Peter Schaller

MONGOLIA`S CONSTITUTIONAL AMENDMENT 2020 - HARDLY ANY PROGRESS

In May 2020, constitutional amendments came into force in Mongolia. They modify one thing or another, but they are not the grand sweep that would have put Mongolia's political system on a solid footing. The parliament has avoided the basic question, namely whether to opt for a presidential or parliamentary system of government. Partial improvements are not enough to significantly improve the effectiveness of the system. This presentation examines in detail what has happened and shows that contradictions and imbalances continue to exist.

1. Introduction

On 14 Nov 2019, the Mongolian Great State Khural adopted amendments to the 1992 Constitution, which came into force on 25 May 2020. The constitutional amendments are intended to reduce imbalances in the relationship between the three powers in the state (legislative, executive and judicial), which have proven increasingly dysfunctional, and thus strengthen the country's ability to govern. Although there have been some improvements, the changes are not the big deal. Rivalries between powers, imbalances and ambiguities persist.(1)

A constitution establishes the fundamental character of a state and a society. It intervenes deeply in the life of the state and society. It has a »guideline character« for the policy of a government. Amendments to the constitution are adaptations to social change. They react to changed requirements, to new social problems and challenges. They make society »fit« for the future. An analysis of the new amendments to the Mongolian constitution can therefore not be limited to a mere presentation and a textual comparison in the sense of »before-now«. (2) Rather, it must be embedded in a consideration of Mongolia's socio-economic and political development since the political turnaround of 1989/90 and especially that of the last decade.

It is important to distinguish between the constitutional text and constitutional reality, namely to examine how the constitution is implemented in political practice. In other words, a constitution is only worth as much as it is actually practiced.(3) Another important aspect comes into play: only the laws with which the constitutional amendments have to be implemented will show how serious politics is about real change. And finally, it depends on the extent to which the new laws are actually enforced.

It would be a mistake to think that the deficiencies of the Mongolian political system have been eliminated with the constitutional amendments. The real weaknesses of Mongolian democracy are based on the relevant political practice and value orientation of Mongolia's political-economic elite.

2. Dysfunctionality of the political system and pressure for change

Thirty years ago, Mongolia established a Western-style democracy for the first time in its history and enshrined it in its constitution in 1992. At the same time, a free market economy was introduced. Both were epoch-making steps. The turnaround meant the adoption of concepts that are alien to Mongolian and, in a broader sense, Asian culture. In this respect, it was not to be expected that an »ideal« democracy would be established in a short time. Rather, it is a process that takes generations and also does not proceed in a straight line.

Mongolia's constitution has, by and large, stood the test of time. Changes of government, one of the essential characteristics of democratically constituted systems, have taken place peacefully, with the exception of 2008 (»Black Tuesday«). Above all, Mongolia resisted the temptation to slide into authoritarian forms of rule, as happened in the former Soviet republics of Central Asia and in Russia. This is an achievement that clearly sets Mongolia apart in its region.Nevertheless, serious shortcomings in Mongolian democracy have become apparent over the last 10 years.(4) The political system proved to be increasingly dysfunctional and incapable of responding effectively to the major challenges facing the country and its politicians. The dysfunctionality was based, on the one hand, on the specifications of the constitution, i.e. the constitutional text, which was inherently contradictory and created an inefficient and self-blocking political mixed system, and, on the other hand, on the problematic implementation and application of the constitution, the constitutional reality.(5) The pressure on Mongolia's political and economic elite exists because striking weaknesses in the political system increasingly call its legitimacy into question.(6) However, every state system needs a minimum of acceptance and trust from the population, as long as it is not based on oppression. In a developing country like Mongolia, this can only be achieved if the living conditions of the majority of the population improvecontinuously and sustainably. Not without reason did the then parliamentary speaker Demberel declare back in 2010: "The Constitution is a contract in favour of the prosperity of the people.«(7)

The modern glass palaces and exclusive residential complexes that have increasingly dominated Ulaan Bataar's cityscape in recent years should not obscure the fact that Mongolia's development successes are modest compared to the country's potential. It has not been possible to translate the economic potential into significant improvements for households and especially the poor in the population.

An account of Mongolia's failures and reasons for this would require a separate essay. Mongolian reality is less inspiring than the emphasis on Mongolia as a »beacon of democracy« (especially in the USA, but also in German politics, for example) suggests. A few examples will illustrate this. Mongolia belongs to the so-called flawed democracies, which are characterized by significant deficits, including an underdeveloped political culture, low inclusion of the population in political decision-making and deficiencies in government action.(8) On closer inspection, it is an oligarchy that ruthlessly uses the country for its own purposes. According to the UNDP's Human Development Index, Mongolia is ranked 99th in 2019, almost exactly in the middle of the scores of 189 countries.(9) The poverty rate is 28.4 per cent.(10) In 1995, during the economically particularly difficult period after the fall of communism in 1989/90, it was 36 per cent. Within 25 years, there has been an improvement of only about 7 percentage points.(11) In the Corruption Perceptions Index (CPI), Mongolia ranks 106 out of 180 countries and has a score of 35, with 100 indicating »highly corrupt« and 0 »very clean«. There has been no significant improvement from 2012 to 2019, with the score fluctuating between 39 and 35.(12)

Mongolia is particularly fragile economically. It depends on the export of three main commodities: coal, copper ore and gold, which account for 75 per cent of commodity exports. There is only one major customer, as 82 percent of all exports go to China, and in the case of coal, the main export, the figure is around 90 percent. Of the total export volume of about 7 billion USD, China accounts for about 6.3 billion.(13)

Value chains in the country as well as a diversification of the economy, which alone could reduce the dependence on the export of raw materials, are almost completely missing, which is also reflected in the low number of SMEs. State-owned enterprises dominate the economically crucial raw materials sector and are self-service shops for the parties and their clientele.

