Exporting the rule of law to Mongolia: post-socialist legal and judicial reforms.

• Author: Astrada, Sebastian R.

This article analyzes Mongolia's legal and judicial reforms and the efforts of international organizations and outside states to assist or encourage those reforms. Most international organizations and outside states predicate their legal assistance on establishing the "rule of law, " but they rarely operate from a developed definition of this concept. This article analyzes what the concept of "rule of law" commonly means, and establishes a cogent and tangible, and procedurally-minimalist, rule of law definition. This article then uses this formulation to analyze Mongolia's legal and judicial reforms. Mongolia's experiences demonstrate four important best practices for future rule of law promotion: (1) judicial independence is the cornerstone of the rule of law; (2) formal government action plans offer "more bang for your buck;" (3) public participation and sentiment is a proxy for the institutionalization of the norms and culture of the rule of law; and (4) the leverage of donor coordination pays dividends.

1. INTRODUCTION

   From the time of its independence on July 11, 1921, (1) and throughout 70 years as a socialist state, Mongolia was something of an enigma to the rest of the world, having withdrawn inward. Mongolia engaged in diplomatic relations almost exclusively with one state: the Union of Soviet Socialist Republics (U.S.S.R. or Soviet Union)) Then, after the Sino-Soviet split, Mongolia primarily acted under Soviet direction as a buffer state between the U.S.S.R. and its other large communist neighbor, China) During that time, only the U.S.S.R. knew anything about Mongolia and its people. (4) Mongolia stumbled onto the world scene during the remarkable antecedents which led to the dismantling of the Soviet Union and its satellites. (5) Only then did the world awaken to Mongolia and its status as an independent state.

   Following the lead of the former satellites, in 1990, Mongolia undertook a joint transition from socialism and a centrally-planned economy to democracy and a free-market economy. (6) At its outset, the parliamentary leaders envisioned a sustainable and modest transition. After the transition began with a basic amendment to the Constitution to provide for a multi-party state, subsequent events enlarged the initial scope of the shift. (7) Put simply, Mongolia collapsed. Mongolia's economic implosion and social structure dissolution resulted from a unique combination: Eastern Europe's rejection of communism; the Soviet Union's disintegration; the resultant destruction of the Soviet trading bloc, the Council for Mutual Economic Assistance ("CMEA"); and the Soviet Union's cessation of aid to Mongolia. (8) As a result, Mongolia probably suffered the worst peacetime economic collapse of any nation this century. (9) By the time the dust settled, the transition had to undertake the goal of completely rebuilding all of Mongolia's internal structures.

   As a result, Mongolia's leaders lacked the advantage of gradual change. Instead, they chose a "shock therapy" approach by opening its borders, dismantling trade barriers, ceasing price controls, and privatizing the state's holdings. (10) Throughout this process, over the last twenty years, Mongolia received massive influxes of donor aid in the form of human, technological and financial capital. (11) Surprisingly, Mongolia's transition has been lauded as achieving remarkable success; and its institutions are democratic, widely-established and domestically and internationally respected. (12) However, Mongolia still cannot stand on sturdy legs if the support of donor aid is reduced or retracted.

   In order for the government of Mongolia to understand how foreign aid influences its economy, society and government, and what level of dependence or interaction exists, this article addresses certain questions. How did foreign aid influence, assist and advance Mongolia's legal transition? Was foreign aid predicated on a firm understanding of what Mongolia's economy and legal system needed, or did foreign donors merely advance general, and western notions of legal, democratic and capitalistic reforms? Are these systems appropriate for the Mongolian people, its culture and its institutional history?

