Interview with Ganzorig Gombosuren

Peter: How is EB? (Readers: “EB” is Elbegdorj Tsakhia, the first Prime Minister of a democratic Mongolia.)

Ganzorig: He’s been busy going around the country speaking to people. One of his speeches was attended by more than 1,400 people, more than the popular singer in Mongolia. So he’s popular. He wasn’t running for office in the election, but I hope he will get some position in the government. (note to readers: This interview was done in June, 2004 and since then the elections were held and EB is again Prime Minister).

Helen: As a member of the Supreme Court of Mongolia you have experienced how laws were implemented both during the communist regime and after democratic elections were held. Can you give us a broad overview of each system, their similarities and their differences?

Ganzorig: I was a local court judge during the communist rule. The democratic changes took place in 1989, I came to the Supreme Court in 1990. In total, I served for 16 years. I was with the judiciary under communism for 8 years and 8 years with the democratic system. There are many, many differences. Whenever I think of my Judiciary experience I am always amazed at the many things I have seen and experienced in a short period of time; a time that was fascinating and exciting for Mongolia. During the communist period, I looked at it from the point of view of a job. The courts were not really independent. Before we could rule on certain issues we always had to consult with the party leader.

Peter: With the Politburo?

Ganzorig: If you are a local judge you must have some sort of consultation with a local communist party member. If you are on the Supreme Court, then you could have some sort of consultation with the Politburo. Any serious cases would always require consultation advice with the communist party. The party leader would not write a letter but give you oral advice on how to decide the case. Every decision would be determined on how well it would serve the interest of the party.

Peter: So in cases where the law was not sufficient to meet the party’s needs, then someone from the party would tell you precisely what the policy was and how to understand the law?

Ganzorig: No. Basically, they would say, “you must sentence these guys” or, “you must release them.”

Helen: Was there a constitution or basic foundational laws to back up the cases?

Ganzorig: Of course we had a constitution, there were laws, there were courts, but when we decided important and serious cases, we had to follow the orders of the party or local administrative leaders who were appointed especially by party line.

Peter: Would some of those orders be the opposite of what you would have decided otherwise?

Ganzorig: Of course, but if I didn’t follow orders I would be fired. I have my family and they depend on me, so I kept my job.

Peter: Did you have anything to do with drafting aspects of the new constitution?

Ganzorig: I wasn’t involved in that. However, I was involved with the development of the new law of the courts. We had the most important law for the Judiciary in 1993. I was one of the key members on that committee. Additionally, I was leader of an NGO and we initially drafted the first Mongolian Code of Conduct for the Judges.

Also, a striking difference is that now there are lots of articles in the Constitution supporting Human Rights. The old constitution also had articles supporting Human Rights, but that was only on paper. They weren’t implemented. The courts weren’t really independent to protect human rights so people were very reluctant to come forward to the courts. When there is one ruling party and no political opposition, the citizens’ rights are at risk.

Helen: What were some of the Human Rights violations during communism?

Ganzorig: For example, we didn’t know what freedom of speech was. If you ever saw a demonstration or meeting is was always organized by the communist party. I remember one demonstration, or “protest” against the Viet Nam War in our provincial city. It was the party that created the protest, not the people. People were forced to come to the “meeting.” A very popular poet, Choinyam, was imprisoned and died later because he wrote a poem that strongly criticized the existing government and its leader. After the democratic revolution he was admitted as a national hero and many of his poems that were prohibited have been published. So there was virtually no freedom of speech.

Plus there were the imprisonments and brutality. Basically, we had no freedoms. But, with the democratic government, the Judiciary became more independent and people began to realize their rights.

Helen: What was it like for the people when they suddenly realized they had a right to free speech? How long did it take for them to understand it and start exercising it?

Ganzorig: It takes time, because people weren’t used to expressing themselves without any fear. People still fear for themselves, or for a family member. They still remember when they could have been intimidated or beaten. It’s like a habit; they must practice it and realize they are free to do so, and practice, practice, practice. People were hungry for freedom and now you can see many demonstrations and meetings, particularly during the election. But we must remember that this right is supposed to be exercised according to the law. By exercising constitutional rights, one should not violate the others’ rights. Mongolia now is a “rule of law” country.

