What further constitutional amendments are needed?
The last constitutional amendments of 2020 in Mongolia have brought improvements. However, these have not eliminated the fundamental flaw, namely the character of the constitution as a mixed system. This means that it is still not clearly decided whether the political system should be presidential or parliamentary. Imbalances and overlapping in the separation of power between the executive, legislative and judicial branches continue to exist and the governing democratic principle of "checks and balances" is restricted. This hinders the effective functioning of the political system to the detriment of the country and its people. I have analysed this in: МОНГОЛ УЛСЫН ҮНДСЭН ХУУЛИЙН 2020 ОНЫ НЭМЭЛТ ӨӨРЧЛӨЛТ - ДЭВШИЛ ГАРСАН УУ? http://baabar.mn/article/baabar-mn-article-undsen-khuuli1-year-2022-month-09-day-25. Not for nothing are further changes being discussed in Mongolia. In my view, the following amendments are necessary.
1. Legislature (State Khural)
The State Khural continues to be the "highest organ of state power". This gives the parliament an exclusive position, which is contrary to the separation of powers. This wording should be deleted in order to show the principle of an equal distribution of powers also in the wording.
The number of MPs should be increased from currently 76 to about 100 in order to reduce the weight of the individual MP and thus the importance of particular (business) interests of individuals/groups in view of the »double deel«. However, one can argue about the extent of the increase. A look at comparable states in terms of population helps here. This is how the figures of some examples look (inhabitants/ members of parliament): Lithuania 2.8 million/141; Latvia 1.9 million/100; Estonia 1.33 million/101; Slovenia 2.1 million/ 90; Norway 5.4 million/169. Given these figures, maybe up to 150 members seem1 reasonable. However, it is then a question of what a country is willing to pay for its legislature.
It should also be considered whether a 2nd legislative chamber should be set up in order to have a corrective to the decisions of the State Khural (like the Bundesrat in Germany or the Senate in France/USA). At present, the State Khural can decide virtually anything unchecked with the appropriate majority.
Party registration requires 1% of those eligible to vote, which as things actually stand is more than 20,000 people. This is a disproportionate limitation of the political will and articulation possibilities of Mongolian citizens. It is also politically questionable, as it gives the impression that the existing parties want to exclude possible political competition. A much lower figure would have to be set here (perhaps 1,000 or 2,000 people). A possible fragmentation of the State Khural up to its inability to function due to the entry of too many mutually blocking parties into parliament can be prevented by the introduction of a blocking clause (like the 5-percent clause in Germany), because a distinction must be made between the founding/registration of a party and its entry into parliament.
2. Executive power (prime minister)
The constitutional amendments have brought important improvements in the area of the executive, especially in that the head of government appoints and dismisses the members of his government and that the entire government resigns when the prime minister is removed. However, the design of the vote of no confidence in the constitution is not optimal. Currently, the State Khural can arrange a vote of no confidence with a quarter of its members and dismiss the head of government with a simple majority. A new head of government must be appointed within 30 days. While this sets a certain hurdle, it is too low.
In terms of the stability of a government, it would be better to introduce a constructive vote of no confidence in the manner of the Federal Republic of Germany, where the parliament (Bundestag) can only express no confidence in the Chancellor by electing a successor by a majority of its members and requesting the Federal President to dismiss the Chancellor. The Federal President must comply. There must be 48 hours between the request and the election.
The constructive vote of no confidence would presuppose a will to govern and prevent mere destruction. The chances of disruptive manoeuvres and government crises are thus considerably reduced. There must then be a majority alternative from the outset. Four weeks of searching for a successor with an uncertain outcome (up to the self-dissolution of parliament) will be avoided. Given the instability of Mongolian governments so far, this would be the only sensible solution.
Alternatively, a vote of no confidence can be dispensed with altogether. One thus avoids holding such a vote out of "convenience". Instead, the parties are forced to look for solutions. In view of past experience with the State Khural, this possibility should also be considered.
3. President of the state
The key question is whether one wants an executive president in the manner of the USA or France or one with purely representative functions as in Germany, for example. At present, the president is a strong counterpart of the head of government because of the powers constitutionally vested in him, and he also has substantial means of power vis-à-vis parliament, which inevitably provokes mutual blockades and political disputes between the three institutions (overlapping means of power). These disputes are all the more likely if the three most prominent political figures - president, prime minister and speaker of parliament - belong to different parties and/or are personal opponents.
The main rights of the Mongolian president given by the constitution are:
- proposes the head of government to parliament;
- the head of government must consult with the president on the composition and structure of the government;
- right to veto legislative proposals and other decisions of parliament;
- right of initiative (legislative proposals);
- Chairman of the National Security Council;
- Commander-in-chief of the armed forces (a very effective instrument of power);
- full power to act in foreign policy ("secondary foreign minister«).
Fundamentally problematic is the direct election of the president by the people, which gives him a high degree of democratic legitimacy. This legitimacy is an essential "pound" that gives the president political weight beyond his constitutional powers. Direct election therefore only makes sense or is in the interest of effective state-building if the president is an executive president.
The institution of a purely representative president, such as in the Federal Republic ("supreme notary of the republic"), would avoid the above-mentioned overlapping of competences and provide the head of government with a determining role and shift the core of political events into two clearly separate areas, namely the executive and the legislature, and not, as at present, spread them over three institutions (parliamentary system). Or create an executive president who acts as the executive centre as in the USA with a complete concentration of executive powers on the president (head of state and head of government in one person) or as in France (where the president appoints the prime minister), with control by two legislative chambers (presidential system).
The distribution of power between the president and the prime minister must be completely and fundamentally rebalanced, because only one can lead the executive. If the prime minister is given the rights of, say, a German chancellor, then he or she is the decisive power of the executive, and the constitutional rights of the president are reduced accordingly. What one gains in power, the other loses. In other words, there is no compromise here, but a clear cut must be made.
An executive president probably suits the Mongolian mentality and history better.
4. Judiciary
The independence of the judiciary must be strengthened. This is not so much a question of constitutional provisions, but of interference by other bodies such as the state president and parliament in the administration of justice against the will of the constitution, especially in the filling of judges' posts and the appointment of the "general council" of the courts. The other powers and their representatives must respect the independence of the judiciary and avoid any interference.
5. other points of view
It is obvious that there is a big difference between the constitutional text and constitutional reality. Such problem areas are urgent:
- Corruption, esp. dominance of business interests in government and subordinate administration and in parliament, and effectively combating it.
- Financing and structure of parties, patronage.
- Corruptibility of offices (especially parliament and government) instead of selection according to ability and skills.
- Civil service/administration: Ensuring a stable civil service, i.e. no regular replacement after parliamentary elections; ensuring professional quality through objective selection and promotion based on professional qualities/experience/willingness to work; good pay to counteract concentration on sideline commercial activities.
Equally important for the quality of a constitution are the corresponding implementing laws and their enforcement (control and sanction) at all levels. This absolutely includes free media ("fourth estate«). Likewise, a change in the value orientation of the political-economic elite and the population as a whole is necessary. Democracy, apart from the establishment and functioning of appropriate institutions and rules, also and especially consists in the practice of democratic values.
