Ulaanbaatar, January 15, 2025 /MONTSAME/. On January 13, 2025, Mongolia celebrated the 33rd anniversary of the adoption of its democratic Constitution. We present an interview with three distinguished scholars about the democratic Constitution of Mongolia.

Mongolia celebrated the centennial of the adoption of its first Constitution in 2024. The new democratic Constitution of 1992 is the 4th Constitution of Mongolia. How would you describe the interrelation and distinctive features of these two Constitutions?

Former member of the Constitutional Court of Mongolia, Doctor of Legal Sciences (Sc.D.), and Professor at the School of Law of the National University of Mongolia (NUM), Sarantuya Tserenbatlav:

A century ago, Mongolia chose a Republican form of government and adopted its first Constitution. The 1924, 1940, and 1960 Constitutions not only served as the foundation for their respective eras’ social relations but also regulated the relationship between citizens and the state, thereby showing the characteristics of a modern “fundamental law.” From the perspective of structure and logic, each was a unified and cohesive document that met the universal requirements of a written constitution. Hence, these three foundational laws contributed greatly to Mongolia’s development of a modern legal framework.

Before adopting the democratic Constitution in 1992, Mongolia did not consider the judiciary as an independent branch of state power. Before then, loyalty to the state took precedence over issues such as judicial independence, triumph of justice, and restoration of violated rights. For instance, the 1924 Constitution contained no provisions on judges or courts whatsoever. Although the 1940 and 1960 Constitutions included separate chapters on the courts and prosecution offices, judges were elected for a few-year term by the State Lower Khural and local khurals in the early years, and later by the People’s Great Khural and local people’s deputies’ assemblies in aimags and cities. The Supreme Court was required to report and be held accountable to the People’s Great Khural and its Presidium.

During that era, genuine judicial independence was not fully established, and judges had limited conditions for deciding cases independently compared to the present day. Even though the Constitution was recognized as the Supreme Law of the State, issues related to its implementation and judicial protection were never really discussed. Until 1992, constitutional matters were treated more as theoretical concepts rather than being part of daily legal practice.

Under the new democratic Constitution, market economy principles, multiple forms of property ownership, pluralist ideology, and individual freedom were all acknowledged in pursuit of forming a humane, civil, and democratic society. Thus, Chapter Two of the 1992 Constitution opened the door for all the rights and freedoms enshrined therein to be realized throughout Mongolia. On the other hand, in order to ensure the protection of human rights and freedoms, the State must function strictly within the confines of the Constitution, refraining from overstepping its allocated powers. This principle, defining the distribution and limits of state power, is key to the uniqueness of the democratic Constitution. All of this laid the groundwork for the 1992 Constitution to function effectively in real life and not just to be called the “Supreme Law.”

Former member of the Constitutional Court of Mongolia, Head of the Constitutional Committee at the Mongolian Bar Association, Consulting Professor at the Department of Public Law of the School of Law of the NUM, Dr. Tsogtoo Shar:

First of all, it is crucial to note that a Constitution is a unique subject of study, situated at the intersection of several academic fields such as political science, philosophy, history, and mathematics.

The legislature, the executive, and the judiciary are the three pillars of the Constitution. Hence, one could argue that the concept of the first Constitution of Mongolia started developing in 1911, with the establishment of the Bogd Khanate with five ministries in charge of executive power and the Upper and Lower Khurals with legislative and judiciary powers. Research done by Scholars Tseveen Jamsranov and Doctor of Science, Professor J. Tsetsegmaa consolidates this viewpoint.

Mongolia adopted its Constitution in 1924 aligned with international principles, which was an official document demonstrating the country's independence and sovereignty. However, the political rights to vote and be elected, as stipulated in the Constitutions from 1924-1960, effectively played out in a one-party system where universal suffrage did not provide citizens with the ability to make genuine political choices, the fact that we must acknowledge. The three previous Constitutions (1924, 1940, 1960) contained many rights, which are still effective even today, such as freedom of speech, freedom of the press, freedom of assembly and peaceful procession, gender equality, an eight-hour workdays, etc. Yet the exercise of these rights often came with limitations, depending on their perceived purpose.

After the enaction of democratic Constitution of 1992, Mongolia embarked on more than three decades of reforms aimed at establishing a new administration based on a democratic political system.

Former member of the Constitutional Court, former Deputy Minister of Justice and Internal Affairs, Doctor (Ph.D.), Professor Udval Vanch:
In 1940, Mongolia revised its first Constitution of 1924. In 1990, amendments and revisions reflecting social change and reform were introduced to the Constitution. That began to alter the core principles and outlooks of the previous Constitutions. Notably, the “Law on Amending and Revising the Constitution of the Mongolian People’s Republic (MPR)” was passed on March 23, 1990, thereby amending more than 10 provisions in the 1960 Constitution. It removed the reference in the Preamble to the “MPR being guided by the all-conquering Marxist-Leninist ideology” and rephrased Article 82, which stated, “Citizens of the MPR have the right to unite under political parties or other public organizations that have a detailed platform and regulations aligned with the fundamental interests, unity of our people, and the goal of establishing a humane and democratic socialist society.” This paved the way for multi-party democracy and civil society organizations to collectively develop the country.

