By Jennifer Lander
Contrary to popular opinion and the slogans of international organisations, democracy and economic development do not always make for easy bedfellows. One of the basic elements of democracy has to do with the function of law under an independent judiciary: law should no longer simply be a mask for state interests but a genuine space where different interests and rights can be adjudicated as impartially as possible.
In that sense, democracy is supposed to be good for economic development because it protects contractual relationships, transactions and other market activity from unlawful interference, thus creating a stable environment for the economy. However, democracy can also challenge the terms of economic development because the civil and political rights of citizens are also supposed to be protected by that very same mechanism: the rule of law.
Because the rule of law cuts both ways – protecting contracts as well as civil rights – there are times when democracy and economic development seem to be at odds. In these times it is not uncommon to see national governments trying to limit civil rights in order to “get the economy back on track”.
Enter our current case in point: the investigation of Sukhgerel Dugersuren, a high-profile civil society leader who has been deeply involved over the past two decades in monitoring the environmental and social impacts of large-scale mining and infrastructure projects. In early August, the General Intelligence Agency (GIA) began an investigation of Sukhgerel’s alleged role in “sabotaging” the country’s economic interests through “illegal cooperation with foreign agents/agencies” (Articles 19.4 and 19.6 of the Criminal Code). These are serious allegations and could lead to imprisonment if Sukhgerel is found guilty.
Here are two simple questions that I hope will shed a little more light and a little less heat on this controversial moment in a controversial figure’s career.
Why Now?
The first is a question of timing: why now? Sukhgerel has been working consistently as an advocate on socio-environmental issues since the early 2000s when the mining boom started in Mongolia. People may not agree with her politics or her assessment of the impacts of mining, hydropower and other energy projects, but she isn’t doing anything new. In fact, Sukhgerel has been extremely consistent in her advocacy approach, which is notable for its almost obsessive lawfulness: her modus operandi is to sift through every governing rule that applies to a given development project, whether that be national legislation, international law or standards, or corporate social responsibility commitments. Her June article on the Erdeneburen hydropower plant is just such an example of detailed legal analysis.
If Sukhgerel hasn’t been doing things differently, then what has changed?
In August, a few days after her investigation was announced by the GIA, the Chinese Foreign Minister arrived. The Erdeneburen hydropower plant was on the table for discussion. Coincidence? I think not. My research suggests that there is a consistently positive correlation between heightened national economic insecurity and increasingly erratic crackdowns on civil society. It was a similar story in 2013, when Mongolia’s mining economy began to tank and the most outspoken leaders of the River Movements were detained and imprisoned in a dubious judicial process.
Just as there have been “boom and bust” cycles affecting Mongolia’s economic returns from natural resource exports, there have been parallel “boom and bust” cycles in the central government’s relationship with sub-national administrations and civil society organisations. I think we are seeing another one of these cycles, where Mongolia’s political economy is profoundly shaping its constitutional balance and adversely affecting civil society.
Why Sukhgerel?
Sukhgerel is particularly high profile, and her “fine legal toothcomb” approach is something which makes her very tiresome in the eyes of corporations, investors and government ministries wanting to accelerate economic activities. Equally, she is very admired in the eyes of impacted communities and transnational advocacy networks. If the government succeeds in taking Sukhgerel out of the picture through criminalisation, they will simultaneously take a prominent thorn out of the side of economic interests and effectively threaten those who support her.
The problem is that by targeting Sukhgerel, the government is punishing a particularly civil and lawful mode of engagement with the impacts of development projects. While Sukhgerel may be famously combative in her tone, she notably doesn’t organise violent protests. She attends well-known international conferences, she promotes well-recognised campaigns on taxation and environmental impact assessment. In short, she is part of a well-known chorus of concerned civic leaders working on the social and environmental impacts of development projects globally.
She may be unpopular because she believes in prioritising social and environmental principles over economic activities, but that’s nothing surprising. Large-scale development projects are inevitably controversial, especially in democracies where people have sufficient freedom to raise their voice and promote their views. Sukhgerel is someone who sees more costs than benefits, and she is entitled to hold that opinion and seek to influence the governance of the sector as an informed civilian, particularly given that all she seems to spend her time doing is appealing to the very standards that companies, investors and governments say they are committed to.
So are Sukhgerel’s advocacy activities annoying for some actors? Sure. Are they disruptive for some projects? Potentially. Are they criminal? No.
So what is this all really about?
My concern is that this criminal investigation is not really about whether Sukhgerel is a “traitorous saboteur” of Mongolian economic interests. Frankly, that allegation seems extremely far-fetched (heavily edited Youtube videos and email screenshots on Twitter are not “evidence” in any sense of the word). The real issue is the democratic cost of the government’s current erratic attempt to reassure its economic partners that nothing – not even the fine legal toothcomb of Sukhgerel Dugersuren – will delay or disrupt economic projects. There is a heavy irony to all of this, in the sense that the government itself has routinely delayed and disrupted strategic economic projects over the past ten years, much to the ire of investors. But this time the government has the chance to blame someone else, and they are taking it.
Sukhgerel makes a particularly efficient scapegoat because she is a classic “marmite character” in Mongolia’s economic development sector (to borrow a British idiom). Marmite, if you don’t know of it, is a salty yeast spread for toast or sandwiches eaten in the UK, and people either love it or loathe it. There is no middle ground with Marmite, just like there is no middle ground with Sukhgerel: people tend to be either for or against her.
But being a “marmite character” is not a criminal offense. If no real evidence of “traitorous sabotage” turns up out of the blue (as I strongly suspect it won’t), then this criminal investigation is effectively a scare tactic to punish the very mode of civic engagement that Mongolia’s democratic constitution has been designed to protect. It scapegoats someone who has unfailingly, infuriatingly and tenaciously turned to lawful means to challenge economic activities by using the very standards baked into development projects themselves.
If this investigation is to have any credibility from a legal perspective, it must be very transparent, independent and stringently follow the rules of admissible evidence and fair trial. Innocent until proven guilty, right? The rule of law, if it is real and not just rhetoric, has to protect everyone, even marmite characters.
About Jennifer Lander:
Dr Jennifer Lander is a Visiting Research Fellow in Law at De Montfort University in the UK. She currently leads a project funded by the British Academy examining the implications of new dispute resolution mechanisms in Mongolia’s mining sector for practices and paradigms of citizenship. Her book Transnational Law and State Transformation (Routledge, 2020) explores some of the broader issues raised in this blog in detail. You can follow her for an occasional tweet at @jennylander4 or contact her directly at jenny.lander@dmu.ac.uk
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