Will Recent Constitutional Amendments Promote Political Pluralism in Mongolia?
Mongolia’s recent constitutional amendments – the third set of reforms in four years – have enlarged parliament and reintroduced a mixed electoral system. The amendments were facilitated by two significant rulings from the Constitutional Court, which overruled its previous precedent preventing a mixed electoral system and struck down a 2019 constitutional amendment. Despite an inclusive approach via deliberative polling and public consultations, the final amendments excluded crucial issues relating to the independence of the Constitutional Court and the protection of fundamental rights, and public concerns about timely implementation of previous amendments remain unaddressed – writes Professor Munkhsaikhan Odonkhuu
Following the collapse of the Soviet Union, the Mongolian people peacefully replaced the socialist regime with constitutional democracy in 1990, adopting their first liberal Constitution in 1992. Mongolia has had nine parliamentary elections and eight presidential elections since 1990, and political power has peacefully switched between two main political parties, the Mongolian People’s Party (the MPP) and the Democratic Party (the DP). However, the MPP has become almost a dominant party due to the majoritarian election system in the last two general elections and the fragmentation of the DP.
In both the 2016 and 2020 parliamentary elections, the MPP won more than 80 per cent of seats (65 and 62 out of 76 respectively), while gaining approximately 46 per cent of the popular vote. The DP, meanwhile, won just 9 seats in 2016 and 11 seats in 2020, despite securing 34.2 per cent and 27.7 per cent of the popular vote respectively in the two elections. Moreover in the 2020 parliamentary election, the HUN Party gained one seat and two independents, who later joined the DP, were elected. The MPP has four times used its supermajority powers to amend the Constitution (in 2000, 2019, 2022 and 2023), which require approval of three-quarters of all members in the State Great Khural (Parliament) to pass.
The Political Parties’ Declaration and Consensus
Following the June 2020 elections, constitutional amendments were unexpected as the 2019 constitutional amendments had just come into force a month previously. Three positions emerged regarding again amending the Constitution. The conservative position was that the Parliament should not amend the Constitution until it had enacted all statutes necessary to implement the 2019 amendments, whose effects should be assessed over the following five to eight years. The second view called for minimal changes without altering the basic structure of the Constitution. Lawyers and scholars insisted that the Law on Procedure for Amending the Constitution of Mongolia should be strictly followed and the process should be transparent and participatory as in the 2019 constitutional amendment process. The third, maximalist position sought drastic revisions to the 1992 Constitution, such as replacing the unicameral parliament with the bicameral one or shifting to an indirect election of the President by the parliament or to a presidential system.
On 9 June 2022, representatives of 21 of the 36 registered political parties signed a declaration proposing amendments to the Constitution . . .
On 9 June 2022, representatives of 21 of the 36 registered political parties, including the MPP, the DP and the HUN Party, signed a declaration proposing amendments to the Constitution. This declaration listed 13 potential amendments, expressing both the minimal and maximal positions. Minimal changes included proposals to protect human dignity, abolish the death penalty, lift restrictions on political rights, allow individuals to submit constitutional complaints to the Constitutional Court, increase the Constitutional Court’s independence, adopt a mixed election system, strengthen the parliamentary system, increase the number of parliamentary mandates, provide checks and balances between legislative and executive branches, promote urban development, allow constitutional review of self-governing municipal organizations, and change the state emblem. The declaration also ambiguously proposed creating “a classical form of parliamentary system,” which could mean either the minimalist position or the maximalist position. A week later however, on 16 June 2022, the Parliament took the minimalist position in Resolution No. 34 to promote citizens’ participation and transparency in the constitutional amendment process.
Backlash against Significant Constitutional Court Judgments
The Constitutional Court made two judgments related to the proposals expressed in the declaration and Resolution No. 34. First, on 27 June 2022, the Court overruled its infamous 2016 judgment, which stated that proportional representation violated direct suffrage, now concluding that the legislature is empowered to choose any election system on the basis of universal, free, equal, direct suffrage by secret ballot.
Previously, the Constitutional Court took the stance that it may review only the constitutionality of the procedure for constitutional amendments, rather than the content of the amendments.
