Mongolia’s (flawed) experiment with deliberative polling in constitutional reform

Mongolia has for the first time employed deliberative polling as an instrument to identify representative public views on possible constitutional amendments. Nevertheless, in the absence of safeguards to ensure neutrality, the process could merely legitimize the dominance of the actors pushing for the reforms – writes Munkhsaikhan Odonkhuu.

(For a response to this article from Professor James Fishkin and Member of Parliament Gombojav Zandanshatar, click here). 

The Mongolian people peacefully transitioned from socialism to constitutional democracy in 1990, adopting their first liberal Constitution in 1992. Mongolia has had eight parliamentary elections and seven presidential elections since 1990, and political power peacefully switched between two main political parties, the Mongolian People’s Party (the MPP) and the Democratic Party (the DP). In the last general election in 2016, the MPP won 65 of the 76 seats, and the DP nine seats. Due to the majoritarian election system, the MPP won 85% of the seats with just 45% of the popular vote, while the DP won 12% of the seats with 33% of the vote. Constitutional amendments require a ¾ majority of all members of the State Great Khural (the SGKh - the parliament). As such, the MPP can now unilaterally amend the constitution. Despite its dominance, the MPP has opted for an innovative public engagement process to constitutional reform.

Experimenting with unique ways of popular participation in constitutional reform

The MPP’s manifesto for the 2016 election had a clause, later inserted into the 2016-2020 Action Plan of the Government, to amend the constitution, considering public needs and necessities, and after ‘asking the people’. According to the MPP, ‘asking the people’ could involve a deliberative polling, a public discussion, a national referendum, or some mixture of these.

On 9 February 2017, the SGKh enacted a new Law on Deliberative Polling, proposed and advocated by MP G. Zandanshatar, a Senior Advisor to the Center for Deliberative Democracy at Stanford University. The SGKh also amended the 2010 Law on Constitutional Amendment Procedure so that deliberative polling is required to amend certain constitutional provisions including those related to parliament, the president, and the prime minster.

Subsequently, the SGKh enacted a resolution to conduct a deliberative polling on constitutional amendments under six themes: (1) developing checks and balances between the SGKh and the Government, (2) clarifying the powers of the President, (3) establishing an independent, professional, competent public service, (4) enhancing the administrative divisions, (5) improving accountability, discipline, and justice, and (6) replacing the unicameral parliament with a bicameral parliament. The resolution also established a Deliberative Council composed of eight members representing researchers, the private sector, and NGOs. The Council is formally charged with administering polls, developing relevant questions based on the themes, and nominating experts to provide explanations to questions raised during the process. Although members of the Council must legally be  ‘independent professionals with relevant knowledge and experience’, there are no appropriate protections of such independence.

The first deliberative polling on the constitutional amendments was held in April 2017. A random, representative sample of 1515 citizens was first polled on suggested amendments clustered into six themes. After this preliminary poll, 669 members of the sample were invited to gather at the Government Place in Ulaanbaatar on 29 and 30 April 2017, in order to discuss issues under the six themes. The sample included diverse membership in terms of gender, geography, employment, age, education, marriage and views on democracy. For example, it included 314 men and 355 women. These citizens obtained a written explanation covering the six themes, and they received oral answers from experts to questions that they chose in small group discussions. After these deliberations, the participants were again asked the original questions under the six themes. All the oral answers given by the experts in plenary sessions were broadcast live on television.

Based on the result of the deliberative polling, the Deliberative Council submitted recommendations on constitutional amendments on 3 May 2017. The recommendations of the Council contained conclusions some of which were supported by the participants, a few were rejected, and some others needed further research. On 5 May 2017, the Chairperson of the SGKh established a working group in charge of drafting the constitutional amendments (the working group), which was composed of 26 members representing the majority and minority parliamentary parties. The working group and the SGKh could reject or modify the recommendations of the Council when drafting and adopting the constitutional amendments.

While the 1992 Constitution was adopted through an inclusive, participatory and deliberative process over 15 months, the only amendments made to the Constitution in 2000 were adopted in closed doors without any meaningful public discussion. Other failed attempts to amend the Constitution were similarly neither open nor inclusive. In view of this experience, although it was important to have citizens' participation in the current constitutional amendment process, the Law on Deliberative Polling was not thoroughly respected in April 2017. First, participants received unbalanced information concerning some of the themes. Almost all the expert explanations favored the constitutional entrenchment of the Public Service Council and related principles, even though problems connected to the public service were largely unrelated to the constitution. Moreover, a briefing booklet distributed to the participants was not available until the day of the second polling, and did not include balanced information. For instance, arguments for establishing a new constitutional organization called the State Control Organization were covered in five pages, yet each of the other 13 issues was given only one or two pages. In five pages, the State Control Organization, whose classic model is the Control Yuan of Taiwan according to MP G. Zandanshatar, was called ‘the best model’ that ‘fits for the Asian customary law’, and arguments were biased in favor of establishing such entity.

