In 2022, Asia Democracy Research Network (ADRN) selected horizontal accountability by the ability of state institutions to hold the executive branch accountable, and vertical accountability through elections, parties and citizens’ participation, as the requirements to accomplish robust and sustainable democracy in Asia.

Against this background, ADRN published this report to evaluate the current state of the trends and trajectories of horizontal accountability in the region by studying the phenomenon and its impact within countries in Asia, as well as their key reforms in the near future.

The report investigates contemporary questions such as:

● What are the constitutional and legal institutional mechanisms that hold the executive government accountable?

● To what extent have the constitutional and legal mechanisms of horizontal accountability fulfilled their expected functions to constrain the actions of the executive members?

● What are the determinants of horizontal accountability performance?

● What should be done to improve the state of horizontal accountability performance?

Drawing on a rich array of resources and data, this report offers country-specific analyses, highlights areas of improvement, and suggests policy recommendations to fulfill methods of horizontal accountability in their own countries and the larger Asia region.

Horizontal Accountability in Indonesia

Devi Darmawan[1], Sri Nuryanti[2]

National Research and Innovation Agency

1. Introduction

As a new democratic country of the third-wave democratization, it is compelling to observe the performance of Indonesia’s government in sustaining horizontal accountability, especially after amending the constitution. In the early reformation era, Indonesia inserted the checks and balances principles into the Constitution in order to generate horizontal accountability between executive, legislative, and judicial power. Therefore, the constitution is also critical to measure the configuration of the horizontal accountability mechanisms by highlighting the constitutional executive, legislative, and judicial powers.

There are a variety of empirical indicators to measure executive, legislative, and judicial powers in order to describe Indonesia’s de jure horizontal accountability. First, for executive power or constitutional endowments of executive actions, we utilized the ‘executive power index’ from Constitute, which ranges from 0 to 7 and captures the presence or absence of seven significant aspects of executive law-making: (1) the power to initiate legislation; (2) the power to issue decrees; (3) the power to initiate constitutional amendments; (4) the power to declare states of emergency; (5) veto power; (6) the power to challenge the constitutionality of legislation; and (7) the power to dissolve the legislature. The index score is the mean of the seven binary elements, with higher numbers indicating more executive power and lower numbers indicating less executive power (Elkins, Ginsburg, and Melton 2023). Based on the data provided by Constitute, Indonesia’s executive power index score is 4, which reflects its constitutional provisions of (1) the power to initiate legislation,[3] (2) the power to initiate constitutional amendments,[4] (3) the power to declare states of emergency;[5] and (4) veto power.[6]

Second, for legislative power, the measurement used the data legislative power index provided from a survey developed by M. Steven Fish and Mathew Kroenig in The Handbook of National Legislatures: A Global Survey (Cambridge University Press, 2009), which ranges from zero (least powerful) to one (most powerful) to reflects a legislature’s aggregate strength. The index score is simply the mean of the following thirty-two binary elements, with four main focuses (influence over executive, institutional autonomy, specified powers, and institutional capacity). Thus, the total accumulation with higher numbers indicating more legislative power and lower numbers indicating less legislative power (Fish and Kroenig 2009). Based on the survey result conducted in 2006-2007, Indonesia’s legislatures power score is 0.56, which means legislative power in Indonesian presidential democracy is still influential despite the overpowering presidency.

Third, for judicial power, the data to measure utilized the “judicial power index” from Constitute which ranges from 0 to 6 and captures the presence or absence of features of judicial power. There are six features to construct the score, including (1) whether the constitution provides for judicial review; (2) whether courts have the power to supervise elections; (3) whether any court has the power to declare political parties unconstitutional; (4) whether judges play a role in removing the executive, for example in impeachment; (5) whether any court has any ability to review declarations of emergency; and (6) whether any court has the power to review treaties. Based on Indonesian Constitutions, the score of judicial power rest in 1 point that is the judicial ability to remove the executives mentioning in the feature number (4) whether judges play a role in removing the executive, for example in impeachment.[7] This score of judicial power showed that the judiciary has less power to constraint on executive actions.

Unfortunately, two decades after reformation, the horizontal accountability has slightly decreased. Based on V-Dem datasets on horizontal accountability index,[8] the graphic shows that the horizontal accountability rate rose around the year 2000 in time when the reformation took place and the new phase of democratization started. However, it slightly decreased in recent years.

Figure 1. V-Dem Horizontal Accountability Index: Indonesia 1990-2022

This trend of decreasing horizontal accountability index signaled the problem of implementing horizontal accountability and checks and balances mechanisms to prevent the wrongdoing of public officials. If the trend persists, the decreasing horizontal accountability will be followed by the same decrease in other accountabilities both vertical and diagonal which all simultaneously will cause the democratic decay from within (Sato et al. 2022). It means that election and other public participation toward government will no longer be meaningful to progressing democratization when horizontal accountability is in absence.

The influence of the horizontal accountability deficit in Indonesia could explain the reason why Indonesia experiences democratic decline. This argument is confirmed by the data of the democracy index provided by Freedom House. According to Freedom house, Indonesia has made impressive democratic gains since the fall of an authoritarian regime in 1998. However, the democratic index shows the decreasing progress of Indonesian democracy. Recent update from Freedom House in 2022 states that Indonesia democracy index remains partly free with the score range 59/100 (no longer free). Roylance (2015) argued that once a country achieves the status of Free, it should be solid and reliable to combat backsliding to authoritarian states and advancing progress to implement good governance with accountability. Unfortunately, the case of Indonesia shows an incremental process in sustaining democratization caused by the absence of checks and balances among state branches as democratic institutions. Further, V-Dem stated that Indonesia’s score has decreased over the past 10 years substantively and at a statistically significant level as illustrated in the liberal democracy index (LDI) 2022 below.

Figure 2. V-Dem Liberal Democracy Index: Indonesia 1990-2022

Based on the graphic above, the symptom of democratic decline in Indonesia seems to be influenced by the horizontal accountability deficit. Despite being commendable for successfully holding regular elections at both the national and local levels, the progress of democratic transition in Indonesia appears less promising due to the lack of horizontal accountability. The failure to sustain horizontal accountability may lead to democratic setbacks where state institutions could become corrupt and violate democratic principles. Consequently, the absence of horizontal accountability would leave unmeaningful elections as the only remaining institution representing democratic countries. Considering Indonesia’s democratic practices, the efforts to apply horizontal accountability and achieve the principle of checks and balances among state branches remain problematic due to the unequal power to hold the president accountable. This condition needs to be critically examined, specifically to assess the ability of the new democratic government to perform its checks and balances amongst state institutions.

The research about the checks and balances to manifest horizontal accountability is particularly relevant nowadays, as Indonesia is experiencing democratic stagnation and the weak function of its checks and balances mechanism. Democratic scholars have argued that the state of democracy should institutionalize the checks and balances principles to push back against backsliding into authoritarian regimes in order to preserve democratic consolidation. Otherwise, democratization could remain stagnant, distinguished by the domination of the elite shadowing the democratic process within Indonesia’s political stage. Considering this condition as background, this paper aims to explain about the embodiment of horizontal accountability in Indonesia and the gap between the rules and the practices of sustaining checks and balances toward the president as head of executives.

2. The Discourse of Horizontal Accountability’s Conceptualization

The presence of accountability determined the quality of democracy and the effectiveness of the governance. Although consensus about accountability definition is hardly to be sustained among scholars, conceptually, accountability has two key features, that are answerability and responsibility of public officials. Within this conception, there are two kinds of actors who can provide political accountability. First, elected public officials are accountable to voters. Second, many state agencies are formally charged with overseeing and/or sanctioning public officials and bureaucracies. The first is about vertical accountability, and the latter is about horizontal accountability, or as Mainwaring called it, intrastate accountability. In democratic countries, horizontal accountability tends to be more fragile than its vertical counterpart since authoritarian institutional virtues are more challenging to transform than organizing free and fair elections (De Almeida Lopes Fernandes et al. 2020). Nowadays, embodiment of horizontal accountability in some democratic states remains problematic (O’Donnel 1998).

Horizontal accountability is necessary to prevent corruption and improper state encroachment because conceptually horizontal accountability refers to actions “with the explicit purpose of preventing, cancelling, redressing and/or punishing actions (or eventually non-actions) by another state agency that are deemed unlawful, whether on grounds of encroachment or of corruption” (O’Donnell 2003, p. 35). In the same line, Ziegenhain (2015) explained further about horizontal accountability that refers to the capacity of governmental institutions to check abuses by other public agencies and branches of government. In addition, other independent state agencies, which control and scrutinize government actions, are also often necessary to safeguard horizontal accountability. These institutions working as agencies of restraint, such as independent electoral commissions, auditing agencies, anti-corruption bodies, and ombudsmen, also contribute to horizontal accountability (Ziegenhain 2015). Therefore, the existence of such institutions is a key for establishing accountability.

The relation of accountability in democratic states consists of the checks and balances mechanism that derives from the interaction between the institutions mentioned above. However, the list of institutions that acted as actors of accountability varied between parliamentary democracy and presidential democracy. The actors of accountability are determined by the principal-agent relationship wherein the voters play as principal, and the public official as agent who was elected through legitimate election. The fundamental difference between presidential and parliamentary democracies is that the hierarchical connection between voter-principals and the executive authority is not mediated through the legislative majority in a presidential systеm as it is in a parliamentary systеm. That is, whereas parliamentary democracies are based principally on nested hierarchies of vertical accountability, presidential systеms are built on the interaction of horizontal exchange and vertical accountability. This fundamental distinction has serious consequences for legislative incentives in presidential systеms (Shugart and Haggard 2001), and, in turn, for how well horizontal accountability functions to align the incentives of actors in the various branches with the interests of the ultimate principal, the citizenry.

As a presidential democratic country, the horizontal accountability in Indonesia is exercised only by state actors within the state by different state agencies, if necessary, against the president as the highest powers of the state to prevent any legal transgression. Most scholars argued that the relationship between state institutions and oversight bodies is crucial to the functioning of a systеm of horizontal accountability. Therefore, the exercise of horizontal accountability specifically rests on the performance of the elected public officials from the executive and the legislative branch since both of them had acquired mandates from the voters to execute their authorities. Thus, the other state actors such as Judicial court, Ombudsman, Corruption Eradication Commission (KPK) will be the oversight agency that hold responsibility to request explanation and sanction the president and member of parliament as elected public officials for their acts and omissions in accordance with the law and constitution.

Unfortunately, horizontal accountability faces a challenge from within state actors by a scourge of “the accountability trap.” Slater accused this condition occurs due to exerting cartel politics to secure the power sharing among political parties (Slater 2004). Moreover, cartel politics, perpetrated by the absence of an opposition party in the government, hampers a dynamic equilibrium between major state actors, which is important for horizontal accountability. Horizontal accountability will never function properly if one actor can dominate the others, indicating that the democratic regime is in danger of becoming unconsolidated and prone to authoritarian rule. Without effective institutions that can provide credible restraints in presidential democracy, particularly on powerful executives, the quality of democracy tends to stagnate or regress.

3. The Constitutional and Legal Institutional Mechanisms of Horizontal Accountability

With reference to the conceptualization of horizontal accountability, the agent of accountability in presidential democracy is not only president, but also member of parliament because both of them are elected officials and hold the mandates from the voters. However, the exercise of horizontal accountability delimits its scope only to the highest authority in presidential democracy, president, as the head of states and governance. Indonesia has institutionalized the horizontal accountability mechanism to hold the president responsible for his/her performance that was written in the constitution and regulated among various acts, to prevent president from legal violations. There are two important dimensions to establish a horizontal accountability mechanism: the answerability and sanctions. Firstly, the accountability of the president is ensured through the oversight of members of parliament (state legislature), as outlined in article 20a of the constitution. Therefore, the state legislature has the right to ask and demand an explanation on a particular case or public policies made by the president to redress the possible wrongdoings. Secondly, there are provisions for sanctions when the president is accused of violating the law. According to the Indonesian Constitution, specifically UUD 1945, sanctions are outlined in cases where the president commits legal transgressions such as corruption and bribery. The sanction ranged from providing explanation and the possibility of removal from the office or impeachment as it mentions in article 7a, 7b, and 7c of UUC 1945. This impeachment process involves the roles of state legislature and Constitutional Court (MK).

As described above, O’Donnell defined horizontal accountability as “the existence of state agencies that are legally enabled and empowered, and factually willing and able, to take actions that span from routine oversight to criminal sanctions or impeachment in relation to actions or omissions by other agents or agencies of the state that may be qualified as unlawful.” Thus, the list of state actors who can execute relationship of accountability toward president includes not only the state actors that have sanctioning capacity of judicial branch, but also the oversight agencies without necessarily having capacity to impose sanctions but expected to refer possible wrongdoings to actors that can impose sanctions; this indirect sanctioning power suffices to characterize a relationship of accountability, such as ombudsman and commission of eradication corruption (KPK). In this regard, the state actors that can establish accountability relations toward the president include the oversight state agencies and also the highest court from the judiciary branch to monitor the president in performing his/her power. Further, the oversight state agencies comprehend KPK and Ombudsman whereas the judiciary branch comprises MK and MA. All of these listed state actors are regulated by particular national acts to establish accountability relationships to check the president accountable.

3.1. State Legislatures (member of parliaments)

The Constitution of the Republic of Indonesia has established the President as the holder of executive power and the People’s Representative Council (DPR) as the holder of legislative power. The president’s authority is contained in Article 4 paragraph (1) of the 1945 Constitution while the DPR authority can be found in Article 20 paragraph (1) of the 1945 Constitution which states clearly that the power to make laws is in the hands of the DPR. In addition, the Article 20 paragraph (2) of the 1945 Constitution shows the relation between DPR and the president in legislation especially in the president involvement in drafting laws and regulations and also in giving joint approval with the DPR on the bill that has been discussed.

In addition to the lawmaking process, relations between the president and the DPR can also be seen in the process of forming Government Regulations in Lieu of Laws (Perpu). Government Regulations in Lieu of Laws (Perpu) are regulations made by the President in “forced matters of urgency”, therefore the process of their formulation is different from that of laws. Generally, laws have always been formed by the President with the approval of the House of Representatives or formed by the House of Representatives and jointly approved by the House of Representatives and the President. However, the Government Regulations in Lieu of Laws (Perpu) are formed by the President without the approval of the People’s Representative Council because of a “compelling urgency” that requires fast-track of the lawmaking process to overcome the pressing crisis.

If the Government Regulation in Lieu of Law is approved by the DPR in a plenary session, it shall be stipulated to become an Act. On the contrary, if the Government Regulation in Lieu of Law does not obtain the approval of the DPR in a plenary meeting, it must be revoked and declared null and void followed by action from the DPR or the President submitting a Draft Law on Revocation of Government Regulations in lieu of law. Based on these schemes, the relation between president and DPR can be seen within the legislation process. Although both the president and DPR have legitimate delegation from voters as the principals of accountability, their relationship portrayed the checks and balances that constitutes the horizontal accountability in the legislative process. Regardless that the legislature does not have capacity to impose sanctions, the constitution gives the right to DPR to demand answerability from the President in case there is accusation of legal transgressions committed by the President. Moreover, DPR can continue to request the Constitutional Court to conduct an examination toward the President as part of impeachment procedure or ask other state agencies such as Indonesian Republic Attorney General, Commission of Eradication Commission to execute law enforcement and give sanction in case the President is involved in any legal transgression.

3.2. Corruption Eradication Commission (KPK)

The Corruption Eradication Commission (KPK) has been institutionalized since 2002, not long after reformation took place. KPK has the authority to monitor the adm?nistration of state government, supervise state agencies authorized to carry out the eradication of criminal acts of corruption. Based on its authority, KPK has not acquired direct sanctioning capacity to impose President or other public officials, but it can supervise and investigate the allegations of corruption and took the rest to the court to proceed the judicial process. In general, KPK can investigate all state actors if they were suspected of corruption. However, in recent years, KPK has been weakened by the government through the revision of its institutional position. Since the law of KPK No. 30/2002 has been revised by emerging the new Law in 19/2019, the KPK has no longer be independent institution, but being responsible to President as the head of executives. Consequently, KPK would hardly be possible to investigate any corruption case that potentially carried out by the president. In the context of sustaining horizontal accountability, the position of KPK has changed from the state actors that can monitor all legal transgressions toward president or member of parliament or any state actors to become the agents of accountability itself. KPK had been chosen by the president and by this means that president is the principal who can demand the answerability and give sanction to KPK. In other words, KPK can only touch the member of parliament and control the wrongdoing of state legislatures.

3.3. Ombudsman of the Republic of Indonesia

The Indonesian Ombudsman is a state institution that has the authority to supervise the implementation of public services whose funds come from the State Budget (APBN) or Local Government Budget (APBD). Institutionally, the formation of the Indonesian Ombudsman, which was originally established through Presidential Decree (Keppres) Number 44 of 2000 concerning the National Ombudsman Commission, was enhanced with the enactment of Law (UU) Number 37 of 2008 concerning the Ombudsman of the Republic of Indonesia. The Indonesian Ombudsman has strategic functions, duties and authority, especially in supervising the implementation of public services. In Law Number 37 of 2008, it is determined that the Indonesian Ombudsman functions to supervise the implementation of public services organized by state and government adm?nistrators, both at the center and in the regions, including those organized by State-Owned Enterprises (BUMN), Regional-Owned Enterprises (BUMD), and State-Owned Legal Entities (BHMN), as well as private entities or individuals who are tasked with providing certain public services. The Indonesian Ombudsman also has the task of receiving, examining and reading reports regarding alleged maladm?nistration in the implementation of public services; has the authority to ask for information and make summons, as well as make recommendations regarding the completion of the report (including recommendations for paying compensation and/or rehabilitation to the injured party). The Indonesian Ombudsman currently not only has the authority to approve public reports, but also has the authority to carry out investigations on his own initiative; They can even impose sanctions through recommendations that are final, binding, and must be implemented by the recipient of the recommendation.

In carrying out its duties to prevent maladm?nistration, the Ombudsman is given the authority to provide advice to the President, DPR/DPRD, regional heads or heads of state adm?nistrators to improve and perfect the organization in terms of service procedures and laws and regulations in order to prevent maladm?nistration. For reports that are proven to be mal-adm?nistrative, the Ombudsman does not provide legal sanctions like the Judicial Institution (magistrate of sanctions) which can impose penalties and fines. As a state institution that has the authority to monitor and take action against violations of public services, the Ombudsman can impose sanctions in the form of adm?nistrative sanctions on the reported party and his superiors who do not implement recommendations. Meanwhile, criminal sanctions are imposed on anyone who obstructs the Ombudsman in carrying out an examination imposed by a judicial institution where the examination of the party obstructing is submitted on the basis of a report from the ombudsman. The supervisory capacity to obtain horizontal accountability between fellow state institutions owned by the ombudsman is limited to the right to obtain answers. Although the ombudsman’s capacity as “a sanctioned giver” for state institutions that commit maladm?nistration in public services, is limited to adm?nistrative sanctions, the ombudsman can still carry out a good supervisory function over state adm?nistrators at large. Because in Law no. 28 of 1999 concerning state adm?nistrators who are clean and free from corruption, collusion and nepotism (KKN), the definition of state adm?nistrators refers to all state officials who carry out executive, legislative, judicial functions and other officials whose main functions and duties are related to state adm?nistration.

3.4. Judiciary Branch: Supreme Court (MA) and Constitutional Court (MK)

According to UUD 1945, Indonesia constitution, Judicial power in Indonesia is exercised by the Supreme Court and subordinate judicial bodies as well as the Constitutional Court. As the highest court in the rule of law systеm, the Supreme Court has authority to supervise and oversee all judicial processes over the high courts and district courts, as it mentioned in the law No. 3/2009 concerning the Supreme Court. It also stated in Article 24A paragraph (1) of the 1945 Constitution that the Supreme Court has the authority to adjudicate at the cassation level, examine statutory regulations under the law against the law and has other powers granted by law. Furthermore, according to the 1945 Constitution, the obligations and powers of the Supreme Court include giving consideration to the President concerning granting clemency and rehabilitation. Based on these authorities, it is impossible to list the Supreme Court to have accountability relation with president or other elected officials since it does not have capacity to demand answerability of the president or even the member of parliament. Despite that, the role of the Supreme Court is legitimate as monitoring state institutions to control public officials because of its role to uphold justice and rule of law in Indonesia, specifically when the public officials are committed to an unlawful act in general, corruption, bribery, and other criminal behavior.

Another existing judicial actor is the Constitutional Court (MK) which was constituted based on the mandate of Article 24C of the UUD 1945. Normatively, MK has the authority to make final decisions on law reviews against the Constitution, decide on disputes over the authority of state institutions whose powers are granted by the Constitution and on the dissolution of political parties and also to settle disputes about the results of general elections. In spite of that authorities, MK is the only court which has capacity to impose sanctions toward the president when the president and/or vice president are suspected of violating the law and no longer meet the requirements as president and vice president. Therefore, the accountability relationship between MK and president is strong enough to control the president to remain responsible and accountable. If the accusation of the president’s wrongdoings is proven, MK can decide to remove the President from office and establish the impeachment.