Another change is that we have lots of newspapers and magazines that helps people to exercise their right to be informed. Also, a lot of radio stations help.

Helen: At a recent meeting we attended, some of the Mongolian participants complained that many of their newspapers were not truly independent. Is that true?

Ganzorig: A number of them are independent. However, we also see the downside of free speech, where people write things that are not true. We’re trying to create and follow a code of ethics for journalists.

Helen: That seems to be the problem with freedom. Some people use it well and some abuse it. Freedom is not happiness. We had heard from the president of the Bank of Mongolia that there had not been civil contracts during communism. For instance, there would not be a contract to buy your home.

Ganzorig: I think he may have mis-spoken, because any civilization couldn’t exist without some sort of contract.

Peter: In America, we speak about verbal and written contracts and both can be binding. What was the majority of contracts in Mongolia like?

Ganzorig: Mongolia is a civil law country. Our judicial culture came from Germany and France.

As early as the 1930′s we had a civil code instituted for contracts. So, people entering into contracts with a monetary value greater than perhaps $250 – I’m not sure of the exact amount – their agreements had to be in the form of a written contract.

Peter: Another issue that came up in that meeting was, now that the communists don’t own all the property, people can begin to own their own businesses and herds, but they still couldn’t own the land. Is that true?

Ganzorig: That was true until just now. It’s all changing in June, 2004, and now people could own a piece of land and construct a house or develop a business. Basically, the new law will be affecting the city area. We still don’t know how it will work in the country where people still move around with their herds.

Peter: People are still nomadic?

Ganzorig: Yes, the herdsmen must move around and follow the grassland. This year was a very good year with lots of rain, but who knows what will happen next year.

Helen: I’d like to get into some philosophical areas. Let’s take “law and order.” Do you think it’s just a list of things telling people what they can or can’t do, or is it a method to achieve more prosperity and freedom?

Ganzorig: Both. One is the criminal law and there are certain acts against another or society that are crimes. On the other hand, if you use it properly, then it can be an instrument in your hands to protect your rights. Nowadays, that’s a problem in Mongolia. We’ve had, historically, four constitutions and each specified human rights and many, many other laws about freedoms and liberties of the people. However, many people don’t know how to exercise their rights. If someone doesn’t know his rights, then he doesn’t know when to protest if they are violated. Freedom and liberties eventually become the way to prosperity and development.

Helen: We’re still working out some things here about the balance of rights and responsibilities after 230 years. It’s a fine balance and doesn’t come in a package. It must be learned.

Ganzorig: In the United States, public education is very good and every small child would know what their constitutional rights are. In Mongolian public schools, education on human rights is very limited. It’s beginning in high schools, but it’s just beginning.

Peter: I’m thinking the newspapers and magazines would most probably not be the best way to teach them. However, as each year progresses more and more children will learn and more will continue to know.

Ganzorig: Yes, and that’s very important, because only this way can people exercise the rights they know about and exercise their constitutional rights. Otherwise the constitution would only be a piece of paper, as it had been in the past.

Peter: Now, the constitution is being used.

Ganzorig: Yes. We have to convince the people we are here to protect their rights; it’s not just a piece of paper. Only the everyday use of the Constitutional rights by the average person will keep the Constitution alive.

Helen: We consider that our rights come from God and that government is only an instrument to protect those rights. What is the attitude about where rights originate in Mongolia?

Ganzorig: I have never had anyone ask me that question. I can’t tell you what the official government position is, but I can tell you what I think about this. I always considered that we are born as a child into the world with our rights. They are inalienable rights. It doesn’t matter if it’s written in a constitution or not, these are rights that come with you with your birth.

Helen: That exactly what the United States “Bill of Rights” is about. You are born with your rights; they are not bestowed on us by government. How involved is religion in your constitution?

Ganzorig: Not very much. There is one article which says that government and religion should be separate. Secondly, it says that the government should respect religion.

Peter: So your constitution doesn’t explicitly state it, the way the American Declaration of Independence states that our rights come from God. You said personally you feel everyone who is born is born with their rights. Is your attitude a widespread attitude in Mongolia?