In addition, some of the questions were drafted as leading statements, increasing their chances of endorsement by the sample group, although the problems are not necessarily constitutional issues. For instance, one question asked: ‘Do you think that the current system to make high-level officials disciplined and accountable works satisfactorily well? What is your opinion on establishing a constitutional organization of State Accountability?’ The participants were likely to answer positively this question, considering the widespread perception of corruption and public mistrust in the government. The working group used the positive answers to these general questions to put forward the constitutional entrenchment of a State Control Organization, although the recommendations of the Deliberative Council indicated that ‘the participants were provided with information on means and mechanisms rather than establishing a constitutional organization [a State Control Organization]’. Another question was on whether there is need to ‘clarify the principles to appoint the judges and chief judges’. The participants gave positive answers, which the working group used to suggest a system of appointing the Supreme Court judges by the SGKh, instead of the President.

The procedural defects, such as unbalanced information and leading questions, influenced the participants to support some strange propositions such as changing the three-powers-structure (legislative, executive, and judicial branches as in most democratic countries) into a five-powers-structure (legislative, executive, judicial, control (audit and other general powers), and examination (public service) organizations as in Taiwan). This change would alter the basic structure of the 1992 constitution and weaken the system of checks and balances. The details of control and public service organizations would be determined not in the constitution, but by law. Therefore, the composition, powers and competence of these organizations could be so vague that they might intervene in the competences of legislative, executive and judicial branches. There is also no suggested mechanism to review the activities of these organizations by the regular courts and the Constitutional Court, and there is a danger of politically abusing all the powers concentrated in these organizations, in particular the State Control Organization.

The parliamentary majority, the MPP, not only appointed all the members of the Deliberative Council but also preselected all the themes. The ideas such as five-powers or bicameralism were unfamiliar themes in political and academic discussions in Mongolia, but they were inserted in the deliberative polling. Therefore, while the overall idea was unique and useful, the deliberative polling in April was conducted in a manner that allowed some political actors to influence the agenda and outcomes. 

Complementing deliberative polling with broader public participation

The working group sought to submit draft constitutional amendments to a referendum on 26 June 2017, along with the presidential election, and the Government supported this attempt to save money. However, under the Law on National Referendum, if a referendum on constitutional amendment is held together with an election (either parliamentary or presidential), the SGKh has to declare the referendum 65 days prior to the election.  This meant that the SGKh should have passed a decision by 21 April 2017, which it did not. Subsequently, on 2 June 2017, the parliament amended the law to reduce the 65 days to 21 days. Nevertheless, the SGKh finally decided not to hold the referendum on 26 June following criticism that the people could not be meaningfully informed about the amendments in 21 days.

While the SGKh was discussing the amendment to the Law on the National Referendum, the working group submitted the draft constitutional amendments to the Chairperson of the SGKh on 25 May 2017. On 2 June 2017, the SGKh adopted a resolution to organize public discussions on this draft and to ask the public to submit their views between 5 June and 10 September 2017. The resolution also ordered the working group to propose draft constitutional amendments by 1 October 2017 based on the results of the public discussion, but the SGKh can modify or reject the proposed amendments. The working group has discretion to consider and reflect the public views, and there is no guarantee of transparency of these discussions and of balance of information concerning the content of the submitted amendments. Although the public discussion officially started on 5 June, the draft constitutional amendments were only published online on 14 June.

Since the constitution does not require a referendum for constitutional amendments, except in cases where 2/3 of MPs vote for it, it is up to the SGKh to adopt the amendments, or to submit them to a national referendum. In the MPP manifesto, the deliberative polling and the ongoing nominal public participation process constitute sufficient modalities of ‘asking the people’, without the need to organize a referendum. 

Contentious substantive issues in the submitted amendments

The content of the draft amendments submitted in May 2017 was extremely broad, covering not only legislative, executive and judicial branches of the government, but also administrative divisions. This section briefly introduces some of the most controversial aspects in addition to the constitutional entrenchment of the State Control Organization and the Public Service Council already discussed above.

