and duties, one can determine the nature of this law and procedure.

Defendant must always be a public administration, authority; it includes not only the executive branch but also administration of public school, hospital, even energy provider. In some cases, even non-governmental organizations, which Government transferred certain power to, could be subject for claims arising out the exercise of this transferred power.

In contrary, plaintiff must be citizen or legal entity. The government agencies, officers are not eligible for submit a claim if they are administratively under direct control of the defendant. However, the agency that is not under supervision of another agency and asserts that their right breached by another agency illegal act then it is able to bring lawsuit in administrative court. For instance, a tax regulatory agency is not a subject to any supervision of other government agencies, but it could commence the administrative action against the fire inspector for false sanction.

The law contains definition of “citizen” means “a citizen of Mongolia, a citizen of foreign country and stateless person”. Therefore, administrative courts are open to foreign citizens who assert that public administrations or officials of Mongolia breached their rights legitimized by Mongolian and International law.

The law cited the whole section of procedure for international cases[4] from the civil procedure; administrative courts bound by this section too. Article 189.1, the law on civil procedure provides that when Mongolian courts decide the civil case related the foreign citizen, legal entity, stateless person, unless ruled differently in statutes of this country, they have same right as Mongolian citizens. Courts do not have right to join the following person into the case, diplomats, their immediate family, officials who visiting by invitation of government, self-ruling organizations of administrative units unless they agreed to be part.

Even the case involved the foreign citizen Mongolian courts have “exclusive jurisdiction” over some case. Such as disputes of ownership of the immoveable property in its territory, reconstruction, abolishment of the legal entities which domiciled in its territory, legality of the registration made by its courts and other authorities, patent, trademark and other intellectual property registration issues, petitions or applications for execute or enforcement of court decisions in its territory.

Lastly about the parties, no involvement from Prosecutor’s office in procedure of administrative cases if compare it to the civil procedure. In Mongolia, prosecutor’s offices’ main duties are monitoring the criminal investigation from the very beginning and representing the State in criminal trial. Moreover, prosecutor’s office must attend the civil trail with right that make comment on the legitimacy of the administrative act and right to appeal when a government organization asks it to do so.

But for administrative procedure, even the law contains the clause that requires[5] the prosecutor’s involvement in trail as a representative of government and have right to comment on legal validity of administrative action, in result of statistical data on these courts very first two years long operation, there were almost no involvements from prosecutors.

In order to represent the citizen or legal entity, one must submit the valid, written and signed by represented party, notice to the court. Advocates (private attorney) may represent the party based on the contract[6] with client. Every administration or authority has its own lawyer; in most cases, they represent their own organization. However, parties can participate without lawyers or legal representation, likely complaints-citizens.

Jurisdiction – the only target of this court procedure is “administrative act or action” and its validity and legitimacy. Article 3.1.4 of the Law of Mongolia on procedure for administrative cases provides the following definition. An administrative act is a single compelling order or commanding action [which causing direct legal result] that issued or acted by an administrative authority, official in oral or written form, in order to regulate the particular incident caused in public legal framework.

Hence, the most common types of acts that likely to be in issue in administrative cases would be, but not limited to, all kinds of government licensing, tax order, land related regulation and government procurement. Some times disputes that arising out exactly same occurrence could end up with different jurisdiction depending on that who commenced the action. For instance, a tax related case may tried by either administrative or civil court depending on who filled the action. If the taxpayer files complaint against the tax authority then the administrative court has a jurisdiction over that case. In contrary, if the tax authority commences the action asserting that taxpayer failed to pay then it must file in civil court, which has a jurisdiction over the cases, that citizen as a defendant.

Administrative courts have jurisdiction of all disputes arising out actions of public administration and directed out to citizens or businesses. Article 4 of the Law on procedure for administrative cases provides the broad jurisdiction for administrative courts by defining the administrative agencies and officials whom act is subject to the judicial control. However, not all of their decisions but only the acts that directed out to the particular individual or public to order or prohibit. Simple description one cannot sue his boss in this court.

Article 4.1, 4.2 of the law on procedure for administrative cases contains the list of the defendants of the administrative case and defines the scope of judicial review. The President is entitled to be the head of the State of Mongolia and specifically authorized to issue decrees in accordance with the Constitution and Mongolian law. Presidential decrees must be consistent with the rights granted to him by the Law on the Presidency. These rights granted in the Constitution and the Law on the Presidency. The Presidential decree excluded in this list of defendant, however, original draft of law contained it and there were concerns about bringing the President’s decree into judicial control.

Executive power in Mongolia is vested in the Government Cabinet, which limited by the Constitution, statutes and resolutions of the State Great Hural. Government issues resolutions by the cabinet and ordinances by the prime minister. The Ministry or Minister may issue in many forms of resolutions. When the Law on procedure for administrative cases entered into force in June 1, 2004, the Government listed at very first in the Article 4.1.1 therefore the administrative court had jurisdiction over the Government action qualifies that Article 4.1, 4.2.