The total debt is striking, exceeding the GDP several times and thus far above the internationally accepted rate. In 2017, the country was only saved from bankruptcy with a $5.5 billion loan provided under the leadership of the IMF.(14) GDP has fluctuated between US$ 10-13 billion for about a decade. The dependence on the volatile price development in the global commodity market and especially on the economic cycle in China (»When China coughs, Mongolia has flu«) causes strongly fluctuating government revenues and torpedoes a long-term policy oriented towards development and prosperity. Mongolia has not only missed crucial development steps in the last 10 years, but also has only limited opportunities to catch up with them.(15)

3. The key features of a democratic system

The central element is the separation of powers and the mutual control of the constitutional organs (»checks and balances«). This is based on the constitution as the fundamental legal provision and the laws derived from the constitution. The legislative (parliament), executive (government) and judiciary (courts) are independent of each other. The relationship of the three powers in the state is regulated by legal and procedural principles which are enforced. Their scope of action and competences are derived from the constitution. The legislature, i.e. the members of parliament elected by the people in secret and equal elections, enacts laws, has budgetary power and controls the government, which is accountable to parliament. In the event of conflicts over the interpretation of the constitution, the highest judicial authority (Constitutional Court) decides and safeguards the constitutional order. The judiciary supervises the application of the laws and interprets them. Judges at all levels are independent of instructions and decide according to law and not according to aspects of political expediency. Judgments are not for sale. All this is to avoid the emergence of uncontrolled or overbearing centres of power, which is typical of autocratic and dictatorial systems. The separation of powers is meant to ensure the functioning of democracy.

4. The central problem of Mongolia's constitutional amendments

The shortcomings of the constitution and its implementation in reality were no secret in Mongolian politics. In the last years, therefore, the question of constitutional amendments in various forms repeatedly came up on the agenda of the parties and the political institutions without any decisions being taken, regardless of which party or coalition was governing at the time.

Formally, the problem lay in the fact that constitutional amendments require a three-quarters majority of parliament, i.e. 57 out of 76 members (Art. 69). The underlying real problem, however, was that cosmetic repairs were not enough. Rather, if one was serious, substantial cuts were needed in the overall structure of the distribution of power and the interaction of the president, prime minister and parliament, as well as a strengthening of the judiciary. However, this meant curtailing the power and authority of one or more of the three powers with a corresponding gain in power for the other(s). A zero-sum game was not possible. But who likes to give up power voluntarily?

The core question was (and still is, as will be shown) in which direction the system of government should be developed. Either towards a presidential or semi-presidential system of government, as in the USA or France/Russia with a dominant position of the president, or towards a consistently parliamentary system of government with a strong position of the head of government and accountability to parliament, with an accompanying limitation of the powers of the president, in extreme cases to only representative functions, as in the Federal Republic of Germany, for example. The 1992 Constitution did not clearly define this, but created a system in which the powers of the President of the Republic, the Head of Government and the Parliament overlapped and the institutions competed with each other.

In the following, the weaknesses of the old constitution are presented and the changes that were decided upon. It will be examined whether the changes really mean an improvement in the sense of a clearer separation of powers and an increase in the efficiency of the political system. In the Mongolian context, increased efficiency means the ability of the government or the political system as a whole to make decisions for the common good and for the balanced socio-economic development of the country, making intelligent and forward-looking use of its full potential. However, the comparison of texts only completes part of the analysis. The constitutional reality, i.e. the implementation of the legal provisions from the constitution to the individual laws, plays an equally important role. Here it can be seen that it is much more difficult to achieve a realignment in this respect.

The 2020 constitutional amendments are entitled »Law of Mongolia. Amendments and changes inserted into the Constitution of Mongolia. 14 November 2019, Ulaanbaatar«. The law consists of 6 articles, affecting a total of 23 articles of the old Constitution. Part of the changes is the Law on the »Order for Transition to Comply with the Amendments and Changes Inserted into the Constitution.« This law mainly specifies the procedures for reorganizing the self-government of cities, districts and villages, and the classification of Darchan and Erdenet as government units, and stipulates that the new provisions on party formation will apply from 01 Jan 2028.(16)

5. Main features of the Old Constitution

5.1. Grand State Khural - Head of Government

The crucial weakness of the 1992 Constitution(17) is the dominant position of the Great State Khural (Art. 20-29). The predominant position of parliament as the »highest organ of state power« (Art. 20) results in a considerable weakening of the position of the head of government and thus of the executive. It calls into question the separation of powers as a whole and gives the impression that parliament stands higher than the other powers.(18)

Parliament can decide every domestic and foreign policy issue on its own authority (Art. 25.1). It should be noted that the legislature consists of only one chamber. It lacks a second chamber as a controlling or corrective body, such as the Senate in the USA or the Bundesrat in Germany, which participates in the legislation and administration of the Federation. For the practical work of government, the rights of parliament to intervene with regard to the head of government and the cabinet were a particular stumbling block. Parliament appointed, replaced or dismissed the head of government as well as individual ministers (Art. 25.1.6). For any change in his cabinet, be it the dismissal or appointment of a minister, the prime minister needed the approval of parliament. Each person was voted on separately. This meant that the PM's hands were tied in practical politics. Parliamentarian M. Batchimeg summed this up (alluding to the 76 seats in parliament) in the words: »We have 76 or even more prime ministers.«(19)