3.5. Attorney General’s Office

The Attorney General’s office is a non-ministerial government institution in which the top leadership of the office is held by the attorney general. The position of the attorney general as a state institution is similar to ministries in the presidential cabinet. In other words, it is placed at ministerial level so the attorney general’s office is not responsible hierarchically under any ministry. In this regard, the attorney general leads the attorney general’s office which is divided to some extent into legal areas starting from the provincial level (high prosecutor’s office) to the district (state prosecutor’s office) throughout Indonesia. In other words, the Attorney General is a state official who acts as the leader and the highest person in charge of the attorney general’s office and as the controller of the duties and authority of the high prosecutor’s and state prosecutor’s office in Indonesia. In carrying out the duties of judicial power and as part of government institutions, the prosecutor’s office is directly responsible to the president because the Attorney General is appointed and dismissed by and is responsible to the president as stated in Article 19 of Law no. 5/1991 concerning the Prosecutor’s Office of the Republic of Indonesia. Considering its role, the attorney general is significantly contributing to monitor and control the legal transgressions from the President or any other public officials. Not only that, the attorney general has the capacity to impose sanctions in the law enforcement systеm whenever the president or other state officials violate the existing law. Therefore, these roles directly refer to the horizontal accountability relationship between attorney general’s office and state actors, including the incumbent president.

4. The Performance of Horizontal Accountability

The mapping of key institutions in horizontal accountability that comprise the judiciary branch and oversight agencies in Indonesia has been written in the constitution and also in the specific regulation. However, the fact of deficiencies of horizontal accountability portrayed in the data of horizontal accountability index in the figure 1 indicates that the performance of each key institution has a challenge to address.

4.1. The Performance of Constitutional Court

The key institution within the judicial branch to minimize executive aggrandizement is the Constitutional Court, as the Supreme Court and Judicial Attorney’s Office primarily focus on law enforcement within the general justice systеm. Since MK was formed in 2003, the performance of MK has gained public trust toward governance. However, in the late Jokowi’s presidency, the public trust toward the Constitutional Court decreased tremendously. The nomination of the president and vice-president candidate to run in the election 2024 has been the political reality to destroy Constitutional Court dignity. In other side, this proves executive aggrandizement, as scholars suspected there was a political scenario to push Gibran Rakabuming Raka, the son of President Joko Widodo, to run for the presidential and vice-presidential election, even though Gibran failed to meet the age requirement to run as a vice-presidential candidate.

4.2. The Performance of Oversight Agencies (Corruption Eradication Commission (KPK) and Ombudsman)

The key institution to establish horizontal accountability toward the president as the head of government is the Corruption Eradication Commission (KPK) because the Ombudsman only deals to control the public officials in providing direct public services to society. However, the attempts to weaken the KPK successfully inhibited this oversight agency from maximizing its roles in monitoring President involvement in corruption. The deterioration of these oversight agencies began with the revocation of KPK’s authority and placed the institution under the presidential power. In this scenario, KPK has become the government’s agent of accountability that is responsible to the president, not the oversight agencies to monitor any President wrongdoing. This power arrangement of KPK has worsened by the very head of KPK, Firli Bahuri, who has committed bribery and corruption. Consequently, this political reality depicted how KPK is not performing in a positive direction to enhance horizontal accountability.

5. The Gaps between” De Jure and De Facto” of Sustaining Horizontal Accountability

Despite being strongly regulated in the constitution and various acts, the principle of check and balances is hard to implement. The challenge of each institution to perform the checks and balances toward one another is influenced by domestic politics. Indonesia adopts the presidential systеm combined with a multi-party systеm. This combination tends to create political deadlock if the president fails to accommodate diverse political parties’ interests. Therefore, the elected president tried to create a strong coalition with the political parties to create effective and solid government and reduce the possible opposition to occur. Thus, the favorable political accommodation chosen by the president determined the coalitional relation with the political parties, including with the state legislature who was also the member of existing political parties. In practice, the state legislature’s performance depended on the policy of political parties and their elites. Then the checks and balances model in the Indonesian government is more determined by the relation between the President and the state legislatures, and their affiliate political parties since there were no significant opposition parties to balance and control the president and his supporting coalition.

The president’s focus on maintaining relations with both the coalition and the opposition in parliament leads to the marginalization of the roles of other state institutions. According to Lili Romli (2021), this notion ultimately leads other state institutions such as the DPD as a second chamber and judicial institutions such as the Supreme Court and the Constitutional Court to be incapable of performing their control roles both in legislative functions and in law enforcement. This practice eventually undermines the role of the judiciary, which tends to be a tool to support executive power or support DPR policies in performing their functions. The absence of the coalition as the final hope to institutionalize the checks and balances function has also contributed to the degradation for the quality of democratic governance in Indonesia. This condition is exacerbated by the design of a representative institution that places a second chamber with limited functions, solely in matters of legislation. As a result, under this condition it is obvious that the implementation of horizontal accountability is almost non-existent. In addition, there is an imbalance of function and authority between the first and second chambers in the parliament, leading to the absence of internal checks and balances in the parliament. This highlights the paradox of horizontal accountability resulting from unequal power among state actors. Moreover, the continued dominance of the DPR in coalition with the government tends to eventually produce transactional and compromising legal products. Thus, the checks and balances in Indonesia are determined by the President as head of the executive branch and the political parties and their MPs in the legislative branch. Therefore, this section will focus on the relationships between DPR and the president and between the Judiciary and the president at the national level to convey how horizontal accountability works in Indonesian governance.

5.1. The Relation of DPR and President: Coalition Hinders the Horizontal Accountability

The political phenomena that occurred in Indonesia, especially considering the implementation of the direct presidential election, sent a message that coalitions are always built by the incumbent President, both at the beginning of the election and during the adm?nistration of a government, to maintain power and political stability. However, the formation of a coalition including almost all political parties in the parliament became known as the fat (gemuk) coalition.

The trend of forming a ‘gemuk’ coalition manifested after elections in the Reformation era. It was obviously seen after the 2004 elections, as at first, the Presidential Adm?nistration of Susilo Bambang Yudhoyono (SBY)-Jusuf Kalla (JK), which was in office from 2004-2009, had a minority coalition in parliament where the vote obtained was only 7.45%, which meant that there were only 56 seats or 10.26% in the DPR (Fitra Arsil 2017: 215). This minority condition in parliament certainly made the SBY-JK Adm?nistration feel insecure; therefore, a gemuk was formed in the DPR where almost all parties joined together to form a coalition, except the Indonesian Democratic Party of Struggle (PDI-Perjuangan), which played the role of opposition. The 2009 presidential election resulted in the SBY-Boediono Adm?nistration, which held office from 2009-2014 and again led to a fat coalition forming in the DPR. The coalition that succeeded in securing SBY’s government for two terms resulted in the next presidential leadership preserving the culture of fat coalitions as a step towards the success of governance. Jokowi, in his first and second terms following the election of 2014 and 2019, also built a coalition following the fat frame in the government, namely during the Jokowi-JK Adm?nistration from 2014-2019. Even for the second 2019-2024 term, the Jokowi-Ma’ruf Advanced Indonesian Cabinet brought in figures who were leaders of the opposition party as ministers.

The explanation of how the President formed the above coalition indicates that there currently exists no opposition strong enough to hold the President responsible for horizontal accountability. The formation of these coalitions is based on cartel politics and has led to the accountability trap. This condition reflects what Slater has mentioned about the accountability trap that hinders democratization in governing the state at the national level. Meanwhile, until almost two decades post-reform, non-party and extra-parliamentary circles performed the role of the opposition, which was sporadic and unusable as a barometer of control over an effective government. As a result, instead of becoming a sphere for a healthy democratic life, Indonesia is currently trapped in an oligarchic practice due to its positioning of the interests of a few above those of the masses. The interests of a group of people close to power often manipulate government policies intended for the people. The interests of a group of people close to power often manipulate government politics meant for the people. Democracy tends to be artificial, thus allowing the government to reap the results without effective opposition. The failure of the institutionalization of the opposition indicates that the president is not being subject to checks and balances by the parliament. The opposition only exists before the election in the context of electoral contestation marked by the union of all ranks of the leaders of the opposition parties to the elected president. The existing opposition is not based on program conflicts, differences in political views, or ideologies, hence indicating no practice of checks and balances to balance the president’s executive power.

5.2. The Relation Between President and MK as The Judiciary: Impeachment Barely Possible

Indonesia’s judicial institution, the Constitutional Court (MK), has the authority to handle the impeachment process to hold the executives accountable, especially in the case that the president and/or vice-president is suspected of having violated the law or no longer fulfils the requirements for president and/or vice-president. The procedure for impeaching the president and/or vice-president is essentially a series of long processes and requires the involvement of several high state institutions other than the Constitutional Court itself, including the People’s Representative Council (DPR) and the People’s Consultative Assembly (MPR). In this case, the initiation of the impeachment process can be submitted only by the DPR, which must submit it to the MPR. However, the DPR can only submit a request to the Constitutional Court with the support of at least 2/3 of the total number of DPR members present at a plenary meeting attended by at least 2/3 of the total number of DPR members. This requirement is difficult to fulfil because the majority of DPR members come from the election-winning party and its coalition partners. Consequently, the DPR cannot arbitrarily submit a request for the impeachment of the president and/or vice-president without the support of at least 2/3 of its members. After the submission, if the Constitutional Court decides that the president and/or vice-president has violated the law, the DPR holds a plenary meeting to submit the proposal to dismiss the president and/or vice president to the MPR. The MPR Plenary Session should be attended by at least 3/4 of the members and approved by at least 2/3 of the members present, after which the president and/or vice-president has the opportunity to present their explanations at the MPR plenary session. Thus, the MPR’s decision ultimately determines whether or not impeachment can proceed.

In practice, the impeachment issue has occurred once against President Susilo Bambang Yudhoyono (SBY) that arose related to the investigation into the Century Bank case. The results of the temporary conclusions of the DPR special committee regarding Century Bank show that the government received support from two factions, namely the Democratic Party and the National Awakening Party (PKB). Seven other political parties, PKS, Golkar Party, PDIP, Gerindra, Hanura, PPP and PAN, conversely stated that granting Bank Century bailout funds violated the law. In the beginning, false accusations were aimed only at monetary authorities and assistants to the President. Still, as development progressed, political parties began to emerge, although not in a “vulgar” direction towards the president, as they too were considered partly responsible for how the government was running, especially regarding the bailout process for Century Bank. However, based on the regulation on the impeachment process, it seems that the conditions for impeaching the president are not easy to fulfil; based on the results of the presidential election, the Democratic Party, which supports SBY and Boediono, has received genuine support from more than 60% of its constituents. Therefore, the requirement of support by 2/3 of the number of DPR members is also not easy to achieve because the majority of DPR members come from the Democratic Party with the support of their coalition partner political parties. Of course, the Democratic Party and its coalition will try their best to thwart the impeachment efforts of their political opponents. Measures taken towards impeachment are currently difficult to attain because DPR is mostly part of the fat coalition and is allied with the president.

Finally, the attempt to do presidential impeachment is not easy to accomplish because the mechanism required to enact it is quite long, with conditions that are also not easy to satisfy. The challenge to oversee the president to be accountable leads to the paradox of horizontal accountability, because accountability is almost non-existent since the Constitutional Court should review the president’s case based on a parliamentary decision.

6. Conclusion

Before the constitutional amendment, the power-sharing arrangement of the Indonesian government was still unclear because it contained elements of both a parliamentary and a presidential systеm. In this systеm, the President was elected and appointed by the MPR as the highest state power holder. Therefore, the President’s role is mandated by the MPR, making the President responsible to the MPR. In other words, a parliamentary feature is visible through the MPR roles, but on the other hand there are also characteristics of a presidential systеm in which the President has double roles as the head of state and the head of government. The changes to the 1945 Constitution therefore clarified the Indonesian government systеm with the adoption of the Direct Presidential election systеm to eliminate the superior role of MPR.

Beside the vague condition of the government systеm, President Soeharto benefited by the centralized power-sharing arrangement in the executive branch. It is written in the constitution wherein based on 37 articles stated in the 1945 constitution, 13 articles of them regulate the authorities of the president (Article 4 to Article 15 and Article 22). In addition, the President also exercises statutory powers, and holds powers related to law enforcement such as the right to give abolition and amnesty. Moreover, almost all legal products were legalized and enacted with the direction of the President or aimed to strengthen the President’s power. This condition happened due to the absence of checks and balances that could be carried out by the legislative and judicial branches to balance the role of the president as the executive. Even though in the Constitution before the amendment, there was a parliamentary character where the President had to consider the MPR and needed the approval of the DPR to form a law, in reality, during the New Order era, no laws were enacted from the initiative of the DPR since all initiatives originated from the executive. In other words, the DPR only had to pass them whether they liked it or not. So that satire often appears against the DPR whose role is to be “stampers as yes man institution.”

The experience of amending the 1945 Constitution in the 1999-2002 generated a fundamental change in Indonesia. The change of the constitution was purposely aiming to implement checks and balances between state branches. However, the checks and balances arrangement in Indonesia differs from the general conception of checks and balances mechanism that mainly root into the separation of power between each state branch. In Indonesia, the executive, legislative, and judicial branch works with coordination in performing their authorities, for instance, in the national policy making process, parliament would always work together with the president. Indonesian scholars referred to the systеm of checks and balances in Indonesia as the adoption of a diffusion of power arrangement in the government. Moreover, another reason for constitutional change in Indonesia is to strengthen the presidential systеm, as Indonesia has a mixed government systеm that combines parliamentary and presidentialism. Constitutional amendment thus has implications for changes in the overall government systеm to induce government accountability. There are at least three points of institutional change regarding the constitutional arrangements.

First, changes to strengthen the presidential government systеm clarified the division of power between executive, judicial and legislative authority. However, to avoid power centralized more into the President as the head of state and head of government, the new power arrangement was made to reduce the president’s authority only in the range of executive division. This new model of power sharing arrangement has been improved compared to the one existing in the previous regime wherein the president once had the extra-power overrun into legislation and to interfere with law enforcement. Second, modifying the MPR’s position from the highest state institutions to become a state institution with very limited authority equal with other existing institutions at the national level. This repositioning of the MPR resulted in equality between state institution from all branches so that horizontally they have capacity to control and balance one another. Thus, the function of checks and balances can be implemented. Third, changes to strengthen the role of the DPR in the field of legislation and to oversight executives. The three reasons mentioned as the background of constitutional amendment shows the seriousness of the newly formed post-reform government to implement horizontally checks and balances mechanisms in state institutions. Therefore, the new constitution after the fourth amendment emphasized the adoption of the presidential systеm and also emphasized the application of the checks and balances’ principle between the state branches including executive, judicial and legislative.

However, the performance of each branch of government showed there was a challenge to establish both horizontal accountability and checks and balances mechanisms. The condition occurs due to the weakened position of KPK and the weak opposition in Indonesia political systеm. These conditions generated the paradox of accountability resulting from the inequality of power and resources between actors. To resolve this paradox, ideally, both parties should form relatively autonomous agencies that do not stand in a relation of formal subordination or superiority to one another. In other words, horizontal accountability presupposes a prior division of powers and a particular internal functional differentiation of the state. In the case of Indonesian politics, the unequal power between the executive, legislative, and judiciary branches is the result of formal and informal institutions. The legislative has unequal authority to check the president’s accountability because it has been weakened by cartel politics seen as necessary to form a coalition with the government before and after the election. Meanwhile, the judiciary has a similar dilemma where the presidential impeachment requires the provision and convention of parliamentarians co-opted by the government coalition. This condition even further leads to an accountability trap.

Consequently, the absence of opposition as the last resort to institutionalize horizontal accountability from the legislative branch toward the president has also contributed to the degradation of the quality of democratic governance in Indonesia. The design of a representative institution that places a second chamber with limited functions solely in terms of legislation has exacerbated this condition. As a result, under this condition, it is obvious that the implementation of horizontal accountability is almost non-existent. In addition, there is an imbalance of function and authority between the first and second chambers of the Parliament, leading to the absence of internal checks and balances within the parliament. This condition evidences the paradox of horizontal accountability by resulting in unequal power between state actors. ■

References

Adserà, A, Boix, C. and Payne, M. 2003. “Are you being served? Political Accountability and Quality of Government.” Journal of Law, Economics, and Organization 19, 2: 445-490.

Ambardi, K. 2008. The making of the Indonesian multiparty systеm: A cartelized party systеm and its origin. The Ohio State University.

Arndt, Christiane and Oman, Charles. 2006. Uses and Abuses of Governance Indicators, Development Center Studies. Paris: OECD Publishing.

Arsil, Fitra. 2017. Teori Sistem Pemerintahan: Pergeseran Konsep dan Saling Kontribusi Antar Sistem Pemerintahan di Berbagai Negara (Government Systеms Theory: Conceptual Shifts and Mutual Contributions Between Government Systеms in Various Countries).

Buehler, M. 2010. “Decentralisation and Local Democracy in Indonesia: The Marginalisation of the Public Sphere in Aspinall.” in E., & Mietzner, M. (Eds.) 2010. Problems of Democratisation in Indonesia: Elections, Institutions and Society. Institute of Southeast Asian Studies.

Choi, E., & Woo, J. 2010. “Political corruption, economic performance, and electoral outcomes: A cross-national analysis.” Contemporary Politics 16, 3: 249-262.

Coppedge M, Gerring J, Lindberg SI, Skaaning S, Teorell J, Altman D, Andersson F, Bernhard M, Fish SM, Glynn A, Hicken A, Knutsen CH, Marquardt KL, McMann K, Mechkova V, Miri F, Paxton P, Pernes J, Pemstein D, Staton J, Stepanova N, Tzelgov E, Wang Y, Zimmerman B. 2016. 2016 V-Dem Dataset Version 6.2. Varieties of Democracy V-Dem Project.

De Almeida Lopes Fernandes, Gustavo Andrey, Marco Antonio Carvalho Teixeira, Ivan Filipe de Almeida Lopes Fernandes, and Fabiano Angélico. 2020. “The Failures of Horizontal Accountability at the Subnational Level: A Perspective from the Global South.” Development in Practice 30, 5: 687-693.

Freedom House. 2022. “Freedom in the World 2022: The Global Expansion of Authoritarian Rule.” https://freedomhouse.org/report/freedom-world/2022/global-expansion-authoritarian-rule (Accessed January 29, 2024)

Hagopian, F. 2016. “Brazil’s Accountability Paradox.” Journal of Democracy 27, 3: 119–128.

Hamid, Sandra. 2012. “Indonesian Politics in 2012: Coalitions, Accountability and the Future of Democracy.” Bulletin of Indonesian Economic Studies 48, 3: 325-345.

Hidalgo, D. F., J. Canello, and R. Lima de Oliveira. 2016. “Can Politicians Police Themselves? Natural Experimental Evidence from Brazil’s Audit Courts.” Comparative Political Studies 49, 13: 1739–1773.

Jones, G.W. 1992. “The Search for Local Accountability.” in S. Leach (editor). Strengthening Local Government in the 1990s. London: Longman, 49-78.

Katz, Richard S., and Peter Mair. 1995. “Changing Models of Party Organization and Party Democracy: The Emergence of the Cartel Party.” Party Politics 1, 1: 5-28.

Kenney, Charles D. 2003. “Horizontal Accountability: Concepts and Conflicts.” Democratic Accountability in Latin America 165: 55.

Khotami, Mr. 2017. “The Concept of Accountability in Good Governance.” In International Conference on Democracy, Accountability and Governance (ICODAG 2017), 30-33. Atlantis Press.

Kristiansen, Stein, Agus Dwiyanto, Agus Pramusinto, and Erwan Agus Putranto. 2009. “Public Sector Reforms and Financial Transparency: Experiences from Indonesian Districts.” Contemporary Southeast Asia 31, 1: 64-87.

Lindberg, S. I. 2009. “Accountability: The Core Concept and Its Subtypes.” Africa Power and Politics. Working Paper No.1.

Lührmann, Anna, Kyle L. Marquardt, and Valeriya Mechkova. 2020. “Constraining Governments: New Indices of Vertical, Horizontal, and Diagonal Accountability.” American Political Science Review 114, 3: 811-820.

Mainwaring, S. and Welna C. 2003. Democratic Accountability in Latin America. Oxford: Oxford University Press.

Melo, M. A., C. Pereira, and C. M. Figueiredo. 2009. “Political and Institutional Checks on Corruption: Explaining the Performance of Brazilian Audit Institutions.” Comparative Political Studies 42, 9: 1217–1244.

Mulgan, R. 2000. “Accountability: An Ever-Expanding Concept?” Public Adm?nistration 78, 3: 555-573.

O’Donnell, G. 1998. “Horizontal Accountability in New Democracies.” Journal of Democracy 9, 3: 112-126.

______. 2003. “Horizontal accountability: The legal.” Democratic Accountability in Latin America, 34.

Praca, S., and M. M. Taylor. 2014. “Inching Toward Accountability: The Evolution of Brazil’s Anticorruption Institutions, 1985–2010.” Latin American Politics and Society 56, 2: 27–48.

Rodan, Garry, and Caroline Hughes. 2014. The Politics of Accountability in Southeast Asia: The Dominance of Moral Ideologies. Oxford: Oxford University Press.

Romli, Lili. 2021. “Bicameralism: Strengthening Political Representation at National Level.” Election Team Report – Center for Political Studies. Unpublished, Jakarta.

Roylance, Tyler. 2015. “Freedom Isn’t Always Forever.” Freedom House. January 29. https://freedomhouse.org/article/freedom-isnt-always-forever (Accessed January 29, 2024)

Said, Muhtar, Ahsanul Minan, and Muhammad Nurul Huda. 2021. “The Problems of Horizontal and Vertical Political Accountability of Elected Officials in Indonesia.” Journal of Indonesian Legal Studies 6: 83.

