Mongolia's Constitutional Crisis and the Rule of Law in Post-Soviet Societies

Mr. Sukhbaatar Sumiya
LL.D. student
Kyushu University Graduate School of Law

The problem of the rule of law in developing societies has often been studied through the lenses of the established practices more readily found in developed nations, which often yield negative images of the prospects of the rule of law in countries making the transition to democracy. Through a case study situated in the particular circumstances of the post-Soviet context, this paper attempts to explore what is to be found beyond such unreservedly negative conclusions, and to offer an alternative perspective that might provide the basis for new approaches to the project of establishing the rule of law in such contexts.

The case study offers the first in-depth description of Mongolia ’s constitutional crisis of 1996-2000. This crisis involved a dispute between the country’s parliament and the Constitutional Court over the apparently unimportant issue of whether parliament members could concurrently serve as cabinet members. The paper then goes on to analyze the implications for the rule of law more generally, by first identifying a host of rule-of-law failures in this case, including poor legal reasoning on the part of judicial branch and a lack of due process on the part of the Parliament in its efforts to resolve the situation through constitutional revision. However, beyond this flawed process, the paper also reveals a number of positive legal developments, most notably the clarification of a previously vague legal norm and the strong message that the newly introduced constitutional court is a new factor in the Mongolian polity.

This paper argues that the existing views on these two sides of the case tend to suffer from the drawbacks of either legal idealism or political realism, the two extreme approaches to the rule of law. Therefore, the paper offers an alternative way of looking at the case. What is revealed then is a paradoxical picture where the failures of the rule of law may have actually contributed to the positive legal developments in ironic and unintended ways. It is also suggested that the lessons from this case study can be used to address similar problems in the wider law and development practice and literature.