On 15 August 2022, the Constitutional Court struck down the second sentence of Article 39.1 of the Constitution, finding as unconstitutional the limitation allowing only the Prime Minister and up to four members of the government to concurrently hold positions in the Parliament (a limitation that was added in 2019 amendments). This judgment was heavily criticized by lawyers, constitutional scholars, former members of the 1992 constituent assembly, and in the 2022 Forum of Lawyers. Previously, the Court took the stance that it may review only the constitutionality of the procedure for constitutional amendments, rather than the content of the amendments, but it invoked the “basic structure” doctrine to claim its role in safeguarding the “text, values, and goals” of the Constitution.
Following the Court’s judgment, the Parliament amended the Law on the Parliamentary Procedure and the Law on Procedure for Amending the Constitution of Mongolia on 24 August 2022 so that it gained the power to amend the Constitution in order to affirm the judgment of the Constitutional Court. After these changes, the Parliament formally annulled the second sentence of Article 39.1 of the Constitution on 25 August 2022. At the same time, the Parliament amended the Law on the Constitutional Court and the Law on the Constitutional Court Procedure so that the Court is prohibited from reviewing the constitutionality of constitutional amendments. The Parliament also passed Resolution No. 54, which ordered the Government to initiate the draft constitutional amendments on the number of members of parliament (MPs) and a parliamentary election system by 2022. After the constitutional amendments of August 2022, Prime Minister Luvsannamsrain Oyun-Erdene reshuffled the composition of ministers in his cabinet, increasing the number of ministers from 16 to 20, with 14 serving concurrently as MPs.
Deliberative Polling and Public Consultation for the Amendments
On 22 December 2022, Parliament enacted Resolution No. 80 to conduct a deliberative polling, an innovative process to find solutions to social, political and economic problems through national consensus and civic participation. The Secretariat of the Parliament organized a research conference to define the themes of the deliberative polling, with input from 120 participants from universities, research institutions, NGOs and political parties. 630 people representing political parties, NGOs and citizens also participated in a national meeting on 11 January 2023, creating 358 proposals under the headings of parliamentary democracy, legal reform and economic reform. In this meeting, Prime Minister Oyun-Erdene said that he was open to any of the three positions on constitutional amendments: the conservative, the minimal and the maximal.
Prime Minister Oyun-Erdene said that he was open to any of the three positions on constitutional amendments: the conservative, the minimal and the maximal.
Parliament then established a deliberative council composed of 11 members representing researchers, the private sector, and NGOs, tasked with administering polls with the assistance of the Secretariat of the Parliament. After developing 57 questions, the council engaged with the Standing Committee of State Structure, which recommended reducing the questions, changing some of the wording, and adding a new question about full revision of the Constitution. The deliberative council modified the questions according to the proposals by the Standing Committee and civil society, and it submitted 22 questions under four themes (civil and political rights, parliamentary democracy, economy and social issues) to the National Statistics Office of Mongolia, which prepared the questionnaire.
The deliberative polling was conducted in two stages. The first stage of the process involved 1570 citizens, randomly selected from all 21 provinces and nine districts of the capital city. They took part in the preliminary polling. In the second stage, 795 citizens, who represented diverse demographics and views on democracy, were randomly selected from the initial 1570 participants to attend the deliberative meeting at the Parliament Palace on 14 and 15 February 2023. For the deliberative meeting, the participants received a written explanation covering all 22 questions. They were also invited to ask questions in small group discussions, which the experts answered in the plenary session broadcast live. After these deliberations, the participants were again asked the original questions under the four themes.
Following the polling, the deliberative council submitted 22 recommendations to the Parliament on 17 February 2023. While most of the recommendations were related to civil and political rights, economy and social issues, four, which were discussed under the theme of parliamentary democracy, were related to the constitutional amendments. The participants supported implementing the 2019 amendments to the Constitution by quickly passing the relevant legislation. At the time, the Parliament had not yet passed 15 out of 30 statutes required to implement the 2019 amendments, including the Law on the President, Law on Political Parties and Law on Cities and Towns.
The overall takeaway was that the majority of citizens opposed the frequent amendments to the Constitution and the complete revision of the Constitution . . .
The overall takeaway was that the majority of citizens opposed the frequent amendments to the Constitution and the complete revision of the Constitution. However, the authorities presented answers in support of amending the Constitution. For example, participants supported strengthening representative democracy by increasing parliamentary capacity to represent citizens. This question was interpreted as increasing the number of MPs even though it had other meanings such as increasing representation of women and youths in the parliament, reducing the dependence of politics on money, improving the electoral system and allowing citizens living abroad to vote in parliamentary elections. Moreover, while participants supported adopting a system to combine the majoritarian principle and proportional representation in parliamentary elections, this could be achieved through amending relevant statutes or the constitution.
