INTRODUCTION
The 1992 new Constitution of Mongolia is a legal document that constitutes the legal foundation of state activity accepted by the people as a whole and that protects and guarantees human and civil rights and freedoms. At a time when democratic values are being formed and developed in the public consciousness and the implementation of the new Constitution is being assessed through the balance of achievements and shortcomings, the issues of constitutional reform and the social changes accompanying it continue to be of paramount importance. It remains a “significant issue” to study and assess how the 1992 Constitution of Mongolia and its amendments have influenced society, what consequences they have produced, and how the anticipated outcomes of the ideology of the new Constitution have changed or, conversely, been strengthened. This article aims to analyze and make publicly accessible the values, ideas, and principles of the new Constitution, as well as their social impacts, challenges, and opportunities.
In the early 1990s, a “Commission for the Revision and Redrafting of the Constitution of the Mongolian People’s Republic”1 was established. It developed ideas aimed at “advancing democracy and leading society through the state,” and proposed limiting the role of the ruling party by assigning functions and responsibilities to Parliament. B. Chimid, Head of the Department of State Organization of the Presidium of the People’s Great Khural of the Mongolian People’s Republic, prepared proposals and presented two options for reforming the People’s Great Khural (1990.02.20).2 One option (a) proposed a bicameral model consisting of the People’s Deputies’ Great Khural of the Mongolian People’s Republic and the Small Khural of the Mongolian People’s Republic, whereby the People’s Deputies’ Great Khural would convene once a year, and the Small Khural would function during the interim. The other option (b) proposed transforming the People’s Great Khural of the Mongolian People’s Republic into a permanently functioning, parliamentary-type body. In addition, alternative models for the presidency were developed and presented to the Presidium of the People’s Great Khural: (a) a President separate from Parliament, elected directly or indirectly by the entire people and serving as head of the Government; or (b) a President with distinct functions who does not directly lead either Parliament or the Government and is elected by Parliament.
Until the adoption of the new Constitution in 1992, Mongolia had operated under a socialist-style constitutional model, having adopted its first Constitution in 1924 and subsequently revised it in 1940 and 1960. In other words, the state system was centralized and premised on the guiding and leading role of a single party.
At that time, as the ideas for constitutional reform were being developed and a nationwide discussion on revising the Constitution was underway, the process of the Democratic Revolution intensified, and social life began to change rapidly. On March 23, 1990, concurrent with sit-ins, hunger strikes, and demands by democratic forces, a resolution of the People’s Great Khural of the Mongolian People’s Republic3 was adopted, instructing the Presidium of the People’s Great Khural to revise the relevant chapters of the Constitution to establish the People’s Great Khural as the supreme representative organ of state power, the State Small Khural as the permanent supreme legislative body, and the office of the President of the State, and to submit the draft for nationwide discussion. On the same date, March 23, 1990, the Law on Amendments and Additions to the Constitution of the Mongolian People’s Republic4 was adopted. Through this amendment, the second paragraph of Article Three and Articles Four, Six, Twenty-One, Twenty-Four, Thirty-Two, Forty-Seven, Forty-Eight, Sixty-Seven, Sixty-Eight, and the second paragraph of Article Eighty-One of the 1960 Constitution were revised. By this law, the following provision was removed from the Preamble of the Constitution: “The guiding and leading force of the state and society of the Mongolian People’s Republic is the Mongolian People’s Revolutionary Party, which is guided in its activities by the all-conquering Marxist-Leninist theory.”
At the Ninth Session of the Eleventh Election of the People’s Great Khural of the Mongolian People’s Republic, held on May 10, 1990, a subsequent law on constitutional amendments was adopted. Chapter One of the Constitution was entitled “The Supreme State Authority of the Mongolian People’s Republic,” defining the powers of (a) the People’s Great Khural of the Mongolian People’s Republic, (b) the State Small Khural of the Mongolian People’s Republic, and (c) the President of the Mongolian People’s Republic. Chapter Two defined the powers of the Government of the Mongolian People’s Republic.
Thus, two new institutions the State Small Khural (which had existed previously during 1924-1949) and the Presidency were established within the state system, and the values, concepts, and principles of the 1992 new Constitution began to take shape. From this perspective, during 1990-1992 Mongolia not only formulated the foundations of political and legal reform but also took the initial steps to implement them in practice. These changes marked the beginning of broad-ranging social transformation and renewal. As a result, Mongolia adopted its new Constitution and began to implement entirely new reforms, both in terms of constitutional theory and practical outcomes.