This dependence of the head of government had two serious consequences. After the elections, the formation of a new government as well as government reshuffles in the current legislative term took an unusually long time because parliament and prime minister, including the president, blocked each other in constantly changing disputes that were often determined by personal interests. Even more serious was the second consequence, namely the instability of Mongolian governments. Statistically, Mongolia has had a different head of government about every year and a half since 1990. A Russian author aptly titled his article about Ch. Saikhanbileg's appointment as prime minister in 2014 with the words that in Mongolia they change prime ministers like gloves.(20) With such a short life span of governments, continuous and long-term policies are impossible, especially as it is common in Mongolia for new governments to ignore the commitments of the old ones. With a quarter of its members, the parliament could initiate a vote to remove the government (Art. 43), i.e. with 19 people, which is a decidedly low number. A majority (= half plus 1 vote) of the members present was then sufficient for a vote to be successful, and a meeting was considered valid if the majority of the members of parliament participated.

5.2 President of the Republic

In general, the position of the President of the Republic is particularly strong because he is directly elected by the people and therefore has a high level of democratic legitimacy. But he also has strong constitutional rights, on the basis of which he competes with the head of government, but also with parliament. In particular, he has the right to veto legislative proposals and other decisions of parliament, which can only be overridden by a two-thirds majority (Art. 33.1.1), which is a high hurdle. The veto power is probably the president's strongest weapon in everyday politics. Research shows that from the first President Ochirbat to almost the end of President Elbegdorj's reign in 2016, an average of 72 per cent of presidential vetoes were successful, which is a considerable »success rate«. The president proposes the prime minister to parliament (Art. 33.1.2) and can issue decrees and directives to the government (Art. 33.1.3). Although these only come into force with the countersignature of the head of government, they are a powerful political instrument with a high potential for disruption if the president and head of government are not on the same page.

The President has the right of initiative in the Great State Khural and can introduce his own legislative proposals (Art. 26). Even though parliament must vote on these proposals, the wording of an initiative nevertheless significantly determines the character and thrust of a law as well as its further course up to the vote. Former President Ts. Elbegdorj successfully introduced 23 out of 63 legislative initiatives in the period 2009-2016.(21) The President can call special sessions of Parliament (Art. 27.3.). He is the Chairman of the National Security Council and Commander-in-Chief of the Armed Forces (Art. 33.1.10 and Art. 33.2). As »Commander-in-Chief«, he has the decisive means of power in extreme cases. In foreign policy he has all rights (Art. 33.1.4). He acts here as a kind of »subsidiary head of government«.

6. Negative manifestations of the constitutional reality

The dysfunctionality of Mongolia's political system is exacerbated by constitutional reality, i.e. political practice. Over the years, there have been serious deformations of the text and spirit of the constitution. The following developments are particularly worthy of mention.

6.1 Double Deel

This term is used in Mongolia to describe the fact that members of parliament are also members of the government, i.e. they carry two deels. The »double deel« as a standard phenomenon developed in Mongolia from the beginning of the 2000s. In all but three of the 10 governments from 2004 to 2020, between 10-17 members of the government held seats in parliament.(22) The peak was marked by the Altankhuyag government in 2012-2014, where 17 of 19 government members were members of parliament. With 76 members of parliament, this is almost 25 per cent. Thus, a quarter of the parliament had to control itself as a member of the government in its capacity as a parliamentarian, because controlling the government is one of the most important functions of the parliament. It is true that in other democratic systems, such as the Federal Republic of Germany, ministers are also members of the Bundestag. However, with the small number of 76 members of the Mongolian parliament, the combination of being a member of the government and a member of parliament has a much stronger effect than, for example, in a parliament with currently more than 700 members like the German Bundestag. The »double deel« was therefore a serious threat to the separation of powers.

6.2 Parties and State Administration

The Mongolian parties correspond to what the famous German sociologist and political scientist Max Weber 100 years ago called »office patronage organisations« (Amtspatronage-Organisationen) and »job hunter organisations« (Stellenjägerorganisationen).(23) They are institutions for the provision of their members and patrons. In the distribution of offices, allegiance and kinship count, not professional knowledge, education or achievements already made. After each new government is formed, most of the civil service, including employees of state-owned enterprises, is replaced. The winning party, or those parties that form a coalition, must provide for their followers. The reshuffling of the civil service, down to the level of even desk officers, contradicts all the rules of effective state administration and interferes immensely with the practice of government. The civil service must master the dossiers after an election and ensure the necessary continuity. Professional points of view should be in the foreground and should also be decisive for new appointments. Mongolia lacks a »rational state« (rationaler Staat) Max Weber called for. (24) This includes giving civil servants a reasonable salary that allows them to focus on their work and discourages them from concentrating their labour on more lucrative side jobs. This would also limit corruption.

6.3 Corruption

Important party posts and especially seats in parliament are bought with considerable funds. For example, it is an open secret that a seat in parliament »costs« around USD 1 million. These considerable funds lead those who then obtain their posts to behave in a way that is individually »rational« but extremely harmful to society. Those who spend so much to get into office not only want to get their effort back, but they want to earn from it. In an economy characterized by the exploitation of raw materials, the awarding of mining licences plays a special role. Corruption already at the licensing stage results in an unhealthy development of the entire project and ultimately of the national economy as a whole.

