Speaker: D.Solongo, Judge of the Constitutional Court of Mongolia, Ph.D in Law, Honoured lecturer
First of all, the Constitutional control community, law nature, prospect and consequence are vitally to concern on the Constitutional nature, prospect, and law -implemented country and international market.
As for theory, the Constitution shall be crucial law of government as as way by legalized principle and rules for organizational and activities, government organization structure and system, individual legal status, sovereignty, state structure, economy, community of the country.
International researchers and scientists consider that Constitution causes various accurately aspects from community and it takes more important for determining whether what kind of basic aspects and nature of Constitution will be formed. Specifically, G.Ellinek, German scientist, said “The Constitution is legal complex by way of coordinating relations and communication among individual and state, having power of government, supreme body and organization and its liability and duty ” but then F.Lassali determined that the Constitution shall be subject for power and but not subject for right.
The Constitution exists in virtual relation of power and but when actually Constitution shall be hopefully in effect is to give a result to us in case of it could be approved a virtual relation of power” said by V.E.Chirkin, Russian scientist,….”Law fact declares as nature of Constitution and its exclusive content, legal supreme capacity is to play basis role as to fulfill law and this turns into stable character depending on different approved rule and amendments” but G.Sovd, Mongolian scientist, said “the Constitution is a cultural precious heritage was originated as result of struggling to human right out broken in human history and it is complex of legislative norm as its function purpose which is to coordinate relations among human and state in the framework of law service”.
It is visible definitely that content and capacity of the Constitution in which comprise of general and whole norms for strengthening basic relation of that country and for legislation basis for at all level of community life. Therefore, the study shows that law content and scope of Mongolia Constitution of 1992 is defined as same result.
One of goals of Mongolia government is to provide Law-and-order rule in order to make shaped State based legislation.
To fulfill law–and-order rule in the all level of community life is integral tied to fulfill development goal in the all type of stage and to strengthen democratic system and to visibly provide human right and liberty. The Constitution is fact of law capacity which is strengthened politics and law basis in order to fulfill state above goals. Politic nature of Constitution is defined as form, content and objective of state activities and basic rule to fulfill politics governance which comply with model and feature of industrial relations.
In the other words, it features to strengthen politics relation based on community-economic interest of majority of community members.
Therefore, the Constitution must be separated from any “propaganda”, that is why, the community position and function, basic objective of activities for non-government organizations, political parties and government organizations are coordinated by the Constitution.
In the case of system of multiple-parties is formed, function of all organization shall be conducted only in the framework of Constitution. In according to specified in law of Political parties, parties shall fulfill rules and principles specified in the Constitution and in the other laws for their activities, specified in, in which is source to strengthen basic principles which to comply with parties function under the specified in the Constitution.
The Constitution, is considered as supreme act of law, which will be issued, based on and be compulsorily complies with other acts approved by supreme authority and other government organization. What’s more, the state and government organizations and political parties carry out its activities under the framework of Constitution and not be violated. That is why, norms of Constitution coordinates to basic relation of community with connection of development and other law and order are accurately strengthened with first stage and laws foundation including being effected as scope, range, legal capacity, confirmation and amendments, procedures of cancellation. The Constitution and other the fulfilled laws are to accurately connect each other and final law foundation depends on foundation of first law. In addition, it must be complied with content and procedure of first law foundation, in the case of legislation violates any norms and principles of Constitution, not be effected. This shows that Constitution is nature of supreme law of state. It is highlighted about Hans Kelsen who promoted basic views on hierarchy of legislation is more important to fulfill law foundation.
Lecturer, in my opinion, it is considered that the supreme capacity of Constitution provides basic role in order to make shaped a correct comprehensive to community. The basic element ofsupreme capacity, is Constitutional reviewing. The Constitutional reviewing is subject to law theory and practical. This is objective of scientific research for law. This topic is main attention among not only international and nations researchers and it evidences democratic means and its confirmation.
When this is considered, it must be studied theoretical methodology and nature, social importance related to subject of the Constitutional reviewing.
Nature of Constitutional reviewing is defined as following, based on the Constitutional reviewing content, its fulfillment methodology and experience, system. Including:
First. The Constitutional reviewing consists of political and law nature which is based on united characters of political and law for Constitution. It is not possible to be considered as separated as politics and law. That is why, government policy and government activities are directly fulfilled as involvement of legislation. But L.Garlitskii, Polish scientist, said… “When other laws will be explained as political aspect and Constitutional reviewing based on Constitution, court of Constitution will be defined as political organization.” But M.Kapeletti and other researchers viewed that “Court of Constitution is considered as features of politics”. This explanation had been divided into following:
- Court of Constitution was founded in Europe where it was caused of political tragic fault at the beginning half of this century.
- It shall be subject as court of Constitution (M.Kapelettisaid that even though third governance is considered to be sovereign from politics and it is shifted forcedly to politics).