Sakib, N. H. 2020. “Horizontal Accountability to Prevent Corruption.” Global Encyclopedia of Public Adm?nistration, Public Policy, and Governance, 1–6. doi:10.1007/978-3-319-31816-5_3930-1

Sato, Yuko, Martin Lundstedt, Kelly Morrison, Vanessa A. Boese, and Staffan I. Lindberg. 2022. “Institutional Order in Episodes of Autocratization.” V-Dem Working Paper 133. https://doi.org/10.2139/ssrn.4239798 (Accessed January 29, 2024)

Schedler, Andreas. 1999. “Conceptualizing Accountability.” in Marc F. Plattner, Larry Diamond, and Andreas Schedler, The Self- Restraining State: Power and Accountability in New Democracies. Boulder: Rienner Publishers, 13-29.

Schmitter, Philippe and Terry Karl. 1991. “What Democracy Is and Is Not.” Journal of Democracy Summer 1991: 103-109.

Schmitter, Philippe C. 1999. “The Limits of Horizontal Accountability.” in Marc F. Plattner, Larry Diamond, and Andreas Schedler, The Self-Restraining State: Power and Accountability in New Democracies. Boulder: Rienner Publishers, 59-62.

Shugart and Haggard. 2001. “Institutions and Public Policy in Presidential Systеms.” In Haggard and McCubbins, eds. Presidents and Parliaments. Cambridge: Cambridge University Press.

Slater, Dan. 2004. “Indonesia’s accountability trap: Party cartels and presidential power after democratic transition.” Indonesia 78: 61-92.

V-Dem Institute. 2023. “Democracy Report 2023: Defiance in the Face of Autocratization.” https://v-dem.net/documents/29/V-dem_democracyreport2023_lowres.pdf (Accessed January 29, 2024)

Williams, A. 2015. “A Global Index of Information Transparency and Accountability.” Journal of Comparative Economics 43: 804-824.

Ziegenhain, Patrick. 2015. Institutional Engineering and Political Accountability in Indonesia, Thailand and the Philippines. Singapore: Institute of Southeast Asian Studies.

Zúñiga, Nieves, Matthew Jenkins, and David Jackson. 2018. Does more transparency improve accountability? Transparency International.

[1] Researcher at the Research Center for Politics, National Research and Innovation Agency

[2] Director of Regional Research and Innovation Policy, National Research and Innovation Agency

[3] Article 5 Paragraph 1: The President shall be entitled to submit bills to the DPR. and Article 20: (1) The DPR shall hold the authority to establish laws. (2) Each bill shall be discussed by the DPR and the President to reach joint approval. (3) If a bill fails to reach joint approval, that bill shall not be reintroduced within the same DPR term of sessions. (4) The President signs a jointly approved bill to become a law. (5) If the President fails to sign a jointly approved bill within 30 days following such approval, that bill shall legally become a law and must be promulgated.

[4] Article 37: (1) A proposal to amend the Articles of this Constitution may be included in the agenda of an MPR session if it is submitted by at least 1/3 of the total MPR membership. (2) Any proposal to amend the Articles of this Constitution shall be introduced in writing and must clearly state the articles to be amended and the reasons for the amendment. (3) To amend the Articles of this Constitution, the session of the MPR requires at least 2/3 of the total membership of the MPR to be present. (4) Any decision to amend the Articles of this Constitution shall be made with the agreement of at least fifty percent plus one member of the total membership of the MPR. (5) Provisions relating to the form of the unitary state of the Republic of Indonesia may not be amended.

[5] Article 12: The President may declare a state of emergency. The conditions for such a declaration and the subsequent measures regarding a state of emergency shall be regulated by law. And Article 22: (1) Should exigencies compel, the President shall have the right to establish government regulations in lieu of laws. (2) Such government regulations must obtain the approval of the DPR during its next session. (3) Should there be no such approval, these government regulations shall be revoked.

[6] Article 20 paragraph 2: Each bill shall be discussed by the DPR and the President to reach joint approval and paragraph 5: if the President fails to sign a jointly approved bill within 30 days following such approval, that bill shall legally become a law and must be promulgated.

[7] Article 7B: (1) Any proposal for the dismissal of the President and/or the Vice-President may be submitted by the DPR to the MPR only by first submitting a request to the Constitutional Court to investigate, bring to trial, and issue a decision on the opinion of the DPR either that the President and/or Vice-President has violated the law through an act of treason, corruption, bribery, or other act of a grave criminal nature, or through moral turpitude, and/or that the President and/or Vice-President no longer meets the qualifications to serve as President and/or Vice-President. (2) The opinion of the DPR that the President and/or Vice-President has violated the law or no longer meets the qualifications to serve as President and/or Vice-President is undertaken in the course of implementation of the supervision function of the DPR. (3) The submission of the request of the DPR to the Constitutional Court shall only be made with the support of at least 2/3 of the total members of the DPR who are present in a plenary session that is attended by at least 2/3 of the total membership of the DPR. (4) The Constitutional Court has the obligation to investigate, bring to trial, and reach the most just decision on the opinion of the DPR at the latest ninety days after the request of the DPR was received by the Constitutional Court. (5) If the Constitutional Court decides that the President and/or Vice-President is proved to have violated the law through an act of treason, corruption, bribery, or other act of a grave criminal nature, or through moral turpitude; and/or the President and/or Vice-President is proved no longer to meet the qualifications to serve as President and/or Vice-President, the DPR shall hold a plenary session to submit the proposal to impeach the President and/or Vice-President to the MPR. (6) The MPR shall hold a session to decide on the proposal of the DPR at the latest thirty days after its receipt of the proposal. (7) The decision of the MPR over the proposal to impeach the President and/or Vice-President shall be taken during a plenary session of the MPR which is attended by at least 3/4 of the total membership and shall require the approval of at least 2/3 of the total of members who are present, after the President and/or Vice-President have been given the opportunity to present his/her explanation to the plenary session of the MPR.

[8] https://www.v-dem.net/data_analysis/CountryGraph/

Horizontal Accountability in Mongolia:
The Challenges of (Counter) Balancing

Ganbat Damba[1], Mina Sumaadii[2]

Academy of Political Education

1. Introduction

The 1992 Constitution is considered the “blueprint of Mongolia democracy” (Sanders 1992). This Constitution has served Mongolia’s democracy well, as to date, eight electoral cycles have been held regularly, yielding uncertain outcomes and fostering multiparty competition for the people’s votes. In the Varieties of Democracy Project’s liberal democracy index, Mongolia started with a score of 0.41 in 1991 and, with slight fluctuations, ended with a score of 0.49 in 2021 (V-Dem Project 2022). At its height, it reached 0.61 in 1999. This reflects that Mongolia’s road to democratic development was not smooth and had its ups and downs. Nonetheless, these scores consistently place Mongolia in the “electoral democracy” category. While this is an accomplishment in comparison to other post-communist states in the region, it is still a democracy which has institutional challenges and much room for improvement.

Based on this, this report examines the internal structure of Mongolian democracy from the point of institutional checks and balances that exist under the constitutional setting. Therefore, we present a concept of horizontal accountability, which is part of a series of constraints on government use of political power. In the Mongolian media and political discussions, horizontal accountability is not a commonly used term. As one of the cornerstones of good governance, it measures the extent to which the government is accountable to other branches (Lührmann et al 2017). This is a particularly important issue for Mongolian governance to address, given the scope of reforms that shifted the domestic power balances among the government branches in recent years. Moreover, due to the low level of trust in public institutions and a lack of belief in the impartiality of politicians (Sant Maral Foundation 2023), the public is increasingly turning to protests as a preferred measure to hold the government accountable. Overall, this suggests that citizens no longer have the patience to rely on institutional checks and balances to represent or defend public interests; instead, they are increasingly inclined to take matters into their own hands.

As a result, addressing the related governance issues is becoming an increasingly important task for the quality and durability of Mongolian democracy.

The V-Dem Project traces that the horizontal accountability index (scaled low to high (0-1)) in Mongolia had a score of 0.9 in 1991 and throughout the remainder of the 1990s (V-Dem Project 2022). Yet, it decreased following each constitutional amendment in 1999/2000 and 2019. Eventually, after fluctuations, it ended with a score of 0.78 in 2021 (V-Dem Project 2022). While in the broader historical context, the scores in the last three decades are at their highest level since Mongolia transitioned to democracy, the gradual decrease in the horizontal accountability index follows the general trend of declining government accountability.

Figure 1. Horizontal accountability and Liberal Democracy Indices in Mongolia

Source: V-Dem Project

Regionally, Mongolian performance in horizontal accountability can be considered to be relatively high. While it is not at the level of advanced democracies, it performs better than countries within a similar income group. Based on the regional comparison of horizontal accountability, it can be seen that since the introduction of the 1992 Constitution, Mongolia’s position and decline are the most similar to India and the Philippines. Among these cases, the most important factor linked to the decline in horizontal accountability is the continuous weakening of judicial independence (See Reports on India and the Philippines). Similarly, Mongolia’s judicial branch struggles to maintain its independence following a series of constitutional and legal reforms. Moreover, in the existing political environment, oversight agencies have limited capacity and are not free from political interference. As a result, the constraints on the legislature and executive officials are weak.

Figure 2. Regional Comparison of Horizontal Accountability Index

Source: V-Dem Project

In cross-country research, Sato et al. (2022) found that in the process of autocratization, institutional decay starts with horizontal accountability, followed by declines in diagonal accountability, and ultimately vertical accountability. According to recent developments, some early signs of democratic erosion can already be found in Mongolia. As the balance of power between different branches becomes uneven, we will address some of the issues of concern, potentially pointing out some general prescriptions that can counter the process. Further investigation can also offer an institutional explanation of Mongolia’s good democratic performance and ineffective governance.

The main conclusion of the current cross-country research is that if a country has better horizontal accountability, then the quality of its democracy can be improved. At the same time, if there is erosion of horizontal accountability, the quality of democracy will deteriorate. Based on longitudinal observations by the V-Dem project, we can see that the decline in horizontal accountability is correlated with the decline in the quality of Mongolian liberal democracy.

Consequently, to uncover the factors contributing to this trend, the study is organized as follows. We begin with an assessment of Mongolia’s de jure and de facto horizontal accountability from a comparative perspective. It is followed by the introduction of a constitutional checks and balances systеm in Mongolia. Next, we describe the existing hierarchy of power among the government branches, followed by the description of recent constitutional amendments and their outcomes on political power distribution. Then, we address the legal procedures available to counterbalance the misconduct found in each government branch. After that, we assess the judicial branch’s independence in more detail. Finally, we examine oversight agencies and their capabilities and conclude the study.

2. Mongolia in the Comparative Context

This study aims to assess the factors related to the recent trends in democratic decline in Mongolia. As evidenced by the data, most changes were gradual and would require an investigation that starts by the introduction of the 1992 Constitution that institutionalized democracy. In addition, there are formal and informal factors that are involved in the process. Thus, analytically, it is useful to separate de jure and de facto horizontal accountability.

De jure horizontal accountability describes how much power does the Constitution assign to the executive, legislative and judicial branches. It is going to be based on the Comparative Constitutions Project’s executive power indicator, legislative power indicator, and judicial independence indicator (Elkins et al 2022). The indicators based on the 1992 constitution show that the executive power was considerable, scoring 6 on a scale ranging from 0 to 7. The legislative power index was 0.33 on the range of 0 to 1, which indicates less legislative power. Figure 3 shows that regionally, Mongolian executive power is quite considerable, while the legislative power is at an average. It can be seen that the executive power is measured to be more extensive than in Cambodia, South Korea, Pakistan, and Thailand. Moreover, Figure 4 shows that Mongolia scores 4 for judicial independence in the range from 0 to 6, which can be considered average within the region.

Figure 3. Executive Power vs. Legislative Power

Source: Data from the Comparative Constitutions Project

Initially, the Mongolian Constitution introduced a balance between the executive and legislative branches. Thus, prior to amendments, Mongolian legislative and executive powers were relatively balanced. In contrast, the judicial branch’s powers were set to be weaker from the beginning. Further constitutional amendments mainly upset the balance between the executive and legislative powers, leading to the current setting where the legislative branch is dominant, and the other two branches are weak.

Figure 4. Executive Power vs. Judicial Independence

Source: Data from the Comparative Constitutions Project

Given this, it is important to mention that the executive branch in Mongolia is complicated, and in the future analyses, it would be necessary to distinguish the situation before and after the 2019 constitutional amendments. Prior to the amendments, there was an ambiguity about who was the head of the executive branch, as there was a considerable overlap between the president and the prime minister. Specifically, the Constitution explicitly states that the cabinet, led by the prime minister, is “the highest executive organ of the State” (Article 38.1). Yet the president’s role in appointments and legislative initiative implies executive power (Article 33.1). Notably, the 2019 amendment ended this ambiguity by expanding the prime minister’s powers to fully form the cabinet, clarifying that the prime minister is henceforth the head of the executive branch. Future indices may need to reflect this change.

Nonetheless, as we focus on the general situation and consider the president as the head of the executive, it should be noted that the powers given to the president as the national executive are significantly constrained. For that, we are going to break down the executive index in more depth. The index is additive and is composed of seven aspects that measure presence or absence of certain presidential powers. The first aspect measures the power to initiate legislation and is present (Article 26.1). The second involves the power to issue decrees and is also present. Even if the president has the power to issue decrees, the Constitution specifies that a co-signature of the prime minister is necessary for it to be effective (Article 33.1.3). Despite this, in the Mongolian Constitution, both powers are considerably constrained by the president’s lack of budgetary powers. Thus, regardless of the aspirations, it is improbable that any of the presidents’ initiatives will be realized unless they receive legislative support.

The third measurement includes the power to initiate amendments, and it is also constrained, as the president can only initiate constitutional amendments together with “the competent organs or officials with the right to legislative initiative”, or more specifically, “The President, Members of the State Great Hural (Parliament), and the Government (Cabinet)” (Articles 68.1 and 26.1). The fourth measurement covering the power to declare states of emergency is present; however, it is also constrained by the legislature’s decision to endorse or invalidate it (Article 33.1.12). The fifth measurement on veto power is present in Mongolia, but it is limited by the parliament’s ability to override it by two-thirds of its members (Article 31.1.1). The sixth power to challenge the constitutionality of legislation is absent, as this power is reserved to the Constitutional Court (Tsets). The seventh includes the power to dissolve the legislature. This power is also limited as Article 22.2 specifies that the president can only do so in concurrence with the speaker.

Following from this, there are multiple conditions in the Constitution that introduce controls over the presidential power. Particularly, six of the index’s seven powers are present, but all of them are constrained either directly by the legislative branch or indirectly through budgeting. As a result, the veto is the most significant power of the presidency due to the president’s ability to use it repeatedly and bring public attention. Therefore, we suggest that there are limitations in the index’s ability to capture the nuances of the executive power and, as a result, the president’s role in the checks-and-balances can be overestimated. Based on the current indices from the Comparative Constitutions Project, it may seem that the Mongolian executive branch is dominant and is an outlier in the region. Especially, as it shows that the Mongolian president is even more powerful than in South Korea, which has a presidential systеm. However, considering all the constraints included in the Mongolian Constitution and recent amendments, the reality is quite different. Thus, the indices would have to be updated to reflect the new setting.

In the end, the 2019 constitutional amendments have significantly changed the equilibrium established by the 1992 constitution. As a result of the continuous shift of power toward the legislative branch following the 1999/2000 and 2019 amendments, the legislative branch became the most dominant. As a result, the relationship between the three branches became unbalanced with the power predominantly concentrated in the legislature. This imbalance has been further exacerbated by the significant weakening of executive power through the new limits imposed on the presidency.

Specifically, the executive powers of the president have been considerably reduced by an introduction of a single term, higher age, and a reduced role in the judicial appointments. In particular, these changes have decreased the incentives for an active role in inter-branch power relations. In the past, the prospects of re-election made presidents more likely to pursue their own agenda, but since 2019, the shift to a one-term (6 years) presidency has diminished initiatives for political activism. As for the judicial branch, despite the constitutional declaration of its independence, its original design that made higher-level judges and prosecutors political appointees introduced a loophole. Considering a more comprehensive overview of powers, the 1992 constitutional design balanced the executive and legislative powers while leaving the judicial power with an in-built weakness of these political appointments. After the recent amendments though, the balance tilted the following way:

To summarize, in terms of de jure horizontal accountability, the 2019 constitutional design in Mongolia lacks balance. While the original 1992 constitution established a good structure for avoiding the concentration of power in one particular branch, the subsequent amendments in 1999/2000 and 2019 changed this balance. After the amendments, the legislative power is dominant, and due to the existing imbalances, it cannot be adequately checked by the executive and judicial branches. Adding to the issue is that major oversight agencies are not free from political interference. This could also explain the decreasing levels of horizontal accountability and the corresponding decreases in the levels of liberal democracy (Figure 1). Altogether, this leads to the conclusion that de facto horizontal accountability is even lower than de jure accountability. The following sections will focus more on domestic-level power arrangements to further elaborate the case.

3. Checks and Balances

The 1992 Constitution introduced a semi-presidential form of government. This power arrangement resulted in constant power struggles between the president’s office, the prime minister and his cabinet, and the parliament. This constitutional arrangement is credited with setting the Mongolian democracy on a long-term structural advantage among democratizing post-communist states overall (Fish 1998). On the positive side, during Mongolia’s transition to democracy, no branch could monopolize power, which became a positive institutional arrangement preventing it from drifting to authoritarianism seen in the former Soviet Union states in Asia (Fish 2001). However, on the negative side, this arrangement can lead to power disputes and political deadlocks during cohabitation (the president and the majority parliamentary party from opposing parties) and divided governments.

Historically, the most prominent example occurred when disputes between different government branches paralyzed the parliamentary term from 1996 to 2000, contributing to debates about the political stability or functionality of the democratic systеm. However, changing this systеm was never a popular idea based on opinion polls, as most of the population supported democracy as a form of governance (Sant Maral Foundation 2023). Therefore, the introduction of the first constitutional amendments partially addressed constitutional conflicts. Such political deadlocks during cohabitation and later coalition governments align with the general research on semi-presidential systеms.

In the first place, the 1992 Constitution’s institutional equilibrium introduced an overlap between the president’s office, the prime minister, and the parliament. The design was based on the principles of checks and balances among different branches of government that relied on coordination. In practice, the Constitution relied on ‘consensus’ among the executive and legislative branches; an aspiration too difficult to achieve during periods of divided governments and cohabitation in a new democracy. This consensus or concurrence (depending on the translation) between the president and parliament was explicitly required in many articles in the 1992 Constitution, but later most of them were reversed by amendments in 1999/2000 and 2019. Moreover, the absence or underdevelopment of institutions to ensure the continuity of policies exacerbated the debates about stability and functionality.

Eventually, two major constitutional amendments were introduced to remedy some of these institutional conflicts. As a solution, they shifted the balance of power from the president to the parliament. While the decision is based on an argument that such shifts reduce the possibility of strongman politics associated with an all-powerful president, due to one-party dominance, it still led to a power concentration with an all-powerful parliament and prime minister. As a result, the previous balance of power between different branches of government became uneven, and the institutional equilibrium that has served Mongolian democracy well since 1992 has changed. It is still early to assess whether this is a positive or negative development, as further constitutional amendments and reform are being discussed. Yet, some recent developments such as the constitutional amendment in August 2022, Cyber Security Laws, and Human Rights Laws are causing concerns, with the abrupt introduction of legislation without public discussion or minimal oversight.

In the constitutional design, the separation of power in the legislative and judicial branches is clear. According to Article 20, the unicameral parliament, the State Great Khural, holds the legislative power. Article 47.1 states that courts and the Supreme Court exercise judicial power. However, the executive branch was always more ambivalent due to an overlap between the president and the prime minister. Article 38.1 of the Constitution explicitly states that the cabinet, led by the prime minister, is “the highest executive organ of the State.” Yet, the president’s role in appointments and legislative initiatives given by Article 33.1 implies executive power.

4. Hierarchy of Power

Despite legal ambivalence on the exact political hierarchy and significant constitutional limitations, the presidency is considered the top of the political establishment. This is because the presidency symbolizes the apex of political power in Mongolia, backed by a direct national vote and the popular legitimacy it confers, thereby rendering other state positions as somewhat subordinate. It is disputable whether the second highest position is the prime minister or the chairman (speaker) of parliament. Constitutionally, the prime minister is a much more powerful position than the presidency and is more visible to the public. Following the constitutional amendments in 2019, it became clear that the prime minister is the head of the executive and holds most of its powers. For example, in cases where there is no consensus on the structure and composition of the cabinet with the president, the prime minister can form his own cabinet by only presenting it to the parliament and president (2019 amended version Article 39.4). However, according to the Constitution, the prime minister and his cabinet are collectively responsible solely to the parliament (Articles 25.1.6 and 41.2). Also, given the more extensive powers of the legislative branch and, in particular, powers to remove the immunity of parliamentarians (Law on the Parliament 2020, Article 9.1), the speaker of the parliament effectively holds the second highest position. The speaker also replaces the president in case of absence, incapacity, or resignation. Therefore, the prime minister holds the third highest position.

The ideal design of the presidency was to mediate between conflicting parties and factions or be “above politics” (Chimid et al. 2016). Before the 2019 constitutional amendments, presidents could not afford to be non-partisan in the first term if they sought re-election. After these 2019 amendments, which raised the age of presidential candidates from 45 to 50 and limited them to one six-year term, the president’s incentives for “activism” during their time in office and role in the separation of power have considerably decreased. Currently, the president’s role as a counterbalancing power is minimal, and the most substantial power is veto power, which remains limited by the parliament’s ability to override it by two-thirds of its members.