The need for own resources as a »door opener« to political posts leads to the fact that almost all MPs are wealthy businessmen and consequently their business interests dominate in the Great State Khural. Those who have their own business get into conflicts of interest in legislative projects and other decisions, make decisions with their own interests in mind and lose sight of the general good. Max Weber also found a valid formulation here. Without this having to apply to every individual case, »the wealthy man's concern for the economic 'security' of his existence is from experience - consciously or unconsciously - a cardinal point of his whole orientation in life.«(25) In other words, the politician, who is also a businessman, wants to make good deals for himself as a priority. Research into the composition of the 2012 Great State Khural shows that parliamentarians' assets, totalling $785 million, accounted for 7.6 per cent of Mongolia's GDP, which was $10.270 billion in 2012.(26) An Australian journal compared this ratio with the National People's Congress in China and the US Congress and found that the percentage in China is 1.1 per cent and in the US it is only fractions of a per cent given the total size of the US economy.(27) Even if these figures do not reflect the latest state of affairs, the basic fact has not changed much, namely that the Mongolian parliament is dominated by business interests.(28) Corruption is a permanent problem under these conditions. Given this state of affairs, it is not surprising that the parliament's reputation in the country is extremely poor. It is seen as an assembly of people who see their own interests as a priority and use their position for individual enrichment.(29)

All attempts to effectively fight corruption have so far had no resounding success. Although the Independent Authority Against Corruption (IAAC) has existed since 2007, it is a toothless tiger. For years, Mongolia has been regularly rocked by corruption scandals that reach up to the highest state offices. The handling of these cases is non-transparent and erratic. Trials do not take place in many cases. Even when sentences are handed down, they are often counteracted by subsequent pardons, as in the case of former President Enkhbayar, who was convicted in 2012 but who was pardoned a little later. Efforts to recover corruption funds are absent or insufficient. Mongolia's international ranking in terms of corruption has deteriorated in recent years.

7. the constitutional amendments

7.1 Parliament and Head of Government

One of the major weaknesses in the overall structure of the state order, namely the exclusive position of Parliament under Art. 20, 25.1 remains intact. Parliament thus failed to seize the opportunity of a fundamental readjustment. In my opinion, the reason for this is clear: the MPs were not prepared to limit their privileged position.(30)

7.1.1 Position of MPs

A number of provisions have been introduced that affect the position and rights of MPs. Now, loss of mandate can also occur in the event of a violation of the oath of office or the Constitution (Art. 29.3), and not only, as before, in the event of involvement in a criminal offence or mandatory conviction by a court. The main problem here is likely to be proving a violation in individual cases.

The possibilities of MPs to amend the budget submitted by the government are restricted in the way that in doing so »the level of expenditure and losses may not be increased« (Art. 25.1).This provision eliminates the practice whereby MPs could have the funding of measures in their constituencies included in the budget in order to increase their electoral chances. These measures regularly inflated the already precarious budget, caused deficits and stood in the way of long-term oriented development of the country. By 2012, MPs had officially large sums of money at their disposal for this purpose, starting at 10 million tugrik in 2004 and rising to 1 billion tugrik by 2012. This system is unusual for the very reason that it is normally in the best interest of any government to keep its expenditure under control and thus preserve its ability to act. This can only be described as »pandering« by which the government sought to secure the »goodwill« of parliament. The practice was continued until 2013, although it was already described as unconstitutional by the Constitutional Court in 2007.(31)

Parliament can now establish committees of enquiry with 25 per cent of all votes, which means an extension of its powers (Art. 28.2).

7.1.2 Government instability

The most important provisions for practical government work relate to the position of the head of government. He now decides on the appointment and dismissal of members of the government (Art. 39.4). This is a significant strengthening, as until now both were dependent on parliament, which had a habit of getting involved in disputes over whether individual ministers and/or the prime minister should remain in office, thus paralysing the government. However, both the president and parliament retain far-reaching rights that can constrain the prime minister and lead to the blocking of his or her work.

The Prime Minister must consult with the President of the Republic on the structure and composition of the government. If the two cannot agree within seven days, parliament decides (Art. 39.3). The president thus has a strong possibility to disrupt the prime minister in case of political disagreements.

The sharpest weapon that can still be directed against the head of government is a vote of no confidence. At least a quarter of the members of parliament, i.e. 19 MPs, can »officially raise the proposal to dismiss the prime minister«. With a majority of all members (= half plus 1 vote), parliament can dismiss the prime minister. A new one must be appointed within 30 days (Art. 43.1). Art. 43.2. provides that if the Prime Minister is dismissed, the entire government is deemed to be dismissed with him. This provision is logical since the Prime Minister appoints and dismisses his government (Art. 39.4). The Cabinet is responsible to Parliament as a whole, which should strengthen Cabinet discipline.

Parliament has not been able to bring itself to either dispense with a vote of no confidence altogether or to establish a so-called constructive vote of no confidence, as is the case in the Federal Republic of Germany and its parliament, the Bundestag, for example: »The Bundestag can only express a vote of no confidence in the Federal Chancellor by the Bundestag electing a successor by a majority of its members and requesting the Federal President to dismiss the Federal Chancellor. The Federal President must comply with this request. There must be 48 hours between the request and the election."(32) A constructive vote of no confidence would have a disciplining effect on the MPs, who would then no longer be able to dismiss the head of government "on a whim". The vote of no confidence would presuppose a will to govern and prevent mere political destruction. There must then be an alternative capable of winning a majority. The chances of disruptive manoeuvres and government crises would then be considerably reduced. Given the instability of Mongolian governments so far, this would have been the only sensible solution.

