Thoughts on Constitutional Reform

By Julian Dierkes

I am not a constitutional scholar. My observations on the constitutional reform proposals that are being considered by the Mongolian parliament are thus based on my understanding of Mongolian politics on the one hand, and my experience of living as an informed and engaged citizen under different constitutional regimes (parliamentary democracies of sorts Germany, Japan, UK, Canada; presidential democracy U.S.).

Reforms in Principle

I do think there is a good case for pursuing reforms in Mongolia. That case rests primarily on the observation that the hybrid presidential-parliamentary system continues to raise practical challenges for Mongolian politics, and that successive prime ministers have felt somewhat hamstrung by competing for power with presidents, but also by not having full control over their cabinet, even when they are backed by solid majorities.

25 years after the establishment of democracy and 23 years after the promulgation of the constitution seems like a fine moment to review provisions in the constitution that do need a review and a reconfiguration of the system to rebalance the powers of the president and prime ministers.

On the other hand, it is also important to remember that constitutions everywhere have been framed to make them durable and to make constitutional changes very rare. The basic structure of the U.S. constitution has thus been in place for over 220 years and has only been changed in some details (though of course it, like many other constitutions, has been reinterpreted during this history).

While some of the proposals that are circulating now in Mongolia are rooted in long-standing questions about the overall balance of power, other proposals seem more recent in nature and I would be concerned about a process that seems potentially hasty as it may be unfolding now.

On the positive side, the proposals do not seem to have a specific partisan slant to them, i.e. they do not seem to be designed to expressly benefit one party over another. Yes, the MPP may be more likely to emerge from the parliamentary elections in 2016 as a winner and thus the next MPP PM might benefit from the proposed changes, but there does not seem to be anything in these proposals that benefits the MPP or any other party permanently.

Size of Parliament and the “Double Deel”

Some of the challenges that some Mongolian observers associate with the constitution are not obvious to me as a foreign observer. The simmering “double deel” debate is one of those elements. In Canada and Germany, for example, all ministers wear the double mantle of being members of parliament and serving in cabinet. Yes, the relatively small number of parliamentarians in the Mongolian State Great Khural does pose some challenges, but is not far from the numbers one would find in state legislatures of more populous countries. Here, in the Canadian province of British Columbia, for example, a population of 4.6mio is represented by 85 MLAs (Members of the Legislative Assembly), and cabinet includes 21 members, all of whom are MLAs. With a roughly comparable population, that is a comparable number of members of parliament, and a significantly larger number of members of cabinet compared to Mongolia. This has not led to questions about parliamentary accountability or the manageability of cabinet.

In Germany, the state of Schleswig-Holstein with 2.8mio is closest in population to Mongolia. The Landtag in Schleswig Holstein has 69 members. Including the premier, the cabinet has 8 members, all of whom are members of parliament.

Yes, clearly a provincial or state legislature does not have some tasks and powers that a nation does (defense and foreign affairs, most notably), but Canadian and German federalism means that provinces and Bundesländer do have significant powers, so the comparison seems at least informative.

Election of the President

In my interpretation of the proposal for an election of the Mongolian president, this looks similar to the German Bundespräsident as s/he is elected by the Bundesversammlung. That federal assembly is only called for the election of the president. It is composed half by members of the federal parliament and half by elected members of state legislatures. Why? Because this is yet another important element in a federal structure that safeguards regional rights. Other prominent elements in this federalism are the balance of power between parliament (Bundestag) and the federal council (Bundesrat) that includes the state premiers, and certain areas of policy-making that are expressly left to the states’ decision-making, like education. This federalism is rooted in a desire for regional balance, but also for checks and balances against national power that results from Germany’s historical constitutional experience.

By contrast, Mongolia is not a federal state, but fairly centralized with a state-socialist heritage that is also more unitary than federalist. There are few areas of policy-making that are expressly assigned to the aimags, though recent initiatives are devolving more decision-making power to the aimags. The exception to this general pattern could be the rights accorded to Kazakhs in particular, as they dominate the population of Bayan-Olgii.

An assembly to elect the Mongolian president that would include representatives of aimag khurals would thus be a step toward federalism without a clear argument (that I am aware of) for why this step should be taken.

By contrast, the proposal to have aimag governors nominated by the prime minister rather than letting aimag khurals elect their governor is a weakening of the regions.

Countries that are similar to Mongolia with its 21 aimags include Japan with its 47 prefectures and France with its 96 départements in France propoer. But the 知事 in Japan is directly elected as a governor of a prefecture. The French department is presided over by departmental councils that elect a president. While the French and Japanese administrative units might thus seem closer to an aimag than a German state or a Canadian province, they are governed by directly or indirectly elected officials.

Strengthen the regions in the election of a president, but weaken them in their day-to-day decision-making? Why?

Also note that many German citizens would be hard pressed to explain the nature and composition of the Bundesversammlung if stopped on the street. While the limited powers of the German president mean that democratic legitimacy may not be at a premium, why create an election that is difficult to understand for Mongolians when they previously were able to elect a president directly and in a very clear manner?

Implications of a Symbolic Presidency

Foreign policy is one of the areas where confusion between presidential and parliamentary/prime ministerial powers has been a challenge. It would seem that the proposals under discussion would resolve this challenge by relegating the president to a ceremonial and symbolic role.

In its aims to balance the importance of its two immediate geographic neighbours, Mongolia has long pursued its Third Neighbour Policy. Beyond relations with China and Russia, this policy has been very successful at raising Mongolia’s profile internationally and the country thus plays a more visibly role on the world stage than it might based simply on its population, economic or geostrategic importance. Some of this success is due to the efforts of Mongolia’s presidents. For recent successes at the UN, for example, this has been an era of particular entrepreneurialism by Pres. Elbegdorj and has met with some success.

Even an activist prime minister with foreign policy decision-making power would not be able to replicate that success, I think. A head of state who also holds executive functions is a more likely summit partner than a symbolic president, or a powerful prime minister. [I wonder if there’s any empirical evidence for this, i.e. are prime minister representing parliamentary systems less likely to be invited on state visits than presidents in presidential systems?] By transforming the presidency into a largely ceremonial role and adding powers to the prime minister’s portfolio, the constitutional reforms envisioned might thus be reducing Mongolia’s potential impact and visibility on the international stage.

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