THE VALUES, CONCEPTUAL FOUNDATIONS, AND PRINCIPLES OF THE NEW CONSTITUTION OF MONGOLIA AS THE BASIS FOR SOCIAL TRANSFORMATION
The new Constitution of Mongolia of 1992, by virtue of having been discussed nationwide and adopted by 430 deputies of the People’s Great Khural elected from all corners of the country,
undoubtedly constituted a social contract.
The meaning of the notion of “new” in relation to the 1992 Constitution of Mongolia can be explained in many ways; here, only a few are considered. First, the concept of the state was fundamentally reinterpreted in two principal respects, differing entirely from previous understandings. (a) The former theory that viewed the state as “an instrument by which one class suppresses another” was abandoned, and the state came to be understood as “a form of social organization that operates in the public interest.” Article 19, paragraph 1 of the Constitution provides that “the State shall be responsible before its citizens for creating economic, social, legal, and other guarantees to ensure human rights and freedoms, for combating violations of human rights and freedoms, and for restoring infringed rights,” thereby constitutionally affirming the value that the state bears obligations toward its citizens. (b) This theoretical and conceptual shift resulted in a transformation in the “organization of state power.” In other words, instead of concentrating power in a “council” (or, in Mongolia’s case, an “assembly”), state power was distributed among branches legislative, executive, and judicial based on mutual control and balance (Articles 25, 33, 38, 50, and 66 of the Constitution), thereby neutralizing the concentration of power. As a result, the state system was fundamentally restructured, and these matters were regulated in Chapters Three and Five of the Constitution. Second, the concept of property was also reconsidered anew, guided by values that differed from previous constitutions in two essential respects. (a) The new Constitution recognized private property. Previously, citizens of Mongolia possessed only “personal property.” In practical terms, this meant that in rural areas a citizen could own, for example, 75 head of livestock in the Gobi region or 50 head in the Khangai region, while in urban areas ownership was limited to one vehicle and one fenced house property intended solely to meet basic needs. Under the new constitutional concept, however, a citizen could lawfully own private property such as 750 head of livestock or 10 vehicles, and such property could generate profit for its owner. This constituted a fundamentally new approach.
(b) Whereas previously property relations were limited to “socialist property,” “state property,” and “collective property,” all of which were tangible and physically observable, the 1992 Constitution introduced the possibility that “social relations” themselves intangible and not directly visible or tangible could constitute property. For example, ownership of “privatization vouchers” was recognized as a guarantee of property rights. Although these values were incorporated into the new Constitution, numerous errors occurred in implementation, and a transformation in property-related thinking was not fully achieved. In addition, the Constitution newly recognized the protection of “intellectual property rights.”
As a result of these two major directions of legal reform initiated in the 1990s, Mongolia’s system of governance underwent comprehensive change. Moreover, even before the adoption of the 1992 Constitution, a new chapter regulating property relations had been added to the Civil Code, a development that remains of historical significance. It is true that these changes were not initially well understood by the Mongolian people; equally true is the fact that attitudes, ways of thinking, and legal relations have continued to evolve from that time to the present.
Shortly after the adoption and implementation of the new Constitution, and prior to the initiation of privatization, products of light and food industries created through socialist construction fully met domestic demand and were even exported to certain countries. However, during privatization, skilled and specialized workers employed in these industries who constituted essential components of integrated production systems were allocated only insignificant fragments of those systems (such as individual machine parts from a footwear factory’s assembly section) under the guise of privatization, while those close to power and information appropriated entire factory buildings, thereby “confusing” the privatization process. As a consequence, hundreds of thousands of skilled workers integral to complete production systems were left unemployed, causing poverty rates to rise at an alarming pace. This outcome was not caused by the constitutional provisions themselves, but rather by deficiencies in the attitudes and capacities of those responsible for implementation, their failure to understand the foundations of change, and the erosion of principles of ethics and fairness in public service among leaders. Public trust in the constitutional aspiration toward a “humane, civil democratic society” was undermined, and rising unemployment and declining living standards further exacerbated economic difficulties.
Despite these complex and problematic developments, the adoption of the new Constitution also brought about many positive changes in both individual and social life.
The Preamble of the Constitution of Mongolia emphasizes the ideas of “cherishing and inheriting the traditions of statehood, history, and culture” and of “respecting the achievements of human civilization.” This reflects the fact that Mongolian statehood and legal thinking are rooted in a traditional5 cultural heritage spanning more than two millennia. From as early as the Xiongnu period, Mongolian legal consciousness has deeply embodied the idea of protecting territory. This value is constitutionally affirmed in Article 6, paragraph 3, which provides that “land, except for pastureland, land under common use, and land designated for special state needs, may be owned only by citizens of Mongolia. This does not apply to subsoil ownership…,” thereby guaranteeing the non-privatization of pastureland and preserving the distinctive features of nomadic civilization. By enriching universal trends of constitutionalism an achievement of human civilization with its own national characteristics, the Constitution of Mongolia stands apart from others.