In addition, before the 2019 constitutional amendments, the president played a prominent role in judicial nominations. Especially, the president could appoint all judges upon the proposal of the Judicial General Council (Article 51.2) and could appoint the prosecutor general and his deputies in consensus with the parliament (Article 56.2). After the 2019 amendments, the number of appointed judges is limited to five out of ten, and the rest are selected through open hearings (Article 49.5). Specifically, this amendment affected Article 49.5: Five members of the Judicial General Council (JGC) shall be selected from among the judges and openly nominate the other five members. They shall work once for four years, and a Chairman of the JGC shall be elected from among the members of the JGC. Reports on JGC activities in connection with ensuring the independence of judges shall be presented to the Supreme Court. The organization of the JGC, operational regulation, the requirements for its members, and the rules of appointment shall be determined by law. The Constitution remained ambivalent on who exactly is to make these appointments, leaving it to speculation that it most likely is the parliament. Nonetheless, new laws will presumably detail the nominations and appointments.

Constitutionally, the Supreme Court is the highest judicial body. The JGC is its adm?nistrative body. In cases of Supreme Court Justices, the JGC selects and nominates judges for an appointment either by the president or the parliament. The Constitution grants the Supreme Court authority to examine all lower court decisions and provide official interpretation of all laws except the Constitution. Articles 64.1 and 66 give the Constitutional Court the general power of constitutional interpretation. Nevertheless, given the appointment systеm, it is highly disputed whether the judiciary and the prosecutors can be truly independent in the existing systеm. Furthermore, in 2019, the Law on the Legal Status of Judges allowed the National Security Council consisting of the President, Prime Minister, and the Speaker of Parliament to remove judges (Transparency International 2019; Dierkes 2019).

5. Recent Constitutional Reform and Political Outcomes

In 2019, the government led by Mongolian People’s Party pushed comprehensive constitutional amendments that shifted the balance of power to the parliament and limited the presidential term. However, these changes did not go far enough in changing the nature of the political systеm, and it remained semi-presidential. After that, there were two other amendments. The amendment on August 25, 2022, repealed the limitations introduced by the 2019 amendments on the “double deel” issue.[3] The second amendment on May 31, 2023, introduced a mixed electoral systеm with 78 members of parliament elected by majoritarian and 48 by proportional representation.[4]

The 2022 repeal highlights the enduring importance of the “double deel” issue (“давхар дээл”, deel is the traditional Mongolian clothing). It is one of the most politicized legal issues centered on the debate whether cabinet members and members of parliament can hold concurrent posts. The initial Constitutional Court decision was that they could not, but the 1999/2000 amendment reversed it. Nonetheless, the 2019 amendments limited the number of such members of parliament to four, but the 2022 amendment removed this limitation. At the core of this issue is that members of parliament are granted political immunity (Article 29.2); therefore, leading to a higher risk of abuse of power, as cabinet members who are concurrently members of parliament have access to resources and immunity to evade justice. In the context of Mongolia with systеmic corruption, this becomes a particularly controversial issue.

The 2023 amendment, though, is more about the enlargement of the legislature from 76 to 126 members. This amendment also introduced a mixed electoral systеm (78 majoritarian seats and 48 proportional seats) and was followed by corresponding changes in election laws. Since 1992, Mongolia has mostly had a majoritarian electoral systеm, and only had a mixed systеm for the 2012 parliamentary election (48 majoritarian seats and 28 proportional seats). The re-introduction of the proportional component also reversed the 2016 Constitutional Court ruling against it. As the process of adoption and the rationale behind this amendment was not open to public challenge or debate, it is likely to have been another instance of behind-the-door elite bargaining with a resulting compromise between politicians who are able to win concrete electoral districts and those who enjoy nationwide popularity and stand better chances on a national list.

The need for enlargement, though, is unlikely to have gained public support, and the official perspective is that it is all part of bringing ‘stability’ to the political systеm and ‘bringing parliamentarians closer to the people’ (Lkhaajav 2023). Earlier, the rationale for enlargement also included geopolitical considerations, such as reducing opportunities for external influence on a larger number of politicians and responding to a growing population (Bayarlkhagva 2022). Nonetheless, it is important to note that these changes do not address the main issues affecting the stability of the political systеm, such as low trust in political institutions and a weak party systеm. Tied to this is a lack of real opposition in the systеm that further reduces the accountability of the ruling party.

Given this, past research on the effects of electoral reform that compared the performance of electoral systеms highlighted the continued importance of the urban/rural cleavage in Mongolia (Maškarinec 2018). It is yet to be seen how exactly the mandates are going to be distributed. However, considering that Ulaanbaatar continued to receive less than half of all the mandates despite having nearly half of the population, it is not certain that the existing population distribution is going to be considered. The main problem is the existing disbalance in mandates assigned for rural and urban representation. The reasons for the disproportion are mainly political as rural constituencies tend to vote for the ruling Mongolian People’s Party (MPP), and urban constituents tend to cast the most protest votes. In general, this has cast doubts on representativeness and equality of vote, but it has not been successfully challenged in the given power distribution.

Figure 5. Past Distribution of Mandates between Ulaanbaatar and the Rest of the Country

Source: General Election Commission of Mongolia

*Note: The 2012 election is excluded, as a mixed systеm was introduced at that time.

In the end, the main problem with the recent reforms is that they have been passed without offering an opportunity to challenge or dispute them. This invokes further concern about the state of accountability that the current political power setting has to offer. In the long term, a complete transition to parliamentarism has been a long-sought political goal by political elites. The prevalent belief is that stability in decision-making would result from a shift of power to parliament and the creation of a powerful prime minister position. Ambitious presidents mostly supported the transition to the presidential systеm. Nonetheless, one of the significant changes introduced by the 2019 constitutional amendments was a considerable change in the checks and balances systеm. The institutional equilibrium between the executive, legislative, and judicial branches shifted toward an all-powerful parliament and prime minister. It should not have been an issue; however, it happened in an environment with decreasing mechanisms of control needed to counterbalance or challenge misconduct.

6. Counterbalancing Misconduct

Due to the numerous laws passed in the last thirty years, there is a saying that Mongolian Law lasts three days. As a result, in comparison to the Constitution, the Law on Parliament and Law on Cabinet (1993) were amended dozens of times (at the time of writing, the count is 38+ times each), making it a highly contested area to interpret for lawyers or anyone for that matter. Some areas are ambivalent or untraceable after amendments because various political interests clash, and high-level politics is involved.

Regarding the constitutional procedures for removing prime ministers, a vote of no confidence has removed prime ministers at least three times.[5] Others managed to survive the vote of no confidence. As for presidential impeachments, no president has been removed while in office yet. N. Enkhbayar was arrested following his term in office and is the only former president that returned to party politics. Other former presidents retired from political life.

Nonetheless, the case of Kh. Battulga is also quite notable and shows struggles among the different branches. In particular, the changes from the 2019 constitutional amendment reduced the president’s power and granted more authority to the prime minister. One notable aspect was the introduction of a single six-year presidential term limit, sparking debates among politicians and legal experts regarding its immediate application to the current president. Thus, in 2021, following the Constitutional Court’s ruling that barred current and former presidents from running for re-election, President Kh. Battulga responded by issuing a decree to dissolve the ruling Mongolian People’s Party (MPP). He accused the MPP of influencing the court’s decision and of involvement in an NGO associated with retired military personnel, which he deemed inappropriate for political parties. Amidst rumors of political maneuvering such as cancelling meetings of the small chamber and changing one justice of the court by the Parliament, the Constitutional Court ruled against the re-election of current and former presidents.

In contrast, the parliament consists of 76 members, and after eight election cycles, there are many more parliamentarians to investigate. From the beginning, the most challenging obstacle for the prosecution was parliament immunity, guaranteed by the Constitution in Article 29.2 and legalized by Article 9.8 (formerly Article 34.7) in Law on the Parliament (May 07, 2020, version). Nevertheless, Article 9.1 states that the parliament shall decide whether to suspend the powers of a member of parliament. More specifically, in Article 9.1.1, when “the State Prosecutor General has submitted a proposal to the State Assembly to arrest him with evidence in the course of his criminal act or at the scene of the crime, and then to suspend his powers.”

Another legal challenge in 2016 to countering misconduct comes from the Law on State and Official Secrets. It is mainly criticized for shielding internal deal-making. While it was modified over the years, the changes were insubstantial, and the main challenges remained as its scope is defined too broadly (see Article 5 “Definitions” where almost anything is a “state secret”) and classification periods are long and easily extended (see Article 17 “Duration of information secrecy”).

In view of this, the existing checks and balances are such that high-level public officials rarely get prosecuted. The presence of public outrage and demonstrations is one of the deciding factors in bringing up high-profile cases. Among recent issues that received significant public attention was the dismissal of Speaker M. Enkhbold in 2019 after the public outcry over high-profile corruption scandals (Bittner 2019). Regarding the Constitutional Court, a notable high-profile case was the removal of its Chairman D. Odbayar, due to mounting public pressure over his involvement in the sexual harassment of a South Korean flight attendant on a flight from Ulaanbaatar to Incheon (IKON News Agency 2019-11-22). Most recently, the 2022 Coal Scandal brought down a number of politicians (including two members of parliament) after triggering a large-scale protest in Ulaanbaatar. There are other cases involving parliament members; however, many happened after their term in office or were eventually overturned. The main reason is that the judiciary can hardly maintain its political neutrality or independence under existing power arrangements.

7. Judicial Branch’s Independence

As previously stated, constitutionally, the Supreme Court has the authority to examine all lower court decisions and provide official interpretation of all laws except the Constitution (Article 50). The Constitutional Court holds the general power of constitutional interpretation (Articles 64.1 and 66). There is a debate among scholars and politicians about the need for a separate Constitutional Court when a Supreme Court could take over the duty of constitutional interpretation. After much back and forth in arguments, the most plausible clue to date comes from the composition of the Constitutional Court. While members of the Supreme Court are explicitly required to be professional lawyers (Article 51.3 “A Mongolian citizen who has reached thirty-five years of age with a higher education in law and a professional career of no less than ten years may be appointed as a judge of the Supreme Court”), the members of the Constitutional Court had to have high qualifications in politics and law (Article 65.2 “A member of the Constitutional Court shall be a Mongolian citizen who has reached forty years of age and has high qualifications in politics and law”), and their nominations applied the principle of the distribution of power between different branches. The Constitutional Court has nine members of the following distribution: the parliament, the president, and the Supreme Court respectively nominate three members each (Article 65).

Overall, the existing systеm of judicial nominations is one of the major barriers to judicial independence. The political nominations of justices and the prosecutor general introduce a high risk of politicization of the judiciary. The next big obstacle is the amendment to the Law on the Legal Status of Judges in 2019 that allows the National Security Council to remove judges (Transparency International 2019; Dierkes 2019). There are plausible arguments that it is necessary due to existing corruption in the legal systеm. The problem is that high-level corruption is endemic in the whole systеm, and the removal of judges can also serve political motives. Consequently, the issues with the judiciary’s political neutrality and independence undermine the judicial branch’s function as a counterbalance to the other branches of government.

From the beginning, the legacy of the socialist legal systеm impacted the judicial branch longer, as the reform in this branch was more gradual in comparison to the economic and pollical transformations in the 1990s. During the period of communism, the legal systеm was completely subordinate to the party state. After the establishment of democracy, the concept of division of power and the need to distance from one party rule led the reformers to adopt a constitution based on ideals of checks and balances. Thus, the introduction of an independent judiciary was a stated goal. Nonetheless, the external appointment systеm of major positions in the judiciary and prosecution politicized the branch. While political appointment of Supreme Court justices is a practice also present in other countries, the challenge in Mongolia is that the whole process of selection criteria is opaque and unchallenged, so appointments are often a behind the door compromise with loyalty as a main requirement.

8. Oversight Agencies and Their Capabilities

Mongolia has a longstanding problem with corruption in the public sector. Still, the main obstacle to legislation is not as much existence of loopholes and inconsistencies, but the issues summarized as the weak rule of law. According to Transparency International’s assessments, Mongolia’s 2021 corruption ranking stands at 110 out of 180 with a Corruption Perception Index of 35, which places it among countries with a serious corruption problem (Transparency International 2022).

The two major oversight agencies are the Mongolian National Audit Office and the Independent Authority Against Corruption of Mongolia (IAAC). The Mongolian National Audit Office is the country’s central audit institution. The Law on State Audit (2020) gives it a broad mandate. It states in Article 5.1. “The main goal of the state audit is to monitor the planning, distribution, use and spending of public finances, budgets and public property in a legal, economical, efficient and effective manner, as well as improving public financial management and supporting sustainable economic development.” In practice, though, it is limited in human resources and often runs into issues with overall capacity (ADB 2019). Unsurprisingly, when high-level politics is added, it is rare that a state audit finds any wrongdoings. The Constitution grants the parliament budgetary powers under Article 25.1.7. In response, Article 6.1 of the Law on State Audit gives the Mongolian National Audit Office the mandate to audit all except the parliament. Specifically, in the Law on State Audit, Article 6.5 states that it can audit the parliament “if requested by parliament.”

The IAAC is another oversight institution with an overly broad mandate that allows it to investigate corruption cases and educate the public about prevention mechanisms. According to the Law on Anti-Corruption (2006), the IAAC is in charge of income and asset declarations of the president, the prime minister and his cabinet, members of parliament, and officials appointed by them (Article 11.1.1). To date, the most significant obstacles to its capacity to actively investigate corruption cases of high-level public office holders are issues related to either political immunity or amnesty laws. As of July 2021, Mongolia has passed its seventh amnesty law (Baljmaa 2020). The problem is that some of these amnesty laws would apply to a broad range of cases that would also grant protection from prosecution for corruption or lead to the termination of cases under investigation by the IAAC (UNCAC Coalition 2015). Generally, the IAAC faces frequent accusations of operating at random or with significant political bias. In the past, the president could appoint the head of the IAAC, but in January 2021, the parliament made amendments to the Law on Anti-Corruption that shifted this power to the prime minister (Article 21, updated; Baljmaa 2020). This shift can be seen as further empowering the prime minister’s position.

These institutional factors contribute to the deterioration of proper checks and balances in the systеm and explain why so much of the high-level corruption tends to go undetected or under-investigated.

9. Prospects

Following the development of media headlines in recent years, analysts and commentators have started describing Mongolian political developments as a crisis of democracy. While multiple problems contribute to the overall decline in democratic governance, the core issue described in this report is that there are currently no efficient systеms of control to form proper checks and balances. The past equilibrium of checks and balances has been broken, but the new systеm is highly unbalanced. As noted earlier, the shift of power to the legislative branch should not have been a problem, but it happened in the context of a weak party systеm and a weak judicial systеm.

Overall, this leads to the conclusion that despite the constitutional design and intent, the principle of separation of power runs into considerable challenges. Moreover, it is increasingly difficult to enforce in the current political setting, as other branches and oversight agencies cannot adequately check legislative power. As a result, this leads to rather grim prospects for horizontal accountability in the short term. As for the medium to long term, it is still too early to judge, as this type of power arrangement is unstable and there are talks about further reforms. Despite the political elite’s insistence that the reforms were made in order to ensure political stability, there are more factors to consider. One of the underlying convictions of the political elites is that the fast turnover of the government undermines political stability; as a result, all recent major reforms focused on solidifying the legislative power and the prime minister with his cabinet. In reality, the government turnover should not have been a problem, but the fast turnover of the civil and public servants in the corresponding institutions was a problem for policymaking and implementation.

It was earlier noted that if there is an erosion of horizontal accountability, then the quality of democracy will deteriorate (Sato et al. 2022). Also, for domestic politics, it is important to mention that cross-national research shows that dominant party regimes are found to be more vulnerable to mass protests (Ulfelder 2005). Moreover, the current regional instability is likely to lead to further economic decline, which means even less resources for reform and higher stakes in losing political power. Altogether, leading to more uncertainty and risk externally and domestically.

The big picture is that since Mongolia started its democratization in 1989, its democratic performance has been relatively high among the Third Wave of democracies. Especially, when we consider that Soviet institutional legacy and levels of economic development make it analytically closer to post-Soviet Central Asian states. Yet, if we consider the developments since 1992 (when democracy was institutionalized by the Constitution), by now we still can also observe gradual decline in the quality of its democracy.

However, despite these challenges, the political elite is likely to remain interested in the democratic systеm. Mongolian geopolitical position makes its democracy vulnerable to institutional spillover effects from China and Russia. Yet, its foreign policy of attracting third neighbors makes the political elites interested in maintaining the democratic systеm. This foreign policy has been a cornerstone of Mongolian foreign affairs, and fundamentally it tries to balance Mongolia’s dependence on China and Russia by finding other partners. Implicitly, it also had a lasting impact on its choice of political systеm as it supported Mongolia’s membership in the community of democracies. Nonetheless, due to the existing problems with systеmic corruption, the political elite is not interested in strengthening the judiciary’s role and the rule of law, which are crucial for advancing democratic quality in Mongolia. In view of 2024 parliamentary elections that would involve a much larger legislature, it is yet to be seen in the future whether this would indeed ensure political stability and increase efficiency.

10. Solutions

Given the current power arrangements, how do we enhance horizontal accountability?

The World Justice Project’s Rule of Law Index, which ranges from 0 to 1, gives Mongolia an overall score of 0.54, which indicates a ‘mediocre’ performance (World Justice Project 2022). Globally, it is ranked 65 among the 128 countries, and regionally its overall performance is the closest to Indonesia. Among the main factors included in this indicator is that it scores the lowest in terms of the absence of corruption in government. If we delve deeper into subfactors, we can see that it has one of the worst performances in the use of office for private gain by legislative branch public officials. As of 2020, it was ranked 114 out of 128 countries, which places it among the worst performers globally and regionally.

This report described the current constitutional setting and the imbalance in power arrangements that were introduced by the amendments. One of the main risks in the current political setting is the overconcentration of power in the legislature, which any existing institutional controls cannot adequately counterbalance. Importantly, the shifts of power happened at a time when there was one party dominance, weak counterbalancing institutions, and most importantly, a lack of judicial independence. Altogether this leads to a political environment where public officials in power are barely accountable. The main concern is that it also leads to decreasing transparency of decision-making in the legislature with very little oversight or chance of being challenged by any other institutions.

Thus, the main solution should be focused on strengthening and improving the judicial branch. At the time when most of the counterbalancing institutions are weak, that remains the general approach. That is given the view that the power imbalance among different branches is especially relevant for the judicial branch, as judicial nominations and budgetary constraints put it at a high risk of manipulation by the other branches of the government.

While judicial reform has been on the agenda throughout Mongolia’s democratization process, earlier efforts of the top-down or institution-building approach for judicial reform have been unsuccessful (Fenwick 2001; White 2009; Chimid 2017). The problem remains unresolved to date, as at a deeper level, such approaches do not work well in countries with systеmic corruption, where the key stakeholders are both reformers and the reformed.

As a persistent problem, it was attributed to the fact that institutions involved in the judicial reforms had ignored the core problems, such as the corruption of the judicial branch (White 2009). In addition, while there is a lot of focus on political independence, the problems are also related to judicial budget, integrity, transparency, and accountability. In the end, this suggests that in the current institutional setting in Mongolia, the mixed approach with bottom-up pressure for reform and implementation is more appropriate.

Other general solutions are that Mongolia needs to continue developing its party systеm. Currently, the weakness of the party systеm is contributing to the lack of opposition as a balancing force in the democratic systеm. In particular, to counter special interests the opposition should play an important role in directing agencies charged with preventing and investigating corruption (O’Donnell 1998). It is highly unlikely that within the existing power concentration, there is the political will to give the preventative agencies or oversight agencies the actual capacity to ensure justice. To date, the overconcentration of power and decreasing accountability only increased the risk that decision-making is not made in the wider interests of society.

Finally, government accountability is a multi-actor and a multi-dimensional process. Therefore, in addition to the improvements in the extent of horizontal accountability, government’s accountability to its citizens (vertical accountability) and media and civil society (diagonal accountability) needs to improve. As part of the comprehensive approach leading to improvements and transparency in governance, the bottom-up pressure would involve increased activity on behalf of the media and various civil society organizations that ensure diagonal accountability. As for vertical accountability, the vigilance of public opinion influencers and citizens is increasingly important as well. These two aspects of accountability, though, would be a topic of future research.

We would like to note that the concept of ‘checks and balances’ is still rather new in Mongolia. Historically there was no precedent, and during communist times the centralizing and all-encompassing control of the party did not even allow for any balancing forces to exist. Thus, it is an accomplishment of the modern democratic systеm to introduce the concept and the related condition of ‘accountability’. Even so, it remains an obscure concept to the general population and even to some of the older cohort of politicians. The most common Mongolian translation of accountability is ‘хариуцлага’, which does not properly convey its meaning within a democratic setting. The main issue is that the direct translation of ‘хариуцлага’ is ‘responsibility’, which unnecessarily loaded the concept with a paternalistic undertone. Moreover, the principles of separation of power are also not intuitive for those unfamiliar with the framework of democratic governance. Thus, from the beginning, to an average person, it can lead to an incorrect mindset and expectations about the direction and types of accountabilities in power relations.

Nevertheless, the accomplishment of the democratic systеm is that issues such as the types of accountabilities and their needs are receiving attention. It is thus important for the future development of the Mongolian democracy to continue such discussions and try to resolve them as they emerge. At the end of the day, Mongolian democracy is still relatively young and would require more adjustments and improvements. Most importantly, though, these changes would require all stakeholders to participate openly and transparently, as a stable democracy needs not only active but informed voters.

11. Conclusion

We can conclude that while prospects for increasing horizontal accountability of the government are not good in the short term, the systеm still has the capacity for improvement. There are several major factors challenging the proper functioning of checks and balances in the systеm that need to be continuously addressed. Importantly, there is a lack of judicial independence. In the existing systеm, the key judiciary members are most likely to be political appointees; as a result, their political neutrality and independence are questionable. Relatedly, it becomes a further issue when dealing with cases that involve the high office. The extent of judicial reform in the past was hindered by mostly the top-down approach taken by the donor agencies. In the future, a mixed approach, including bottom-up pressure from the citizens and the community, could be a better approach for ensuring that Mongolian democracy continues to evolve positively and to ensure the rule of law. In addition, more transparency in decision-making is necessary to ensure that the legislation is not just passed but checked. For this, the role of diagonal accountability needs to improve, which, at a minimum, would involve improved media access and coverage.