Ganzorig: I don’t think so. I’m not sure what others think, but I do know when we speak about human rights we always look to the constitution or the law as the source of our rights. But this does not mean that other rights not promulgated in the Constitution are not recognized. I believe the common person, not just lawyers, would be able to assume their rights and sort out what is wrong and what is right.

Helen: Now you are learning about human rights inside the borders, but you also have relationships with countries outside the borders. Is it the same learning experience with international law?

Ganzorig: Mongolia is a part of the international community so if there is an international law which might conflict with Mongolian law we had to apply international law. That’s necessary because Mongolia is a member of the international conventions community and party to many treaties. Mongolian law shouldn’t be contrary to the international law. Also we had to develop and improve domestic human rights laws and rules. Our government and judicial system is supposed to be structured to uphold and protect human rights.

Helen: How then do you maintain your sovereignty?

Ganzorig: That could be an issue. However, if every country tries to be independent and sovereign, then probably we can’t do anything internationally, so we must come up with a plan to please both interests. This is a difficult dilemma for Mongolia.

For example, I know the South Korean missionaries asked Mongolia to create a refugee camp for North Koreans. Mongolia politely rejected the request, because the Mongolian government doesn’t want to have complicated relationships with China, one of our largest neighbors along with Russia. So even though we were very supportive of providing aid to North Koreans we had to weigh the consequences of a complicated relationship with China.

Helen: Most prudent governments approach foreign policy on an individual basis, each circumstance has its merits and downside. Broad brushes of policy saying you will always provide aid to refugees might not work in all circumstances.

Peter: Is Mongolia a signatory of the United Nations Treaty on Human Rights?

Ganzorig: There are four major treaties on human rights which are sponsored by the UN and Mongolia joined them all. But I must stress that a country must be strong economically to implement binding obligations to these treaties.

Peter: When America invented itself, it was unique in the world; when Mongolia threw off Soviet rule, there were many other democratic examples in the world. Which ones were most influential to Mongolia and why?

Ganzorig: When we threw off Soviet rule we had lots of visitors from other countries, lots of experts. Some very good experts; some very bad experts. At some point Mongolia became very influenced by the German legal system. However, I think more people, more young people, understand the American constitution and rule of law. My feeling is that most people are most interested in the US constitution and most people wanted to see something from America.

For example, when we drafted the new constitution we had experts from the States but then many other countries sent experts, especially Germany.

Peter: I don’t understand the German connection. Is there a particular reason why Germany had such influence?

Ganzorig: It’s very simple. In 1921 there was a people’s revolution and in 1924 Mongolia declared it was the second communist country and continued that way for about 70 years. All Soviet legal systems were based on German legal systems, or continental law. It’s a civil law system that Russia borrowed from Germany and France; then we adopted the same system from Russia.

Helen: I didn’t realize that connection before.

Ganzorig: Now there is a large German Foundation in Mongolia influencing us. If they can inject the German tradition, the German culture, then we will have a special relationship with Germany. Yet, most people are interested in American law, its Constitution and culture and traditions.

There are also a lot of American experts in Mongolia trying to teach the people the value of democracy. For example, I see many people want to learn English and have American programs on TV and want to have American visitors stay at their home with them. Many families would be happy to host an American visitor free in their home, rather than people from other countries.

Helen: When your people see our democracy at work and see us squabbling all the time, how do they take that? Do they realize that’s the democratic process or do they think we’re just fighting?

Ganzorig: They’re fascinated by democracy. For instance, two weeks ago I was in Mongolia with an American and people were constantly asking him his opinion of war in Iraq or President Bush. I think this is the way democracy works. People can openly ask questions they are interested in and say freely without fear what they think. My American friend would express his thoughts and then ask them what they thought about the same issue. Often our people don’t agree with his thoughts and many of them are thinking, trying to sort out or analyze, for instance, whether President Bush is doing the right thing.

Helen: For instance, some Americans were embarrassed about our squabbling after the 2000 elections, fearing the rest of the world would think badly about us, instead of realizing, because we are free, we can debate and debate until a resolution is reached. None of that debate would have a chance in a totalitarian country!