Furthermore, with the adoption of the new Constitution in 1992, Mongolia for the first time established a system of governance based on democratic principles, constitutionally enshrining justice, freedom, equality, and national unity, and aiming to create a more citizen-friendly society. The Constitution began to be implemented with the expectation that it would exert both direct and indirect influence on citizens’ lives and lead to an improved quality of life.
LEGAL REFORM IN DEMOCRATIC MONGOLIA
The Constitution of Mongolia is a political and legal document that laid the legal foundation for advancing Mongolia’s social, state, and civic democratic development to the level of modern democracy.6 The new Constitution constitutes the core and legal basis of Mongolia’s legal life. On 16 January 1992, the Law on the Constitutional Annex on the Transition from Observing the Constitution of the Mongolian People’s Republic to Observing the Constitution of Mongolia was adopted, defining approaches to the separation of state powers, the system of local self-government, and the implementation of legal reform. Pursuant to the Constitutional Annex Law, the State Great Khural was tasked with adopting, according to a prescribed schedule, the laws stipulated by the Constitution of Mongolia by 1993, and with completing a comprehensive renewal of legislation in conformity with the Constitution by 1996. The said law also provided for the procedure to determine whether the international treaties of the Mongolian People’s Republic were consistent with the Constitution of Mongolia.7
Accordingly, it was decided to comprehensively renew the legal system through two phases 1992-1993 and 1994-1996 which necessitated implementing legal reform in a broad sense through five groups of measures. These included: first, the renewal of legislation; second, the renewal of the system and procedures for law enforcement; third, the renewal of legal professional education; fourth, the renewal of the organization and methodology of legal research; and fifth, the formation of a new legal consciousness within society.
First and foremost, reforms of state organization were undertaken. Within the framework of reorganizing the institutions of state governance, as well as local administrative and local self-governing bodies, laws were adopted and implemented, including the Law on the State Great Khural, the Law on the President of Mongolia, the Law on the Government, the Law on Administrative and Territorial Units and Their Governance, and a package of election laws.
For the first time in Mongolia, a parliament with multi-party representation the State Great Khural, vested with exclusive legislative authority was established. The Government, as the highest body of executive power responsible for organizing nationwide implementation of the Constitution, other laws, and state policy, was formed. Whereas previously the Government had operated on the principle of a council of ministers, the reform introduced the cabinet system.
The Law on Courts of Mongolia, adopted in 1993, reformed the previous judicial system, established guarantees for judicial independence and the independence of judges, and laid the foundation for an appropriate legal environment.
For the first time, a constitutional court the Constitutional Tsets was established in Mongolia. The Law on the Constitutional Tsets was adopted in 1992, followed in 1997 by the Law on Constitutional Tsets Proceedings, thereby creating judicial guarantees for strict observance of the Constitution and initiating supreme oversight of constitutional compliance.
In addition, by 1998 Mongolia had adopted and begun implementing sectoral laws regulating key social relations, including state organization, national defense, foreign relations, budget, taxation, customs, health, social insurance, social welfare, land, environment, economic activity, and infrastructure.
Although these legislative reforms constituted a continuation of post-constitutional reform, they were distinguished by the predominance of new laws reflecting social demand.8
In 1998, the State Great Khural adopted the Program of Legal Reform of Mongolia, an important document based on consensus among political parties that defined future directions of Mongolia’s legal policy. The objective of this reform was, in accordance with the principles and ideas proclaimed in the Constitution, to determine the fundamental directions of activity to be implemented by state institutions and officials at all levels in order to build and develop a humane, civil democratic society, and to create a legal foundation and favorable environment for political, social, and economic progress.
Within the framework of the program’s principal directions for improving legislation and ensuring sustainable development, by 2000 within two years substantial efforts and new steps were undertaken to: (1) ensure human rights and freedoms and their legal guarantees; (2) improve the legal foundations of economic relations; (3) improve the legal foundations of state organization; and (4) improve the legal foundations of the social sector, while assessing the pre-reform period of legal development and addressing its shortcomings.
In 2000, the State Great Khural approved the Government’s Action Program, which provided for “deepening legal reform, developing and submitting to the State Great Khural the principal directions for renewing Mongolia’s legislation up to 2004, and improving the implementation of laws.” In accordance with the implementation plan, reforms were further deepened.
