Mongolia: A Vain Constitutional Attempt to Consolidate Parliamentary Democracy
The Mongolian parliament recently missed an opportunity to reform the Constitution to address persistent problems of power distribution among the various branches. The government continues to be unstable partly because of complexities in the constitutional separation of powers allowing the legislature to interfere in executive affairs without any political risk, such as dissolution. In addition, necessary reforms to reconsider the inefficient number and size of the administrative units have stalled because of constitutional requirements that changes cannot be effected without the proposals of the assemblies of the units controlled by local elites. Despite much-needed reform to address these problems, constitutional amendment proposals introduced on 6 November 2015 failed due to non-compliance with procedural requirements. The discussions on the proposed amendments continue and are likely to be tabled in the parliament following the general elections in June 2016.
The Political System
The Mongolian people peacefully transitioned from socialism to constitutional democracy in 1990, and adopted their first liberal Constitution in 1992, establishing a premier-presidential (dual-executive) democracy. Resting on the principle of separation of powers, the Constitution is designed to keep any individual or institution from having excessive power. Legislative power is vested in the unicameral Parliament, the State Great Khural (SGKh), the executive power in the government, and the judicial power in the Constitutional Court and ordinary courts. The citizens directly elect 76 members of the SGKh, and the president, while the SGKh appoints the prime minister and ministers. While the president may veto legislation, the SGKh can override vetoes through a two-thirds majority vote. The Supreme Court has the power to interpret all laws other than the Constitution, while the administrative courts review the legality of administrative acts. The Constitutional Court can, among other powers, strike down unconstitutional laws, while not less than three-quarters (57 of 76) of all MPs in the SGKh may amend the Constitution, including overruling the decision of the Court. In 2000, the SGKh adopted the first amendments to the Constitution, which enabled a parliamentary majority to propose a candidate to the post of the prime minister, and allowed MPs to become cabinet members.
Mongolia has had seven parliamentary elections and six presidential elections since 1990, and political power peacefully switched between two main political parties, the Mongolian People’s Party (the MPP) and the Democratic Party (the DP). In the last general election in 2012, the DP won 35 parliamentary seats, while the MPP came second with 26 seats. The Justice Coalition of the Mongolian People’s Revolutionary Party and the Mongolian National Democratic Party also secured their place in the SGKh with 10 seats along with the two seats for the Civil Will-Green Party and three for independents. The SGKh appointed N. Altankhuyag as a Prime Minister, and the DP formed a coalition government with the Justice Coalition and the Civil Will-Green Party in 2012. Following the formation of a grand coalition government involving the DP, the MPP and the Justice Coalition, the SGKh dismissed N. Altankhuyag’s government in November 2014, and appointed Ch. Saikhanbileg as Prime Minister in December 2014. The SGKh endorsed the Prime Minister’s proposal to remove the MPP from the coalition government in August 2015; so the current government consists of the members of the DP and the Justice Coalition.
Executive-Legislative relations – struggle for a fair balance
The proposed amendments looked to address instability in the relationship between the executive and legislature in three ways: through enhancing the stability of governments, through limiting the number of cabinet members who could simultaneously be MPs and by preventing continual fluctuation in the number of ministries.
Mongolia has had 13 Prime Ministers since 1992, and their average term has been only two years. The instability of the executive power has become a major obstacle to implementing policies addressing social and economic problems as well as to seeing constitutional amendments as possible solution to them. The SGKh can easily dismiss the government by a simple majority, as it did, for instance, in 2014, when dismissing the N. Altankhuyag government by a majority of 36 against 30 votes. In 1998, the SGKh dismissed Ts. Elbegdorj’s government, but his caretaker government operated for six months because the SGKh could not appoint a new prime minister.
The proposed amendments would have introduced a constructive vote of no confidence so that the government would become more stable. The proposed clause stipulated that, if a majority of MPs officially submits a motion to dismiss the prime minister and to appoint a new one, the SGKh shall discuss and approve it within three days by absolute majority of its members. Although this regulation seemed to follow the German constructive vote of no confidence model, only a majority of MPs could propose to replace the prime minister with a new one, which would then have to be approved by the SGKh.
Under the current constitution, the SGKh too easily can appoint and remove, with a simple majority, individual cabinet ministers proposed by the prime minister. Moreover, until September 2015 when the Constitutional Court ruled it unconstitutional, any MP could table a proposal for the dismissal of a cabinet member. The proposed constitutional amendments would have strengthened the prime minister’s role by allowing him/her to decide on the appointment and dismissal of cabinet ministers and to present these decisions to the president and the SGKh - excluding MPs from proposing the dismissal of individual ministers. This proposal followed a common trend in prominent parliamentary democracies where the prime minister rather than the parliament decides on the membership of his/her cabinet, subject to formal approval of the head of state, although the government as a whole is responsible to the parliament and needs to retain parliamentary confidence.