Ganzorig: Yes, nowadays we can watch immediately what happens in the US on TV or you can go to the internet which is very, very popular and find out within minutes what’s the news. I think this is a good example of how democracy works. In old times there could have been civil war, but because of the existence of the US Supreme Court and its landmark ruling the presidential election was solved peacefully.

Peter: Is TV and the internet fairly widespread in Mongolia?

Ganzorig: The internet is very popular; there are lots and lots of internet cafes; 30 minutes use for about 20 cents.

Helen: Within democracy you will always find opposition, it’s the nature of democracy. So your people are not afraid of that?

Ganzorig: We have to learn and trust that. I think the idea is to be patient with someone else’s opinion. Everyone should be able to express their opinion. In the past in Mongolia under the communist party ruling no one could say their opinion without fear. Now we’re supporting each other’s rights to free speech and we listen to each other. We’re just getting used to it, and it will take a long time.

Peter: In the time of communist rule, were people conscious of being oppressed or did they think, “this is just the way things are.” Were they aware things could be different?

Ganzorig: I don’t think so. I’m a fairly young man and in my young years and even through my law school in Russia, I learned that America and Western countries were our enemy. We didn’t learn about democracy, rather we learned how bad Western people and the Americans were.

Peter: What words besides ‘enemy’ were used to describe us?

Ganzorig: “Ca-pi-tal-ist!” That’s the worse word we could have used. In 1990 I met my first American, a Peace Corps Volunteer from Minnesota. He taught me English for the Supreme Court, so that was my meeting with an American friend, John Boyd. At that time he looked just like any other person. No horns!

Helen: How are people adjusting to private property?

Ganzorig: Some things are going very slow. Yet, some things are changing very fast. For example, many people are beginning to run small businesses, own small houses and expensive cars. When people can own something of their very own they always will… and manage it better. Private property is leading people to prosperity and happiness. In the past if someone had a car they would be considered a Ca-pi-tal-ist!

Peter: I would like to go back to how you became aware of democracy.

Ganzorig: During the 1989 peaceful revolution in Mongolia of which EB was one leader, I took part in discussions. Basically, we got a wake-up call from Russia. At this time there was Peristroika there and they were trying to change. My first ideas came from this change and the discussions that resulted from it. However, I started to understand really what democracy meant when I came to the US in 1993.

I had a trip from the east coast to the west coast and I met many, many people and began to realize what democracy was and how it affected people’s lives. I also saw the many ways people can exercise their rights. On the other hand, we had many visitors from the States.

Peter: So in your own life and your own understanding you had to make the same transition Mongolia did? Being in the Supreme Court you were at the head of the country, so to speak, and saw things first hand. So now, what will your role in Mongolia be after the recent elections?

Ganzorig: Let me explain one thing. After one month’s study here and after many conferences and seminars in Mongolia, my view changed gradually and at the Supreme Court hearings sometimes I voted alone against 16 other judges. My idea and view of social justice, freedom and liberty has been changed. Although Mongolia is in transition, it’s taking time and sometimes I have totally different views than my colleagues at the Supreme Court. When I travel back there, some of them cannot understand my change and I cannot understand why they don’t change. It’s difficult. So my answer to your question is that I will do my best to help people change their minds and understand the value of democracy and human rights.

Helen: Change is difficult especially if it’s not a change from opposites, say left to right or up to down. You are now incorporating a new vision of the world and that’s more of a transition to a new entity. It’s no longer up or down, but something new and that’s the most difficult to explain or implement. Sometimes we use the metaphor that some people are using DOS and others are using Windows. Those using Windows can understand those using DOS, but those using DOS have no idea what those using Windows are talking about.

Ganzorig: I agree. When my colleagues at the Supreme Court express a strong opposing view, I always listen to them and tell them democracy must give everyone an opportunity to express his/her ideas and positions, to say what they think, particularly in cases of disputes.

Peter: Sometimes it’s said that in a democracy the new ideas have to wait for the old ideas to die, but in a totalitarian regime the old ideas are killed.