7.1.3 Double Deel

Of the government consisting of the Prime Minister and the members of the government (= ministers), only the Prime Minister and four members of the government may now belong to the Great State Khural (Art. 39.1). This eliminates the »double deel« and an essential element of the limited separation of powers between the executive and the legislature. This provision is a step forward.

7.1.4 State of the Parties

The hurdles for founding a party have been raised substantially. Now one per cent of citizens eligible to vote is required to register as a party (Art. 19.2). With currently almost 2,115,000 eligible voters, this means 21,115 signatures. Previously, only 801 were required. According to Art. 3 of the Act on the Transitional Provisions for the Application of the Constitutional Amendments (see point 6), the new provisions will apply from 01. Jan 2028.

This new regulation is double-edged and of far-reaching significance. On the one hand, it restricts the formation of splinter parties incapable of compromise with extreme ideology as well as pure interest groups and thus reduces the likelihood of a fragmentation of parliament and the loss of the country's ability to govern (example Weimar Republic). On the other hand, however, this hurdle is very high and can be seen as disproportionately limiting the political will and articulation of Mongolian citizens. Above all, the new regulation cements the position of the existing parties and especially the three big ones MVP, DP and MRVP. Just as an aside, the required number of votes has to be adjusted to the changing numbers of eligible voters, which means additional effort. In my view, it would have been more appropriate from the point of view of democratic participation to introduce a blocking clause such as the 5-percent clause that exists in Germany. This would not unduly restrict the founding of new parties, but at the same time avoid a fragmentation of the parliament. This amendment is therefore to be regarded as problematic. (33)

An essential disposition concerns transparency and financing of the parties. Article 19.3 states: »The internal organization of the party shall be in accordance with the democratic principle and its assets, sources of income and expenditure shall be transparent to the public. The organization of the party, the rules of its activities, its financing and the conditions for the provision of financial support by the state shall be determined by law.« This article addresses one of the main problems of Mongolian politics, namely that Mongolian parties operate in a largely uncontrolled and opaque sphere. This constitutional provision is initially nothing more than a declaration. Here, everything will depend on the wording and implementation of the laws yet to be passed. Experiences even in consolidated democracies show that controlling the financing of parties is an ongoing task that can hardly be solved (e.g. party donation scandals). Given the shortcomings of the Mongolian system, a quick and substantial improvement in this area is not to be expected.

Another provision relates to electoral law, or more precisely, possible changes by parliament. It is now forbidden to change electoral law in the year preceding the regular holding of parliamentary elections. For 20 years after the fall of communism, Mongolia applied the majority voting system, which works according to the motto »the winner takes it all« and favours the big parties. The MRVP in particular benefited from this knock-out system. For the regular elections to the Great State Khural in 2012, a mixed system was introduced, consisting of a combination of proportional and majority voting (majority election of 48 MPs and proportional election of 28 via a list). One of the reasons was that proportional representation allows smaller parties to have a say, which is more democratic in terms of better participation of minorities.(34) The change was legally controversial at the time with reference to Article 21.2 of the Constitution, which provides for a »direct election« of MPs, because an election via a list is indirect. Proportional representation was also considered inconsistent with Mongolia's political culture and social traditions. Above all, however, the major parties feared a loss of power if other parties entered parliament. In 2016, not surprisingly, parliament decided to return to the former majority voting system, a reversal that took place less than two months before the election on 29 Jun 2016.(35) Electoral law is a decisive variable for the participation of parties in the political life of a country. It is obvious that constant changes in the electoral law create instability and, above all, leave the right impression that the ruling parties are carving conditions favourable to them, which reinforces the already existing mistrust in the parties as patronage organizations and in politics as a whole.

7.2 President of the Republic

According to the new provisions, a presidential candidate must be Mongolian by birth (according to the text »an original citizen of Mongolia«) and at least 50 years old (instead of 40 previously) and (as before) have lived in Mongolia continuously for at least 5 years (Art.30.2). Why this increase was made is not apparent, as it is questionable that a higher minimum age increases the »quality« of an applicant per se and thus represents an improvement.

A significant change is the limitation of the president to one term and the increase of the term of office to the duration of 6 years. Previously, the term of office consisted of 4 years with the possibility of re-election. The significance of this fundamental change will only become apparent in the coming decades. One can argue whether this new provision means a strengthening of the political system and the interaction of the powers or a weakening. One idea may have been to relieve the president of some of the day-to-day politics and to give him more independence and more strength, since he is no longer under the pressure of having to win his next election. He can therefore tackle long-term objectives that go beyond tactical issues and does not have to take short-term (power) interests into account. However, being freed from these constraints can lead to the president »spinning freely« and becoming a political and social disruptive factor and a »blocker«. This is especially true if the ruling party (or leading party in a coalition) is different from that of the president.Otherwise, the president retains his powers. He continues to be a strong counterpart to the head of government and also has substantial means of power vis-à-vis parliament.