The appointment of MPs as cabinet ministers has also been a contentious issue in Mongolian constitutional discourse. In 1996 and 1998, the Constitutional Court ruled that a law allowing MPs to become cabinet ministers violated the principle of separation of powers and mutual checks between the legislative and the executive. As a consequence of the decision, the leaders of the major parties in the SGKh could not be appointed ministers between 1996 and 2000. In response to the decision of the Constitutional Court, the SGKh amended the Constitution in 2000 to allow MPs to hold the posts of cabinet ministers concurrently. Following criticism that the amendment weakened the separation of legislative and executive powers, as it enhanced the influence of the MPs serving as cabinet ministers in a small, unicameral SGKh, the amendments proposed in November 2015 included a safeguard clause requiring that not more than one-third of the cabinet ministers could be MPs.
The prime minister, subject to the approval of the SGKh, determines the government structure and composition. In the last 24 years, the SGKh routinely approved the restructuring of the government by changing the appellation and number of ministries and agencies following every parliamentary election. Such restructurings led to the dismissal of a significant number of senior public servants due to their political affiliations. The proposed amendments offered to address the problem through fixing the number of ministries at nine, while allowing the prime minister to appoint up to three additional cabinet ministers. Although the constitutional regulation of the number and appellation of ministries might have stabilized the government structure, it would have prevented the prime minister from setting the structure of the cabinet on the basis of his/her policy priorities. For example, a prime minister could not have established a separate ministry of mining, even if he/she saw mining as an important economic sector at a particular stage of development.
The continued dominance of the small, unicameral legislature
Mongolia has a comparatively small SGKh with 76 MPs, relative to its population size, which currently stands at three million. The proposed amendments would have increased the number of MPs from 76 to 99. A MP currently belongs to three or four standing committees that makes it difficult to focus on the works of each committee, which diminishes the quality of the contributions of the MPs to law making and parliamentary oversight. In particular, where the number of MPs who are also members of cabinet is high, and considering the low quorum rules where as few as 20 MPs may pass legislation, the influence of the executive on the parliament increases, undermining the oversight functions of the legislature. The small number of MPs also increases the risk of special interests, such as big business and geo-political actors, gaining influence over the legislative process. The small size of the SGKh, coupled with its extensive powers, preoccupies individual MPs with parliamentary sessions and committee meetings, diminishing their time and effort to keep track of and respond to the needs of their constituencies.
The SGKh continues to be a powerful entity with a wide discretion to decide on any issues, to enact laws, and to appoint various officials. The proposed amendments included three steps to reduce the powers of the SGKh. First, the power of appointing cabinet ministers would have been transferred from the SGKh to the prime minister, as discussed above. The prime minister would have presented his/her decision on the composition of the government to the SGKh and the president, neither of which could have disapproved this decision. However, other aspects of the amendments could have weakened the powers of the prime minister. For instance, the prime minister could not submit a proposal to change the number of ministries to the SGKh, since this number would have to be fixed in the constitution. Second, the SGKh would have no longer exercised its current power to appoint, replace or remove heads of independent institutions, such as the General Election Commission or the National Audit Office. Nevertheless, the proposal was silent on who would exercise these powers. Third, the proposed amendments would have removed the SGKh’s power to “discuss at its own initiative any issue pertaining to domestic and foreign policies of the State.”
The proposed amendments raised two serious concerns in relation to the SGKh. First, the SGKh’s term would have been extended from four to five years, without first amending the Law on Procedure for Amending the Constitution. The law prohibits the SGKh from proposing constitutional amendment to extend its own term, which would undermine the rule of law. Second, besides this shortcoming, the proposed amendments failed to remedy the primary deficiency of the current functioning of the SGKh. The SGKh does not face any political risk except in case of failure to timely appoint the prime minister. Under the current constitution, if the SGKh is unable to decide on the proposal for appointing the prime minister within 45 days, it will be dissolved either by the president or on its own initiative through a two-thirds majority vote. There are no other possibilities for the dissolution of the SGKh. For instance, if the majority of MPs rejects a motion of the prime minister for a vote of confidence, the prime minister cannot propose to the President to dissolve the SGKh, as the case in Germany. Such a process would have limited the intrusive tendencies of the SGKh.