A further issue of concern pointed out in this report is that the major oversight agencies, such as the National Audit and the IAAC, are not free from political interference. As for other avenues, there is a lack of support and opportunities to involve citizen oversight agencies. Overall, these challenges create considerable gaps in horizontal accountability in the systеm. While not evident and difficult to assess in the short run, a lot of these institutional challenges have a cumulative impact on the quality of democracy.

It is not an overstatement to suggest that unless the institutional ways of directing public concerns are improved, the instances of mass protest might only increase in the existing political environment. In particular, the long-term institutional advantages of the ruling party and the current weakness of the opposition have also led to a systеm with one-party dominance, which is prone to protest. While protesting is not necessarily a threat and can be a political outlet in a democracy, the issue is that the government’s response to the public protest was mostly superficial and later focused on limiting rather than addressing protesters’ concerns. Over time, the risk of taking this approach is that unless the underlying governance issues, particularly institutional ways to defend and represent the public interest are not improved, the confrontation between the government and the public might become more serious. Nevertheless, in the short term, given all the benefits of the status quo, it is unlikely that the current political elite would push and implement the necessary reforms, leaving citizens’ vigilance and participation as the primary tools leading to policy change. ■

References

Asian Development Bank: ADB. 2019. “Mongolia: Strengthening the Supreme Audit Function.” ADB Technical Assistance Report. https://www.adb.org/sites/default/files/project-documents/52285/52285-001-tar-en.pdf

Baljmaa T. 2020. “Law on Anti-Corruption Amended.” MONTSAME News Agency. December 31. https://montsame.mn/en/read/248530

———. 2021. “Mongolia Adopts Seventh Amnesty Law.” MONTSAME News Agency. July 5. https://montsame.mn/en/read/269044

Bayarlkhagva, Munkhnaran. 2022. ‘New Constitutional Amendments in Mongolia: Real Reform or Political Opportunism?’ The Diplomat, July 1. https://thediplomat.com/2022/07/new-constitutional-amendments-in-mongolia-real-reform-or-political-opportunism/

Bittner, Peter. 2019. “Mongolia’s Crisis of Democracy Continues.” The Diplomat. January 31. https://thediplomat.com/2019/01/mongolias-crisis-of-democracy-continues/

Chimid, Enkhbaatar. 2017. ‘The Development of Judicial Independence and the Birth of Adm?nistrative Review in Mongolia’. Academia Sinica Law Journal, Comparative Adm?nistrative Law in Asia, no. 21 (September): 155–219.

Chimid, Enhbaatar, Tom Ginsburg, Amarjargal Peljid, Batchimeg Migeddorj, Davaadulam Tsegmed, Munkhsaikhan Odonkhuu, and Solongo Damdinsuren. 2016. “Assessment of the Performance of the 1992 Constitution of Mongolia.” United Nations Development Programme. https://www.undp.org/mongolia/publications/assessment-performance-1992-constitution-mongolia

Dierkes, Julian. 2019. “The Beginning of the End of Democracy?” Mongolia Focus (blog). March 27. https://blogs.ubc.ca/mongolia/2019/judicial-appointments-national-security-council/

Elkins, Zachary and Tom Ginsburg. 2022 “Characteristics of National Constitutions, Version 4.0.” Comparative Constitutions Project. Last modified: October 24. comparativeconstitutionsproject.org

Fenwick, Stewart. 2001. ‘The Rule of Law in Mongolia: Constitutional Court and Conspiratorial Parliament.’ Australian Journal of Asian Law 3, 3: 213–235.

Fish, Steven Michael. 1998. “Mongolia: Democracy Without Prerequisites.” Journal of Democracy 9, 3: 127–141. https://doi.org/10.1353/jod.1998.0044

______. 2001. “The Inner Asian Anomaly: Mongolia’s Democratization in Comparative Perspective.” Communist and Post-Communist Studies 34, 3: 323–338. https://doi.org/10.1016/S0967-067X(01)00011-3

‘General Election Commission of Mongolia’. n.d. Accessed 31 July 2023. https://gec.gov.mn/

IKON News Agency. 2019. “Chairman of Tsets D. Odbayar Was Dismissed from His Post [Цэцийн Дарга Д.Одбаярыг Албан Тушаалаас Нь Ч?л??лл??].” November 22. https://ikon.mn/n/1qba

Law on Anti-Corruption [Авлигын эсрэг хууль] (2006). https://legalinfo.mn/

Law on State Audit [Т?рийн аудитын хууль] (2020). https://legalinfo.mn/

Law on the Cabinet [Засгийн газрын тухай хууль] (1993). https://legalinfo.mn/

Law on the Legal Status of Judges [Ш??гчийн эрх з?йн байдлын тухай хууль] (2019). https://legalinfo.mn/

Law on the Parliament [Их Хурлын тухай хууль] (2020). https://legalinfo.mn/

Law on State and Official Secrets [Т?рийн болон албаны нууцын тухай хууль] (2016). https://legalinfo.mn/

Lkhaajav, Bolor. 2023. ‘Mongolia’s Constitutional Reform Enlarges Parliament, Advances a Mixed Electoral Systеm’. The Diplomat. June 2. https://thediplomat.com/2023/06/mongolias-constitutional-reform-enlarges-parliament-advances-a-mixed-electoral-systеm/

Lührmann, Anna, Kyle L. Marquardt, and Valeriya Mechkova. 2020. ‘Constraining Governments: New Indices of Vertical, Horizontal, and Diagonal Accountability’. American Political Science Review 114, 3: 811–820. https://doi.org/10.1017/S0003055420000222

Maškarinec, Pavel. 2018. ‘The 2016 Electoral Reform in Mongolia: From Mixed Systеm and Multiparty Competition to FPTP and One-Party Dominance’. Journal of Asian and African Studies 53, 4: 511–531. https://doi.org/10.1177/0021909617698841

O’Donnell, Guillermo A. 1998. ‘Horizontal Accountability in New Democracies’. Journal of Democracy 9, 3: 112–126. https://doi.org/10.1353/jod.1998.0051

Sanders, Alan J. K. 1992. “Mongolia’s New Constitution: Blueprint for Democracy.” Asian Survey 32, 6: 506–520. https://doi.org/10.2307/2645157

Sant Maral Foundation. 2023. “Politbarometer #22.” https://www.santmaral.org/publications

Sato, Yuko, Martin Lundstedt, Kelly Morrison, Vanessa A. Boese, and Staffan I. Lindberg. 2022. “Institutional Order in Episodes of Autocratization.” V-Dem Working Paper 133. https://doi.org/10.2139/ssrn.4239798

The Constitution of Mongolia (1992). https://legalinfo.mn/

Transparency International. 2019. “Rule of Law and Independence of Judiciary Under Threat in Mongolia.” July 4. https://www.transparency.org/en/press/rule-of-law-and-independence-of-judiciary-under-threat-in-mongolia

______. 2022. “2021 Corruption Perceptions Index - Explore the Results.” January 25. https://www.transparency.org/en/cpi/2021

Ulfelder, Jay. 2005. “Contentious Collective Action and the Breakdown of Authoritarian Regimes.” International Political Science Review 26, 3: 311–334. https://doi.org/10.1177/0192512105053786

UNCAC Coalition. 2015. “International Organisations Call on Mongolian Parliament to Withdraw Corruption Amnesty Law.” October 8. https://uncaccoalition.org/international-organisations-call-on-mongolian-parliament-to-withdraw-corruption-amnesty-law/

V-Dem Project. 2022. “V-Dem Dataset V12.” https://doi.org/10.23696/vdemds22

White, Brent T. 2009. ‘Rotten to the Core: Project Capture and the Failure of Judicial Reform in Mongolia’. East Asia Law Review 4: 209–275.

World Justice Project. 2022. “Rule of Law Index - Mongolia.” https://worldjusticeproject.org/rule-of-law-index/country/2020/Mongolia

[1] Chairman of Board, Academy of Political Education

[2] Senior Researcher, Sant Maral Foundation

[3] See the document at https://legalinfo.mn/mn/detail?lawId=367&type=2 (in Mongolian).

[4] See the document at https://legalinfo.mn/mn/detail?lawId=16759482929681&showType=1 (in Mongolian).

[5] The exact number is difficult to trace, due to the absence of open information on the topic.

State of Horizontal Accountability in Pakistan:
Current Challenges and Reforms

Muhammad Habib[1]

Pakistan Institute of Legislative Development and Transparency

1. Background

Defined as the extent to which state institutions hold the executive branch of the government accountable, horizontal accountability can be achieved when different state institutions implement their functions of checks and balances to prevent the abuse of power by the executives. For example, when the legislature oversees the executive branch or a judicial branch reviews the laws passed by the legislative branch, this is also a form of accountability that runs horizontally ‘among equals’ (O’Donnell 1998; Lindberg 2013).

The function of oversight that different state institutions perform over one another is also commonly referred to as horizontal accountability. Legislative committees are also included in horizontal accountability and question executive government about their performance and hold them accountable. In Pakistan, the National Assembly and Provincial Assemblies can also exercise accountability through a vote of no confidence. Therefore, the horizontal accountability mechanism emphasizes the separation of powers among state institutions to prevent abuse by allowing other state institutions to demand information, question officials, and possibly punish improper behavior (Rose-Ackerman 1996).

Democratic countries stand on three pillars: the legislature, judiciary, and executives, and their functions are also well-defined. Drafting, the introduction and passage of laws, scrutiny of the executives, and provision of a forum to express public sentiments by elected representatives are the key functions of the legislature. The judiciary settles disputes between the government, groups, and people, and the executive is responsible for adm?nistering state affairs and carrying out laws. In Pakistan, the distinction between the legislature and executive is blurred at the top because the prime minister is the chief executive of the country as well as the leader of the majority party in the National Assembly and is, therefore, a part of the two pillars of the state. Generally, each of these three institutions does not interfere in each other’s domains; however, the pre-mature dissolution of two Provincial Assemblies of Punjab and Khyber Pakhtunkhwa (KP) on January 14 and January 17, 2023, respectively, raised questions about which institution is the supreme among these state institutions. Inter-institutional interference has become such a serious issue in Pakistan that the former Chief Justice of Pakistan (CJP), Asif Saeed Khosa, proposed a grand dialogue among the state institutions, including the judiciary, the executive, parliament, military, and intelligence agencies, to resolve it (Mehboob 2019).

Similarly, over the last two decades, ‘accountability’ has become Pakistan’s most famous political slogan (Mehboob, 2022). According to the Corruption Perception Index published by Transparency International, Pakistan received the worst ranking, and this score has been declining since 2019 (TI 2023).

The Control of Corruption Index (CCI) also showed weak performance by Pakistan in horizontal accountability. From 2013 to 2020, Pakistan’s score ranked less than 1.0, except in 2014, when its score was 0.83. Horizontal accountability is executed through institutions like the judiciary, legislature, and other oversight agencies, including the National Accountability Bureau (NAB), Provincial Anti-Corruption Establishments (ACEs), the Office of the Auditor General of Pakistan (AGP), Federal and Provincial Ombudsmen.

It is widely believed in Pakistan that the NAB is the major reason for political instability and one of the hurdles to economic prosperity. Apart from its poor performance, there is a perception among the judiciary, politicians, and the media that it has been involved in selective accountability, political engineering, and political victimization since its establishment (Iqbal and Mustafa 2022).

The Parliament of Pakistan performs public sector financial accountability through a committee called the Public Accounts Committee (PAC). Meanwhile, the Standing Committees oversee the policies and performance of an elected government. Other oversight ways include call attention notices, motions, points of public importance, and resolutions raised in the Parliament, and the parliamentarians are asked questions during the proceedings about the workings of the executive government. In parliamentary democracies, the Committees are considered the “eyes, ears, hands and even brain of the Parliament.” Another saying about the importance of the Committee is that “Congress in session is Congress in public exhibition, while Congress in its committee room is Congress at work” (Wilson W. 1885). In Pakistan, ‘Congress’ can be considered the ‘Parliament.’

The purpose of this paper is to describe Pakistan’s horizontal accountability structure. Moreover, its objective is to evaluate Pakistan’s current state of horizontal accountability and to study the strengths and weaknesses of accountability mechanisms, including laws and regulations. The paper also helps to develop a basic understanding of the key challenges of horizontal accountability mechanisms in Pakistan by providing different perspectives on how horizontal accountability can contribute to a working democracy. The reforms required to strengthen the accountability structures for the effective and efficient functioning of the state institutions are also highlighted in the paper. More specifically, the paper addresses the following research questions to highlight issues regarding checks and balances of the executives by the legislative, the judiciary, and other oversight bodies in Pakistan:

• What are the constitutional and legal institutional mechanisms that hold the executive government accountable?

• To what extent have the constitutional and legal mechanisms of horizontal accountability fulfilled their expected functions to constrain the actions of the executive members?

• What are the determinants of horizontal accountability performance?

• What should be done to improve the state of horizontal accountability performance? 

2. Horizontal Accountability Mechanisms in Pakistan

Accountability of the executive is a central element of a democratic systеm. Three primary institutions compose Pakistan's government: the executive government, the parliament, and the judiciary. The executive branch is composed of a cabinet led by the prime minister. The legislative branch includes the Senate, National Assembly, and four Provincial Assemblies. Finally, the judicial branch comprises the Supreme Court, high courts, and lower courts. Many oversight agencies check the abuse of power by the executives, including the National Accountability Bureau (NAB), the Office of the Auditor General of Pakistan (AGP), federal and provincial ombudsman, and anti-corruption establishments at provincial levels.

Figure 1. Government Structure of Pakistan

2.1. The Legislature

The Parliament of Pakistan and provincial assemblies perform three main functions: legislation, representation, and oversight, or monitoring the performance of the elected government through plenary and ministry-wise committees. Rules of Procedure and Conduct of Business in the parliament and provincial assemblies require the formation of standing committees for each ministry and department of the federal and provincial government, respectively. These rules empower these standing committees to examine the expenditures, adm?nistration, delegated legislations, public petitions, and policies of the ministry concerned, including its associated public bodies, and forward its report of findings and recommendations to the ministry/department, which then submits its reply to the Committee (National Assembly of Pakistan n.d.).

Moreover, members of the parliament and the provincial assemblies can ask different questions of public importance in writing relating to the functions and working of different ministries’ divisions. The concerned ministry answers in writing to the parliament, and then the answers are placed before the parliament on a specific day allocated to each ministry.

Rules of business of the National Assembly also define the composition and functions of PAC. Similar rules in the provincial assemblies regulate the working of PACs in those assemblies.

The government presents a budget proposal to the National Assembly for approval. By doing this, the government seeks the legislative body's endorsement for its policies and programs, essentially obtaining permission to implement them. According to Article 171 of the Constitution of the Islamic Republic of Pakistan, the AGP submits annual audit reports to the president, who then presents them before the National Assembly. For a comprehensive examination, these reports are referred to the PAC, which operates under the guidelines established in the Rules of Procedure and Conduct of Business in the National Assembly, 2007 (Cheema 2020).

Performance

There are 36 standing committees in the National Assembly, which convened 1,005 meetings during the 15th National Assembly (August 13, 2018-August 09, 2023). On the other hand, the PAC convened 177 meetings from December 2018 to June 2023 and recovered 1.154 trillion Pakistani rupees (PKR). Similarly, it discussed 12,741 out of 33,562 paragraphs, sent 119 paras to the NAB and 97 to the Federal Investigation Agency (FIA), and settled 721 grants and 3,839 paras during the same period.

Rules of Business of the National Assembly demand the formation of standing committees within 30 days of the election of the PM and their chairpersons within another month. Unfortunately, during the 15th National Assembly, these committees were formed with a delay of approximately six months, on February 05, 2019. Similarly, due to a political confrontation between the Pakistan Tehreek-e-Insaf (PTI) government and the opposition, the election for the PAC chair was also delayed (PILDAT 2023).

The National Assembly can constitute special committees to carry out functions included in the motion. For instance, a special committee on the railway was constituted on April 22, 2008, by the National Assembly through a resolution on the allotment of Pakistan Railways (PR) land to the Royal Palm Golf and Country Club, Lahore, on nominal prices. Originally, 103 acres of land was given to the contractor in a 33-year lease in 2001, but later that year, the land increased to 140 acres, and the lease period increased to 49 years. On August 26, 2010, the committee presented its report, which recommended the termination of the contract, recovery of losses from the contractor, and legal proceedings against the involved officials (National Assembly of Pakistan 2010). The Supreme Court (SC) took up the entirety of the case in 2011 and later, on June 28, 2019, ruled that the agreement was marred by malicious intent and favoritism, granting the project to a predetermined party while ignoring other parties. As a result, it lacked transparency, fairness, and openness. The SC nullified the 2001 lease agreement, giving possession back to Pakistan Railways. It also directed the NAB to continue the case as per law against the executive officials of Pakistan Railways (Sheikh 2019). This example shows how a special committee effectively responded to the unauthorized overstepping of executive officials.

2.2. The Judiciary

The Judicial branch in Pakistan consists of the Supreme Court, high courts at provincial levels, the Islamabad High Court in Islamabad Capital Territory, and lower courts. The judiciary in Pakistan is constitutionally and legally independent in checking and penalizing executive wrongdoings. When a government fails to take prompt and decisive action, resulting in the infringement of people’s basic rights, the Constitution empowers the courts to ensure the protection of fundamental rights. Similarly, the Constitution of the Islamic Republic of Pakistan grants the authority to the SC, commonly known as ‘suo motu’ powers under Article 184(3), to issue orders when it deems that a matter of public significance concerning the enforcement of fundamental rights is at stake (Mehboob 2020).

Furthermore, the Constitution provides a comprehensive framework for establishing the judicial systеm in the country, including the procedures for appointing and removing judges of the superior courts and the necessary qualifications. In 2010, the Parliament introduced a significant change in the appointment process of judges by establishing the Judicial Commission of Pakistan (JCP) through the 18th and 19th amendments to the Constitution of Pakistan. As far as the appointment of Supreme Court judges is concerned, according to Articles 175 and 175A of the Constitution of Pakistan, the appointment of judges to the Supreme Court and high courts is carried out by the JCP. The commission consists of the chief justice of Pakistan as its chairman, the four most senior judges of the Supreme Court, a former chief justice or a former judge of the Supreme Court, the Federal Minister for Law and Justice, the Attorney General of Pakistan, and a senior advocate of the Supreme Court.

Once the Judicial Commission endorses an individual for a Supreme Court judge position, the nomination proceeds to the Parliamentary Committee, which consists of eight members, evenly divided between the government and the opposition, as well as representatives from the National Assembly and the Senate. The committee has a two-week period to deliberate on the nomination. If it gains approval, the name is sent to the president via the prime minister for formal appointment. If, for any reason that must be documented, the Parliamentary Committee does not confirm the recommendation with a three-fourth majority, the decision is relayed back to the Commission through the prime minister. In this scenario, the Commission is obligated to propose another nominee.

The Constitution also outlines the process for dismissing judges from the superior courts, overseen by the Supreme Judicial Council (SJC). Headed by the Chief Justice of Pakistan as its chairman, the SJC also includes two of the most senior judges, one from the Supreme Court and one from the high courts. The SJC has the authority, either independently or in response to a reference initiated by the president, to propose the removal of a judge based on misconduct or physical or mental incapacity. In this manner, the Constitution safeguards the superior judiciary’s liberty, autonomy, and fairness (Senate of Pakistan 2018).

Court proceedings are conducted transparently and are open to the public and the media. According to the Supreme Court Rules of 1980, the composition of benches is determined at the chief justice’s discretion. In situations where the judges presiding over a petition or appeal hold differing opinions, the chief justice may, at their discretion, arrange for the case or appeal to be heard and resolved by either another judge or a larger bench appointed by the chief justice. Similarly, under Article 186A of the Constitution of Pakistan, the Supreme Court has the authority, in the interest of justice, to transfer any pending case, appeal, or other legal proceedings from one high court to another high court.

Performance

Figure 2. Number of pending cases in all courts of Pakistan (2004-2022)

The performance of the judiciary in Pakistan is so weak that, on many occasions, the parliamentarians, media, and the public question it. This performance can be gauged by the number of disposal cases. A significant 56,544 cases are pending with the SC as of August 31, 2023 (Supreme Court of Pakistan 2023). Meanwhile, more than 2.1 million cases are pending before all the courts of Pakistan as of December 2022. Moreover, Pakistan was ranked 129th out of 140 nations according to the 2022 Rule of Law Index formulated by the World Justice Project, while in 2021, Pakistan was ranked 130th out of 139 countries (World Justice Project 2022).

Another example of unlawful encroachment of the executive is a ‘Toshakhana reference’ against former Prime Minister, Mr. Imran Khan, who was indicted by the Islamabad Accountability Court on January 9, 2024, in a freshly filed reference against him on December 19, 2023, for retaining a jewellery set, gifted by the Saudi crown prince, against an undervalued assessment. In a separate case filed by the Election Commission of Pakistan (ECP) against Mr. Khan for not mentioning the details of state gifts in his tax declarations, in August 2023, he was sentenced to three years imprisonment by an Islamabad trial court, which was later suspended by the Islamabad High Court (Bilal 2024). Although the sentence has been suspended, the conviction and the subsequent disqualification to hold public office still stand as the case is contested in the Supreme Court.