Shortly after Administrative court of Capital City decided the significant two cases[7], which were in very public attention, the action filled in the Constitutional Tsets asserting that Article 4.1.1 of the law on procedure for administrative cases is incompatible to the Constitution. In Enkhbayar vs. Parliament (Constitutional Tsets 2005), The Tsets found that Article 4.1.1 is unconstitutional, therefore, ordered to the State Great Hural make amendment to the law on procedure for administrative cases. The Parliament excluded the Article 4.1.1 and 4.1.6[8] from the defendants list, based on Constitutional Tsets’s judgment that reasoning the Tsets has jurisdiction over disputes arise from these two organization’s action.

Some do not agree with this judgment and say that it is the clear trend which government or its agencies trying to get out from the independent judicial control[9] over their illegal action.

However, Article 4.1.2 Prime Minister and Minister of Cabinet are still in defendant’s list. All Ministries and agencies have the power to issue administrative acts pursuance to specific delegations of authority from the State Great Hural and Government. Moreover, these acts are subject to review by the administrative courts based on complaint.

A minister to governor of sum (the smallest administrative unit) and its officials are potential defendant. Sum representatives Hural (House of Representatives), which is self-governing body of administrative units, is also in the list. Not only all executive branch but also some independent government agencies under Parliament such as Central Bank of Mongolia (Mongol Bank), Financial Regulatory Agency, Government Employment Council and administration of public school, hospital and other public organizations, which public must receive their service such as monopole electric providers etc. In some cases, Temple, Church, and Monastery administration[10], the General Council of Courts that is administrative arm of judiciary, might challenged by citizens. Finally yet importantly, even non-governmental organizations, which Government transferred certain power to, could be subject for claims arising out the exercise of this transferred power before administrative courts.

Pre-hearing by the administrative tribunals before commencing the action in courts is the important step. For complaints of a citizen or legal entity (businesses) against action taken by government or its agency or officials, a direct supervising administration or officer should be the one to decide whether the action is lawful or not before it goes to court. If the complainant asserts any public administration or official’s act or action (oral and written form of decree, order, decision, and regulation) breached his/her lawful right, he or she shall submit a complaint to the direct higher officials or administrative tribunals above it within 30 days upon recipient or time to know it.

There is 30 days “statute of limitation” to submit a complaint to the administrative tribunals. No “statute of limitation” to file a claim with the court, but if there is no appellate tribunal or higher official then it is same 30 days of limitation apply. In practice, courts are concerned to allow or extend the statute of limitation and it granted in the Civil Code.

Scope of rights and duty of tribunals: Determine legitimacy of lower administration’s decision, hold a hearing including parties, appoint an expert if necessary, gather necessary evidences. The administrative tribunal or supervising officer could decide either agree with the complaint that alleging the act is inconsistent with the law, or vacate partially or fully the disputed act, issue an order for defendant to take appropriate action that complainant wants. The most of the times this pre-hearing right kept in direct higher administration or officers; however, there are a number of administrative tribunals that established specially for this purpose the Tax Dispute Settlement Council, Government Employment Council, Unfair Competition Control Agency, Government Procurement Board (unit in Ministry of Finance). Some agency statutes prescribe specific procedures for administrative tribunal’s hearing different, in extent of making it more specific, from the Law on procedure for administrative case's rules. Although this law has been in force for three years, administrations or officials who supposed to control over their lower officials action, still hesitate to do it or just affirm their action without reasonable basis. If the person do not satisfied with the outcome of the administrative hearing then he has absolute right to fill an appeal/claim in the administrative court, which the administration sets.

Before commence the action (calls it “open a case”) after received the claim, court have to check following matters within 7 days. The main requirement being eligible to file a claim to the administrative court is submitting complaint to higher officials or administrative tribunals above the defendant. Is this requirement satisfied? Nevertheless, there are following exceptions.[11] 1)if the specific statute enables to direct filling, 2)if there is no direct supervising administrative organization or officials above defendant (such as Central Bank or City Hural), 3)if defendant does not execute the higher administration's decision or higher administration did not decide/answer the complaint in time that law requires (30 days plus if extended 30 days).

Service of process: In Mongolian legal system, the court does service of process, not defendant. Because the idea is if the plaintiff has a duty to serve, it would be so difficult to commence action in court. Courts have an officer who delivers the summons to the defendant. After defendant arrives in court, judge or his law clerk would submit the copy of claim, attached materials, and must explain the defendant’s right.[12] If court does not explain the rights, even explained but failed to show the written proof (usually form signed by the party that stating court explained their right), then it would be reason to vacate the judgment later in appeal.