- There is way to appoint as court members of Constitution (it shall be representative for political two branch and thus, it could be attracted more attention on bigger political groups who involve as membership of Constitutional court in countries of European.)
As it was recorded on Constitutional reviewing, it shall be fact of law and politics and it protects Constitution. Therefore, Constitutional reviewing shall be fixed with certain aspect without making in politics. In the other words, Constitutional reviewing shall be law branch and executive power and making law shall be political branch in the limited range of governance carried out. As conclusion for this, Constitutional reviewing shall be no necessary to put at level of other two types of governance in processing to make a political decision.
Second. Reviewing in fulfillment of Constitution is reviewing of state supreme which is carried out in the framework of law acts and legislation approved by laws supreme authority and other organizations. The Constitution and state supreme capacity is legal acts which comply with its legislation and it is one of democratic norms. And there are different between Constitution and regular law. Hence, there is definitely risen any violation among approved laws and legislation body and Supreme Court organization. This is more important to establish Constitutional reviewing organization in order to clear up positively this violation.
Furthermore, it will be demanded to coordinate at certain condition as way of explaining and clarifying government supreme law and Constitution. Therefore, it is vital to settle any violation without using any force. “In case of any violation and disputes was risen in Democratic Constitutional countries shall be settled under the norms of Constitution and it shall be neutral and sovereign, high-ranked organization” noted by D.Malo, PhD, member of Bundestag city of Germany. The Constitutional reviewing is fulfilled by competent authorities which issued by on behalf of government. Therefore, Constitutional reviewing, refers to powers, in order to establish supreme authority, to be fulfilled, is not violated at the level of practical and theoretical content with “State power distribution” concept. Above theory shall be divided into 3 peaks of state power (legislation, executive and court’s power), and it is disciplined its activities power system and range, function, on based on principle of inter-equivalent.
In providing to practical and theory for this demand, Supreme Court shall be established to fulfill Constitutional reviewing, which provides a basic confirmation to conform to inter-equivalent of governance 3 peaks. Ts. Sarantuya, researcher, said that “Constitutional reviewing shall find out and then final make a resolution whether laws approved by legislative body which comply with in framework of Constitution and whether resolution made by executive body in which conflicts to Constitution and whether court decision violates to norms of Constitution ”. Those shall be final decision to be fulfilled by citizen and other non-organizations and this will be nature of Constitution. Through this, I am agree with this description in which it marks status of community based government and its demand, requirements.
Third. It is considered that nature of Constitutional reviewing will refer to its method to put into effect. Since Constitutional reviewing was factually established, it had already been 200 years, our study shows certainly that it results as its implementer subject and certain condition in the reviewing content, any dynamic in term. It is not allowed to move to politics process in the reviewing of Constitutional fulfillment. As it makes politicizing to Constitution, this brings any bad consequences including it draws community development back, and it causes any depression in the community, it intensifies violations among political forces and it violates democratic principles. Constitutional reviewing shall be focused on fulfilling rigorously norms of Constitution and providing democratic principle. If this principle to be lost, Constitutional reviewing organization will get replaced with democratic minority in place of Constitutional democracy.
Fourth. It is defined as nature, law content and Constitutional reviewing community as a matter of Constitutional reviewing theory. The purpose of Constitutional is to exist to rule the law limited governance and to fulfill process of government power in the framework of Constitution. This shows that Constitution is to coordinate system which focuses on getting balanced and to get limited mutually rulers of government power each other. In the other words, it shall be self-having power, get unfranchised and to make labor allocation among governance conventional branches in according to government assignment and activities. Basic principle of democratic government is to abide by and be respected and to be fulfilled with governance power in local area and urban. Nowadays, it is not understand that principle of government power allocation to be fulfilled, is not possible to make without Constitutional reviewing. That is why, it is responsible for eliminating any violation causes from inter-branch of governance.
Besides, it expresses higher-risk to violate to Constitution since number of law norms have been largely increased at XX-XXI centuries. As for Mongolia, it is a visible risk that large number of newly laws had been approved at short-term since it was approved a new Constitution in 1992 in the framework of law. C.V.Bobotov, Russian scientist, identified that community principle was orderly described for function of Constitutional reviewing. Including 1. The Constitution was succeed as formulized principles, accepted by world community. 2. The Constitution is act of law capacity, accepted by world community and it is impossible to fulfill community relation with out of Constitution. In the other words, it expresses community value of Constitutional reviewing based on playing main role of community and not only providing law significant.
Constitutional reviewing is reviewing of supreme governance which focuses on characterizing to political –legislative and law- legislation enforcement, providing human right-liberty and humane based democracy, to fulfill all level of community life based on relation of industrial (economy) in the framework of Constitution.
Therefore, Constitution is basic mean to fulfill principle for law esteemed democracy and to provide equivalent of inter-branch for government power and for community demand.