Mongolia’s Long, Participatory Route to Constitutional Reforms
The 2019 constitutional amendment process involved innovative and unprecedented participatory processes enhancing the legitimacy of the reforms and potentially establishing an emerging political convention. The substantive reforms are likely to contribute to government stability and accountability, judicial independence, efficient local governance and equitable resource management. Nevertheless, much now depends on the adoption of the more than forty-five laws that are necessary for the implementation of the amendments through the same sense of inclusion and consensus building – writes Professor Munkhsaikhan Odonkhuu.
In November 2019, Mongolia approved the second set of amendments to its 1992 Constitution. The recent amendments were novel because of the extent of deliberation and public engagement. Despite the dominance of the ruling Mongolian People’s Party (MPP), the amendment involved engagement of the public, the main opposition party and the Mongolian President.
The participatory process involved an experimental deliberative polling, which allowed randomly selected Mongolians from across the country to influence the agenda and outcome of the process. The Deliberative Council submitted recommendations on constitutional amendments to the Parliament (the State Great Khural), which established a working group in charge of drafting amendments composed of members representing the ruling and opposition parties. The working group submitted draft amendments to various state entities for their views, subsequently to the Chairperson of Parliament in May, and the result was published online in June 2017.
Parliament organised public discussions, received comments of 327,375 citizens from across the country, in addition to comments submitted online. The commentary on the draft was published and distributed in hardcopy and online in August 2017. In parallel, various entities organised research conferences and a body composed of constitutional scholars, established by the working group, submitted recommendations in May 2018.
The revised version of the draft amendments eliminated controversial clauses such as the five-powers-structure and the parliamentary appointment of Supreme Court justices. Following further submissions from state and non-state entities, the working group formulated the third version of the draft amendments, which was published online in April 2019.
Elusive political elite and civil society consensus
In June 2019, Parliament officially proposed the draft which sought to amend 20 of the 70 articles of the constitution. Parliament approved the draft on first reading and established a cross-party parliamentary working group to prepare the second and third readings. This working group created six sub-working groups composed of constitutional scholars and experts, who prepared opinions on proposals. Members of parliament discussed the draft in their own constituencies, in which 40,930 citizens participated, in addition to other online and in-person submissions.
In July 2019, President Khaltmaagiin Battulga of Mongolia unexpectedly proposed his own draft amendments, which would have drastically altered the basic structure of the constitution and increased presidential powers. In addition, the President proposed the removal of clauses related to the judiciary, aimed at reducing the President’s influence in the judiciary, from the parliamentary draft.
Parliament subsequently established a working group for consensus to harmonize the two drafts, headed by the President, with the Prime Minister as subhead, and including seven cross-party representatives. During the discussions, the President’s chief of staff threatened that the President would leave the working group for consensus and support the adoption of a new constitution to establish a presidential system, a proposal promoted by some non-parliamentary political parties and the President’s advisors, unless all the clauses related to judiciary were removed from the draft. Civil society organisations and lawyers formed a coalition in July 2019 and organised campaigns opposing the President’s proposals, including through a peaceful assembly. The constant demands of these organisations encouraged Parliament to retain important clauses related to the judiciary.
Proposals to replace the first-past-the-post electoral system with a mixed electoral system were rejected.
Meanwhile, the Democratic Party, the main opposition party, proposed changes that would, for example, have replaced the first-past-the-post electoral system with a mixed electoral system and abolished the popular election of the President in favour of indirect election by the parliament.
Parliament conducted the second reading in August and September 2019. Despite efforts to establish broad consensus, both the Democratic Party and the President expressed their dissatisfaction with the result of the second reading and withdrew their proposed amendments.
While constitutional amendments do not require referendums, parliament could with a two-thirds majority organise such referendum. Accordingly, to enhance the legitimacy of the amendments, the dominant MPP passed a resolution to organise a popular referendum, possibly alongside an early parliamentary election. Unprepared for an early election, the Democratic Party opposed the referendum, despite its previous support.
The President proposed a shift to a presidential system of government, which was rejected.
The President sought to include as part of the referendum an additional question on whether Mongolia should have a presidential or parliamentary system. Nevertheless, since these questions did not follow the relevant legislative procedure and respect the basic structure of the constitution, their inclusion would have violated the constitution. The President then vetoed the resolution to send the amendments for popular referendum, alleging legal irregularities and absence of social consensus.
To narrow the differences, G. Zandanshatar, the Speaker of Parliament, formed a second working group for consensus including representatives of the two main parties and the President’s chief of staff. This working group decided to discuss only whether the Democratic Party’s three proposals would be added to the draft amendments. After several meetings, the group finally agreed on two of the three proposals, namely the appointment and dismissal of cabinet ministers by the Prime Minister and the mixed election of the parliament, but rejected the indirect election of the President.
