Constitutional Amendments

By Julian Dierkes and Mendee Jargalsaikhan

Constitutional change has been discussed in Mongolia for some time. Despite the super-majority that the MPP holds in parliament at the moment, we were not expecting amendments to actually be proposed, but now they have been introduced into parliament.

Note that we are not constitutional experts nor are we aiming at providing an exact translation, but we did want to provide a quick overview over the changes under consideration and very brief initial comments.

The draft amendments were introduced on June 6 in a bill supported by 62 MPs.

We have grouped the proposals that seem most significant to us under three themes: judiciary, parliamentary power, and local governance.

Judiciary

Note that these amendments are a follow-up of some sorts to the changes to the judicial system this March that provoked a lot of concerns, especially in the international community.

In the bill these changes are presented as section “Three: Strengthening the Judiciary”.

  1. The Judicial General Council [Шүүхийн ерөнхий зөвлөл, see https://eng.judcouncil.mn/)], which consists of ten members, will play a key role in nominating and changing judges at all levels.  The Ten members would serve for a single, four-year term. Five of ten members (with ten years minimum of professional experience) would be appointed by the parliament. The other five would be elected from different judiciary organizations: one from the judges at the control level, one from judges at the appeal courts, three from lower level courts.

  2. A separate Judiciary Accountability Committee [Шүүгчийн хариуцлагын зөвлөл] will decide whether to relieve, abstain, and penalize judges.  The committee would consist of nine members: three experienced prosecutors, three legal scholars, and three citizens representatives. They will be elected for a single, six-year term.

  3. The constitutional court members will be appointed for a single, nine-year term.  The candidate should be professional lawyers with a minimum of 15 years of professional experience, and over 40 years old.

Our notes: A new committee (Judiciary Accountability Committee) was established to hold judges responsible. The General Judiciary Committee nominates and appoints whereas the Judiciary Accountability Committee removes and changes.  The President has no role in appointments to these committees. Only parliament has a partial role in the Judicial General Council. It appears that appointments from judges would still be made by the president but only upon nomination by the General Judicial Council. It is a bit unclear what would happen if a president refuses to appoint someone nominated by the Council.

Parliament and the Prime Minister

The hybrid nature of Mongolia’s constitution has long been considered to be an obstacle to smooth operation of government as the president seems to have some executive powers (judiciary and foreign affairs) and some ability to block initiatives by the prime minister (for example, the appointment of cabinet members). The proposed amendments are seeking to clarify this relationship.

  1. To limit the number of MPs serving as cabinet members. Only up to five cabinet posts, including the Prime Minister, can be filled by MPs. The Prime Minister has the right to change cabinet members, but s/he will introduce his/her decision to parliament and the president.

  2. To reduce parliamentary rights on state budgets and to streamline the independent auditing of the budgeting and implementation process.
  3. To increase the parliament’s investigative authority. A temporary (investigative) committee can be set up if ¼ of MPs voted in favour of investigation.

  4. To prohibit the parliament changing the election law a year prior to the election.

  5. The nominee for president should be over 55 years old.  The president will be elected for a six-year single term.

Our notes: The first change is addressing the so-called double deel “problem”, namely the fact that many members of cabinet are also MPs and that parliament thus cannot effectively control cabinet. Of course, many other countries also draw upon MPs as members of cabinet, but – so the argument – goes, the small size of the Mongolian parliament makes this problematic.

The second change is intended to prevent MPs from earmarking funds in the budget for their own riding or their own projects.

Special investigative committees have been called for in the past, and this change makes those possible.

The election law is currently set as of six months before an election, this extends that period to one year, presumably to prevent manipulation of the law as the election looms more closely

A concern that arises from proposals is the possibility of a vote-of-no-confidence  challenging the Prime Minister with only 19 members being able to demand such a vote.

The proposal to raise the minimum age to stand as a candidate for president to 55 is odd in a country that is demographically very young and the life expectancy for males is around 65 (at birth). This seems to be aimed at limiting the opportunity of former presidents to continue a political career (as N Enkhbayar and – potentially – Ts Elbegdorj are). The single six-year term will have presidents focusing on their tasks rather than re-election, presumably. It is unclear whether Pres. Battulga would be allowed to stand as a candidate in a 2025 election, arguing that this would be the first under the new constitutional structure and thus not a re-election.

Local Governance

  1. Change of the city status – this would provide opportunities for Erdenet, Darkhan, and Choir (Gobi Sumber) to regain status as cities.

  2. To authorize citizens’ representatives khural to impose local taxes within legal limits.

  3. Election of soum governors by soum assemblies.

Our notes: Giving Erdenet and Darkhan (possibly others later on) city status is primarily an administrative change that is meant to improve governability.

The raising of local taxes is an interesting matter. It is somewhat contrary to the unitary nature of the Mongolian state, but this would extend a trend where differentials in industrial, especially mining, activity have been reflected in budget allocations. Presumably, this could be a tool (in addition to Local Level Agreements) for localities to negotiate agreements with large or even smaller mining projects. That would likely be interpreted as significantly raising uncertainty around investments for domestic and international investors. It’s also not clear whether this is meant to inspire some kind of competition and experimentation among soums. Ultimately, this proposal may be aimed at a larger and more ambitious re-organization of soums, reducing their total number in the name of administrative efficiency, but this tax proposal may well produce a LOT of unintended consequences while not necessarily leading to a discussion of regional organization.

The proposal for elected rather than appointed soum governors may be aimed at reducing the impact of partisanship on local politics by making soum governors more accountable.

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