2.3. Other Oversight Agencies

2.3.1. National Accountability Bureau

There are many oversight agencies in Pakistan besides the judiciary and the legislative branch to perform checks and balances on the executive branch and prevent the abuse of power by the executives. These include the NAB, AGP, Federal and Provincial Ombudsmen, and Anti-corruption Establishments (ACEs) at the provincial levels. The primary institution dedicated to combating corruption is the NAB. The National Accountability Ordinance (NAO) of 1999 governs its operations. In February 2002, the NAB initiated the National Anti-Corruption Strategy (NACS), a comprehensive initiative encompassing extensive surveys, examination of international anti-corruption agency models, and engagement with local stakeholders (National Accountability Bureau n.d.).

Apart from the role of the Chairman of the Monitoring and Inspection Team, there are also accountability courts to safeguard against potential power abuses. The NAB has also embraced a code of conduct accessible to the public via its website. The NAB refers the cases to accountability courts, which then decide the cases as per law.

Accountability and its various institutional forms have been persistently wielded by both military and elected governments in Pakistan, often to target rivals politically. This misuse of accountability authority and the practice of selective accountability have not only corroded public trust in these institutions but have also hindered the effective operation of government bodies. The Supreme Court has consistently highlighted flaws in accountability laws. Notably, the 15th National Assembly has witnessed multiple alterations to the National Accountability Ordinance (NAO). Regrettably, these amendments have not stemmed from a reform-driven effort within the National Assembly itself, where the elected representatives present public sentiments. Instead, each amendment has been introduced by the incumbent government, with little substantive input from MNAs to reform this contentious law despite two decades of experience (PILDAT 2023).

The former PM, Mr. Imran Khan, challenged the amendments made by the coalition government in 2022. In the Supreme Court on June 25, 2022, and after 53 hearings, the SC reserved its judgment on September 5, 2023. The CJP, Justice Umar Ata Bandial, remarked that something short would be soon released. He expressed his disappointment with the NAB and stated that the primary allegation against the institution was its lack of established criteria, often leading to the misuse of authority when pursuing lower-value corruption cases. He again requested the NAB provide a comprehensive report detailing the number of cases returned to the NAB by accountability courts after the passage of these amendments. When the petition called for across-the-board accountability, Justice Syed Mansoor Ali Shah questioned why the corrupt practices of serving army officers had been excluded from the NAB’s jurisdiction. When Article 209 of the Constitution addressed the removal of judges, he also questioned how the SJC could issue an order for the recovery of ill-gotten funds in the event of a superior court judge’s removal (Iqbal 2023c).

Performance

It is unprecedented in the culture of Pakistan, where people in the higher echelons and power corridors have been made accountable, and various high-profile corruption cases were initiated, investigated, and prosecuted by the NAB, irrespective of their status or political lineage. As per the 2022 annual report, the NAB processed 25,699 complaints, including 21,495 complaints received during 2022, authorized 544 complaint verifications, and conducted 219 inquiries. Moreover, it completed 49 investigations and filed only 30 references in accountability courts in 2021. The NAB has recovered only PKR 11.394 billion of the looted money during the year and registered an 88% decrease in recoveries as it recovered PKR 91.195 billion during 2021 (National Accountability Bureau 2023). The reports from the international institutions in Pakistan also show a gloomy picture. According to annual reports of Transparency International since 2010, Pakistan’s score on the Corruption Perception Index (CPI) has continuously declined since 2019.

Figure 3. Corruption Perception Index (CPI) score of Pakistan (2010-2022)

2.3.2. Auditor General of Pakistan

The Office of the Auditor General of Pakistan (AGP) holds a significant constitutional position, and it is regarded as a fundamental component of Pakistan's financial governance and accountability framework to ensure the responsible utilization of public funds. The AGP also leads the Supreme Audit Institution (SAI). The roles, appointments, removal, functions, and powers of the AGP are defined by Articles 168 to 171 of the Constitution. The AGP is appointed under Article 168 of the Constitution. Its reports are presented before the National and Provincial assemblies and are considered part of the PAC of these assemblies. The Constitution and supporting legislation empower the AGP to create impartial and objective assessments of the financial governance process to enhance government operations. The AGP plays a vital role in ensuring transparency and accountability in government operations.

The functions of the AGP include determining the forms, principles, and methods for maintaining accounts at the federal and provincial levels, certifying annual accounts prepared by the Controller General of Accounts or authorized individuals, submitting certified accounts with necessary notes, comments, or recommendations to the president, governors, or designated authorities, and preparing reports on the accounts of the federation and provinces for submission to the respective legislatures. The scope and jurisdiction of the Attorney General's office are governed by Article 170(2) of the Constitution of Pakistan (Auditor General of Pakistan n.d.).

Performance

According to the AGP annual report for the year 2020-2021, the Federal Audit Operations (FAO), which operates under the supervision and authority of various audit departments within the AGP, has conducted audits of 6,848 entities within the federal and provincial governments during the audit year 2020-2021. It audited the amount of PKR 19,149.49 billion and recovered an amount of PKR 487.24 billion (Auditor General of Pakistan 2022).

According to a report of a Sweden-based V-Dem (Varieties of Democracy) titled “Democracy Report 2023: Defiance in the Face of Autocratization,” Pakistan ranks 106 on the Liberal Democracy Index, while India and Bangladesh rank 97 and 147 on this index, respectively. This V-Dem’s Liberal Democracy Index (LDI) captures both electoral and liberal aspects of democracy and goes from the lowest (0) to the highest (1) levels of democracy (V-Dem 2023).

Figure 4. Horizontal Accountability Index of Pakistan (1950-2022)

Similarly, per V-Dem, Pakistan’s score on the Horizontal Accountability Index has fluctuated since 1950. In 2020, the score was 0.77. It decreased to 0.71 in 2021 and increased in 2022 to 0.73, which reflects that Pakistan’s performance on horizontal accountability varies from time to time due to many factors, including the political situation of the country (V-Dem 2023). 

2.4. Inter-Institutional Relations

2.4.1. The Military’s Involvement in Political Affairs

A comprehensive analysis of Pakistan's political landscape and democratic systеm is incomplete without accounting for the involvement and impact of the security establishment in the functioning of democracy.

A widely accepted normative principle is that each state institution of Pakistan should strictly adhere to its designated constitutional responsibilities. However, this principle is often not rigorously upheld in practice. Consequently, multiple power centers emerge on critical policy matters facing the nation. Those possessing unofficial authority wield significant influence and control, while constitutional bodies either conform to the directions of the dominant power center or opt not to assert their constitutional roles. This situation results in ongoing challenges to the effectiveness of democratic governance within the country.

Speaking at the Defence and Martyrs Day ceremony held on November 23, 2022, Former Chief of the Army Staff (COAS), Gen. (Retd.) Qamar Javed Bajwa said that the Pakistan Army had decided, in February 2021, to refrain from interfering in political affairs. He acknowledged that the Pakistan Army had often received criticism, attributing a significant portion of this criticism to its historical interference in politics, which he deemed unconstitutional over the past 70 years (Dawn 2022-11-24). Following his appointment as the new COAS, Gen. Syed Asim Munir has also underscored that the Pakistan Army's primary loyalty lies with the state of Pakistan and its dedication to fulfilling its constitutional role (Asad 2023). But unfortunately, the activities show greater involvement of the establishment in the political affairs of the state.

Between September 2 and 3, the COAS met with the businessmen of Lahore and Karachi and assured them of support in the ongoing economic crisis. Also, he is a member of the Apex committee of the Special Investment Facilitation Council (SIFC), constituted by the former PM, Mr. Shehbaz Sharif, on June 20, 2023 to revive the economy of the country and to capitalize on key sectors, including defence production, agricultural/livestock, minerals/mining, IT and energy, through indigenous development as well as investments from friendly countries (Khan 2023). Later, an act of parliament was also passed to firmly set the legal basis of the SIFC and the military’s role in it for the future.

2.4.2. Judiciary Interference in Parliamentary Affairs

Complaints regarding the judiciary exceeding its authority and interfering in the domains of parliament are not a new phenomenon in Pakistan. One of the most notable expressions of these concerns came directly from the Supreme Court, specifically from former Chief Justice Asif Saeed Khosa, on January 17, 2019. He emphasized the need for an inter-institutional dialogue in Pakistan to evaluate the mistakes made by all three branches of the government. Justice Khosa envisioned this dialogue to involve parliament, the judiciary, the executive, and military and intelligence agencies. He believed that an examination of past mistakes made by the judiciary, executive, and legislative branches is a must, as well as discussions on alleged instances of the judiciary infringing on the executive's domain by intervening in policy matters such as privatization, fixing the max sale price for some commodities such as sugar. Additionally, Justice Khosa highlighted concerns about the judiciary's extensive use of its constitutional authority in adm?nistrative matters and explored ways for the judiciary to return to its traditional but effective role as an adjudicator (Dawn 2019-01-17).

A brief overview of recent incidents reveals that the relationship between the Parliament and the judiciary has not improved, but rather, it has become more strained over time. A few critical examples of institutional interference and tussle between the institutions are given below.

2.4.3. Dispute of Punjab Assembly elections

The Supreme Court of Pakistan issued a 3-2 verdict on March 1, 2023, and ordered that elections for the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa should be held within 90 days after the dissolution of both assemblies on January 14 and January 17, 2023, respectively. Subsequently, a 3-member bench of the SC on April 4, 2023, invalidated the Election Commission of Pakistan’s (ECP) decision of March 22, 2023, to postpone the Punjab Assembly elections. Also, the court set May 14 as the date for the Punjab Assembly election, but it also made significant alterations to the entire election schedule as originally declared by the ECP.

Additionally, the bench directed the federal government to disburse PKR 21 billion to the ECP by April 10, 2023, to conduct elections of both assemblies and ordered the ECP to submit its report to the Court by April 11, explaining the status of the funds. Following the court order, ECP announced the election scheduled for May 14 on April 5, 2023, but intimated to the court that the federal government was hesitant to release the required funds (Iqbal 2023a). The National Assembly later rejected a government bill on April 13, 2023, titled I Charged Sums for General Election (Provincial Assemblies of the Punjab and the Khyber Pakhtunkhwa) Bill 2023, with a majority vote. Earlier, this bill was also rejected by the National Assembly Standing Committees on Finance and Revenue.

The SC reserved its judgment on June 19, 2023, on the ECP's review petition challenging the SC's April 4, 2023, decision that had established May 14, 2023, as the election date for the Punjab Assembly. Ultimately, on August 4, 2023, the Supreme Court issued a comprehensive ruling, asserting that it was the ECP's responsibility to conduct elections within 90 days by Article 224(2) of the Constitution. In a detailed 25-page explanation authored by Justice Munib Akhtar, the Court emphasized that not only the petitioners formally before the Court but also the entire electorate of Punjab and Khyber-Pakhtunkhwa, as well as the citizens residing there, were the aggrieved parties concerning their fundamental rights under Article 17 of the Constitution (The News 2023).

The National Assembly of Pakistan unanimously passed two resolutions on March 28 and April 6, 2023, to urge the SC not to interfere in the political affairs of the federal government and the ECP that caused the political instability in the country. The resolutions also called for the constitution of a full court of the SC to hear cases of constitutional matters. Moreover, the National Assembly bound PM Shehbaz Sharif not to implement the orders of the SC. Majlis-e-Shoora (Parliament), in its joint sitting held on April 10, 2023, passed a resolution to hold simultaneous elections of all Assemblies under Article 218(3), which states the duty of the ECP to organize and conduct fair elections as per law (National Assembly of Pakistan 2023b).

On April 26, 2023, the Speaker of the National Assembly, Raja Pervez Ashraf, through a letter, strongly criticized the Supreme Court’s directive to bypass the National Assembly and termed the recent SC orders of releasing funds for polls as an infringement on the legislative authority of Parliament. He urged the SC to refrain from involvement in political and legislative matters, and he emphasized the financial powers vested in the National Assembly and its role in approving expenditures from the Federal Consolidated Fund (FCF). The Speaker also reminded the CJP that while the Court had the authority to interpret the Constitution, it did not have the authority to rewrite the Constitution or undermine parliament’s sovereignty (Wasim 2023). In response to the SC order dated April 14, 2023, a motion was presented in the National Assembly on April 17, 2023, by Senator Muhammad Ishaq Dar, who also served as the Minister for Finance and Revenue. The motion sought approval for an additional allocation of PKR 21 billion to the Federal Government during the ongoing fiscal year for the Election Commission of Pakistan. However, the House did not approve the motion (National Assembly of Pakistan 2023c).

2.4.4. The Supreme Court (Practice and Procedure) Act, 2023

According to the detailed judgment of the SC on the Supreme Court (Practice and Procedure) Act 2023, released on December 27, 2023, the SC declared that the CJP is not the master of the roster and cannot substitute his wisdom with that of the Constitution, nor can his opinion prevail over other judges. The Court upheld the constitutionality of the Supreme Court (Practice and Procedure) Act 2023 enacted by the Parliament because it does not infringe on any fundamental rights and facilitates its enforcement. In this judgment, it was emphasized that the Constitution empowers the Parliament to legislate on the practice and procedure of the Supreme Court under Article 191; however, the appeal provided against a decision under Article 184(3) of the Constitution would not apply to retrospective effect (Iqbal 2023b).

On March 29, 2023, the National Assembly passed the Supreme Court (Practice and Procedure) Act, 2023 (Act No. XVII of 2023). The president refused to assent to this bill and sent it back to the Parliament on April 8, 2023, for reconsideration. The joint sitting of the Parliament passed this bill on April 10, 2023. Although the president again refused to assent to this bill on April 19, 2023, the bill was deemed to have become an Act of Parliament on April 21, 2023. as per the Constitution of the Islamic Republic of Pakistan.

Per the Act, a committee consisting of the CJP and the two senior-most judges will constitute each bench, which would then be responsible for hearing and resolving all cases, appeals, or matters before the Supreme Court. Decisions within this committee will be determined using a majority vote systеm. Similarly, this committee will decide whether to initiate suo motu proceedings per Article 184(3) of the Constitution. If convinced that the issue pertains to a matter of significant public importance related to the enforcement of fundamental rights outlined in Chapter I of Part II of the Constitution, the committee will establish a three-member bench to adjudicate on the suo motu case.

Furthermore, this same committee, composed of the CJP and the two senior-most judges, is authorized to establish a bench to interpret any constitutional provision before the Supreme Court. Moreover, the Act grants the right to individuals seeking a review of a Supreme Court judgment under Article 188 of the Constitution to appoint their chosen counsel. It also mandates the SC to expedite the hearing within 14 days in cases where an application cites urgency or seeks interim relief in an appeal, case, or matter (National Assembly of Pakistan 2023a).

In a resolution adopted by the National Assembly on April 13, 2023, the House strongly criticized the SC for the seemingly arbitrary scheduling of the hearing date for the petition challenging the Supreme Court (Practice and Procedure) Act, 2023. The resolution voiced serious concerns regarding what was perceived as an effort by the judiciary to encroach upon the Parliament’s legislative authority and interfere in its constitutional jurisdiction. It underscored the unwavering commitment to upholding the supremacy of the Parliament as dictated by the Constitution. The resolution also expressed disappointment over the exclusion of two senior judges from the smaller provinces of Balochistan and Khyber Pakhtunkhwa. Furthermore, it called for the dissolution of the bench, contending that its formation had occurred before the completion of the legislative process (Kiani 2023).

The National Assembly approved a resolution on April 14, 2023, to denounce the decision of the eight-member bench of the SC that barred the government from implementing the Supreme Court (Practice and Procedure) Act, 2023. The resolution also firmly rebuffed what it perceived as an endeavor to undermine the Parliament's authority in legislating and intruding upon its constitutional jurisdiction. The resolution was directed against the Supreme Court’s directive instructing the State Bank of Pakistan to release PKR 21 billion to conduct elections in Punjab and KP (Wasim 2023).

2.4.5. The Supreme Court (Review of Judgements and Orders Act, 2023)

The Supreme Court (Review of Judgements and Orders) Act, 2023 (Act No. XXIII of 2023) was introduced and passed on April 14, 2023, by the National Assembly, while it was passed by the Senate on May 5, 2023, and enacted on May 26, 2023.

Per the Act, a review petition must be considered by a bench comprising more judges than the one responsible for the initial judgment or order as per Article 184. The law grants the petitioner the privilege of selecting any Supreme Court advocate for the review. Furthermore, it extends the right to submit a review petition to any individual who feels aggrieved by an order issued under Article 184(3). Although the time frame for filing such a review petition is restricted to 60 days from the Act's commencement, it establishes a 60-day limit for filing a review petition after the original order has been passed.

Later on, the SC terminated this act on August 11, 2023. As per the judgment, any attempt by way of ordinary legislation to interfere in the scope of the SC’s powers and jurisdiction, including but not limited to its review jurisdiction, would constitute a wrong and erroneous reading and interpretation of the Constitution (Bhatti 2023).

2.4.6. Other key incidents of interference

On March 24, 2021, Chief Justice of the Islamabad High Court (IHC), Justice Athar Minallah, dismissed a petition regarding the election of the Senate chairman held on March 12, 2021, and affirmed that parliamentary proceedings were beyond the jurisdiction of the high court. In this election, Mr. Mohammad Sadiq Sanjrani secured victory over the opposition’s candidate, Senator Syed Yousuf Raza Gilani, despite the opposition holding a majority in the house. Notably, seven (7) votes were rejected by the presiding officer, Senator Muzaffar Hussain Shah, that were cast in favor of Mr. Gilani (Khan 2021). Mr. Gilani, through a petition before the IHC, challenged this decision.

Contrary to the IHC decision not to interfere in parliamentary proceedings, on April 08, 2022, the SC reinstated the National Assembly and overturned the deputy speaker’s ruling. Furthermore, it directed the former PM, Mr. Imran Khan, to face a vote of no confidence on April 9, 2023. The court also ruled that the advice given by the Prime Minister to dissolve the National Assembly, which led to the president’s order, violated the Constitution and had no legal value (Iqbal 2022a).

The SC decision of May 17, 2022, while interpreting Article 63-A of the Constitution, asked through a reference filed by President Dr. Arif Alvi about 26 MPAs of PTI who cast votes against the party directives in the Chief Minister Punjab election held on April 16, 2022, stated that votes cast by lawmakers in violation of their party’s directives should not be considered when determining the result of a motion (Iqbal 2022b). Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail dissented from the decision and termed it “re-writing or reading into the Constitution.”

The National Assembly passed a resolution on July 27, 2022, to form a joint special parliamentary committee to institute the required judicial reforms. It also stated that the Parliament is the supreme legislative body, and the passage of laws is its sole prerogative (Wasim 2022).

2.4.7. Disputes between the Judiciary and the Executives

In May 2019, President Dr. Arif Alvi filed a reference, on the advice of the former PM, Mr. Imran Khan, against the sitting Judge of the SC, Justice Qazi Faez Isa, which alleged that he had acquired three (3) properties in London between 2011 and 2015, under the names of his spouse and children but did not disclose this information in his financial declarations. The Supreme Court, in review, rejected the reference on April 26, 2021. The federal government, however, filed a petition for curative review, which did not have any provision in Pakistan’s Constitution. The petition was accepted for consideration and remained pending with the CJP, which many interpreted as a pressure tactic against Justice Isa. Later, on March 30, 2023, almost a year after assuming office as Prime Minister, Mr. Muhammad Shehbaz Sharif issued an order for the withdrawal of the petition for Curative Review. He referred to this action as “unfounded and politically motivated.” Subsequently, on March 31, 2023, President Alvi approved the withdrawal of both the curative review reference and the Civil Miscellaneous Application (CMA) against Justice Qazi Faez Isa. This decision was made based on the Prime Minister’s advice, following Article 48 of the Constitution. Finally, on July 21, 2023, Chief Justice Bandial dismissed the curative review petition (Dawn 2023-04-01).

Several days after his defeat in the vote of confidence, former PM Mr. Khan expressed regret regarding his government's choice to initiate a reference against Justice Isa and acknowledged it as a mistake. He further stated that his adm?nistration should not have engaged in unnecessary conflicts with the judiciary.

Later on, he distanced himself from the decision by asserting that the reference against Justice Isa, filed during his tenure as prime minister, was executed under the orders of an "authority" that held an even higher position than the then Director-General of Inter-Services Intelligence (DG ISI), Lt. General (Retd.) Faiz Hameed, implying the former COAS Bajwa (Adnan 2023). However, the filing of this reference and its subsequent proceedings appeared to have strained the relationships within the higher judiciary. During the hearings, Justice Isa accused Justice Bandial of breaching the code of conduct by taking on the role of a complainant against him. Similarly, Justice Isa's wife, Mrs. Sarina Isa, urged both Justice Bandial and Justice Muneeb Akhtar to disclose their assets for transparency in the accountability of judges. Justice Isa emphasized the importance of preventing any Supreme Court judge from enduring the hardships that he and his family had gone through.

Several other instances of these infringements include the Supreme Court's decision to open shopping malls in 2020, initially closed by the government due to COVID-19 lockdown measures. Additionally, there was a penalty of US $6 billion imposed by the International Centre for Settlement of Investment Disputes (ICSID) in 2019, partly because the Supreme Court had invalidated the Reko Diq mining contract between the Balochistan government and an international company, Tethyan Copper Company (TCC). Another example is the case of the Turkish Karkey Power Company, which successfully obtained an International Centre for Settlement of Investment Disputes (ICSID) award of US $860 million against the Pakistani government in 2017 because the Supreme Court had ordered the termination of the contract with Karkey.

