University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2001 When Courts and Politics Collide: Mongolia's Constitutional Crisis Tom Ginsburg Gombosuren Ganzorig Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Tom Ginsburg & Gombosuren Ganzorig, "When Courts and Politics Collide: Mongolia's Constitutional Crisis," 14 Columbia Journal of Asian Law 309 (2001). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. WHEN COURTS AND POLITICS COLLIDE: MONGOLIA'S CONSTITUTIONAL CRISIS TOM GINSRG * GOMBOSUREN GANZORIG I. INTRODUCTION Mongolia's political system has received well-deserved attention as one of the most successful examples of democratization in the Asian region Since 1990, Mongolia has undergone peaceful constitutional change and has conducted several democratic elections. Human rights are well- respected, the media is free and political competition exists? This is all the more remarkable given that constitutional democracy has developed "without prerequisites,"3 that is, without a previous history of democracy or social pluralism that is sometimes thought necessary for democracy to flourish. During the early years of transition, Mongolia's Constitutional Court played an important role in facilitating democratic change. The court occasionally overturned parliamentary legislation while serving as a vehicle to protect human rights and the constitutional scheme. However, in recent years Mongolia's Constitutional Court has found itself at the center of a major controversy regarding the very structure of the political system. Through a series of decisions that has placed it at odds with the legislature, the Court has raised questions about its ability to play an appropriate role in a constitutional democracy. This article traces the origins of the current • Assistant Professor of Law, University of Illinois, Urbana-Champaign. •* Former Judge, Supreme Court of Mongolia; Adjunct Professor, Texas Wesleyan University School of Law. 1. See annual reports in ASIAN SURVEY (1991-97). 2. U.S. DEP'T OF STATE, MONGOLIA HUMAN RIGHTS REPORT 2000; Tom Ginsburg and G. Ganzorig, Constitutionalism and Human Rights in Mongolia, in MONGOLIA INTRANsmo.4 (OLE BRuuN AND OLE ODGAARD, EDS, 1996.) 3. Steven Fish, Mongolia: Democracy without Prerequisites,9 J. De-1OC. 127 (1998). HeinOnline -- 14 Colum. J. Asian L. 309 2000-2001 COLUMBIA JOURNAL OFASIAN LAW[ [14:2 problems with the Mongolian constitutional scheme and describes the Court's role in precipitating the political crisis. II. BACKGROUND: MONGOLIA'S TRANSFORMATION AND THE 1992 CONSTITUTION Mongolia is a landlocked country located between Russia and China. Beginning in the 12 th century, its tribes united and conquered the largest empire the world has ever known, but gradually the country came to be dominated by the Manchu empire that governed China.4 Until 1911, Mongolia was administered as part of the Chinese empire. With China convulsed in revolution and chaos for the next decade, Mongolia began to seek its independence and in 1921, established an independent republic with the help of the Soviet Union. For the next seven decades, Mongolia was dominated by Soviet influence although it always maintained its independent statehood. A single party, the Mongolian People's Revolutionary Party (the "MPRP"), controlled politics. Following the collapse of the Berlin Wall in 1989, Mongolian students began to demand democratic reforms. The ruling MPRP agreed and a new period of democracy was introduced. 5 One of the most important tasks was constitutional reform, and a large drafting committee was established with representation from all political parties. After canvassing some one hundred foreign constitutions, the new Constitution was promulgated in early 1992.6 The Constitution featured a new unicameral parliament called the State Great Hural, a directly elected President, and a Constitutional Court with the power to strike legislation that was unconstitutional. Mongolia's Constitutional Court is a nine-member body with three members appointed by each of the President, the State Great Hural, and the Supreme Court. Cases can be brought to the Court by certain designated governmental officials as well as by any member of the public who sends a petition alleging a violation of the constitution.7 Petitions are initially considered by one member of the Court.' If the member believes there is a constitutional violation, a three-member panel of the Court hears the case. 4. See generally ROBERT WORDEN AND ANDREA MARLES, MONGOLIA: A COUNTRY STUDY (1991). 5. See Tom Ginsburg, Between Russia and China: PoliticalReform in Mongolia, 35 ASIAN SURVEY 459 (1995). 