The Initial Draft of the Constitutional Amendments
On 3 March 2023, following Resolution No. 54 and the recommendations of the deliberative council, Prime Minister Oyun-Erdene established a working group, which published the initial draft amendments to the Constitution on 14 April 2023. Following consultations with the public, state entities, and political parties, the draft was introduced and discussed among the leaders of political parties, civil society and researchers at a conference on the draft laws on political parties and parliamentary elections on 26 April 2023. Undertaking the minimalist position, the initial draft included eight clauses on four topics.
First, the initial draft proposed increasing the number of MPs from 76 to 152. Mongolia’s parliament is comparatively small relative to its population size, which currently stands at 3.4 million. Each MP belongs to two or three standing committees, making it difficult for MPs to effectively discharge their duties to the committees, and also in law-making and parliamentary oversight. In particular, where high numbers of MPs are also members of cabinet, the influence of the executive on the parliament increases, undermining the functions of the legislature. The concentrated power in the hands of MPs also leads to abuse and neglect of the public needs.
The 2019 constitutional amendments, previously analyzed on ConstitutionNet, aimed to mitigate the disadvantages of the small size of the Parliament, requiring, for example, that the final enactment of laws would require an absolute rather than simple majority. However, all issues prior to the final enactment were decided by simple majority support in the plenary sessions and the committee sittings. Moreover, the 2019 amendments required that only the Prime Minister and not more than four cabinet ministers could remain parliamentarians. After this limitation was struck down by the Constitutional Court, there seems to be no alternative solution other than increasing the number of MPs in order to restore the proper checks and balances between the executive and legislative branches.
The majoritarian voting system was advantageous to the big, institutionalized parties but disadvantageous to smaller or newer parties.
Second, the initial draft said that 76 of 152 MPs would be elected by a majoritarian principle, and 76 by proportional representation. Since 1992, the ruling party in the Parliament changed the election system between the block voting, the first-past-the post and the mixed system just before each of the six of eight parliamentary elections, which created uncertainty and disadvantages to the other political parties. Moreover, the majoritarian system, which was used as block voting or first-past-the-post in seven of eight parliamentary elections, was advantageous to the big, institutionalized parties but disadvantageous to smaller or newer parties. The MPP has won more than 80 per cent of the seats in four of the seven elections that used the majoritarian system, limiting the voice of the DP and other political parties in law-making and oversight. Political parties other than the MPP and the DP face difficulties winning parliamentary seats under this system, in which a high percentage of votes are lost, and the candidates, who are generally male, rich and incumbent, benefit most. Moreover, the MPs, all of whom are elected in the majoritarian system, seek to satisfy the special interests of their own constituency, so they do not pay attention to national-level problems and policies. Proportional representation would potentially promote social consensus, encourage representation of different social groups in the Parliament, and strengthen political parties.
Third, the initial draft amendments would have annulled Article 19-1.2 of the Constitution, added in 2019, which mandates that a political party can only be established with the support of one per cent of eligible voters. Critics argue that this provision, which enters into force on 1 January 2028, violates the right to association, diminishes political pluralism, creates inequality, and weakens representative democracy.
Fourth, the initial draft included five clauses aimed at increasing the independence of the Constitutional Court. First of all, it would eliminate the current actio popularis, allowing a citizen to petition the Court regarding the constitutionality of statutes or other decisions, which in its current form has been abused to achieve political ends (e.g., the judgments that abolished the mixed election system in 2016 and the second sentence of Article 39.1 of the Constitution in 2022). In place of the actio popularis would have been a clause allowing the National Human Rights Commission to request constitutional review of statutes and other decisions. The third proposed clause would have allowed the Constitutional Court to decide constitutional complaints regarding concrete violations of fundamental rights, which is not currently possible. The fourth clause would allow one-tenth of MPs to request an abstract review of the constitutionality of statutes and other decisions (currently only permitted by parliamentary majority). The fifth clause would prohibit Constitutional Court judges from being reappointed more than once. One possible re-appointment was one of solutions recommended by the Venice Commission to address weakened independence generated from renewable six-year terms.