3. Challenges in Horizontal Accountability Mechanisms

In Pakistan, despite their powers, parliamentary committees at the national and provincial levels have not been very active or effective. Apparently, there are no constitutional, legal, or institutional limits of the legislative branch to check the executive sufficiently; however, there is a dire need to enhance the committees’ performance to exercise oversight over the executives. For instance, as per the rules of business of the National Assembly, the bills are referred to the committees for consideration, discussion, and recommendations, but the Finance bill is not referred to any standing committee for discussion. Under Article 73 of the Constitution of the Islamic Republic of Pakistan, the Senate is required to provide its recommendations on the Finance Bill within 14 days after it is referred by the National Assembly of Pakistan containing the Annual Budget Statement. The National Assembly can pass the Finance Bill with or without the recommendations of the Senate.

Similarly, the PAC has limited provisions as it primarily focuses on inputs and compliance audits rather than outputs and performance audits, thus failing to assess how efficiently the expenditures have been managed. Furthermore, a significant backlog of audit reports exists, with the PAC dedicating most of its time to discussing reports from previous years. The PAC primarily engages in retrospective oversight of the executive, lacking the equivalent of a Parliamentary Budget Office to carry out prospective oversight, as in the United Kingdom. Additionally, the PAC's accountability mechanisms are affected by the inherently political nature of its membership. Members from the ruling party's benches within the PAC often exhibit reluctance in subjecting their government to legislative accountability.

Similarly, the judicial branch faces many challenges. The National Judicial Policy (NJP) was created in 2009 to reduce the backlog of cases within the judiciary, safeguard its independence, and eliminate corruption. It, however, was not implemented properly. This policy emerged following the judges' restoration movement (2007-2009) and sought to enhance the performance of the justice sector, ultimately fostering greater public confidence in the adm?nistration of justice. Formulated by the National Judicial Policy Making Committee (NJPMC), the NJP introduced short and long-term measures to expedite case resolutions by implementing specific timeframes for different case categories with a strong emphasis on addressing older cases. However, despite these measures, both the superior and the lower judiciary have not been able to deal effectively with the pendency of cases.

Moreover, a brief overview of recent developments reveals that instead of leveraging its authority and public support to fortify democracy and democratic institutions, the judiciary has employed its influence to scrutinize, critique, and undermine other branches of government at times, including the executive and the legislature. Prominent judges have frequently aired their grievances against elected representatives and political parties in the public sphere and, on some occasions, have humiliated the civil bureaucracy. Therefore, the various judgments of the SC are widely criticized by politicians, lawyers, and the media, including the removal of former PM Syed Yousuf Raza Gillani in 2012 and Muhammad Nawaz Sharif in 2017. Similarly, the restoration of the National Assembly in April 2022 was criticized by the then PTI government but was also widely appreciated by the opposition parties. Besides this, there was huge criticism of the judiciary by the parliamentarians in a suo motu case of polls in Punjab.

Since its establishment, the NAB also faced various challenges and has many deficiencies. One of them is the frequent court adjournments, which lead to delays in the progress of ongoing cases or investigations by the NAB. The time spent in court proceedings affects the pace of work and results in a backlog of cases within the NAB, potentially impacting the overall efficiency of the accountability process. Additionally, the need to allocate resources for court-related activities potentially strained the bureau’s capacity and, as a result, hindered its ability to handle new cases effectively or to respond promptly to emerging challenges. Additionally, there is a shortage of accountability courts, which has increased the pendency of cases.

Secondly, high-profile cases that involve political figures often receive significant media coverage, which amplifies their reach and impact on public perception. However, the fact is that high-profile cases are few, and cases of ‘cheating public at large’ are much more in number. Unfortunately, the media's role in reporting high-profile cases shapes a particular public opinion and a negative perception of the NAB’s performance.

Thirdly, the accountability process in Pakistan is often criticized for its lengthy duration of inquiries, investigations, filing the formal case before the courts, and court proceedings, with cases taking several years to conclude due to many reasons, including but not limited to legal complexities, adm?nistrative inefficiencies, judicial backlog, political interference and delaying tactics by the accused involved.

Fourthly, the credibility of the NAB in Pakistan has been a subject of scrutiny and criticism by the judiciary, politicians, parliament, and the public. It is a common perception in Pakistan that the NAB is compromised and acts as a tool for political victimization at certain times. The reason behind this perception is that some of the NAB’s actions and decisions are perceived as influenced by political motivations or biases. This perception has become so strong that even genuine cases sometimes become controversial. Some experts believe that besides the NAB, Pakistan already has many other accountability institutions and laws on accountability, but these institutions lack adequate resources for implementation.

In addition to political victimization, the influence of the establishment is also a significant factor, even during the civilian governments. The previous Chairman of the NAB resigned after serving for just seven months and cited "interference" and "pressure" as reasons for his departure. In December 2022, former PM Mr. Imran Khan accused the former Chief of Army Staff (COAS), General (Retd.) Qamar Javed Bajwa of directing and exerting control over the NAB during his tenure as prime minister. He further alleged that the COAS had provided significant concessions to leaders of major political parties, including the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan Peoples Party Parliamentarians (PPPP) (Malik 2023).

4. Reforms to Improve the State of Horizontal Accountability

It is imperative to provide a truly inclusive, representative, and transparent Parliament to fortify the foundations of parliamentary democracy and foster trust in democratic institutions. This approach will help hold the government accountable and safeguard the interests of ordinary citizens. The parliament could consider the following reforms to enhance horizontal accountability performance.

One of the primary roles of the National Assembly is the annual approval of the federal budget. Regrettably, the parliament

Horizontal Accountability and Democratic Careening:
The Case of South Korea in Comparative Perspective

Jung Kim[1]

East Asia Institute

1. Introduction

This study describes de jure horizontal accountability mechanisms and examines the de facto horizontal accountability performance of South Korea for the last two decades since 2000, putting the country in the comparative context of the third-wave democratizers.

It shows that South Korea optimally designed its inter-branch checks-and-balances mechanisms on parchment by setting legislative and judicial constraints on the executive in an unbiased manner. It also reveals the perilous discrepancies between de jure horizontal accountability mechanisms and de facto horizontal accountability performance by detecting earlier deterioration of and later reversal of inter-branch accountability outcomes in the country. Finally, it confirms that the oscillation of horizontal accountability between corrosion and restoration correlates with the fluctuation of democracy between erosion and resilience in South Korea. It explains the oscillation of horizontal accountability by introducing the dynamic of democratic careening, which occurs either when a liberal president, prioritizing electoral mandate over constitutional constraints, overreaches toward populist excess, or when a conservative president, prioritizing constitutional constraints over electoral mandate, overreaches toward oligarchical excess.

In the next section, this study introduces a variety of empirical indicators to measure executive, legislative, and judicial powers in order to describe South Korea’s de jure horizontal accountability mechanisms and compare them with other third-wave democratizers. The third section utilizes several empirical measures to estimate South Korea’s de facto horizontal accountability performance and the impact on the quality of democracy with finding a significant hiatus between de jure accountability and de facto accountability and de facto accountability performance correlates with the quality of democracy. In the penultimate section, this study claims that the dynamics of democratic careening can account for the gap between de jure accountability and de facto accountability by analyzing two episodes of presidential impeachment as case studies of democratic careening in the country. The conclusion summarizes the research findings and implications.

2. De jure Horizontal Accountability: South Korea in Comparative Context

In this section, I introduce empirical indicators for the de jure horizontal accountability mechanisms of South Korea. As a template to evaluate the parchment configuration of horizontal accountability mechanisms, I use the following data sources to measure the strength of the constitutional inter-branch checks and balances provisions. For executive power or constitutional endowments of executive actions, I employ the ‘executive power index’ from Constitute, which ranges from 0 to 1 and captures the presence or absence of seven significant aspects of executive lawmaking: (1) the power to initiate legislation; (2) the power to issue decrees; (3) the power to initiate constitutional amendments; (4) the power to declare states of emergency; (5) veto power; (6) the power to challenge the constitutionality of legislation; and (7) the power to dissolve the legislature. The index score is the mean of the seven binary elements, with higher numbers indicating more executive power and lower numbers indicating less executive power (Elkins, Ginsburg, and Melton 2023).

South Korea’s executive power index score is 0.43, which reflects its constitutional provisions of (1) the power to initiate legislation,[2] (2) the power to issue decrees,[3] (3) the power to initiate constitutional amendments,[4] (4) the power to declare a state of emergency[5] and (5) veto power,[6] but no constitutional provisions of (6) the power to challenge the constitutionality of legislation and (7) the power to dissolve the legislature.

For legislative power or constitutional endowments of legislative constraints on executive actions, I employ the ‘legislative power index’ from the Handbook of National Legislature, which ranges from 0 to 1 and captures the presence or absence of thirty-two important aspects of legislative constraints on the executive actions. The index score is simply the mean of the following thirty-two binary elements, with higher numbers indicating more legislative power and lower numbers indicating less legislative power (Fish and Kroenig 2009):

(a) the legislature’s influence over the executive, which includes (1) whether the legislature alone, without the involvement of any other agencies, can impeach the president or replace the prime minister; (2) whether ministers may serve simultaneously as members of the legislature; (3) whether the legislature has powers of summons over executive branch officials and hearings with executive branch officials testifying before the legislature or its committees are regularly held; (4) whether the legislature can conduct independent investigation of the chief executive and the agencies of the executive; (5) whether the legislature has effective powers of oversight over the agencies of coercion; (6) whether the legislature appoints the prime minister; (7) whether the legislature’s approval is required to confirm the appointment of ministers or the legislature itself appoints ministers; (8) whether the country lacks a presidency entirely or there is a presidency, but the president is elected by the legislature; (9) whether the legislature can vote no confidence in the government;

(b) the legislature’s institutional autonomy, which includes (10) whether the legislature is immune from dissolution by the executive; (11) whether any executive initiative on legislation requires ratification or approval by the legislature before it takes effect; (12) whether laws passed by the legislature are veto-proof or essentially veto-proof; (13) whether the legislature’s laws are supreme and not subject to judicial review; (14) whether the legislature has the right to initiate bills in all policy jurisdictions; (15) whether the expenditure of funds appropriated by the legislature is mandatory; (16) whether the legislature controls the resources that finance its internal operation and provide for the perquisites of its members; (17) whether members of the legislature are immune from arrest and/or criminal prosecution; and (18) whether all members of the legislature are elected;

(c) the legislature’s specified powers, which include (19) whether the legislature alone, without the involvement of any other agencies, can change the Constitution; (20) whether the legislature’s approval is necessary for the declaration of war; (21) whether the legislature’s approval is necessary to ratify treaties with foreign countries; (22) whether the legislature has the power to grant amnesty; (23) whether the legislature has the power of pardon; (24) whether the legislature reviews and has the right to reject appointments to the judiciary or the legislature itself appoints members of the judiciary; (25) whether the chairman of the central bank is appointed by the legislature; (26) whether the legislature has a substantial voice in the operation of the state-owned media;

(d) the legislature’s institutional capacity, which includes (27) whether the legislature is regularly in session; (28) whether each legislator has a personal secretary; (29) whether each legislator has at least one non-secretarial staff member with policy expertise; (30) whether legislators are eligible for re-election without any restriction; (31) whether a seat in the legislature is an attractive enough position that legislators are generally interested in and seek re-election; and (32) whether the re-election of an incumbent legislator is common enough that at any given time the legislature contains a significant number of highly experienced members.

South Korea’s legislative power index score is 0.59, which reflects its constitutional provisions for:

(a) the legislature’s influence over the executive about (2) whether ministers may serve simultaneously as members of the legislature,[7] (3) whether the legislature has powers of summons over executive branch officials and hearings with executive branch officials testifying before the legislature or its committees are regularly held,[8] (4) whether the legislature can conduct an independent investigation of the chief executive and the agencies of the executive,[9] and (5) whether the legislature has effective powers of oversight over the agencies of coercion;

(b) the legislature’s institutional autonomy about (10) whether the legislature is immune from dissolution by the executive, (11) whether any executive initiative on legislation requires ratification or approval by the legislature before it takes effect,[10] (14) whether the legislature has the right to initiate bills in all policy jurisdictions, (15) whether the expenditure of funds appropriated by the legislature is mandatory, (16) whether the legislature controls the resources that finance its internal operation and provide for the perquisites of its members, and (18) whether all members of the legislature are elected;[11]

(c) the legislature’s specified powers about (20) whether the legislature’s approval is necessary for the declaration of war,[12] (21) whether the legislature’s approval is necessary to ratify treaties with foreign countries,[13] and (24) whether the legislature reviews and has the right to reject appointments to the judiciary or the legislature itself appoints members of the judiciary;[14]

(d) the legislature’s institutional capacity about (27) whether the legislature is regularly in session,[15] (28) whether each legislator has a personal secretary, (29) whether each legislator has at least one non-secretarial staff member with policy expertise, (30) whether legislators are eligible for re-election without any restriction; (31) whether a seat in the legislature is an attractive enough position that legislators are generally interested in and seek re-election; and (32) whether the re-election of an incumbent legislator is common enough that at any given time the legislature contains a significant number of highly experienced members.

For judicial power or constitutional endowments of judicial constraints on executive actions, I employ the ‘judicial power index’ from Constitute, which ranges from 0 to 1 and captures the presence or absence of twelve important aspects of judicial constraints on executive actions. The index score is simply the mean of the twelve binary elements, with higher numbers indicating more judicial power and lower numbers indicating less judicial power (Elkins, Ginsburg, and Melton 2023):

(a) the judicial independence, which includes (1) whether the Constitution contains an explicit statement of judicial independence; (2) whether the Constitution provides that judges have lifetime appointments; (3) whether appointments to the highest court involve either a judicial council or two (or more) actors; (4) whether removal is prohibited or limited so that it requires the proposal of a supermajority vote in the legislature, or if only the public or judicial council can propose removal and another political actor is required to approve such a proposal; (5) whether removal is explicitly limited to crimes and other issues of misconduct, treason, or violations of the Constitution; and (6) whether judicial salaries are protected from reduction.

(b) the judicial capacity, which includes (7) whether the Constitution provides for judicial review; (8) whether courts have the power to supervise elections; (9) whether any court has the power to declare political parties unconstitutional; (10) whether judges play a role in removing the executive, for example in impeachment; (11) whether any court has any ability to review declarations of emergency; and (12) whether any court has the power to review treaties.

South Korea’s judicial power index score is 0.58, which reflects its constitutional provisions for:

(a) the judicial independence, which includes (1) whether the Constitution contains an explicit statement of judicial independence,[16] (3) whether appointments to the highest court involve either a judicial council or two (or more) actors,[17] (5) whether removal is explicitly limited to crimes and other issues of misconduct, treason, or violations of the Constitution, and (6) whether judicial salaries are protected from reduction.[18]

(b) the judicial capacity, which includes (7) whether the Constitution provides for judicial review,[19] (9) whether any court has the power to declare political parties unconstitutional,[20] (10) whether judges play a role in removing the executive;[21] but no constitutional provisions about (8) whether courts have the power to supervise elections, (11) whether any court has any ability to review declarations of emergency, and, (12) whether any court has the power to review treaties.

To put South Korea’s executive, legislative, and judicial power index score in a comparative context, I construct a sample of eighteen fellow third-wave democratizers from (1) East and Southeast Asia: Indonesia (1999), Mongolia (1991), Philippines (1988), South Korea (1988), Taiwan (1996), and Thailand (1998); (2) Central and Eastern Europe: Bulgaria (1991), Czech Republic (1990), Hungary (1990), Poland (1990); Romania (1991), and Slovak Republic (1994); and (3) Central and South America: Argentina (1984), Brazil (1987), Chile (1990), Colombia (1991), Mexico (1996), and Peru (1981).[22]

Figure 1. Executive and Legislative Power Index Scores in 18 Third-wave Democratizers

Sources: Elkins, Ginsburg, and Melton 2023; Fish and Kroenig 2009.

Figure 1 illustrates a scatterplot in which the horizontal axis shows the executive power index scores of the eighteen third-wave democratizers, and the vertical axis shows the legislative power index scores of the eighteen third-wave democratizers. Each dotted line indicates the mean value of each power index score. In the upper-right corner, where the imperial president meets the recalcitrant assembly, Mongolia, Bulgaria, Poland, Hungary, and Romania are located. Taiwan, Argentina, and Mexico are in the lower-left corner, where the non-dominant executive meets the subservient legislature. While Chile adopts a constitutional design that combines the imperial president with the subservient legislature, the Czech Republic employs a constitutional design that blends the non-dominant executive with the recalcitrant assembly. Regarding de jure accountability, South Korea seems to have one of the most workable executive-legislative inter-branch checks and balances mechanisms among the eighteen third-wave democratizers.

Figure 2. Executive and Judicial Power Index Scores in 18 Third-wave Democratizers

Sources: Elkins, Ginsburg, and Melton 2023.

Figure 2 shows a scatterplot in which the horizontal axis represents the executive power index scores of the eighteen third-wave democratizers and the vertical axis indicates the judicial power index scores of the eighteen third-wave democratizers. Each dotted line indicates the mean value of each power index score. Bulgaria is in the upper-right corner, where the imperial president meets the recalcitrant court. Indonesia and Mexico are in the lower-left corner, where the non-dominant executive meets the subservient tribunal. While Romania, Hungary, and Thailand employ the constitutional design that combines the imperial president with the subservient tribunal, Taiwan adopts a constitutional design that blends the non-dominant executive with the recalcitrant court. Regarding de jure accountability, South Korea seems to have one of the most workable executive-judicial inter-branch checks and balances mechanisms among the eighteen third-wave democratizers.

3. De facto Horizontal Accountability: South Korea in Comparative Context

In this section, I present empirical indicators for de facto horizontal accountability performance and its impact on the quality of democracy in South Korea. As a template to assess the actual outcomes of horizontal accountability mechanisms and the quality of democracy, I use the following data sources for measurement. For de facto horizontal accountability performance, I employ the ‘horizontal accountability index’ from Varieties of Democracy (V-Dem), which ranges from 0 to 1 and captures to what extent the ideal of horizontal government accountability is achieved by aggregating the following indicators: (1) the V-Dem judicial constraints the executive index; (2) the V-Dem legislative constraints on the executive index, and (3) V-Dem other state bodies (comptroller general, general prosecutor, or ombudsman) constraints on the executive index. The higher numbers indicate more de facto horizontal accountability and lower numbers denote less de facto horizontal accountability (Luhrmann, Marquardt, and Mechkova 2020).

Figure 3. Horizontal Accountability Index Scores of 18 Third-wave Democratizers, 2000-2004 versus 2005-2009

Source: V-Dem https://www.v-dem.net/data/

For the quality of democracy, I employ the ‘liberal democracy index’ from V-Dem, which ranges from 0 to 1 and captures to what extent the ideal of liberal democracy is achieved. The higher numbers indicate a higher quality of democracy, and lower numbers indicate a lower quality of democracy (Coppedge et al. 2020).

For the convenience of presentation, I calculate the mean values of five-year intervals since 2000 for each index score of the eighteen third-wave democratizers. South Korea’s horizontal accountability index scores are as follows: (1) 2000-2004: 0.925; (2) 2005-2009: 0.902; (3) 2010-2014: 0.865; and (4) 2015-2019: 0.933. South Korea’s liberal democracy index scores are as follows: (1) 2000-2004: 0.772; (2) 2005-2009: 0.738; (3) 2010-2014: 0.649; and (4) 2015-2019: 0.722.

Figure 3 illustrates a scatterplot in which the horizontal axis shows the 2000-2004 mean values of the horizontal accountability index scores of the eighteen third-wave democratizers, and the vertical axis represents the 2005-2009 mean values of horizontal accountability index scores of the eighteen third-wave democratizers. If a country is on the left side of the 45-degree line, its de facto horizontal accountability is improved. If a country is on the right side of the 45-degree line, its de facto horizontal accountability deteriorates. Chile, Peru, and Romania represent the former, whereas South Korea, Taiwan, Argentina, and Thailand typify the latter. Regarding de facto accountability, South Korea seems to be one of the modest horizontal accountability erosion cases among the eighteen third-wave democratizers during the period.

Figure 4. Liberal Democracy Index Scores of 18 Third-wave Democratizers, 2000-2004 versus 2005-2009

Source: V-Dem https://www.v-dem.net/data/

Note: Colombia, Mexico, Philippines, Romania, and Thailand are excluded due to their lower scores.

Figure 4 shows a scatterplot in which the horizontal axis represents the 2000-2004 mean values of liberal democracy index scores of the eighteen third-wave democratizers, and the vertical axis indicates the 2005-2009 mean values of liberal democracy index scores of the eighteen third-wave democratizers. If a country is on the left side of the 45-degree line, its quality of democracy is improved. If a country is on the right side of the 45-degree line, its quality of democracy deteriorates. Among the higher horizontal accountability performers, Chile and Peru improved their quality of democracy. Among the lower horizontal accountability performers, South Korea and Argentina worsen their quality of democracy. In terms of democracy, South Korea seems to be one of the horizontal-accountability-triggered democratic backsliding cases among the eighteen third-wave democratizers during the period (Sato et al. 2022).

Figure 5. Horizontal Accountability Index Scores of 18 Third-wave Democratizers, 2005-2009 versus 2010-2014

Source: V-Dem https://www.v-dem.net/data/

Figure 5 illustrates a scatterplot in which the horizontal axis shows the 2005-2009 mean values of the horizontal accountability index scores of the eighteen third-wave democratizers, and the vertical axis represents the 2010-2014 mean values of the horizontal accountability index scores of the eighteen third-wave democratizers. If a country is on the left side of the 45-degree line, its de facto horizontal accountability is improved. If a country is on the right side of the 45-degree line, its de facto horizontal accountability deteriorates. Brazil, Romania, and Thailand represent the former, whereas South Korea, Taiwan, Argentina, Hungary, and Mexico typify the latter. Regarding de facto accountability, South Korea seems to be one of the continuous horizontal accountability erosion cases among the eighteen third-wave democratizers during the period.