6. Alan J.K. Sanders, Mongolia's New Constitution,32 ASIAN SURVEY 42 (1992). 7. CONST. OF MONGOLIA, Art. 69. 8. Law on Constitutional Court, Art. 9(1) HeinOnline -- 14 Colum. J. Asian L. 310 2000-2001 2001] MONGOLIA S CONSTITUTIONAL CRISIS A decision on unconstitutionality is automatically forwarded to the State Great Hural that has the right to accept or reject the Court's decision. If the State Great Hural accepts the decision of the Court, the act in question is deemed unconstitutional. On the other hand, if the State Great Hural rejects the finding of unconstitutionality, the case is sent back to the Constitutional Court for consideration by the full court en banc. The full court's decision is final.9 This procedure of legislative approval of declarations of unconstitutionality, which has some parallels with the procedure of the Constitutional Tribunal in Poland until 1997, reflects residual socialist notions of parliamentary sovereignty, namely that parliament has a legitimate role in constitutional interpretation. The debates over institutional design in Mongolia, however, ultimately culminated in a system where the Court has the final say on constitutionality. In the elections immediately following the new Constitution, the MPRP won an overwhelming victory and for the next four years controlled the government and State Great Hural. Parliamentary legislation was occasionally challenged before the Constitutional Court in minor cases, and the Court was willing to strike legislation. Furthermore, the State Great Hural became embroiled in a number of disputes with the first President, P. Ochirbat. The Constitutional Court had to resolve some of these disputes as well, and by and large mediated them in a manner that led to increased legitimacy of the Court. Mongolia's democratic system seemed to be deepening despite the political dominance of the former communist party."0 III. THE 1996 ELECTION AND ITS AFTERMATH In the 1996 parliamentary elections, the National Democrat-Social Democrat coalition came to power for the first time." Before a government could be formed, however, a member of the coalition petitioned the Court to prevent the coalition from filling the cabinet with members of the State Great Hural, relying on a provision in the Constitution that "members of parliament shall have no other employment."' 2 The issue turned on the type 9. Law on Constitutional Court Procedure, Art. 3(3). 10. See Tom Ginsburg, Betreen Fireandice: Mongolia in 1996,37 ASIAN SURVEY 60 (1997); DeepeningDemocracy: Mongolia in 1997,38 ASIAN SURVEY 64 (1998). 11. IM. 12. CONST. OF MONGOLIA, Art. 29. The question of this member's motivation in bringing the suit is puzzling. D. Lamjav was a senior member of the Social Democratic Party, and had been a professor of K Gonchigdorj, the Speaker of Parliament. At one time he was considered a potential presidential candidate for the Party, and w*as considered to be a person of great intellect, with the highest levels of integrity and devotion to the Constitution. Some observers suggested that he filed the petition when it became clear that he would not be offered a cabinet post, hoping that by HeinOnline -- 14 Colum. J. Asian L. 311 2000-2001 COLUMBIA JOURNAL OFASIAN LAW [14:2 of political system established by the 1992 Constitution. Was it a presidential system where the cabinet is unrelated to the parliament? Or a parliamentary system, wherein the government is formed by the leading parties in parliament? The Court initially found that parliamentary deputies could not hold cabinet posts. This provoked the rancor of the democratic coalition and forced it to scrap its anticipated government lineup, requiring a scramble to find qualified persons to fill the cabinet. The coalition's leadership accused the Court of acting in a politically motivated fashion, and called for more "scientific" methods of constitutional interpretations, such as a detailed inquiry into the travaux prepartoires of the constitutional drafting committee. 3 The State Great Hural was controlled, for the first time, by the new parties, and they were given an opportunity to accept or reject the Court's judgment. They predictably rejected it, leading to a reconsideration of the case by the full panel of the Court. A second round of arguments was held. National Democratic Party lawyer and Member of Parliament (MP) B. Delgerma argued that the parliamentary model had been adopted as a reaction to the socialist "presidential" system and the over-concentration of power in the hands of a single individual. It would be anti-democratic to