7.3 Judiciary

According to the provisions of the Constitution, Mongolia's judiciary fulfills all the requirements for jurisdiction in a democratic system (especially Article 49, which prohibits any outside interference). In practice, however, this power is the weakest in the Mongolian system. This is in contrast to the knowledge that the independence of the judiciary and equality before the law are basic tenets of democratic systems.

7.3.1 Lack of independence of the judiciary

Both the President of the Republic and the State Great Khural have repeatedly interfered in the affairs of the judiciary. For example, in 2013 as well as in 2015, in the context of amendments to laws on the establishment of courts, various judges were removed without giving reasons or following the procedures prescribed by the Constitution (Art. 51.4.) or by implementing laws. It is also the practice for Mongolian judges to be rotated or transferred to other courts without their consent. There is no doubt that such unlawful interference is politically motivated. Inconvenient judges are removed or placed in positions where they can do less »damage«.

Especially in corruption trials against former or incumbent politicians, it is hardly possible to reliably judge whether political reasons play a role in bringing an indictment and then also in reaching a verdict. In most cases, as in the corruption trial against former President Enkhbayar, the suspicion is that a political opponent is being eliminated. In this case, the aim was to block Enkhbayar as a candidate for the 2013 presidential elections. When MPs are suspected of corruption, investigations and prosecutions fail because parliament regularly refuses to waive the immunity of its members.(36) The reasons for this are obvious: by acting as a collective, one protects oneself. MPs can only be prosecuted after they have lost their mandate in an election.

A particularly negative aspect is that judgments can be bought in Mongolia. As far as is known, there are different »tariffs« depending on the level of the court. The bribery of the judiciary undermines any trust in the administration of justice.

7.3.2 Underfunding

Mongolia's judicial system is characterized by underfunding. The share of the judicial system, which includes adequate salaries for judges to make them economically independent, is below the desirable share of at least 1 per cent of the state budget. Parliament and government are responsible for this.(37)

7.3.3 Division of the Courts/General Council of the Courts

The new provisions refer to the division of the judiciary (in addition to the Supreme Court) according to the territorial division into aimags and capital district, sums/counties/districts and substantively into criminal, civil and administrative courts (Art. 48.1).

The »General Council of the Courts« is responsible for ensuring the independence of the courts and the management of the judiciary (Art. 49). It is obvious that its composition and especially the appointment of its chairperson are crucial points for its functioning. In the almost 30 years since its creation, the General Council has been repeatedly reorganized. The main point of contention has been whether the Minister of Justice or the country's chief justice was the chairman of the Council. It began in 1993 with the chief justice presiding, in 1996 this became the minister of justice (which is highly problematic per se) and in 2002 it became the chief justice again.(38) The new Art. 49.5 only lays down general principles. According to it, the General Council consists of 10 members, 5 of whom are elected from the judiciary; the other 5 are appointed »by open candidacy«, whatever that means. The details are determined by law. It will depend on these legal arrangements and their implementation whether the General Council really ensures the independence of the courts.

7.4 Decentralisation

Decentralisation is an issue that has been discussed in Mongolia for years. It is based on the experience that regional bodies usually take decisions that are better suited to the situation on the ground than those taken by the centre, and that it is more in line with the democratic principle to allow the population and its representatives to self-govern as far as possible. The new provisions of Articles 57 and 59 allow for the delegation of powers to local bodies, changes in territorial division taking into account local specificities such as economic structure and population distribution, the management of property and the determination of the scope of taxes. Details are determined by a law. One of the main points of contention is likely to be the distribution of taxes between the central government and local units.

7.5 General provisions

7.5.1 A provision is introduced in Art. 25 of the Constitution prohibiting referendums that deny the independence and territorial integrity of Mongolia (Art. 25.1.16).

7.5.2 Art. 6.2 declares all land and the natural wealth on and in it, including animals, to be the public property of the state, unless it is private property (»transferred to the citizens«), and the population has a right to be informed about the environmental consequences of the extraction of raw materials.

7.5.3 Interestingly, in Art. 6.2 there is a provision for the establishment of a »national wealth fund« which is »equally and equitably accessible« to everyone, and where the bulk of the benefits accrue to the people in the exploitation of natural resource deposits of strategic importance. This affects the use of revenues from the extraction of natural resources. In view of the dependence of the Mongolian economy on the volatile development of commodity prices and the economic development in China, the Mongolian government has so far done nothing to provide for bad times and for the future in general with high government revenues in good times. As soon as there is money, it is spent, for example, on questionable and economically unproductive election gifts from the parties, for which state enterprises are deprived of funds, or on projects compromised by corruption and unclear expenditures. A teaching example of how to do things better from the ground up is the Norwegian Oil Fund, which protects the economy from the ups and downs of extractive industry income and serves as a long-term financial reserve and cash investment so that current and future generations can benefit from resource wealth. This fund is one of the largest in the world. One of the key rules of the fund, based on a general social consensus, is that the state's access to this investment to finance government expenditure is extremely limited, to an average of three per cent of the income.(39) The concrete regulations and then their application will also show in this case how effectively this constitutional principle is implemented.

8. Summary and outlook

The constitutional amendments are a compromise of hardly compatible fundamental political orientations and approaches. Although compromises are seen as a prerequisite for the functioning of democratic systems, they are not necessarily the optimal solution, but often enough the lowest common denominator. It is the same with the constitutional amendments discussed here. They modify one thing or another, but they are not the grand sweep that would have put Mongolia's political system on a solid footing. The parliament has avoided the basic question, namely whether to opt for a presidential or parliamentary system of government. Partial improvements such as the strengthening of the head of government are not enough to significantly improve the effectiveness of the system. The separation of powers remains limited, and the responsibilities and powers of the president, parliament and head of government overlap. The mixed system has only been insignificantly changed and thus significant imbalances persist. Parliament has missed a great opportunity to set the course for the future.