Figure 6. Liberal Democracy Index Scores of 18 Third-wave Democratizers, 2005-2009 versus 2010-2014

Source: V-Dem https://www.v-dem.net/data/

Note: Colombia, Mexico, Philippines, Romania, and Thailand are excluded due to their lower scores.

Figure 6 shows a scatterplot in which the horizontal axis represents the 2005-2009 mean values of liberal democracy index scores of the eighteen third-wave democratizers, and the vertical axis indicates the 2010-2014 mean values of liberal democracy index scores of the eighteen third-wave democratizers. If a country is on the left side of the 45-degree line, its quality of democracy is improved. If a country is on the right side of the 45-degree line, its quality of democracy deteriorates. Among the lower horizontal accountability performers, South Korea, the Czech Republic, Hungary, Argentina, and Bulgaria worsen their quality of democracy. In terms of democracy, South Korea seems to be one of the horizontal accountability-accelerated democratic backsliding cases among the eighteen third-wave democratizers during the period (Shin 2021).

Figure 7. Horizontal Accountability Index Scores of 18 Third-wave Democratizers, 2010-2014 versus 2015-2019

Source: V-Dem https://www.v-dem.net/data/

Figure 7 illustrates a scatterplot in which the horizontal axis shows the 2010-2014 mean values of the horizontal accountability index scores of the eighteen third-wave democratizers, and the vertical axis represents the 2015-2019 mean values of horizontal accountability index scores of the eighteen third-wave democratizers. If a country is on the left side of the 45-degree line, its de facto horizontal accountability is improved. If a country is located on the right side of the 45-degree line, its de facto horizontal accountability deteriorates. South Korea, Peru, and Argentina represent the former, whereas Poland, Brazil, Indonesia, Hungary, and the Philippines typify the latter. Regarding de facto accountability, South Korea seems to be one of the horizontal accountability-erosion-reversal cases among the eighteen third-wave democratizers during the period.

Figure 8. Liberal Democracy Index Scores of 18 Third-wave Democratizers, 2010-2014 versus 2015-2019

Source: V-Dem https://www.v-dem.net/data/

Note: Mexico, the Philippines, and Thailand are excluded due to their lower scores.

Figure 8 shows a scatterplot in which the horizontal axis represents the 2010-2014 mean values of liberal democracy index scores of the eighteen third-wave democratizers, and the vertical axis indicates the 2015-2019 mean values of liberal democracy index scores of the eighteen third-wave democratizers. Countries located on the left side of the 45-degree line indicate an improved quality of democracy, while countries on the right side of the 45-degree line indicate a deteriorated quality of democracy. Among the higher horizontal accountability performers, South Korea has an improved quality of democracy. Among the lower horizontal accountability performers, Poland and Brazil have a decreased quality of democracy. In terms of democracy overall, South Korea seems to be one of the horizontal accountability-recovered democratic resilience cases among the eighteen third-wave democratizers during the period (Laebens and Luhrmann 2021).

4. Democratic Careening and Horizontal Accountability: South Korea as a Case Study

In this section, I present a theoretical explanation of why there is a gap between de jure horizontal accountability mechanisms and de facto horizontal accountability performance in South Korea.

Figure 9. Horizontal Accountability Index and Liberal Democracy Index Scores of South Korea, 2000-2022

Source: V-Dem https://www.v-dem.net/data/

I argue that the up and down of South Korea’s democratic quality of horizontal accountability is explained by the dynamics of democratic careening for the last two decades (Slater 2022). Democratic careening occurs either when a liberal president who prioritizes electoral mandate over constitutional constraints overreaches toward populist excess, or when a conservative president who prioritizes constitutional constraints over electoral mandate overreaches toward oligarchical excess (Slater 2013). In South Korea, one of the main differences between conservatives and liberals has been their priorities in approaching North Korea. Conservatives have largely focused on strengthening ties with the United States and emphasized the need to coerce North Korea into giving up its military power by reaching economic deals in exchange. Liberals, on the other hand, have believed in the potential of a spillover effect in approaching North Korea, meaning they expect to make steps toward unification by providing aid to encourage cooperation across the peninsula (Kim 2022).

South Korea is the only liberal democracy that bounced back from autocratization over the last 20 years (Papada et al. 2023: 28-31). Its unique experience jibes with the concept of ‘democratic near misses’ in which a polity “1) experiences a deterioration in the quality of initially well-functioning democratic institutions, without fully sliding into authoritarianism, but then, 2) within a timeframe of a few years, at least partially recovers its high-quality democracy (Ginsburg and Huq 2018: 17).” As illustrated in Figure 9, when it completed its two consecutive turnovers of executive office between political parties – the first was from conservative President Kim Young-sam to liberal President Kim Dae-jung in 1997 and the second from liberal President Roh Moo-hyun to conservative President Lee Myung-bak in 2007, the country seemed to achieve its democratic consolidation with the liberal democratic index score of 0.78 as well as the horizontal accountability score of 0.92 (Hahm 2008).

Since then, however, the country entered a precarious democratic near-miss zone in which the polity cycles between democratic regression and democratic reversal. After the liberal democracy index score plummeted to 0.68 in 2008 and reached its nadir of 0.61 in 2014 when the public at large questioned the democratic responsiveness of conservative President Park Geun-hye for her poor handling of the sinking of the ferry MV Sewol, it gradually recovered to its apogee of 0.81 in 2017 when the Constitutional Court upheld the impeachment of Park (Shin and Moon 2017).

During liberal President Moon Jae-in held the executive power, the liberal democracy index score had basically stayed the same, only to decrease suddenly to 0.73 in 2022 when conservative President Yoon Suk-yeol began his tenure. Whether this most recent downturn of the liberal democracy index score indicates the beginning of another episode of autocratization remained to be seen (Shin 2020).

The fact that the horizontal accountability index score generally followed suit shows that the quality of democracy at large coevolves the quality of horizontal accountability in South Korea. As the U-shaped (or possibly W-shaped) concavity characterizes the evolving path of the democratic quality of horizontal accountability for the last two decades, the country has come to serve as an example either of democratic regression (Wunsch and Blanchard 2023; Croissant and Haynes 2021) or of democratic reversal (Boese et al. 2021; Laebens and Lührmann 2021).

There have been two episodes of democratic careening in South Korea. The first episode of democratic careening involved the causal and consequent events of the impeachment of Roh in 2004. It was triggered by Roh’s violation of the constitutional provision mandating presidential impartiality, which instigated the political reaction of conservative oppositions to impeach him in March. The impeachment of Roh was perceived as oligarchic excess by the general public who expressed their widespread discontent against conservative oppositions through large-scale candlelight rallies and gave a clear mandate to Roh’s governing party with a legislative majority status in the National Assembly election in April. Reflecting the popular verdict over the issue, the Constitutional Court overturned the impeachment, reinstituting him as president in May.

The second episode of democratic careening included the causal and consequent events of the impeachment of Park in 2016 and 2017. Several news media reported that Park was at the center of an unprecedented corruption scandal, which activated large-scale candlelight rallies that demanded the impeachment of her in October 2016. Liberal oppositions were cautious to initiate the impeachment motion because of the political backlash that they had seen in the first episode of democratic careening. However, they finally passed the motion with some dissident legislators from Park’s governing party mainly due to the political pressure of a million participants of candlelight rallies who perceived Park’s corruption as oligarchic excess in December. The candlelight rallies lasted until March 2017 when the Constitutional Court unanimously upheld the impeachment, ousting her from office. The episode was completed as Moon’s opposition party won the snap presidential election in May (Mosler 2017).

In both episodes, what halted democratic careening was the accountability mechanism that started with diagonal accountability – pressure from civil society and media. In the first episode, candlelight rallies nudged vertical accountability – victory of Roh’s governing party in the legislative election and in turn horizontal accountability – overturning the impeachment by the Constitutional Court. In the second episode, media revelation and large-scale candlelight rallies jolted horizontal accountability – the impeachment of Park initiated by the National Assembly and upheld by the Constitutional Court and in turn vertical accountability – victory of the Moon’s opposition party in the presidential election.[23]

4.1. Institutional Conditions for Democratic Careening

The longevity of the post-transition 1987 Constitution evinces the robustness of democratic political institutions in South Korea. Since the Constitution was ratified in 1948, the document had been amended seven times before 1987 with an average constitutional endurance of less than six years (Elkins, Ginsburg, and Melton 2023). As the eighth-amended document, the 1987 Constitution has lasted for thirty-five years thus far. Unlike many other democratic backsliding countries that have frequently changed the constitutions in favor of incumbent leaders, thus, politicians and political parties have had to learn and adapt to, rather than repudiate and overturn, the rules of the game that the 1987 Constitution delineate in South Korea. Paradoxically, the constitutional stability is one of the most fundamental institutional sources that underlie the democratic careening of the country (Mosler 2020).

Non-renewable single-term presidency institutionally opens the windows of opportunities for executive excess, be it populist or oligarchic.[24] As a new national leader with a refreshing electoral mandate, every incoming president has a strong motivation to overturn the policy status quo set by the outgoing one, finding the propitious chance to embark on an ambitious program of reform in the earlier period of her term. She sometimes tends to overreach, opening the windows of opportunities for executive excess in which she suspends, ignores, or even violates the requirements of the rule of law. The windows of opportunities for executive excess are disposed to closing in the later period of her term in which presidential hopefuls from both conservative and liberal camps inclined to repudiate the legacies of an unpopular outgoing president in order to acquire a brand-new electoral mandate (Bae and Park 2018).

Whether an incoming president restrains her executive excess or not depends in part on the effectiveness of horizontal accountability. The National Assembly, as legislative constraints on the executive power, and the Supreme Court and the Constitutional Court, as judicial constraints on the executive power, has substantial power to hold the president accountable. What makes the horizontal accountability effective is the institutional independence of the National Assembly, the Supreme Court, and the Constitutional Court. Due to non-concurrent electoral cycles between the president and the National Assembly members, every chief executive must encounter at least a mid-term-like legislative election that enables or constrains her executive excess.[25] When a president inherits a legislative minority situation or faces a divided government situation, the National Assembly acquires institutional independence that reduces the chance of executive excess.

According to the Constitution, 14 Supreme Court justices are appointed by the president, subject to the approval of the National Assembly. Out of 9 Constitutional Court justices, three are appointed by the president, three by the National Assembly, and three by the Chief Justice of the Supreme Court, and all of them must attain the approval of the National Assembly.[26] Because of the co-appointment systеm in the Supreme Court justices and the Constitutional Court justices between the president and the National Assembly, a divided government situation is likely to increase institutional independence of the judicial branch that restrains executive excess. In other words, it is unlikely to sever the institutional independence of the legislative and judicial branches from the executive one unless a president holds a unified government situation for a substantial time.

Liberal presidents Kim and Roh had had a serial replacement of divided and unified government during their terms, which invigorated checks and balances from the National Assembly controlled by the conservative opposition parties (Brinks et al. 2020). In fact, the legislative constraints were excessively strong that Roh was even impeached by a supermajority in 2004. While a serial replacement of divided and unified government situations during a president’s term is often blamed for the recurrent stalemate in the executive-legislative relations, it is also credited with the activation of the checks-and-balances mechanisms engrained in the separation-of-powers constitution (Dostal 2023).

The period that conservative presidents Lee and Park (until 2016) had reigned was exceptional in the sense that experienced no such serial replacement of divided and unified government during their tenures, which was more likely to dampen the working of horizontal accountability mechanisms. It was the 2016 legislative election that ended the eight-year conservative unified government period and started another serial replacement of divided and unified government, triggering a reactive sequence that connected media exposure of Park’s corruption, the candlelight rallies, the presidential impeachment initiated by the National Assembly and upheld by the Constitutional Court, to the 2017 snap presidential election that installed Moon as the chief executive. The last year of Park evinced how vertical, horizontal, and diagonal accountability mechanisms can work in a mutually reinforcing way (Laebens and Lührmann 2021).

Figure 10. Horizontal Accountability Index Components Scores of South Korea, 2000-2022

Source: V-Dem https://www.v-dem.net/data/

Moon governed the country under divided government situation during the earlier three years and under unified government situation during the last two years. The serial replacement of divided and unified government situations during his term contained his executive excess as an ambitious incoming president who set the agenda to clean up the corruption accumulated by previous conservative governments. As shown in Figure 10, the up and down of legislative and judicial constraints on the executive in large part corresponds to the serial replacement of divided and unified government situation in South Korea.

4.2. Political Conditions for Democratic Careening

Democratization has weakened state agencies specializing in coercion such as the Agency for National Security Planning (intelligence), Defense Security Command (military), and National Security Headquarters (policy), elevating law enforcement agencies to the core of the executive authority pursuant to the norm of the rule of law. Among them, the Prosecution Service, consisting of the Supreme Prosecutors’ Office, High Prosecutors’ Offices, District Prosecutors’ Offices, and Branch Prosecutors’ Offices, deserves special attention (Hellmann 2018).

While the Prosecutive Service is run under the Ministry of Justice, it works with the Supreme Court and below so that it acquires the status of a quasi-judicial organization in which political independence from the executive power becomes of paramount importance. As the nation’s highest law enforcement agency, only the prosecutors’ office has the authority to indict elected politicians for corruption. Because of its infungible power, the political independence of the prosecutors’ office has been one of the most controversial political issues since the democratic transition in the country. Most presidents were not good at resisting the weaponization of indictment power against opposition parties and politicians until Roh had stopped employing the prosecutors’ office for such political purposes in order to keep the electoral promise of independent Prosecutive Service in 2003. While he allowed the prosecutors’ office to maintain political independence by not exercising his appointment power, however, he could not find an effective way of holding it accountable to the popular branch of the government. As a result, the prosecutors’ office could exploit the opportunity of political independence to maximize its organizational autonomy and reputation (Lee 2022).

Once Roh turned his executive power over to Lee in 2008, the prosecutor’s office, which was under the control of the incoming president who saw the peril of the organization’s independence without accountability, indicted the outgoing president for corruption. As humiliated by the prosecutors’ office, Roh committed suicide. His suicide came to launch the politics of vengeance for his liberal co-partisans and constituency against the conservative camp and the prosecutors’ office. As Moon assumed the office as president, they had their first vengeance in 2017 when Park was imprisoned for malfeasance and the second one in 2018 when Lee was incarcerated for bribery. The incarceration of the two presidents became the seed of the politics of vengeance for their conservative co-partisans and constituency against President Moon and the liberal camp. During Moon’s five-year term, elites and voters polarized over the perceived presidential actions: for liberals, they were the enactment of the popular mandate for anti-corruption and prosecutorial reform while for conservatives they were the abuse of power that undermined constitutional constraints and civil liberties. In a nutshell, Moon’s politics of vengeance was a democratic action based on a legitimate electoral mandate for liberals while it was a typical populist excess of a liberal president for conservatives (Mosler 2018).

Moon’s politics of vengeance was weird in that he weaponized the indictment power of the prosecutors’ office that was the main culprit in Roh’s suicide. The strange bedfellow coalition turned out to be effective in accomplishing Moon’s agenda for cleaning up corruption that the conservative Lee and Park had hoarded, empowering the prosecutors’ office and Prosecutor General Yoon, who is now serving as president from the conservative camp, with a mantle of popular legitimacy. Once the anti-corruption campaign was completed, Moon sought to dissolve the strange bedfellow coalition, debilitating the prosecutors’ office by devolving a part of the jurisdiction of its investigation authority to the National Policy Agency and establishing the Corruption Investigation Office for High-ranking Officials. Yoon clashed with Moon until his resignation as prosecutor general in 2021, announcing his candidacy for the 2022 presidential election. For the liberal camp, Yoon was the case that hero turns villain while for the conservative camp, he was the case that demon turns angel. As he was inaugurated as president, elites and voters started to polarize over perceived his actions: for conservatives, they were the restoration of constitutional order and civil liberties while for liberals, they were the abuse of power that culminated in impeachment (Mobrand 2021).

4.3. Electoral Conditions for Democratic Careening

Facing Park who showed presidential actions of oligarchical excess, liberal opposition parties and politicians tended to take the position of strategic alarmists. While they spread the perception that the presidential actions were an extraordinary threat to democracy to the general public, they employed ordinary tools of normal politics in dealing with the incumbent government. For them, extraordinary political strategies were too risky to take not least because they had witnessed an electoral backlash against conservative opposition parties and politicians who passed the motion to impeach Roh in the National Assembly in March 2004. Next month, for the first time in the nation’s history, Roh’s Uri Party secured a legislative majority in the National Assembly election as a liberal party. The popular verdict in favor of the incumbent president nudged the Constitutional Court to overturn the impeachment decision, restoring Roh as president in May.

More than seventy percent of South Koreans opposed the impeachment even though Roh had his job approval rating of less than twenty percent when the motion was passed in the National Assembly. The conservative opposition parties seized the opportunity to remove the chief executive in a radical, if not unconstitutional, way, interpreting the low popularity of the incumbent president as a public endorsement of the impeachment. The strategic miscalculation cost them a historic electoral defeat as the public perceived the impeachment as an example of the abuse of power to the advantage of the conservative camp. The 2004 electoral outcomes contained oligarchic excess of the conservative party and its allies controlling the National Assembly and disciplined the Constitutional Court to follow the popular verdict.

The Roh impeachment and its electoral backlash against opposition parties set a political precedent that electoral mandate trumps constitutional constraints. Because of this political learning, the liberal opposition parties were extremely cautious to take the radical strategy of impeaching Park in October 2016, demanding that she voluntarily step down. It took more than a month for Moon and his liberal party to negotiate with a splinter conservative party to build a two-thirds majority coalition in the National Assembly for presidential impeachment, confirming more than eighty percent of South Koreans supported the motion. The coming presidential election deterred the potential populist excess of the liberal party and its allies controlling the National Assembly (Turner et al. 2018).

The fact that the strategic avoidance of electoral backlash was at the heart of opposition parties’ countering strategy to the aggrandizing presidential actions testifies to the importance of a vertical accountability mechanism to preserve the democratic regime status quo. While, due to the intrinsic tension between the majoritarian vision and counter-majoritarian vision, South Korea’s democratic regime may careen either toward populist excess or toward oligarchic excess, the working of electoral accountability has been highly effective in restoring the balance between the two visions of democracy.[27]

In fact, as for the National Assembly election results, Roh’s liberal party secured a legislative majority in 2004, Lee’s conservative party regained a legislative majority in 2008 and 2012, Park’s conservative party lost its legislative majority in 2016, and Moon’s liberal party reclaimed a legislative majority in 2020. The insecure majority situation, in which liberal and conservative parties compete for control of the National Assembly at relative parity, underlies the serial replacement of divided and unified government situations. These situations temper presidential actions to prevent executive excess, whether populist or oligarchic, thereby avoiding democratic careening. At the same time, as long as control of the National Assembly remains within reach for both parties, opposition parties have strong incentives to seek perpetual hunt for issues that undercut the incumbent president’s democratic reputation amidst democratic careening. Whenever vertical accountability works to resolve oligarchic or populist excesses of opposition parties in the Roh or Park impeachments, electoral competition at relative parity continues to intensify polarization between partisan camps. This is due to the lock-in effect of perpetual campaign strategies to denigrate the democratic quality of incumbent presidents.

4.4. Social Conditions for Democratic Careening

As the autocratic regime mainly relied on repression, rather than redistribution, as a compliance mechanism, South Korea’s democracy inherits a lasting structural legacy that the state-society architecture lacks significant mediating institutions that could play an independent role in the political process. Political parties are only weakly institutionalized and easy prey for ambitious politicians, while civic associations struggle with a lack of organizational resources and institutionalized assess to the political decision-making process. The weakness of mediating organizations such as political parties and civic associations hinders the establishment of stable and enduring political representation and interest intermediation between the government and the citizens that in turn sets the upper limits of democratic development (Hellmann 2020).

Because political parties are incapable of translating many social cleavages universal in an advanced industrial society into programmatic platforms, they become electoral and legislative agents of ambitious political leaders rather than the other way around. This dynamic accounts for why political parties frequently reorganize themselves and rebrand their names with each presidential election. At the same time, since civic associations are not entitled to be social partners in the collaborative policy-making process with the government in relevant functional domains, they tend to seek informal political channels instead of being incorporated into the formal political process. This explains why many civic associations resort to militant strategies to grab the attention of the government.

The misalignment between political parties and societal interests leaves a substantial segment of the population who are strongly disaffected by and relatively independent from partisan clashes revolving around narrow issues about the democratic reputation of incumbent presidents. The majoritarian nature of presidential and legislative elections reinforces the misalignment between politicians and citizens. This results in floating voters deciding the fate of ambitious presidents, using their votes to punish the presidents’ excessive actions during periods of formal political participation. In times of informal political participation, they have engaged citizens who decide the success of large-scale collective actions to deter the chief executives’ populist or oligarchic excesses. The weakness of mediating organizations paradoxically through creating sizable floating voters and/or engaged citizens sets the lower limits of the democratic regression (Choi 2018).

Understanding the paradox of the weak state-society mediating organizations is the last part to complete the reactive sequence that shapes the dynamics of democratic careening in South Korea. In 2004, even though many South Koreans did not appreciate the policy performance of Roh when the conservative opposition party and its allies decided to impeach him, a large number of those who were unfavorable of him did not think that his actions deserved to be punished to that strength. Instead, they considered the impeachment an oligarchic excess of the conservative opposition party and the allies, joining candlelight rallies as engaged citizens to deter more excessive actions and voting for Roh’s liberal party as floating voters to punish the conservative camp. As a result, the first democratic careening halted.