Ganzorig: Right. Likewise, in Mongolia we are experiencing the same thing. Some of my friends are very pessimistic and always tell me “stay calm, your ideas might come true, after you die. I agree with you but only our next generation will be able to understand and implement your ideas and thoughts.” He might be right, but we must act now, to educate our next generation. When I think of going back to Mongolia I think of the number of opportunities I have. In September or October a number of the members of the Constitution Court will find their terms expiring, so that’s one opportunity. I can go back to the Supreme Court in December or January. However, much depends on the election. If the Democratic Party does not get a majority in Parliament, my options will be limited. (Readers: This interview was conducted in June, 2004 and the election results were not yet definite)

Peter: Are judges appointed?

Ganzorig: Yes, and although we’re not supposed to be part of any political party, politics is very much involved in the selection of judges.

Peter: So do you think you’ll move back to Mongolia near the end of the year?

Ganzorig: It depends what I can get there, because my family, my wife and three children, depend on me and I don’t want to risk them. I want to be able to support my family.

Peter: So you’re studying now while you’re in the United States?

Ganzorig: Yes, I’m studying for my PhD and right now I’m writing my dissertation. I also work at my school and teach.

Peter: One last question. Since Mongolia is still in transition and facing many developmental challenges, I wonder what you think are the one or two that are the most important at this time?

Ganzorig: The most important issue is the education of the people about their rights. Secondly, the independence of the Judiciary to protect those rights.

Peter and Helen: Thank you very much for your time and we wish you and Mongolia well.

PUBLICATIONS of Ganzorig Gombosuren

“The Courts and Citizens Rights”, The American Jurist, March 2003, Vol.16, No.4.

“Judicial Independence”, Legis (Law Journal in Mongolian), Ulaanbaatar, February 2003.

“Immigrants: Do they Have Constitutional Rights?” Newspaper American Mongols, December 2002.

“In Rome do as Romans do”, On the Road (Journal in Mongolian), San Francisco, California, VOL. 4, 2002.

“Dissenting Opinion of Judges: Enhancing Transparency in the Judicial Process”, with Hon Judge Shackley F. Raffetto, Legis (Law Journal in Mongolian), Ulaanbaatar, October 2002.

Reference in the article “International Parallel Litigation – A Survey of Current Conventions and Model Laws” James P George, Texas International Law Journal, Volume 37, Summer 2002, Number 5.

Author of article on “Mongolian Political System”, Encyclopedia of Modern Asia, Editor: Karen Christensen and David Levinson , Scribners, November 2002. “http://www.berkshirepublishing.com/“

“When Courts and Politics Collude: Mongolia’ Constitutional Crisis” with Tom Ginzburg, Columbia Journal of Asian Law, VOL. 14, Spring 2001, No. 2.

“Visiting Mongolian Judges Study State’s Justice System”, The Dallas Morning News; June 28, 2000.

“The Relationship Between the Constitutional and Supreme Courts of Mongolia” The Journal of East European Law, 2000/VOL.7 Nos 3-4.

“Federal Court of Claim in the U.S.” with Hon. Eric Bruggink. State and Government Volume IV, Ulaanbaatar, Mongolia, 1999.

“A Gap Leading to a Violation of Human Rights.” Asian Human Rights Commission, Volume 8, 1998. Available: http://www.ahrchk.net/solidarity/199801/v81_16.html

“Protection of Human Rights at the Early Stage of Investigation of Criminal Case.” Government News, Ulaanbaatar, Mongolia. February, 1997.

“The Right to Defense.” Citizen’s Right. Ulaanbaatar, Mongolia. November, 1996.

“Bejing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region,” (translated from English into Mongolian) Law and Government, Ulaanbaatar, Mongolia. March, 1996.

“Judicial Independence in some Foreign Countries,” Law and Government, Ulaanbaatar, Mongolia. June, 1996.

“Constitutionalism and Human Rights in Mongolia.” With Tom Ginsburg, in Mongolia in Transition: Old Patterns, New Challenges (Ole Bruun and Ole Odgaard, eds., 1996) pp. 147-164. London: Curzon Press.

“Independent Judiciary in the US.” Mongolian Stamp. Ulaanbaatar, Mongolia. June, 1996

“Judicial Disciplinary Committee.” Mongolian Stamp. Ulaanbaatar, Mongolia. April, 1995.

PROFESSIONAL AFFILATIONS

President of the Washington DC Area Mongolian Community
Honorary Member of Texas Criminal Lawyers Association
Amnesty International