 This is Think Tech Hawaii. Community matters here. One. Okay. A law across the sea. I'm Jay Fidel. Here it is. Well, it's between 11.30 and 12. Here on a given Wednesday, my friend and a director of Think Tech Hawaii, Judge Shackley Raffaero, retired Chief Judge of the Second Circuit, is here to help me host this show with a friend of his for many years, and that is Justice Gonzorg from Mongolia. And I wonder, Shackley, if you could introduce Justice Gonzorg as he should be introduced. I'd be happy to. To my right is Justice Gonzorg. I'm a former Justice of the Supreme Court of Mongolia. He was actually active in that capacity when we met, maybe 20 years ago now. Yeah, I think so. A long time ago. But since then, he's done a lot of interesting things. He studied for an LLM for 10 years at American University in the U.S. And when he returned to Mongolia, he served several years as the legal advisor to the president of Mongolia, and then was assistant to the prosecutor general of Mongolia and was involved in criminal justice reform for Mongolia, which is the subject we wanted to talk about today. But Justice Gonzorg has had a very distinguished career. His daughter, actually, clerked for me in the summertime some years ago. And she now lives in Honolulu, works for one of our appellate court judges, and is about to have a baby. Congratulations. And she's present at this time in Honolulu. It gives us a good chance to get together and talk about old times. Well, I'm particularly interested in the judges' experience in human rights and your degree in constitutional law from American University in Washington. What brought you to that? What made you want to do that? Come from Mongolia to Washington, D.C., and take that program? Well, I guess it's a long story. But I would say that the knowing American ambassador to Mongolia and knowing my friend lawyer from America, Gregory Richardson, has with me to understand more about U.S. legal system and international human rights. So it was my motivation to go into America and doing my LLM on international human rights and constitutional criminal justice rights. Why that particular subject? I mean, you could have studied banking credit transactions, too. Of course, that's true. However, I was a judge almost 16 years in Mongolia. And I used to deal with lots of criminal cases. And I was a military judge, too. So I used to handle lots of mostly criminal cases. Therefore, my experience was more in the criminal justice area. And I wanted to broaden my experience and knowledge, particularly in criminal justice area. And not only did you study that American university, but you stayed in the United States for 10 years just observing how it worked here and becoming more familiar with the way it's done here in the U.S. anyway? Yes, that's true. That's true, because after my LLM degree in Washington, D.C., I hired by law firm Tabak and Associates. And I used to work as a translator, of course, and then I was handling lots of immigration cases. And, of course, I helped with small criminal cases. And by doing this, by going to a court every day, I learned lots of things in state courts in Virginia, as well as in federal courts in Alexandria and different places. And, of course, my friend, Judge Shackley, and my friend, Judge Joyce Fordlock from Dallas, helped me a lot to learn more. It sounds like there's kind of an evolution for you. As there was for Judge Shackley, too, to become an international person, to do sort of cultural and legal arbitrage from one country, one system to another. And let me interspersed by asking you, Shackley, what you got into that. You travel everywhere, you are following the development of various areas of law. In many places. And speaking and participating in the process in many places. Why? Well, it's very interesting to see how different societies process justice and arrive at justice. We're most familiar with the common law system. Mongolia, I believe, the modern criminal system was patterned after the German civil law system. That's true. But their constitution provides that it is an adversarial process, if I'm correct. And they have recently adopted such things as a preliminary hearing before criminal charges may proceed against a defendant. The common law concepts. It's very interesting. The thing about the common law is it's very practical. And it was designed that way. I don't know if you can say the same thing for the civil law system. I don't know enough about it to really say. But I know that these devices that other nations tend to pick up from our common law system are usually because it's simple and it works and it's practical, like a preliminary hearing. Tremendous protection for a person charged with a criminal offense in any society. So what does it make these other places interesting for you? I mean, there's got to be a practical aspect to that. One is you want to take your American experience and deliver it, expose it elsewhere. And the other is you could learn what's going on elsewhere. And maybe that's a value back home. Well, we take it for granted. Simple things like courtrooms are public places. That's not true in China, for instance. You can't just walk into a courtroom and see what's going on. They're public in Mongolia, I believe. Completely or except of classified information. Yes, that's true. Maybe being handled. Interesting. But it varies from country to country. And in China, the Communist Party makes a final decision in important cases. More and more. Yeah, well, I don't know. But that's not true in Mongolia. They have a standalone criminal justice system, the top being the Supreme Court. Yeah. Well, that's a kind of remarkable process. Now, Judge, in the process of your change in the way of thinking, your exposure to these human rights, civil rights, and what we call it, better treatment of defendants