In October 2019, Parliament accepted the veto on the referendum, and decided to finalize the draft amendments through a third reading. Timing was important as the Constitution prohibits amendments within six months of a regular general election, which are planned for June 2019. The amendments were finally enacted, except for the changes to the electoral system, and the President formally signed the amendments on 26 November 2019.
Recasting executive-legislative relations and check and balance
With a view to addressing problems of government instability - Mongolia has had 14 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, and an obligation to appoint a new Prime Minister within 30 days, failing which the President is obliged to dissolve Parliament. If the Prime Minister submits a draft resolution requesting a vote of confidence on issues of state budget and policy, Parliament must discuss after three days and adopt a resolution within ten days with a majority of all its members. If the resolution is rejected, the Prime Minister is considered as dismissed and Parliament must appoint a new Prime Minister within 30 days, failing which the President is obliged to dissolve Parliament. Moreover, the amendments prohibit parliament from increasing the expenditures and losses in the state budget submitted by the government.
Parliamentarians can no longer take more than four cabinet positions, other than the Prime Minister.
Following criticism that allowing parliamentarians to hold cabinet posts concurrently (since 2000) weakened the separation of legislative and executive powers in a small, unicameral parliament composed of only 76 members, the amendments require that only the Prime Minister and not more than four cabinet ministers can remain parliamentarians. In addition, the decision of the Prime Minister to appoint/dismiss cabinet members may not be blocked by either the President or Parliament.
While the above reforms enhance the position of the Prime Minister and government, the amendments also improve check on the executive by establishing a constitutional body (state audit organization) that independently exercises control over state finances and budget. Moreover, Parliament is required to ensure that ad-hoc inquiry committees, to be established with support of not less than one-quarter of all members, include minority representatives. The powers of the state audit organization and ad-hoc inquiry committee would be regulated by laws.
With establishment of a single term presidency, whether current and former presidents can run again is not clear.
Other amendments aim at improving the legislative process and accountability of parliament. Accordingly, the scope and restrictions on the right to legislative initiative, which the President, parliamentarians and the cabinet exercise, would be detailed in law. Crucially, unless otherwise specified in the Constitution, the final enactment of laws requires absolute majority support, instead of a simple majority as is currently the case. Moreover, although members of parliament will normally make decisions through open ballot, a secret ballot is allowed as provided in the Constitution and other laws and when a majority present at the session support it.
Parliamentary elections and political parties
Parliament has on many occasions adopted new election laws just six months before regular elections. Notably, parliament drastically changed the election law less than two months before the 2016 election. This generates unpredictability and allows the parliamentary majority to draft the new law in their favor. Accordingly, the amendments prohibit the adoption or amendment of election laws within one year of a regular election. The reforms also prohibit Parliament from conducting a popular referendum against the independence of Mongolia and its territorial integrity.
Political parties are perceived as the most corrupted institution in Mongolia, but the last two parliaments failed to reform the law on political parties and political financing. The amendments require political parties to adopt and promote a national policy-program, to make their internal structure consistent with democratic principles, and to keep their assets, income sources and expenditures transparent. The law will determine the structure, operational rules of procedure, financing, and the conditions for public funding of parties.
The amendments also require the support (not necessarily membership) of not less than one percent of eligible voters at the time of forming a political party. This clause will enter into force on 1 January 2028.
Single term presidency
There are few, but important changes related to the presidency. The minimum age is now 50 instead of 45, and presidents can only serve a single six-year term, instead of the renewable four-year term. According to the original draft, this clause would have entered into force in 2025, which would have allowed the current president to run for a second term in 2021 and prohibited him from running again afterwards. However, Parliament ultimately decided that all amendments (except the clause on formation of political parties) will take effect on 25 May 2020. The amendments also eliminate a constitutional clause indicating that the President may be re-elected only once, so it may be argued that the current and former presidents would be prohibited from running for a single six-year term. Nevertheless, the issue, on which the amendments are silent, was not formally anticipated or discussed during the amendment process, and may therefore have to be settled in the constitutional court.
Currently, the people directly elect the President of Mongolia, and her/his powers, such as vetoing legislation, initiating bills, and appointing all judges upon the proposal of the Judicial General Council (Presidents have rejected 27 candidates proposed by the Council in 1997-2017, although presidential appointment formulated in an obligatory manner in the constitution), and appointing the Prosecutor General, and Deputy Prosecutor General in consensus with the Parliament, are much broader than the conventional powers of heads of state in parliamentary systems. Although the amendments do not remove constitutional powers from the presidency, they preclude the extension of the powers of the president through laws (statutes). Accordingly, the president loses the current statutory powers such as nominating the head of the Anti-Corruption Agency and one of three members of the National Human Rights Commission, and appointing all the chief judges of courts except the chief justice of the Supreme Court, and all the members and heads of the Judicial General Council and the Judicial Disciplinary (Ethics) Committee.
