By Mendee Jargalsaikhan and Julian Dierkes
In hope of revising the 1992 constitution, G Zandanshatar, the speaker of the Mongolian parliament proudly declared the parliament’s decision to hold a national referendum on proposed changes on September 11 at the closing of the parliamentary special session. But, his party, the governing Mongolian People’s Party (MPP), which controls 64 of 76 seats, failed to override the presidential veto on the referendum. If the referendum is held on October 30-31 as scheduled, it would be only the second referendum since 1945 when Mongolians voted for their independence from the Chiang Kai-shek government following the Yalta Agreement. Even though all key political actors support the constitutional amendments, they disagree on who, when, and how to make these changes since it will restructure the political landscape.
In 1990 Mongolia became the first Asian state that revised their state-socialist constitution by re-introducing a bi-cameral legislature, prime-ministerial cabinet, ceremonial president, and multiparty elections. In that summer, the country held its first-ever multiparty election and established an interim legislature to pass the country’s first democratic constitution. After a year of serious debate especially over the choice between a presidential or parliamentary system, the legislature finally approved a hybrid structure: a 76-member unicameral legislature and directly-elected, ceremonial president.
In retrospect, the constitution has served Mongolia well in establishing a democracy where political powers have been transferred repeatedly over nearly 30 years between two major political parties through regular, inclusive, free, and fair parliamentary and presidential elections. But, this hybrid system has also created governance challenges which have become difficult to address.
The hybrid constitutional structure has provided more room for parliament to micro-manage the prime minister and president to increase its control over cabinet and judicial institutions. As a result, the prime minister and his cabinet along with the public service are vulnerable to parliament, parties, factions, and even populist members whereas all key judicial appointments are dependent on the president’s decision.
Similar to other parliamentary democracies, the majority party or coalition of parties nominates the prime minister, but, in Mongolia, a presidential endorsement needs to be secured. A few parliament members can initiate the non-confidence voting in prime minister or even individual cabinet members. Only two prime minister has served full terms – in 1992-1996 and 2000-2004 – when the MPP held the majority of seats in parliament. In pursuit of parochial interests, parliament members engage in vote-trading games especially over the financial and budgetary matters – thus causes frequent political instability and policy discontinuity.
The constitution defined the president as the head of the state and “embodiment of the unity of Mongolian people” – in short, the president was intended to be ceremonial and non-partisan. But, presidents have slowly expanded these ceremonial rights as a way to influence, if not control, the judiciary. Thus, three members of the constitutional court, chief justice and members of the Supreme Court, chief prosecutor, and judges at different levels of courts and appeals are replaced after each new president takes the office. This politicization process began with President Enkhbayar, and was institutionalized by President Elbegdorj. Instead of professional meritocracy, President Elbegdorj appointed a party-affiliated politician as a chief prosecutor. Shockingly, on March 27, 2019, parliament quickly approved a law – empowering the National Security Council, including the president, speaker, and prime minister, to recommend the change of chief judges, prosecutors, and director of the anti-corruption agency. President Battulga promptly replaced all leaders of the Supreme Court, Prosecutor’s Office, and Independent Authority against Corruption. It is not difficult to imagine the downward chain effect as well as to question the effectiveness of the rule of law.
Since 2014, all major political parties and key actors have been in support of constitutional revision, but none have succeeded. Even though all parties and key actors pledged to fight for an independent judiciary and stable, powerful cabinet, they quickly forget these promises after elections.
With a landslide victory in 2016, the MPP has made constitutional revision one of their major platforms. The party’s 62 MPs initiated the first-round of parliamentary debate in June, 2019.
Despite numerous issues are included, the following major revisions were proposed:
- To increase the Prime Minister’s power to appoint and dismiss his/her cabinet and to reduce the parliament’s micro-management in the budgetary process while increasing parliamentary auditing and investigative powers.
- To increase judicial independence by reducing the number of politically-affiliated members of the Judicial General Council to appoint judges and creating a separate, professional – Judiciary Accountability Committee to take disciplinary measures, including dismissal.
Although the majority of the parliament members supported these proposals, some disagreed, instead collaborating with the president to advocate ways to increase the number and term of members of parliament.
By early September, the parliament reached agreement with the president, but failed to get full approval of the right of the prime minister to appoint cabinet members from at the final parliamentary voting.
This led to a September 11 parliamentary vote in favour of a national referendum over the proposed constitutional amendments instead of conducting the third-round of parliamentary debate.
However, the president initially endorsed a referendum only if the referendum also asks whether Mongolians prefer a parliamentary or presidential system. This institutional choice question was rejected by parliament since it requires changing the country’s constitutional setting substantially and may even facilitate the emergence of authoritarian government.
On September 20, the president vetoed the parliamentary resolution on the constitutional referendum on the grounds that it did not conform to procedural laws on constitutional amendments and national referenda.
On October 4, the parliament accepted the presidential veto for two reasons: (1) to avoid political instability – as the president and opposition party protests – considering the constitutional revision became one-sided, closed decision of the ruling party; (2) to prevent from potential failure of the constitutional referendum due to low voter turnout or failure to get the majority vote.
This presents three possible options.
First – parliament could hold a third debate on constitutional reform – providing opportunities for compromises would be favorable to incumbent MPs and President – such as increasing the number and term for parliament members and prolonging the implementation to 2021 (which will provide an opportunity for the current president re-run in the 2021 presidential election).
Second – parliament re-votes on the proposed changes and revises its resolution to conduct the constitutional referendum along with the regular parliamentary election, scheduled for next June. However, it would be hard to expect the public to vote in favour of proposed changes – if the parliament fails to secure the public endorsement, the current constitution would likely remain intact for next 8 years.
Third – to keep the status quo in which the president enjoys his increased power over the judiciary as well as law-enforcement agencies and the parliament would keep the prime minister and his cabinet in constant fear of non-confidence voting. Mongolia would increasingly fail into hands of politicking of a few, politically powerful oligarchy.