   Most international organizations and outside states predicate their legal assistance on establishing the "rule of law," but they rarely operate from a well-thought definition of this concept. This article analyzes what the concept of "rule of law" commonly means, and establishes a cogent and tangible rule of law definition. This article then uses this procedurally-minimalist formulation to analyze Mongolia's post-socialist rule of law reforms that focus on the judiciary in particular. (13)

   This article is divided into five parts. Part II discusses the concept of the rule of law and conceives of an appropriate rule of law formulation for post-socialist or transitional states. Part Ill provides a brief summary of Mongolia's institutional background. Pursuant to the procedurally-minimalist rule of law definition that this article establishes, Part IV addresses Mongolia's legal and judicial reforms and the efforts of international organizations, states and domestic NGOs to assist or encourage those reforms, and identifies lessons learned and significant issues or stumbling blocks that remain in Mongolia's reform process. Finally, Part V offers some conclusions. For a more in depth analysis to Mongolia's transition, this article provides various appendices. Appendix A lays the institutional and legal bases of Mongolia's socialist times. Appendix B delineates the specific reforms that Mongolia and the donor community implemented.

2. THE THEORY OF RULE OF LAW REFORM

   The rule of law is a concept that gained widespread credence and revival following the dismantling of the former Soviet Union. (14) Prior to September 11, 2001, the United States and other members of the international community began a massive program of foreign aid (including rule of law programs) to states that were transitioning to democracy or that were newly democratic, particularly the former republics of the U.S.S.R. (15) The post-911 environment further intensified the exportation and implementation of law reforms--mostly under the rubric and with the final goal of establishing a "rule of law." (16) In the present international relations environment, there is an increased emphasis on creating and sustaining democratic states. Western powers in particular believe they can accomplish this through the exportation of the rule of law to states which lack democracy or market-friendly institutions or where they are emerging from conflict. (17) Thus, rule of law promotion becomes an element of foreign policy or an unofficial response to the rise of the leftists in Latin America, the autocracies in the remaining communist states, and the dictatorships and sultanates of Africa and the Middle East. (18)

   Additionally, rule of law reform has been an important by-product of globalization. In fact, the concept of the rule of law in modern times invariably is tied to the recent phenomenon of globalization of law. Globalization of law is the "degree to which the whole world lives under a single set of legal rules." (19) It refers to the trend where "what is sought globally is increased transparency of, and increased public participation in, bureaucratic decision-making." (20)

   Before the globalization of law, most states did not require a legal system or legal rules that complemented or interlocked neatly with the global economic rules in place. In no small part due to increased globalization, states increasingly have been encouraging their allies and development organizations to assist in their domestic reform process. (21) Normally, their purpose is to leverage the expertise of their allies and the international community to their specific needs and general benefit. (22)

   This process is compounded by the fact that, in the last twenty or so years, a number of regions naturally have undergone catastrophic implosions or drastic changes. (23) Countries in the former Soviet Union, Asia, Eastern Europe, Latin America and parts of Africa all have undertaken recent transformations, mostly resulting in the creation of democratic institutions, if not democracy itself. (24) Complementing these transformations has been a high degree of donor activity, and of course, what generally follows, rule of law reform. (25)

   However, as frequently and rightly noted, donors have spent billions of dollars promoting the rule of law without fully understanding or defining the concept. (26) Regardless, the promotion of the rule of law has become a de facto rally cry for the international development, human-rights and foreign-policy communities. (27) For instance, the mission statement of the international section of the National Center for State Courts of the United States is "to strengthen the rule of law and administration of justice throughout the world." (28) To be sure, most aid donors operate with a common sense understanding the concept of the rule of law, but their assumptions rarely are grounded in empirical research. (29) Nor is there consensus on the rule of law's definitive academic conception.

   Thus, this section conceives a working rule of law definition for analysis of post-socialist or transitional legal reforms. The benefit of proceeding from a developed conception of the rule of law is that its use can be understood easily for subsequent comparative studies of post-Socialist or other transitional states undergoing legal and judicial reforms. (30)

   1. What is the Rule of Law?

      The original meaning of rule of law is simply that persons and institutions should be accountable to predetermined standards--and that those standards must apply to everyone equally. (31) However, scholars strongly differ over the character and the elements of the rule of law in modern conceptions. (32)

      This article's formulation represents a refinement...