The constitutional amendments must now be translated into about 40 individual laws. Only these laws and then their implementation in reality will show how effective the new constitution is. Sweeping changes are only possible if Mongolia's ruling political-economic elite opens itself up to a radical change of mentality and values, namely to no longer regard the country and its wealth as disposable assets for their own well-being. It would require discipline and an orientation towards the common good as well as a socially oriented policy, which is currently not discernible. It is also questionable whether the young generation, which will take the political and economic helm in the coming years, will manage this change, because the recruitment mechanisms of the established system ensure a selection of personalities and the retention of structures that stand in the way of real reforms.

Bibliography and annotations

1. This essay was originally published in German in the journal: Mongolische Notizen. Mitteilungen der Deutsch-Mongolischen Gesellschaft, No. 28/2021.
2. For example, presentations such as those by the office of the Friedrich Ebert Foundation in Ulaan Bataar: Stabilität & Transparenz - Verfassungsreform in der Mongolei (https://www.fes-mongolia.org/news/stabilitaet-transparenz-verfassungsreform-in-der-mongolei/); by mondaq. GRATA INTERNATIONAL: Legal Update: The Amendment on Constitution of Mongolia https://www.mondaq.com/human-rights/879568/the-amendment-on-constitution-of-mongolia or on the website of Mongolia Focus: Constitutional Amendments Adopted (https://blogs.ubc.ca/mongolia/2019/constitution-reform/) are helpful, but fail to analyze the amendments in the overall framework of Mongolian politics and its deficits. The account by M. Odonkhuu: Mongolia's Long, Participatory Road to Constitutional Reform (https://constitutionnet.org/news/mongolias-long-participatory-route-constitutional-reforms) is broader, but also does not present the political context in a stringent manner. However, Odonkhuu's essay contains an informative account of the hot phase of the constitutional amendment process since the beginning of 2019, showing that the content and procedure of the amendments, as one would expect, became embroiled in political wrangling between the MVP and DP, with the then incumbent president playing a prominent role. Thus, Kh. Battulga tried to establish a presidential system, but could not get his way. The direct election of the president by the people or his indirect election by parliament was also disputed.
3. For example, the basic civil rights and freedoms guaranteed in the USSR constitution of 1977 were pure wastepaper because of the communist party's claim to power and monopoly of power. (http://www.verfassungen.net/su/verf77-i.htm). (06.01.2021).
4. I use this period because Mongolia made a huge "leap forward" with the start of the construction phase of Oyu Tolgoi as the key economic project about 10 years ago, which was expressed in the phenomenal growth of Mongolia's GDP, namely a doubling from about 4.6 billion to almost 10.5 billion US dollars between 2008 - 2012 (Statista. Mongolei: Bruttoinlandsprodukt (BIP). https://de.statista.com/statistik/daten/studie/407853/umfrage/bruttoinlandsprodukt-bip-der-mongolei/ (07.01.2021). As a result, the contradictions of the economy and society intensified and the demands on the political system to react intelligently and in a forward-looking manner increased.
5. On the "mixed character" of the Mongolian constitution and the political implications, see the remarks by the German legal scholar Th. Stein, who was involved as an advisor in the drafting of the 1992 Mongolian constitution in: D.R.UB. (German Radio Ulaanbaatar). Wochenschau No. 41 of 20.11.2015.
6. Mongolia's political and economic elite are largely identical. Of the 10 people with the largest fortunes (between 700 million and 2.6 billion US dollars), 5 are active or former politicians (2021). The most prominent example is the former president Kh. Battulga with an estimated fortune of US dollars 1.5 billion. (Mongolian Business Database. http://www.mongolianbusinessdatabase.com/base/newsdetials?id=14555&lang=en).(08.01.2021). See also the comments on the Great State Khural below.
7. Montsame (2020). Amendment to the Constitution or revised social contract. https://montsame.mn/en/read/227041 (01.12.2020).
8. The Economist (2020). Intelligence Unit. Democracy Index 2019. https://www.eiu.com/topic/democracy-index (04.12.2020).
9. UNDP (2020). United Nations Development Programme.(04.12.2020). Human Development Report http://hdr.undp.org/en/content/latest-human-development-index-ranking. (04.12.2020).
10. The Worldbank (2020). Mongolia Poverty Update. https://www.worldbank.org/en/country/mongolia/publication/mongolia-poverty-update. (04.12.2020).
11. IMF (2003) International Monetary Fund. IMF Country Report No. 03/277. Mongolia: Poverty Reduction Strategy Paper. https://www4.unfccc.int/sites/NAPC/Country%20Documents/Parties/cr03277.pdf. (04.12.2020).
12. Transparency International (2020). https://www.transparency.org/en/cpi/2019/results/mng. (13.01.2021).
13. OEC (Observatory of Economic Complexities) (2019). https://oec.world/en/profile/country/mng (02.01.2021). According to the Federal Statistical Office, as much as 92.8% of all goods exports went to China in 2018 - Statistisches Bundesamt. Mongolei. (2020). https://www.destatis.de/DE/Themen/Laender-Regionen/Internationales/Laenderprofile/mongolei.pdf?__blob=publicationFile. (04.01.2021).
