ASSESSMENT OF THE PERFORMANCE OF THE 1992 CONSTITUTION OF MONGOLIA This publication was prepared by a team of scholars working under the project “Support to participatory legislative process” implemented jointly by the Parliament of Mongolia and the United Nations Development Programme (UNDP) in 2013-2016. The research findings, interpretations, and conclusions expressed in it do not represent the views of the Parliament of Mongolia and the UNDP. The views expressed are those of the individual authors and are not related to their previous and current official functions. The authors take a responsibility for all errors in this publication. Copyright © UNDP All rights reserved. ISBN: 978-99929-67-98-0 BCI Printing Company 2016 ii For the 25th Anniversary of the 1992 Constitution of Mongolia iii iv The research team composed of Ch.Enkhbaatar, Tom Ginsburg, P.Amarjargal, Ts.Davaadulam, G.Zoljargal, and D.Solongo started its work to assess the performance of the 1992 Constitution of Mongolia in August 2013 – a study commissioned by the project “Support to Participatory Legislative Processes” implemented jointly by the Parliament of Mongolia and the United Nations Development Programme. The research team assisted the Parliamentary Working Group headed by Mr. L.Tsog, Vice Speaker of the Parliament, whose task was to review whether constitutional amendments were necessary or not, in preparation of its recommendations. An interim research report, which covered the constitutional events through 30 June 2014 was published under the title “The Role of the Constitution of Mongolia in Consolidating Democracy: An Analysis”. The team is now presenting its product of the second phase of the research, which has been enriched by the analyses of the constitutional events in Mongolia in the last two years and the issues that were not sufficiently studied in the previous phase. Ch.Enkhbaatar, Tom Ginsburg, M.Batchimeg, Ts.Davaadulam and O.Munkhsaikhan worked on the updated version of the research report. The research team v vi Research Team Leader: Enhbaatar Chimid is Professor and vice director of the Management School of the Academy of Management. He graduated from the Law School of Irkutsk University and received a Ph.D. from the Mongolian Science Academy, LL.M. from the Sydney University, Australia, and S.J.D. from the Central European University in Budapest, Hungary. In addition to his academic and teaching experience, he was a member of the Constitutional Court from 1994 to 2000. Prof. Enhbaatar has extensive research experience and publications on the constitutional law, comparative constitutional studies, human rights, theory of the state administration and civil service reforms. International Adviser: Tom Ginsburg is Leo Spitz Professor of International Law at the University of Chicago, where he also holds an appointment in the Political Science Department. He currently co-directs the Comparative Constitutions Project, a National Science Foundation (NSF) funded data set cataloging the world's constitutions since 1789. His books include Assessing Constitutional Performance: Comparative Constitutional Law and Policy (2016) (with Aziz Huq), Judicial Reputation: A Comparative Theory (2015) (with Nuno Garoupa), The Endurance of National Constitutions (2009) (with Zachary Elkins and James Melton), and Judicial Review in New Democracies (2003). He is a member of the American Academy of Arts and Sciences. Research team members: Amarjargal Peljid is Senior adviser in the Law and Legislation Department of the Parliament Secretariat. Amarjargal graduated the Law School of the NUM with LL.B. and LL.M. He did postgraduate studies at the Nagoya University in 2006-2010. Amarjargal received a PhD in Law from the National University of Mongolia. Dr. Amarjargal is the author of a number of books on constitutional law, parliamentary democracy and oversight and has published many research articles. Batchimeg Migeddorj is adviser, Ulaanbaatar Center for Policy Studies and visiting professor of the School of International Relations and Public Administration of the National University of Mongolia. She graduated from the Beijing Language and Cultural University with BA, the Institute for East Asian Studies, National Chenchi (Political) University of Taiwan, and the National Defense University of Mongolia with Master’s degree in Political Science. Ms. Batchimeg served as a Member of Parliament of Mongolia in 2012-2016, national security policy adviser to the President of Mongolia in 2009-2012, senior researcher at the Institute for Strategic Studies of Mongolia. She has published widely on the national security issues and is currently working on a vii Ph.D. dissertation at the National Defense University of Mongolia on the constitution and national security. Davaadulam Tsegmed is Governance Team Leader of UNDP Mongolia since 2005. She graduated from the Irkutsk Institute of National Economy with diploma in economics, and holds Master of Science degrees in Public Economic Management from the University of Birmingham and Development Administration from the Australian National University. She has 12 years of experience in the civil service of Mongolia. Davaadulam has published many research articles and conference papers on governance, public administration and local governance, and translated a number of books on these subjects into the Mongolian language. Munkhsaikhan Odonkhuu is Associate Professor, Department of Public Law, School of Law, National University of Mongolia. He graduated from the School of Law, NUM with LL.B., and the Graduate School of Law, the Nagoya University, Japan with LL.M. and LL.D. He has published two books, Towards better protection of fundamental rights in Mongolia: Constitutional review and interpretation (Nagoya University, 2014), and Judicial selection in Mongolia: Evaluation of judicial candidates (2014), and co-authored two other books, Checks and Balances between Legislative and Executive Branches in Mongolia (2016), and Models of Judicial Administration in Mongolia: Problems and Solutions (2015). Dr. Munkhsaikhan publishes widely, both domestically and internationally, producing research articles on constitutional law, human rights, the judiciary and constitutional courts. Solongo Damdinsuren is a member of the Constitutional Court since 2013. She graduated from the State University in Moscow, Russia and received a Doctor of Law degree from the National University of Mongolia. Dr. Solongo has held positions as lecturer, head of Department of Constitutional and Administrative law and dean of the School of Law of the NUM in 1983-2013. She is the author of books including the Handbook of Constitutional Law and the Encyclopedia of Terminologies of Constitutional Law, and published many research articles. viii Table of Contents Executive Summary ............................................................................................. 1 Introduction .......................................................................................................... 4 Overview of Methodology and Criteria for Evaluation ......................................... 6 The Drafting Process ......................................................................................... 11 Political processes after the adoption of the 1992 Constitution ........................ 16 Chapter One. Sovereignty of Mongolia ............................................................. 18 Introduction..................................................................................................... 18 Existential Security ......................................................................................... 19 Internal Security.............................................................................................. 24 Economic Security.......................................................................................... 26 System to Ensure National Security .............................................................. 35 Conclusion...................................................................................................... 38 Chapter Two. Human Rights and Freedoms..................................................... 40 Introduction..................................................................................................... 40 Rights and Freedoms Enshrined in the Constitution ..................................... 40 Realisation of Human Rights and Freedoms in Mongolia ............................. 44 National Human Rights Mechanism............................................................... 55 Conclusion...................................................................................................... 65 Chapter Three. State Structure.......................................................................... 66 Introduction..................................................................................................... 66 The State Great Hural .................................................................................... 68 The Presidency............................................................................................... 89 The Government ............................................................................................ 98 The Judiciary ................................................................................................ 106 Problems of the State Structure................................................................... 117 Elections, Parties, and Political Cycles .......................................................