in criminal cases, did you see other countries too? Did you travel elsewhere? Or were you focused only on what was going on in the U.S.? In fact, I used to travel a lot in China, South Korea, Japan, Indonesia, Russia, of course. And although I learned from these countries that every other country is trying to make changes in doing reform. And as Judge Scherkeli mentioned, in these states, you accept lots of things like granted. But in many other countries, this has been common in reality after a long struggle for reform. Yeah. Likewise, Mongolia is doing big criminal justice reform. Yeah. And they're struggling to pay more attention, as you mentioned, on rights of defendants. Yeah. So, you know, so at some point along the way, while you were in the U.S., I suppose, you decided you wanted to take this back. You wanted to see if you can apply some of the lessons. The U.S. isn't perfect, it's not perfect. I go on record about that. However, you know, there are positive things, at least in our rule of law, that are useful in other countries. And you made a decision that there would be some things that would be useful in Mongolia. What caused you to make that decision? Was it the school? Was it observing the cases that you saw? Was it talking to Scherkeli-Refetto? Well, that's true. Scherkeli first time came to Mongolia when I was, I think, when I was military judge, right? No, when you were on the Supreme Court. Yeah, at the Supreme Court, but I was still a military member. So, he used to conduct training for military judges and prosecutors. I learned lots of things from his teaching in Mongolia. And then later on, I had a chance to compare Mongolian and U.S. criminal justice system. And you can see clearly the defendants and lawyers in these states have more, much more rights than the defendants and lawyers in Mongolia. And it was striking. And then, of course, I was thinking, why it is, if it is possible in Mongolia, I mean, in the U.S., why it's not possible in Mongolia? Yeah. So, I started trying to... The exchange there is interesting. You know, you can be, you can have a more liberal court, a more liberal set of a system without threatening it, without bringing it down, without negative implications. You can come to a more liberal approach without destroying anything, and in fact, benefiting everyone, because it's not just the accused, it's the society in general. But one thing you mentioned, and you guys have been talking about it, is this the connection between civil criminal, I mean... I mean, the civil law system? In the civil law system, as opposed to in the military law system. The judge was what, the military member of the Supreme Court of Mongolia? That's very interesting. You have a military member sits on that court. And Shackley has studied, you know, Shackley is a senior reserve officer for many years in the Navy, and he studied military justice in many contexts. And he's followed it in every way. And so it raises the question of what is the connection between the reform of civil criminal, in the civil system, criminal justice, with the reform of military justice, which is also criminal. How did you get involved in that? Are you doing that, Shackley? I don't do that currently, but I used to work for the Defense Institute of International Legal Studies. And we sent teams all over the world to talk about rule of law and military justice, and that was one of the training sessions in Mongolia. And we went, and Judge Ganzoreg was gathered, a whole group, it was the entire Supreme Court, I think, and some other judges. And we conducted training about U.S. military justice and what concepts we use and gave some demonstrations. So was that of value? Does the reform of military justice affect the reform of criminal justice in the civil law system? And what was your role on that court? Were you kind of a specialist there in military justice? Did you take the lead on military justice cases? Or were you sitting just as a matter of statute that the court requires a military justice specialist? What was your role there on that court, and how did that work between the two systems? You see, it's interesting that at the time when I was a military, we had a military court. We had military prosecutors, we had military judges, and we usually hold many military member criminal cases. But in 1990s, the military court in Mongolia has been dissolved. We don't have any more military court and military prosecutors. So if I have been charged of an offense in the military, I am in the regular court system in Mongolia? Nowadays, the case would go to just a civilian court. That indeed is very enlightened, the modern view for sure. Of course. And then once the case in the military court, the defendant and lawyer would have more rights. They can exercise more constitutional rights. Very interesting. We're getting right to the meat of this now. I have a question. During the Soviet period, Mongolia was never part of the Soviet Union, though the heavy Russian influence here. In fact, your legal education was in Russia. So you're a graduate of a Russian university law school. That's right. Now, the military justice system that existed at that time in Mongolia that you just described, was that basically the Soviet military justice system? Very much like Soviet military. Then at the end of the Soviet period, that was disbanded, and now cases are handled in the civilian courts, I guess. That's correct. I see. One thing I wanted to mention is that at that time I was a military judge. So the Supreme Court has three divisions, military, criminal, and civil divisions. So I was a military judge sitting at the Supreme Court as a military court division judge. But we mostly handled criminal cases too. How many judges were on that court? Are on that court? I think at the time we had 22 judges. Sounds like the 9th