The Constitutional Court and Gridlock in Mongolian Democracy

By Bat-Orgil Altankhuyag and Marissa J. Smith

As covered by Mongolia Focus, the Mongolian government made significant changes to the Constitution in 2019. This was the second time that changes have been made since the Democratic Constitution was adopted in 1992.

Even though there is a consensus among politicians and scholars in Mongolia that the new amendments can lead to positive change in the political system in Mongolia, their ratification is part of an ongoing project of political reform on the part of dominant forces in the Mongolian People’s Party and this has also led to some inevitable institutional conflicts. One of them is the current debate on whether or not the current president is allowed to run again for the upcoming presidential election. Scholars and politicians have different opinions on this issue. The Constitutional Court is set to make a final judgment on it on Friday (April 16, 2021).

Parliament(arianism) vs. President(ialism)

Driven by the Mongolian People’s Party, which holds a supermajority in Parliament, the main point of the new amendments was to move from a semi-presidential system to a parliamentarian system, or at least to substantially check the powers of the president. The new amendments even include the provision that Presidential powers be limited to those in the Constitution (§33.4) (though the Law on the Presidency itself remains to be changed or repealed). The transition from Prime Minister Khurelsukh to Prime Minister Oyun-Erdene and a revamped Cabinet proceeded in late January/early February almost without a hitch in accordance with the new amendments, as President Battulga punctually confirmed of all of the nominees. But more recently the President has fought back against the trimming back of his powers by utilizing his veto powers on legislation passed by the Parliament, making submissions (including in person) to the Constitutional Court, and vetoing and otherwise influencing the nomination of new members of the Constitutional Court.

Even though there is currently a double crisis of health and economy due to the Covid pandemic in Mongolia, it seems like politicians have been quite focused on the question of whether Battulga can run for reelection or not. One of the main scholars who actively participated in the development of the recent Constitutional amendments was Professor Munkhsaikhan Odonkhuu from the National University of Mongolia, who writes that “with the establishment of a single term presidency, whether current and former presidents can run again is not clear.” According to the recent Constitutional amendment, a citizen who has reached 50 years old can be a president only once. In the original draft of the amendment, this clause would have  been implemented after 2025. However, the Parliament made a change on this date and made it to 25 May 2020. Interestingly, the General Secretariat of President, Enkhbold Zandaakhuu (a long time Democratic Party power in his own right, Speaker of the Parliament from 2012 to 2016 and head of the DP from 2014 to 2016) suggested this change (see also this source).

Influencing the Constitutional Court: Nominations, Vetoed Nominations, Submissions, Submissions in Person

Many people have been questioning whether or not the Constitutional Court can make professional and independent decisions, and the Court has been making various questionable decisions for the last 30 years of democracy in Mongolia. For example, in 2016 the Constitutional Court decided that the mixed electoral system that was used in the 2012 parliamentary election is unconstitutional (the decision may be read at legalinfo.mn). It is extremely hard to justify this decision unless the court made this decision for political purposes, i.e. to benefit the current majority in Parliament, i.e. the Mongolian People’s Party. (See the recent presentation by Professor Gerelt-Od Erdenebileg, here starting at the 1 hour, 34 minute mark.)

According to Article 65 of the Constitution (in place since 1992 and not part of either the amendments of 1999-2000): The Mongolian Constitutional Court has nine members. To keep balance in the Court reflecting distribution of power among the different branches of government, three members are nominated by the Parliament, three members are nominated by the President, three members are nominated by the Supreme Court, and then the Great Khural (Parliament) appoints them for six years.

The six-year terms of the current two members nominated by the Supreme Court (Deed Shuukh, not to be confused with the Tsets, the Constitutional Court) have already expired. Because of the expiration of the terms of two justices, the Parliament appointed J. Erdenebulgan and dismissed Sh. Tsogtoo on March 26, 2021 (it is unclear why they are not being appointed by the Supreme Court, but current matters of judicial independence are numerous and they deserve at least one separate post). The General Secretary of the President’s Office, U. Shijir, stated that this sudden appointment was due to politicians’ action in order to influence the Constitutional Court’s decision.  President Battulga vetoed the decision and the Parliament discussed it, and ultimately Sh. Tsogtoo was nominated (rather than Battulga’s requested D. Solongo), and now the Democratic Party MPs have raised complaints about the ethics of another justice, D. Odbayar, the former chairman who sexually assaulted a South Korean flight attendant – two years ago.

The President’s official representative, attorney B. Gunbileg, is arguing that there is no restriction regarding the current president’s right to run for the election. He also stated that the ruling party is trying to influence the decision-making of the Constitutional Court by changing the members. There is some conflicting information in media as to whether the Court has made initial meetings (Baga suudliin khuraldaan or Meeting of Small Chambers)  or not because of the third KhUN Party’s sole MP’s petition on the issue. Gunbileg also stated that the Constitutional Court declined the Meeting of Small Chambers and scheduled a Meeting of Medium Chambers in the Court. He argued that it is a clear sign of political influence.

In January 2020, President Battulga was joined by all four former Presidents in submitting to the Constitutional Court questioning the constitutionality of the new clause apparently barring reelection. But more recently, the President himself went to the Constitutional Court’s office to open cases regarding new laws on the judicial sector (which are necessary to fully implement some of the new Constitutional amendments) after Parliament overrode Battulga’s veto of the new Law on Courts. This is an entirely new precedent because a previous president has never visited the Constitutional Court himself (all four presidents have been men) and the Constitutional Court has never taken a whole law draft as a petition. According to the Law on the Constitutional Court, Article 10, submissions by the President must be considered by a session of the Court. A. Byambajargal, Professor of Law at the National University of Mongolia stated that the president is trying to influence the constitutional court’s decision through his actions.

In general, the Mongolian Democratic Constitution of 1992 has been open to various conflicting explanations. The Court that should make the final judgment on the Constitution became a highly politicized organization. We can argue that in its current form and context the Constitutional Court can have the function of gridlock in the Mongolian political system or democracy in general. This gridlock will likely continue unless there are significant changes in the Constitution itself.

 

Update, Friday, April 16, 2021:

The Constitutional Court has ruled that some provisions of the Law on Presidential Elections are unconstitutional (specifically, those stipulating that any citizen who has reached age 50, resided in Mongolia for five years, and has registered as a candidate may stand for election), thus aligning the Law on Presidential Elections and the 2019/2020 Constitutional amendments. This is widely recognized as a ruling that President Battulga and other previous Presidents may not run for reelection.

However, DP MP J. Batsuuri has already complained about which justices participated in the session — D. Odbayar (about whom DP MPs made ethics complaints about a few days ago) chaired the session after Ts. Nanzaddorj did not participate, and D. Solongo (one of the two justices whose terms have expired) also participated.

 

Bat-Orgil Altankhuyag is a political analyst with a Master’s Degree in Public Policy and postgraduate degree in development studies from the University of Auckland. He has worked with a number of international and local research and development organizations. His blog is http://www.bat-orgil.com/.

This entry was posted in Bat-Orgil Altankhuyag, Constitution, Democracy, Elections, Governance, Politics, Presidential 2021 and tagged . Bookmark the permalink.

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