With a view to addressing problems of government instability - Mongolia has had 13 prime ministers since 1992 - the amendments require an absolute majority for the dismissal of the prime minister, instead of a simple majority as is currently the case. In addition, the decisions of the prime minister to appoint/dismiss cabinet members may not be blocked by either the President or the parliament. Moreover, the amendments require parliament to seek the opinion of the government before increasing or adding any item of expenditure in the budget, although consent of the government is still not necessary.

Following criticism that allowing MPs to hold cabinet posts concurrently (since 2000) weakened the separation of legislative and executive powers, as it enhanced the influence of MPs serving as cabinet ministers in a small, unicameral SGKh, the amendments submitted include a clause requiring that not more than one-third of cabinet ministers could be MPs. 

In response to the decision of the Constitutional Court invalidating a mixed election system less than two months prior to the 2016 parliamentary elections, the SGKh adopted a majoritarian system, a plurality system where whoever receives the highest votes among the contestants in single-member electoral district wins. Under the submitted amendments, possibly to exclude the Court from invalidating future reforms, the electoral system is left open for determination by law. 

Currently, the people directly elect the President of Mongolia, and his/her powers are much broader than the conventional powers of heads of state in parliamentary systems. The general perception among the citizens is that of an all-powerful president, who can solve all the problems, such as unemployment or corruption. Thus, presidential candidates make wide-ranging but unattainable promises, and try to gain as much power as possible if elected. Therefore, members from the principal political parties expressed their supports to reject the popular election of the president. However, the participants in the deliberative polling rejected the replacement of the direct popular election of the President for four years (renewable once) with an indirect election for a non-renewable six-year term by an electoral college of all MPs and all the members of provincial and capital city councils (21 provinces plus the capital city). They also rejected the replacement of the unicameral parliament with a bicameral parliament.

Nevertheless, in response to overly powerful previous presidents, the amendments suggest to remove three powers from the presidency: the power to provide guidelines for the government, to initiate legislative bills, and to appoint judges. However, the amendments would not preclude the extension of the powers of the president through laws (statutes). Due to this extension, the president currently nominates the head of the Anti-corruption Agency and the head of the Public Service Council, and appoints all members of the Judicial General Council in addition to the constitutional powers to appoint all judges, the Prosecutor General, and Deputy Prosecutor General.

The Judicial General Council currently selects and presents Supreme Court judicial candidates to the SGKH, who are then appointed by the President. The President also appoints judges of other courts upon the proposal of the Council. Presidents have sometimes refused to appoint judges proposed by the Council, which has been criticized as a means to politically influence the judiciary. The submitted amendments require the President to formalize within 72 hours appointments to the Supreme Court upon the approval of the SGKh, following their presentation by the Council, and judges of other courts upon the proposal of the Council. The reforms transfer some of the power of appointment from the President to an already strong parliament, which could politicize the judicial appointment process, and harm judicial independence. Similarly, the amendments require the President to affirm the Chief Justice of the Supreme Court as selected by the members of the Court. Moreover, the amendments fix the membership to the Council at 11, filling the gap in the current constitution where political actors could influence the Council by merely changing the number of members. 

Concluding remarks 

The current constitutional amendment process has involved innovative and unprecedented aspects that could potentially enhance the legitimacy of the reforms. Although the MPP has the necessary majority in the SGKh to easily amend the Constitution, it has opted to pursue consensus with the DP and other smaller parties and to reflect the opinions of the public. Nevertheless, the need to insulate the deliberative process from the influence of strong political actors requires broadening the agenda setting authority, ensuring neutrality in the deliberation process, and guaranteeing the independence of the organ in charge of the process. In the absence of such safeguards, the process could merely legitimize the dominance of the actors pushing for the reforms.

Substantively, the scope of the submitted amendment is much broader than the current political consensus on the solution for constitutional problems. While the amendments contain various provisions that could improve the workings of the government, there are certain areas that still need further debate and refining, especially to further ensure judicial independence, to strengthen the system of checks and balances, and to constrain the dominance of parliament. 

(For a response to this article from Professor James Fishkin and Member of Parliament Gombojav Zandanshatar, click here). 

Munkhsaikhan Odonkhuu is Associate Professor of Law at National University of Mongolia School of Law. He holds a LL.D. (2011) from Nagoya University, Japan. He is the author of the book: Towards Better Protection of Fundamental Rights in Mongolia: Constitutional Review and Interpretation (CALE Books 4, Nagoya University, 2014).