Circuit. So I only have one more question before the break. Ipanma Pruska? What? Ipanma Pruska? No. Ipanma Pruski. Pruski, yes, of course. The question is, do you speak Russian? We'll be right back after this break. We'll find out about the specific reforms in Mongolia. This is Think Tech Hawaii, raising public awareness. A sign of designated driver. My name is Mark Shklav. I am the host of Think Tech Hawaii's Law Across the Sea. Law Across the Sea is on Think Tech Hawaii every other Monday at 11 a.m. Please join me where my guests talk about law topics and ideas and music and Hawaii Anna all across the sea from Hawaii and back again. Aloha. To bingo. Well, you know, the plot thickens. Okay? Judge Gonzalez went to law school before he came to American University in the U.S. He went to law school in Russia in Moscow. I assume, yeah. Now it's called Krasnodar, a small town near Balaxi. Oh, okay. That's closer to Mongolia. Well, actually, south of Moscow. Anyway, so then we find, and during the break, that in fact after the Russian period of law, you know, when Russia was the Soviet Union, I suppose, Mongolia adopted some German concept, German civil law, which makes it very interesting. Why? It's, I think, historically came to Mongolia. I believe civil law system actually firstly Russians adopted from Germany. And then it has been exported to Mongolia and the Mongolians adopted civil law system from Russia. That is how it came to Mongolia. So what is the biggest influence now on the system of law in Mongolia? Well, I think I would say we are trying to make lots of changes and big reform. And currently I would say Mongolia is not only a civil law system country, but it has also some characteristics from common law and it's kind of a mixture of civil law and common law system. Yeah. It sounds like you're evolving into a system that is Mongolian. It's your own brand. Well, Mongolia has a rich history of legal tradition, but still we are trying to pick up what is the best from the two systems, what is the best in civil law system and what is the best in common law system. Many, many good things we can observe in common law system as well. What a great time to be a lawyer and alive and a former judge in Mongolia now with all of these changes now. Well, it's a fascinating time in Mongolia. It's one of my friend American lawyers said, you're doing lots of things like we did 200 years ago. But actually a rule of law in Mongolia dates back to Chen's Khan when he united Mongolia. That's exactly true. And he promulgated the first, I guess it would be the equivalent of the Harmaraba code, but in Asia. And in order to regulate and monitor things, trade along the Silk Road and things like that. Well, is it hard to do reform? Is it hard to move the needle ahead? Is it hard to reform the criminal justice system in Mongolia? Is there resistance to that? How hard do you have to work to get changes through? Well, changing the alting is almost difficult. It's even more difficult changing the whole system or the structure. We have been existed for maybe 60, 70 years. So we're going through lots of changes. And of course we have lots of assistance from the art system and from other members of the legal community. But I'm sure it will go through and it will succeed one day. And of course we can't make a revolution overnight. So we're doing step by step and so far we had lots of achievements. So you're trying to lead this. You're being the champion for these changes. And you have a group of, how many lawyers helping you? Well, of course I'm one of the big advocates for human rights and equal rights, constitutional rights. And of course I have lots of friends and lawyers who support my idea and who support reform ideas. When I was in America for 10 years, during the 10 years I used to do training with my friend, Judge Joyce Frohlock, and with Judge Shockley, training for Mongolian lawyers. I estimated later on at least we brought 100 lawyers, judges, prosecutors, constitutional court members to the states for training. And then these people now doing this judicial reform. So does the public go along with you? Is the public supporting reform? Are there people who say no, we like doing it the old way? No, I think public people were not supporting the criminal justice reform. Good. I was just going to say, about five years ago Justice Genzari, when he was with the prosecutor general's office, brought a group of about 10 Mongolian prosecutors over and we put on a training. JD Kim, our prosecutor, over in Maui put on a, I guess three or four day training program about how we handle prosecutions. And then we came over and met with Chief Justice Rectonwald and also the Attorney General. We were discussing how Mongolian prosecutors might be able to work in the future on training issues with Hawaii prosecutors and Hawaii Attorney General's office. That's a great contribution. Well, I wanted to ask you about the specific things. I have a little list. I have a little list. So I guess one of the things that I saw was plea bargaining. And you have a whole new thing. In the old day, the policemen could make decisions. The prosecutor could make decisions. It was not a two-party system. The prosecutorial arm of the government would handle it even without courts and judges. That's changing. What have you been able to introduce to that system now? Well, the new criminal justice reform coming with two basic laws. One is new criminal code. The other is new criminal procedure code. I can say a few things about the new... For example, the new criminal code abolished death sentence. So that is a very important issue for Mongolian civil rights records. And secondly, we introduced, for example, the preliminary hearing. We didn't have preliminary hearing before. Now there is this criminal procedure code. According to this criminal procedure