14. MF -International Monetary Fund (2017). https://www.imf.org/en/News/Articles/2017/05/31/NA053117Mongolia-Turns-the-Corner-with-5-5-Billion-IMF-Led-Financing-Package.(03.01.2021).
15. Statista. Mongolei: Bruttoinlandsprodukt (2020). https://de.statista.com/statistik/daten/studie/407853/umfrage/bruttoinlandsprodukt-bip-der-mongolei/ (03.01.2021). S.a. Statistisches Bundesamt. Mongolei (2020). https://www.destatis.de/DE/Themen/Laender-Regionen/Internationales/Laenderprofile/mongolei.pdf?__blob=publicationFile. (03.01.2021).
16. So far I have not found an integral written version of the amendments in any European language, although I can work in six of them (including Russian). I am using a working translation by the German mongolist Prof. Barkmann, Berlin, which he kindly made available to me.
17. The text of the constitution used here is the English version in: Constitute (2001). Mongolia's Constitution of 1992 with Amendments through 2001. https://www.constituteproject.org/constitution/Mongolia_2001.pdf?lang=en. (13.04.2016).
18. See the discussion in: United Nations Development Programme (UNDP) (2016). Assessment of the Performance of the 1992 Constitution of Mongolia, p. 68 ff. https://www.mn.undp.org/content/mongolia/en/home/library/AssessmentofthePerformanceofthe1992ConstitutionofMongolia.html. (03.01.2021). This report is a systematic examination of the legal aspects of the 1992 Constitution of Mongolia and its 2001 amendments, including historical and political aspects, and contains suggestions on the direction in which constitutional changes should move. It was thus a weighty contribution to the ongoing discussion on possible amendments at the time.
19. D.R.UB (2015). Deutsches Radio Ulaanbaatar. Wochenschau Nr. 28 vom 21.08.2015.
20. Sosobaram, Maidar (2014). Premer-ministri Mongoli menjajutsja kak pertschatki. http://asiarussia.ru/articles/4923/. (13.04.2016).
21. UNDP (2016), p. 96.
22. UNDP (2016), p. 120.
23. Weber, Max (1985): Wirtschaft und Gesellschaft. Grundriss der verstehenden Soziologie. Tübingen: J.C.B. Mohr (Paul Siebeck) 1985, pp. 839, 846.
24. Weber, Max (1985), pp. 825-837.
25. Weber, Max (1985), S. 830. In the German original: (Es ist) „dem vermögenden Mann die Sorge um die ökonomische ‚Sekurität‘ seiner Existenz erfahrungsgemäß - bewußt oder unbewußt - ein Kardinalpunkt seiner ganzen Lebensorientierung.“
26. The Wealth of Parliament Redux: What’s It Worth? http://www.themongolist.com/blog/parliament/79-the- wealth-of-parliament-redux.html. (14.04.2016).
27. Els, Frik: Mongolia’s wealthy politicians. http://www.mining.com/mongolias-wealthy-politicians-60909/. (14.04.2016).
28. In November 2015, a parliamentary working group proposed an increase in the number of members of parliament from 76 to 99 members (D.R.UB. Deutsches Radio Ulaanbaatar. Wochenschau No. 40, 13.11.2015). An increase would reduce the weight of individual MPs and their business interests as well as that of interest groups. The proposal did not prevail.
29. A Mongolian politician calls Mongolia a »pastureland of corruption« (Weideland der Korruption) and being under the »rule of the oligarchs« (Herrschaft der Oligarchen). Terbishdagva, Dendev: Im Jahr des Roten Affen. Ein Nomade zwischen Jurte und Brandenburger Tor. Berlin: neues leben 2020, S. 440; 455.
30. The UNDP analysis already cited states: »If Mongolia decides to undertake a major constitutional amendment, consideration should be given to removing the anachronistic language about the State Great Khural being the Supreme Organ of state power. This phrase made sense in the transition from a socialist environment, and the Constitution successfully turned parliament from a rubber stamp into a genuine legislature. But the overall scheme of the Constitution now features a conception of separation of powers and checks and balances, and so the language is neither an accurate description of reality, nor a desirable state of affairs in a modern democracy. It contradicts the idea of a separation of powers.« UNDP (2016), p. 71.
31. UNDP (2016), p. 72f.
32. Bundestag. Konstruktives Misstrauen. https://www.bundestag.de/service/glossar/K/konst_misstrau/245482 (14.04.2016).
33. The German Law on Political Parties does not stipulate a minimum number, but makes the foundation of parties dependent on various legal and content-related requirements. In 1968, for example, the Federal Constitutional Court recognized an association of only 400 people as a party. Federal Ministry of the Interior, for Construction and Home Affairs (BMI). Information on party formation. https://www.bmi.bund.de/DE/themen/verfassung/parteienrecht/informationen-zur-parteigruendung/informationen-zur-parteigruendung-node.html. (12.01.2021).
34. This was the standard argument also used by German party representatives in their talks with Mongolian partners.
35. LIPortal. Das Länder-Informations-Portal. Mongolei. (2020). https://www.liportal.de/mongolei/geschichte-staat/#c132589. (16.01.2021).
36. UNDP (2016), p. 81f.
37. The above is based on UNDP (2016), p. 108ff.
38. UNDP (2016), p. 112f.
39. Norges Bank. (2021). https://www.nbim.no/en/the-fund/about-the-fund/ (19.01.2021).

Berlin, 24. 02.2022