Enhancing judicial independence and accountability
While some of the proposed amendments on the judiciary were removed due to the President’s persistent demands, crucial reforms have nevertheless been adopted. In addition to the removal of the President’s statutory powers noted above, the amendments include three important changes directly related to the judiciary. The Judicial General Council currently selects and presents Supreme Court judicial candidates to Parliament, who are then appointed by the President. The President also appoints judges of other courts upon the proposal of the Council. The composition of the Council has been changed four times since 1993 so that it was dominated or influenced by the Supreme Court (1993-1996), the Minister of Justice (1996-2002), the Supreme Court (2002-2013), and the President (since 2013).
The President will no longer appoint members of the Judicial General Council.
The amendments fix the membership of the Council at 10 with a non-renewable term of four years, filling the gap in the current constitution where political actors could influence the Council by merely changing the number and term of members. Five of the 10 members would be directly elected among judges, and the other five will be appointed through open nomination. In addition, the chairperson of the Council will be elected by its members, instead of appointment by the president, which reduces the risk of political influence in the judiciary. Under the amendments, reports on the Council’s activities related to judicial independence will be submitted to the Supreme Court.
In order to stabilize the judicial disciplinary system that has changed three times since 1993, the amendments establish a new constitutional body, the Judicial Disciplinary Committee, which will make decisions on suspension or removal of judges and imposition of other disciplinary sanctions. The composition and term of the Committee will be regulated by law. In addition to deleting the roles of the Judicial General Council and the President in matters relating to judicial discipline, this amendment nullifies the much-criticized law empowering the National Security Council (headed by the President) to suspend judges and remove chief judges without mentioning reasons.
Overriding the judgments of the Constitutional Court, the amendments allow Parliament to establish courts with jurisdictions over several provinces and districts, which would allow the even spreading of caseloads, easy creation of specialized courts and improve access to courts.
Improving the Municipal Governance
There are four changes related to the administrative divisions. Following the initiatives of the Government, the parliament would be allowed to delegate functions of the administrative divisions to the cities or towns and to change the administrative divisions on the basis of proposals of local citizens. In order to encourage local economic development, the amendments would allow the local councils (the Khurals of Citizen Representatives) in provinces, capital city, counties and districts to fix the amount of taxes and to manage ownership within the limits defined by law. Moreover, the presidiums of local councils, which currently exercise most of the powers of the local councils during the interval period between the sessions of the local councils, would be eliminated so that the local councils fully exercise their respective powers.
Defining the Key Principles to Use Natural Resources
Mongolia is one of the richest countries in the world in terms of natural resources, but ordinary people often claim they do not enjoy benefits of these resources. The amendments clarify the purpose and principles of the use of natural resources. Natural resources would be defined as the public property of the State rather than the property of the State, which emphasizes that the policies on natural resources should be defined by Parliament, the representatives of the people, for public interest.
According to the amendments, state policy on the use of natural resources will be made on the basis of considering long-term development, safeguarding each citizen of present and future generations the right to healthy and safe environment, and delivering benefits of natural resources in equal and just manner through the National Resources Fund, newly incorporated in the constitution. The law will regulate the basis to allocate a major part of social and economic benefits from strategic mineral deposits to the people. In order to safeguard their right to a healthy and safe environment, citizens would be entitled to be informed of the effects of using natural resources.
While the 1992 Constitution was adopted through an inclusive, participatory and deliberative process over 15 months, the first amendments made to the Constitution in 2000 were adopted in closed doors without any meaningful public discussion. Other failed attempts to amend the Constitution in 2011, 2012, and 2015 were similarly neither open nor inclusive. In view of this experience, it was important to have the participation of citizens and scholars and to seek to build the consensus among political actors during this constitutional amendment process, which occurred between 2016 and 2019.
Although some clauses originally included in the draft were omitted during the compromises necessary for consensus, the passed amendments contain various provisions that would make the government more stable and efficient, the parliament more qualified, the judiciary more independent and accountable, the president constrained, political parties more democratic and financially transparent, local governance more efficient and the natural resources’ policy more beneficial to the people. However, much now depends on the drafting and implementation of the more than forty-five laws that are necessary for the implementation of the amendments.
Munkhsaikhan Odonkhuu is 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).