The Role of the Constitution of Mongolia in Consolidating Democracy
This research report was prepared by a team of scholars working under the project “Support to Participatory Legislative Process” implemented jointly by the Parliament of Mongolia and the United Nations Development Program (UNDP). The team includes Professor Ch.Enkhbaatar former judge of the Constitutional Tsets, as team leader; Professor D.Solongo, Member of the Constitutional Tsets and Dean of the Law School at the National University of Mongolia; P.Amarjargal, Senior Adviser in the Legal Service Department of the Parliament Secretariat; and Professor Tom Ginsburg of the University of Chicago Law School. Ts.Davaadulam and G.Zoljargal, UNDP staff members, greatly contributed to the study.
An earlier draft of the report was presented for comment and expert feedback to: the members of the Parliamentary Working Group on Constitutional Reform, as well as D.Lundeejantsan, Member of Parliament; Professor N.Lundendorj, Chair of the General Council of Courts; Ch.Unurbayar, Human Rights and Legal Policy Adviser to the President of Mongolia; and D.Lamjav, independent researcher. The report has incorporated many of these comments. The report also benefited from a thorough review of the draft by Shelley Inglis, Policy Adviser, Democratic Governance Group, Bureau for Development Policy, UNDP and N.Luvsanjav, national project adviser of UNDP.
We express our deep gratitude to the State Great Hural, and especially to the Vice-Chairman of the State Great Hural L.Tsog, Chair of the Standing Committee on State Structure A.Bakei, and Secretary-General of the Parliament Secretariat B.Boldbaatar for their support and encouragement.
The findings and views expressed in the report do not represent the views of the Government of Mongolia or those of the UNDP. We take a responsibility for all errors.
1. The Constitution of Mongolia, adopted in January 1992 as part of the country’s transition to democracy, is now over twenty years old. This report, commissioned by the Parliament of Mongolia and the United Nations Development Programme, conducts an assessment of the performance of the constitution, analyzing the drafting process, the structure of the state, various oversight institutions, and specific topics including human rights, emergency provisions and amendment procedures. Because data limitations do not allow us to explore every area in equal depth, we focus especially on the performance of the political system and issues of state structure. We also evaluate the constitutional scheme along several “external” dimensions of performance: generating legitimacy for the government, channeling political conflict, providing a framework for limiting agency costs (limiting the government) and the creation of public goods (empowering the government). We show that the Constitution has done a good job in terms of the first two objectives, and may be improving in terms of the third and fourth. Our overall view is that the 1992 Constitution has been generally successful in terms of its initial objectives. We do, however, identify a number of potential changes which might be considered as Mongolia moves to a new stage in its development.
2. All constitutions face challenges not fully anticipated by their drafters. In the case of Mongolia, two challenges stand out. First, the major constitutional issue of whether MPs can simultaneously serve in government has absorbed political attention since a 1996 Constitutional Tsets case required the separation of government from parliament. While this issue was briefly considered during the drafting debates, no one expected it to be so contentious in practice. The second challenge has been the discovery of minerals which have completely changed Mongolia’s economic structure and have challenged the governance system. Whether Mongolia’s system can cope with this challenge will likely be a very important issue in the immediate future.
3. Every constitution must change over time to keep pace with the society. Mongolia is a very different place today than it was in 1991, when the current document was drafted. Current political debate focuses around a small number of potential amendments to the constitution. We hope that our report can inform this debate and provide justifications for possible amendments that might be considered, should a decision to amend the Constitution pass. We also note that the current constitution has the potential to be used in greater depth to meet Mongolia’s current challenges.Many of these challenges can be addressed through organic law and political practiceas embodied in common understandings among the main political actors.
4. Our specific recommendations for constitutional amendment are listed at the end ofthis document. We believe it is appropriate to introduce restrictions on MPs servingin the Government, along with other changes to focus the State Great Hural on its primary tasks of passing legislation and overseeing the government. We suggest that staggering presidential and parliamentary elections on a two-year cycle would be an appropriate change to consider. We also recommend changes to the scheme of local government and the jurisdiction of the Constitutional Tsets, as well as a number of other minor amendments to clarify the constitutional language. We believe that these changes can provide a sound basis for Mongolia’s constitution to endure for a long time to come.