code, we can have preliminary hearing. We can have a hearing on a guest issue. And then lastly, we can have separate hearing on sentences. So that's very, very helpful for judges and for defense and defendants. Of course, another big renewal, big new reform is the introduction of the plea bargaining system. So that gives lots of rights to defense and then lots of opportunity to a defendant and defense lawyer to make deal with the prosecutors. So both of you spoke before about the public nature of court proceedings. In these proceedings, preliminary hearing, for example, is it public? Can I come in and watch? Yes, unless there is certain provision in law. And this is related to, because it's related to minors less than 14. That's reasonable. What about jury trials? Do you have jury trials in Mongolia now? No. Is that something you want, Judge? Well, I think full jury trials is not likely in Mongolia. But we still have in court lay citizens. So maybe up to three citizens over representatives could be in court during trial. So, Shackle, you've been observing this. What impresses you most about the changes that have been adopted in Mongolia? Well, I think the preliminary hearing is pretty significant to interpose a decision process in between the power of the state and the responsibility of the defendant to respond to charges. That's very significant. I've always thought in our system, the more that we water down the grand jury or preliminary hearing process, it's not good. And what else would you like to see? I mean, if you were just sitting here with the judge now like you are, what would you suggest to him for additional changes? What would be on your list of recommendations? I'd like to learn more about the use of the lay judge. China talks about that a little bit. But if it was actually formalized so that lay members of the, I guess, judiciary, say if you had three lay members and two judges making decisions, that could be, you're getting pretty close to a jury. Yes, you are. Depending on how they're selected and how they serve and are they free from any kind of retribution by defendants. There's a lot of issues that go with that. But that's more and more of a liberal justice system, I think. His judge is very right. Even though we have in court lay citizens, still we have to make a lot. For example, I know in the States there is a special instruction and there are special rules for juries. But we haven't developed such detailed rules and instructions for lay citizens. And then in Mongolia, lay citizens can be sitting with the judges, like judge, would sit this way. And then also when the judge's making deliberation, he would be still in consultation room with the judge. So, sentencing sometimes, I mean, sentencing would be also in prisons of lay citizens. But all these issues must be regulated in a detailed way. So we still need to develop very good, detailed law for lay citizens or for, we say, patisserie. Are you done? In other words, do you have other changes up your sleeve on this? Oh, we have. It's just, I would say, this is just beginning. We have to do lots of things. We have to do, it's not bound there. We still, as I said, step by step we are doing things and helping people exercise their constitutional rights. Can I ask a question? Judge, when I was there, I remember a couple of years ago, I gave that talk to the judges about organized crime. One of the questions that one of the judges asked me at the end is he said, we prosecute people for possession of illegal drugs, but the statute is unclear. It will provide one sentence for possession of a lot of illegal drugs and a lower sentence for possession of less, a lesser amount. But the actual amount isn't defined. Like in our system, we say over an ounce, less than an ounce, more than, you know, we specify in terms of ounces, so it's very specific. So the judge can make a clear ruling. Have those kind of issues been addressed in the new court? Yeah. Well, you observed very well as a professional judge. That was a big issue, a big problem. But unfortunately, this issue hasn't been addressed in the new criminal court. So it's still very difficult. What is the criteria for defining a big amount of drugs? It could be a big amount in money terms, or it could be a big amount in weight grams. My answer to this, when I asked me the question, I said, make a lot of findings. Judge, when you write your answer, if it's a lot, you talk about a lot. Well, this has really been wonderful. Jay, one thing I wanted to mention you that the new court actually introduced as a sentencing travel ban. The travel ban imposed in the past by policemen. Nowadays, that's not true. Only judge could restrict rights of people to travel. That was a big deal for us, too. And a person would have their day in court on that. In other words, if someone wants to ban a Mongolian citizen from travel, he could go to the court and say, Judge, there's no good reason for this, blah, blah, blah. Yeah. Not only Mongolian citizens, many foreign people also would be restricted to traveling out of Mongolia. You are right, Judge. That's again. In the past, the person who expected to have travel ban won't be in a court. But according to the new criminal procedure code, this person or his lawyer must be in there to court hearing whether judge can rule, restrict the travel rights or not. But the person or his lawyer must be in there. This is great. It's great that you're talking to each other, collaborating. It's great what you're doing. It's historic. It's moving the needle to a better place, human rights place in Mongolia. It's so nice to have you here. Thank you so much, Judge Kizark. Really appreciate it. Shaq Lee, thank you for introducing us and coming down for this show. It's lovely to have this discussion. Thank you. Aloha, you guys. Aloha. Time again soon. Thank you.