These ideas are clearly reflected in the 1992 Constitution. It shows how Mongolians sought constitutional trends worldwide during 1911-1924.

The new democratic Constitution was drafted in 1991. What research were conducted during its drafting?

Ts. Sarantuya:
During this period, a nationwide theoretical conference entitled “Draft Constitution and Mongolia’s Development Trends” was organized, and a team of experts from the UN Commission on Human Rights visited Mongolia to exchange opinions on each relevant part and provision of the draft Constitution. There was also an international theoretical conference in 1991 titled “The Role and Position of the New Constitution in Mongolia’s Transition to Democracy,” which was attended by delegates from our national legislative body, politicians, and scholars, as well as representatives from the USA, the Federal Republic of Germany, Russia, the People’s Republic of Poland, the Socialist Republic of Vietnam, Romania, France, India, and organizations, such as Amnesty International.

While drafting the new Constitution, working groups re-examined historical documents relating to Mongolian statehood and studied the constitutions of all countries, systematically analyzing and comparing them to understand the differences and underlying patterns. We also revisited all the international treaties to which Mongolia was a party, including human rights instruments. Additionally, we held theoretical conferences and discussions to clarify essential concepts related to a democratic constitution, terms such as the rule of law, supremacy of law, constitutionalism, distribution of powers, social orientation, fair trial, public legal entities, and constitutional amendments.

In the early 1990s, electronic communications did not exist in Mongolia, foreign academic literature was scarce, and it was difficult to directly interact with scholars or experts from abroad. Despite these limitations, we developed a democratic constitutional draft that fully integrated the world’s most progressive values. It was the result of the concerted effort of all people, government service members of the time, people not in government service but truly desired to see the country prosper, and indeed the general public. Though we lacked practical experience in democratic governance and market economic systems, the aspiration and determination to lay and pass on a solid foundation to future generations rallied the people together.  The responsibility for researching democratic values, a market economy, a classical parliamentary system, and so forth, and adapting them to real-life conditions fell on the people and researchers of that era.

Sh. Tsogtoo:

The democratic Constitution of 1992 was the result of extensive public research and in-depth legal studies in social, cultural, economic, and political fields. It is a truly remarkable achievement of the people. It will be a long story to recount a detailed breakdown of these efforts.

V. Udval:

Details on how the research was conducted were noted by Hero of Labor, People’s Teacher, Honored Lawyer of Mongolia, and Founder of the new Constitution, the late Chimid Byaraa. In 1991, a reorganized Working Group was established to draft the new democratic Constitution. In fact, many memoirs and notes confirm that Mongolians had been studying and formulating democratic constitutional concepts and principles since the late 1980s. At the end of 2024, we held an academic conference at the end of 2024 in commemoration of the 90th anniversary of the birth of Prof. B. Chimid and discussed a series of presentations on the theoretical and practical significance of constitutional studies. Several of them were important firsthand accounts and research materials.

As someone who worked in that Working Group, I can say we often resorted to Russian textbooks and dictionaries to find “explanations or definitions for terms we deemed important.” This process laid a solid foundation for teaching and conducting research in constitutional law. Later, I defended my dissertation on “The Role of the Constitutional Court in Strengthening Constitutionalism: A Comparative Study.”

Several amendments have been made to the Constitution. At what level have these amendments been studied?

Ts. Sarantuya:

Currently, many of the frustrations among citizens and certain unethical or illegal acts by officials stem from non-compliance with the Constitution, poor coordination between ordinary laws, or the lack of respect by certain officials for the rule of law. In some cases, numerical figures, deadlines, or specific percentages included in the Constitution have caused bottlenecks. Therefore, any amendments to the Constitution should not just tackle immediate or pressing issues, but rather focus on long-term policies and solid foundations.

Sh. Tsogtoo: When it comes to constitutional amendments, the golden principle is that any revision must follow a strict, carefully defined procedure distinct from the passages of ordinary laws, free from any emotional or impulsive decisions, and grounded in serious research and evidence. For instance, in Japan, over hundreds of years, virtually no comprehensive amendments have been made to its Constitution, with only a few additions. In the United States, there have been more than 10,000 attempts to amend the Constitution, but each proposal took from six months to three years to deliberate, and most were ultimately rejected. In Mongolia, according to Article 68.1 of the Constitution, the initiative to propose amendments may come from certain authorized bodies or officials, but it is only the Constitutional Court that can formally present a draft to the State Great Khural. For instance, since its adoption in 1992, the Constitution has been amended five times. This was criticized by scholars as having been done in haste, without due consideration, and with little regard for the people’s values.