Taming the powers of a popularly elected president
Mongolia is sometimes described as a semi-presidential system because, while the prime minister and cabinet are collectively responsible to the SGKh, the president is popularly elected, and his/her powers are much broader than the conventional powers of heads of state in parliamentary systems. The general perception among the people of Mongolia is that of an all-powerful president, who can solve all the problems, such as unemployment or corruption. Thus, presidential candidates make wide ranging but unattainable promises. The amendments proposed that a conference composed of MPs and heads of provincial and city councils would elect the president through a simple majority vote. While the proposal was intended to reduce the friction between the president and the SGKh, the proposed process would have allowed only those who won parliamentary and provincial elections to elect the president, without the meaningful participation of the opposition or the people. A president chosen only by the majority may exercise her/his powers in the interest of the majority rather than the public as a whole. This was partly why the drafters of the 1992 Constitution considered and rejected the possibility of indirect election of the president.
In response to the extensive use of the powers of previous presidents, including to veto a number of laws, the amendments proposed to remove a range of powers from the president, including the power to head the National Security Council, to provide guidelines for the government, to initiate legislative bills, and to appoint Supreme Court justices upon their presentation to the SGKh along with other further limitations on the presidential appointment power. Moreover, the amendments would have prohibited the extension of the powers of the president through statutes.
Furthermore, currently, the SGKh appoints the nine members of the Constitutional Court upon the nomination of three members each by the SGKh (its chairperson in practice), the president and the Supreme Court. According to the proposed amendments, the government, instead of the president, would have nominated the three candidates, while the nomination of the other six candidates would remain unchanged. Because the SGKh’s chairperson and the prime minister, who would appoint his/her cabinet ministers according to the proposal, would be elected by the majority, both of them would have expressed the will of the parliamentary majority in the nomination process. The fact that the parliamentary majority would nominate six out of the nine members and appoint all of them by a simple majority vote would have weakened the independence of the Constitutional Court. If the SGKh appoints the members of the court through a supermajority as in Germany, the majority in the SGKh would need to negotiate with the minority for the candidates, thereby limiting the influence of a single party in the court.
Deadlock over the revision of the administrative divisions
Finally, the amendments also proposed major changes related to the administrative units. Mongolia, a sparsely populated country, is currently divided into 21 provinces (aimags), which are divided into 330 districts (soums). Forty-eight percent of the population of three million lives in Ulaanbaatar, the capital city, while the remainder resides across the 21 provinces. The existence of numerous small administrative and territorial units is economically inefficient because many of districts are unable to develop independently. However, the SGKh cannot enlarge the size of these units unless respective local assemblies and citizens propose the revision of such units. Due to resistance from local assemblies and governors, who want to keep their powers, “a number of initiatives by the government to amalgamate the economically unviable soums fell victim to deadlock.” The proposed amendments would have authorized the SGKh to effectuate changes to the units on the basis of the structure of economy and the population pattern taking into account the views of relevant local assemblies and citizens.
The proposed amendments included various provisions, which could have improved the workings of the government system in Mongolia. However, this draft did not gain enough support. MP M. Enkhbold, the head of the opposition MPP, supported the conception of possible amendments in 2014, but he opposed the amendments proposed in November 2015 due to such controversial clauses in the proposal as the extension of the parliamentary term from four to five years. Critics also said that the public would not accept the increase of parliamentary seats, arguing that it would raise the parliamentary budget. The proposed alteration of the name of the constitution further worried those wary of change. The constitution has been referenced as the “Basic Law” in Mongolia since 1924, but the MPs who proposed the amendments said that the constitution would be called “Ekh khuuli,” (Mother Law), because “the Constitution is the source of legal norms to regulate social relations.”
While the proposed amendments were not debated in the SGKh in December 2015 due to non-compliance with procedural requirements, the scope of the amendment was much broader than the current political consensus. Despite the growing efforts of a range of MPs and the opposition to bring about constitutional change in Mongolia, the possibility of reform seems to be lost for the immediate future, as constitutional amendments cannot take place within six months prior to general elections that are due in June 2016. The next SGKh should take on its responsibility to amend the current Constitution in order to solve the constitutional problems. Without such amendments, continued government instability and intergovernmental friction will preclude the relevant organs from focusing on delivering important public services and on developing the economy, ultimately leading to loss of trust in the democratic regime in Mongolia.
Munkhsaikhan Odonkhuu is Associate Professor of Law at National University of Mongolia School of Law. He holds a LL.D. (2011) from Nagoya University, Japan. He has published books and law review articles on comparative constitutional law, jurisprudence and judiciary. He is the author of the book: Towards Better Protection of Fundamental Rights in Mongolia: Constitutional Review and Interpretation (CALE Books 4, Nagoya University, 2014).