During this period, in connection with improving the organization of law enforcement bodies, establishing structures with fewer bureaucratic obstacles, and ensuring human rights and freedoms, the laws governing the activities of legal institutions were comprehensively revised in 2002.9 In this context, laws such as the Criminal Code, the Criminal Procedure Code, the Civil Code, the Law on Civil Procedure, the Law on Courts, the Law on Enforcement of Court Decisions, the Law on the Prosecutor’s Office, the Law on Advocacy, and the Law on Administrative Procedure were adopted. Within the framework of civil legislation and economic reform, the foundational legal regulation of socio-economic relations was established. In drafting the new Civil Code, guiding principles included ensuring equality of participants in civil legal relations, enabling the free and equal development of all types and forms of property, providing guarantees thereof, and strengthening the protection of civil rights. In addition, regulations were introduced for new types of relations aimed at expanding opportunities for business activity and investment, such as franchising, financial leasing, options, and trust management.10
Within the scope of reforms to ensure human rights and freedoms, laws regulating relations related to the protection of human rights were enacted, and the National Human Rights Commission was established.
In summary, Mongolia’s legal reform process produced tangible results by strengthening and safeguarding each constitutional provision through legal regulation, based on principles that took into account centuries-old traditions of statehood, the evolving legal system, global trends, the country’s specific conditions, and national interests.
CONCLUSION
The conceptual foundations of the new Constitution having established the fundamental pillars of Mongolia’s social and state organization, ensured guarantees of human rights and freedoms, and strengthened the systems of state institutions and local governance have become the legal basis for the renewal of the national legal system. The Constitution of Mongolia is grounded in the following principles, namely that it:
• established the rule of law as a fundamental principle of state activity;
• strengthened the principle of forming a rule-of-law state and civil society;
• proclaimed natural human rights and freedoms and reinforced the principle that the State must create guarantees for their realization;
• provided for a socially oriented market economy based on multiple forms of private and public property and diverse forms of economic activity, thereby strengthening the principle of a social, or “humane,” state;
• upheld the principle that courts are subject only to the law and must be independent;
• established local self-government and provided legal guarantees for its relative autonomy;
• created a system of judicial review over the implementation of the Constitution and established a specialized constitutional court;
• expressly proclaimed the supremacy of the Constitution as a guiding idea and principle.
Mongolia’s political system has attracted sustained attention as a successful example of the establishment of democracy in the Asian region. Scholars note that the reforms carried out within the framework of the new Constitution of Mongolia developed constitutional democracy “without the presence of preconditions.”11 In its application to the present day, the Constitution of Mongolia has undergone several amendments that both conform to and diverge from its original principles, thereby also substantiating scholars’ views that “the constitutions of most countries do not remain in force for long periods without change.”12
Although reforms and transformations are being implemented across all spheres of society in accordance with constitutional values, concepts, and principles, political corruption associated with the exploitation of mineral resources and populist tendencies among politicians have contributed to unequal income distribution, generating conflicting challenges in both the political and social spheres. Addressing and overcoming these inequalities and conflicts within the constitutional framework has thus emerged as an urgent task before us.
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Footnotes
1. Amarsanaa, J. (2010, 2019). The Framer of the Constitution. Ulaanbaatar, p. 24.
2. Chimid, B. (1990). “Two Alternative Models for Reforming the Supreme Organs of State Power” (20 February 1990). Archive of the Office of the President of Mongolia, Fund 1, Inventory 1, File No. 8, pp. 75-83.
3. Collection of Laws, Decrees, and Resolutions of the Mongolian People’s Republic. March 1990, No. 3, p. 111.
4. Amarsanaa, J., & Batsaikhan, O. (2004). The Constitution of Mongolia. Ulaanbaatar, pp. 285-287.
5. Lundeejantsan, D., & Enkhbaatar, Ch. Constitutional Law of Mongolia. Ulaanbaatar, p. 15.
6. Tumur, S. (2003). Constitutional Law of Mongolia. Ulaanbaatar, p. 21.
7. Amarsanaa, J. (2009). Democratic Rule of Law. Ulaanbaatar, p. 15.
8. Chimid, B. (2002). Conceptual Foundations of the Constitution. Ulaanbaatar, p. 201.
9. Amarsanaa, J. (2009). Democratic Rule of Law. Ulaanbaatar, p. 15.
10. Amarsanaa, J. (2009). Democratic Rule of Law. Ulaanbaatar, p. 15.
11. M. Steven Fish, “Mongolia: Democracy Without Prerequisites,” Journal of Democracy 9, no. 3 (1998): p. 127.
12. Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions, 43880th edition (Cambridge ; New York: Cambridge University press, 2009)