The Constitutional Amendments enacted on 31 May 2023
In the end, the Government proposed just two draft amendments to Article 21.1 of the Constitution on 3 May 2023: “The State Great Khural shall have one chamber. 76 members of the State Great Khural shall be elected by the majoritarian method, and 76 members by the proportional method.”
The Prime Minister emphasized that focusing on key issues, which had been debated for decades, was good for the legitimacy of the Constitution. Unlike the issues of the number of MPs and the electoral system, the Prime Minister contended that the clauses related to constitutional review and fundamental rights had not yet been scrutinized enough in public debates. However, the Constitutional Court is one of the most researched subjects in Mongolia, so much so that the clauses aiming to enhance the Court’s independence were included and discussed in the 2019 draft amendments proposed to Parliament. The clause to annul Article 19-1.2 of the Constitution, a new provision added by the 2019 amendments, was eliminated from the final draft amendments because the Law on Procedures for Amending the Constitution of Mongolia prohibits re-amendment within eight years from the date of entry into force of a constitutional amendment.
As a result of public feedback, the proposed number of MPs was reduced from 152 to 126 in the second reading of the draft on 18 May 2023.
On 5 May 2023, the Parliament approved the draft on first reading and established a cross-party parliamentary working group to prepare the second and third readings. Members of Parliament discussed the draft in their own constituencies between 7–17 May 2023. Over 62,000 people participated, with other online and in-person submissions from 273 citizens and organizations and 65 state entities. As a result of public feedback, the proposed number of MPs was reduced from 152 to 126 in the second reading of the draft on 18 May 2023. Odongiin Tsogtgerel, the leader of the main opposition party DP, also argued for 126 MPs, returning to a suitable ratio of one MP for every 27,000 citizens as was the case in 1992 when the Constitution was adopted.
In the final reading on 31 May 2023, the Parliament decided that 78 of 126 MPs would be elected by the majoritarian method, and 48 MPs by the proportional method, following the proposal by the DP. Many MPs said that the majority of citizens in the public discussions expressed a preference for the majoritarian method because it would represent the local citizens living in sparsely populated territories of Mongolia, while accepting that only some MPs should be elected by the proportional method.
On 31 May 2023, 66 of 68 MPs present in the session voted for the following amendment to Article 21.1 of the Constitution: “The State Great Khural shall have one chamber and consist of 126 members. The election of the State Great Khural shall be conducted by the mixed election system. 78 members of the State Great Khural shall be elected by the majoritarian representation method, and 48 members by the proportional representation method.” The language is flexible enough to allow Parliament to specify the details of each of the election methods, but it stabilizes the election system as it prevents the ruling party from changing the mixed election system by statute.
Before the plenary vote on the amendments in the first reading, Prime Minister Oyun-Erdene announced that one political party would not decide any issue related to constitutional amendments and that the Government would withdraw the draft amendments if the DP or other parties were against them. This announcement was followed by near unanimous approval for the amendments from the MPP, the DP and the HUN Party. The recent amendments, which were approved by President Ukhnaagiin Khurelsukh on 5 June 2023, will come into force on 1 January 2024. The Parliament amended the Law on the Parliamentary Election to implement these amendments on 16 June 2023, and it enacted a new Law on the Political Parties on 3 July 2023, which would improve political party financing and regulation in line with the 2019 constitutional amendments and good practices.
Together with the other reforms such as the 2019 constitutional amendments, the 2023 amendments to the Constitution will hopefully advance parliamentary democracy via political pluralism in Mongolia if they are properly and consistently implemented. However, there is an informed concern that frequent constitutional amendments might become a practice in Mongolia, which would weaken the legitimacy of the Constitution and might even lead to political crisis and instability. There is also a risk that some of the key reforms might be repealed or quashed by the Constitutional Court if they go against political interests. This risk would be reduced if the draft laws on the Constitutional Court and its procedures to make the Court more independent and fair (which a parliamentary working group has been focusing on since 2021), are initiated and passed by the Parliament.
Munkhsaikhan Odonkhuu is Professor, School of Law and Director of the Constitutional Law Institute at National University of Mongolia. 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).
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Suggested citation: Munkhsaikhan Odonkhuu, ‘Will Recent Constitutional Amendments Promote Political Pluralism in Mongolia?’, ConstitutionNet, International IDEA, 31 July 2023, https://constitutionnet.org/news/will-recent-constitutional-amendments-promote-political-pluralism-mongolia