Burden of proof: Surprisingly for most common law lawyers, court, not parties has a burden of proof.[13] This means courts carry the duty of gathering all the important evidences, inquiring the evidences from anybody who has it and granted to enforce if they do not. Trail court must decide the case after collecting all-important evidences. In addition, it is court’s responsibility to proof the matter by evidence. Again it based on the “unequal party” doctrine. Imagine a poor man trying to recover his right breached by the Governor of the city, especially in developing society where government has incomparable power and source. Nevertheless, it could drive court and judge in wrong direction because it almost leads them to loose their inseparable characters of neutrality. In contract, some argue that if parties have the burden of proof, there is no chance that plaintiff gets the evidence and win the case. Therefore, it considers very important and distinctive part of judicial procedure for this type of cases.

Bringing pre-answer motions (expiration of statute limitations, luck of jurisdiction etc.) is not defendant’s duty, however they may. Court must determine these issues within 7 days after filing, and then decide. If court finds no such a problem then opens the case by entering judgment. Burden of dismiss case on the ground of jurisdiction, improper venue (courts must transfer the case to the appropriate venue if there is venue available for that case) are on courts.

Procedural time limit is a big problem if compare it to the US even Germany, which has the pilot court and procedural law for this cases. In civil procedure, it would be 60 days from the commencement (judgment that ordered the opening case), in administrative case, even less, it would be 30 days in Ulaanbaatar or 40 days in provinces form the filling with the possibility of extension 30+15. Moreover, judge allowed postponing the trail once on the ground of insufficient evidence etc. Procedural time limit means the time that court must dispose the case. It is unbelievable short time and there should be very enough time, even should be more since court needs to collect all evidence.

In court procedure, there is no jury system but representatives of citizen with the very different right from jurors. These are members of the public without legal training who are selected by court to the position. They receive an allowance for their participation. Every citizen registered in electoral list with a good record of behavior is eligible. They express their opinion about the facts of the case or legitimacy of administrative action. Mongolia's first Constitution of 1926 introduced citizens' representatives, who were then known as people's representatives, and whose task it was to represent the people in court hearings with the right to vote for decision.

Depends on complexity of the case 1-3 representatives must attend the first instance trial and comment on whether the administrative action is lawful or not. The issue that weakens its role is that judge(s) is not abiding by this comment. Involvement of this citizen representation does get its root from the Constitution[14] and every time drafting the change for procedural law this question gets up for argument whether they should have more right to decide the case instead of just make comment.

All witness must be a non-party and deposited by the court. There is no terminology for party witness. Only court makes deposition from witness and witness must swear under Criminal law to tell the truth. Affidavits are not considered as important as witness’ deposition. Moreover, court appoints the expert and no party expert allowed to present. If party challenges the expert deposition, court may appoint different expert group.

No court based Alternative Dispute Resolutions are introduced in this procedure. However, after “opening case” (commence procedure) one of immediate duty of court is to take all possible efforts to settle the case without trial.

Right after opening case, court shall grant the injunction to prevent the future harm of administrative action until the court rules the case, but exceptions[15]. Court is prohibited to order this injunction such as if it may cause more damage to someone or lead to cause to death, or it is tax and similar order, and if the other statute said so.

The punitive damage is not available, and if there is, argument arises out of the amount of actual damage administrative court shall order separation this damage dispute from the administrative case and transfer[16] it to the civil court.

In short, when a claim is accepted to the court, the allocated judge, who opened case, invites the defendant to a meeting to determine whether there is a defense or if the matter will be contested. This is the first of what may be several meetings between the judge and one of the parties without the other. Right after service and receiving the answer if settlement is not possible, a date is allocated for the hearing, must be within 75 (in city) or 85 (in provinces) days after filing. Prior to the hearing the parties may submit written statements, documents and other evidence to the court. However, there are several interlocutory procedures available such as gathering evidences, appoint experts, make witness deposition and join the third party. Interlocutory appeals are permitted most judgments such as refusal of receiving the claim (dismissal on the ground of jurisdiction), injunction to stop administrative action’s future effect, joinder of third party.

Trials are held in public except lack of space, which happens often. All evidence must be presented and examined at the hearing and a full transcript is made by the court secretary. Judges must base their decision on the evidence properly gathered in the case and presented. 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[17], the decision is made by majority vote. Surprisingly, discussion and judge’s vote is secret by the Article 67.2, Law on procedure for administrative case. A summary of judgment is must announced at the end of the hearing and a typed version is shall provided within seven days from the trial.

All appeals are considered by three (intermediate appellate panel) or five judges who receive the complete file from the lower court and base their decision on it. Judgments that are not voluntarily executed are implemented for the winning party by the court bailiffs.

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