A constitution is a social contract. The Constitution of Mongolia was ratified on 13 January 1992, following which immediately began the talks of making revisions. These talks went on for eight years before resulting in a round of constitutional amendments. Today, 19 years from then, we’re about to make another round of changes to our constitution.
The constitution is a system of fundamental laws and principles that are dedicated to ensuring social stability, and therefore countries don’t make changes to their constitution very often. An example would be the well over 200-year-old United States Constitution, which incorporated thoughts from the Renaissance in Europe. This constitution sets out key principles of liberal democracy, such as people electing their government through free and fair elections and the state guaranteeing the natural rights of people. Hence, the United State Constitution ensures stability relatively better. In short, the constitution defines what form the state will take and what activities the state can or cannot conduct. The question is whether such definitions can be made with the proposed amendments to the Constitution of Mongolia.
Proposals for constitutional amendments
- The Mongolian People’s Party (MPP) started talking about making changes to the constitution, immediately after winning the majority of parliament seats in 2016. As soon as having been elected to serve in the parliament, MP Zandanshatar, who is the incumbent Speaker of Parliament, began his attempts to implement Stanford professor Fishkin’s theory of ‘Deliberative Democracy’ in Mongolia. Deliberative Democracy is based on people’s participation in the decision-making process and is a hybrid of direct democracy and representative democracy.
It didn’t take long for MP Zandanshatar to start organizing public discussions on constitutional amendments across the country. However, it is questionable whether these discussions have actually informed or empowered people. Although these public discussions collected a lot of feedback from people, it also faced strong opposition from scholars. Ultimately, MP Zandanshatar withdrew his proposal, which included a political system with five administrative branches similar to Taiwan’s. The conclusions from these discussions were then combined with feedback from constitutional scholars to create the draft constitutional amendments that were proposed by the parliamentary working group led by MP Lundeejantsan. It was then decided that these proposed amendments would be discussed at an irregular parliamentary session.
2. However, President Battulga brought out another set of proposed constitutional amendments out of nowhere. It isn’t clear how, when, and by whom these draft amendments were developed. When asked these questions, the Chief of Staff to the President silenced the reporter by scolding him along the lines of “stop being disrespectful.”
3. The Mongolian People’s Revolutionary Party (MPRP), which started sharing a voice with smaller political parties that don’t have a seat in the parliament, has also prepared a draft document. But what they’re proposing is the enactment of a new constitution named ‘New and Supreme Constitution’, with the intent to completely replace the 1992 Constitution.
Game theory
Today, politicians are busy trying to combine two drafts of constitutional amendments, one proposed by the MPP, and the other by the president. Without beating around the bush, the constitutional amendments have become a transaction of political power. If the parties of this transaction reach an agreement on each clause, the constitutional amendments will be ratified. If not, there won’t be any changes to the constitution. MPs think their proposal looks more beneficial for them, while the president believes the same about his proposal. This standoff leaves the people worse off. In short, the whole situation is similar to a Game Theory context where every player heedlessly enters a scenario unfavorable to everyone.
Most importantly, the current scenario will not allow us to step away from the half-presidential system and strengthen our parliamentary system, an issue that has been raised and debated by scholars for many years. Nor will it allow us to ensure the independency of the judicial branch. If we’re going to approach constitutional amendments in this fashion, it is better to stop here and not bother doing it.
What should we pay our attention to?
When drafting constitutional amendments, we need to pay attention to these key issues:
ONE. We need to actively involve not only lawyers but also other scholars, including economists, sociologists, anthropologists, and political science scholars, in the constitutional debates because these discussions concern all spheres of our country.
For example, the constitution defines ownership and property relations. Economists should have a key role in defining property and ownership subjects, on which I elaborated in my article “Who really owns natural resources”. In general, we lack constitutional analysis and studies developed by non-legal scholars. Lawyers have one weakness, as they tend to pay too much attention to details and lose sight of the bigger picture.
TWO. Trying to solve all at once, may end up doing more damage than good. Therefore, we need to determine the most pressing issues, prioritize properly, and then start focusing on the right issues. This is called the Pareto principle (80/20 rule). When you solve 20 per cent of all issues, the remaining 80 per cent will naturally be solved. Without focus on the right priorities, not only will you be unable to resolve a problem, but also make the other issues within the 80 per cent lead the way.
With this rationale in mind, it can be said that the key constitutional amendments need to get us out of the “Stalemate in “Mongolianized” governance”. We are in a deadlock because our political system is currently neither parliamentary nor presidential – it has become a Mongolianized system.
The Mongolianized governance deadlock exists because the president is causing an imbalance in political power. During N.Enkhbayar’s time, he showed that a president could serve as the prime minister simultaneously, while Ts.Elbegdorj’s reign showed how the president can control the judiciary, also to serve vested interests. When mass firing and reappointing judges, President Elbegdorj missed 13 judges.
President Battulga is now expanding the reach of his power using the National Security Council as a medium. A clear example is the recent changes to laws that allow the leadership of the Independent Authority Against Corruption (IAAC), Prosecutor’s Office, and Supreme Court to be replaced based on recommendations from the National Security Council. The president, as a subject and as an institution, has been disturbing the equilibrium between power and oversight.
THREE. Mining factors. When the 1992 Constitution was first discussed, Mongolia wasn’t economically depending on mining. Today, whether we want it or not, Mongolia’s future is directly and de facto dependent on how we manage our mining industry.
Therefore, this round of constitutional amendments should positively contribute to creating responsible mining in Mongolia. Otherwise, there is a risk of political and economic deterioration. For example, the current draft of amendments suggests that soum and district governors are to be elected from the people, while a soum governor would have the authority to suspend or stop a mining project.
Do we call populated areas ‘towns’, ‘settlements’ or ‘administrative units’? If we go with ‘administrative units’, it will be connected to government service and public budget. If we say ‘residents structure’, it will require a completely different attitude. If we ‘towns’ or ‘settlements’, they will have to have their own right to collect taxes and issue bonds to be able to address their issues.
Stemming from the fact that this issue is neither resolved in the current constitution nor the proposed amendments, we will need to decide whether the governor is appointed or elected. But regardless of being appointed or elected, we must clearly determine which rights and powers the governor obtains in relation to publicly owned resources. If this is meant to be a social contract, we should have these questions answered before ratifying any amendments.
Most importantly, this round of constitutional amendments will give a clear answer to whether Mongolia has a presidential system, a parliamentary system, or a mixed system.
2019.08.14
Trans. by B.Amar