Central AsiaFebruary 12, 2020

Mongolia’s constitutional amendments: An analysis

Zorigt Dashdorj

Reading time: 10 min

The President of Mongolia has ratified amendments to the country’s constitution. The changes will curb the parliament’s influence in the budget and the composition of the cabinet, but will provide it with the ability to make crucial appointments.

On November 26, 2019 Mongolia finally amended its constitution. President Khaltmaagiin Battulga signed the amendments adopted by the parliament (State Great Hural) on November 14, 2016.

The changes were confirmed after a year of complex and intense negotiations between all branches of power, political parties and civil society. For over two decades, Mongolia had been mulling over changes to its constitution that would address the unusual separation of powers between the president, the prime minister and parliament.

Challenges and advantages

Originally, the Mongolian constitution laid out a division of power that went beyond the usual checks and balances. Executive and law enforcement powers were distributed among many branches of government to prevent excessive influence. As a result of this precaution, Mongolia is the only country in Central Asia that consistently held free elections over the last 30 years, and that did not slide back toward strong-man politics or one-party rule.

This structure also made governing more challenging. In 1998, after the resignation of Prime Minister Tsakhiagiin Elbegdorj, the parliament was unable to elect a prime minister for six months because the majority could not agree with the president’s office on a candidate. A year later, the constitution was modified so that the parliament could appoint a prime minister without the president’s consent. But the prime minister’s weak hold over the parliamentary majority meant less stability. Mongolia has had 16 prime ministers since the democratic reforms, some lasting as little as two months.

The public sentiment was therefore strongly in favor of increasing executive power to foster more continuity, especially in view of long-term developmental goals. But what do the amendments really signify?

Amendments

1.Presidential powers

Amendments to Article 33.4 stipulate that “the specific powers of the President may be given by law only within the limits provided for by this Article.” From now on, presidential powers will be strictly confined to the 11 clauses of this article. These include: veto power; giving directions to the government (jointly with the prime minister); representing Mongolia abroad and signing international agreements; appointing ambassadors; receiving the credentials of foreign ambassadors; bestowing state decorations and appointing the highest military ranks; issuing pardons and citizenships; heading the National Security Council (which also includes the prime minister and the parliamentary speaker, and whose decisions are taken unanimously); mobilizing the military; and declaring a state of war or emergency (which can be either upheld or rescinded by the parliament).

Mongolia has had 16 prime ministers since the democratic reforms, some lasting as little as two months.

The provision allowing the president to officially nominate a prime minister – as proposed by the parliamentary majority – was removed from clause 33.4, becoming a duty rather than a mandated power.

The power to appoint the prosecutor general and its deputies in consultation with the parliament, delineated in Article 56.2, remains intact. Likewise, the president still appoints judges and the chief justice of the Supreme Court upon recommendation by the General Council of Courts and parliamentary consent, in accordance with Article 52000-20. However, there are caveats.

These amendments will lead to changes in the laws regulating the nomination and appointment of the heads of the anti-corruption, public service and intelligence agencies, as well as the General Council of Courts. Presidential powers to nominate or participate in the appointment of these positions were accrued during the presidencies of Nambaryn Enkhbayar (2005-2009) and Tsakhiagiin Elbegdorj (2009-2017), who despite claiming to want a parliamentary republic, shifted the balance of power in favor of the president’s office. These changes will mostly be reversed by the latest amendments.

2. Cabinet

While the president, the cabinet and members of parliament all retain the power to submit a draft law, according to amendments to Article 26.1, “the scope and limit of this right shall be determined by law.” This clause could prove controversial, since it is essential for the cabinet and members of parliament to be able to submit draft laws to legislate in a parliamentary republic. Although it appears to curtail presidential powers, it could potentially affect all branches of parliament.

The prime minister no longer needs to consult the president to appoint the cabinet.

The prime minister no longer needs to consult the president to appoint the cabinet, and now has the power to appoint or dismiss it independently. This will give the prime minister more control over cabinet members, whose signatures are required to make major policy decisions. Only four members of the cabinet can now be members of the parliament. While it may sound illogical in a parliamentary republic, this amendment was driven by the fact that Mongolia’s parliament has only 76 members. Meanwhile, the cabinet has 20 members or more, thus the legislative branch could potentially dominate the executive.

The issue could have been solved by increasing the number of members of parliament, but it was deemed that the majority of the population did not support the measure. As a result, the cabinet could become even more fragile, with very little sway over the backbenchers. Under those circumstances, the roller coaster of government change is likely to worsen rather than improve.

3. Parliament

The parliament has limited its own powers by giving the cabinet the right to define the budget. Post-amendment, Article 25.7 signifies that the State Great Hural will not be able to increase the overall sum of expenditure or budget loss when making changes to a draft budget submitted by the cabinet. This is a hugely consequential clause that limits the basic powers of parliament and that will give the cabinet a powerful tool to implement its policy.

Another amendment stipulates that members of the Hural can be dismissed for breaching the constitution – which means rulings of the Constitutional Court can now serve as grounds to remove lawmakers from parliament.

However, the parliament has increased its influence and mandate in other substantial areas. As mentioned earlier, only four members of the cabinet can concurrently be members of parliament, reducing the influence of the prime minister over the majority caucus. Under the recent amendments, the power to nominate and appoint the head of the Anti-Corruption Agency will likely be shared between the parliament and prime minister.

New laws will determine who will nominate and appoint five members of the General Council of Courts. The remaining five members will be elected by judges among themselves. It is safe to say that parliament will be involved in some way, whereas before this was a presidential power. Moreover, the Great State Hural can now establish temporary investigative committees on specific matters of interest.

The parliament retains wide-ranging powers, from approving laws to appointing executives. Article 25.4 contains a special clause allowing it to legislate in virtually any area: “Other powers of the State Great Hural … shall be defined by law.”

4. Institutions

Other institutions have seen their mandates increased substantially. In this regard, the amendments could be a milestone in ensuring judicial independence. The General Council of Courts is essentially the administrative body of the judiciary. It selects and nominates judges for appointment either by the president or the parliament (for Supreme Court judges). Previously, all members of the council as well as its head were appointed by the president. This time, five out of the 10 members of the council are to be elected by the total body of judges and the remaining five will be appointed through open hearings. This amendment especially is an important step toward a more independent judiciary system.

Local councils in aimags (an administrative subdivision akin to a province), cities, sums (smaller units within aimags) and districts (smaller units within cities) were given the authority to introduce taxes. This could have a positive effect on local governance.

Some amendments are purposefully vague, and some significant points have not been approved. For instance, an increase in the number of members of parliament, as proposed by the opposition Democratic Party and the president, was not introduced due to alleged vocal opposition from the public. The introduction of a mixed proportional-plurality election system was made possible by changes to Article 21.4., which states that “procedures for election of the State Great Hural shall be determined by law,” thus leaving it to the parliament to choose a system.

Conclusions

The result is mixed. The amendments give the prime minister more leeway in defining the budget – a potent political weapon – and in appointing cabinet members. Meanwhile, it decreased the office’s influence over the parliamentary caucus by severely limiting the number of cabinet members who can be members of parliament, something that could have a negative effect on stability.

The powers of the president could be significantly reduced because of the limitations introduced in Article 33.4. However, the presidential office has tremendous moral authority because it is directly elected. Meanwhile parliament limited its own influence over the budget and cabinet. However, it increased its influence over the appointment of high-level judges and other law enforcement officials.

Mongolia’s idiosyncratic division of power, especially in the areas of the executive and law enforcement, has not been resolved through these amendments, but the most troublesome peculiarities have been addressed. Avoiding the overconcentration of power remains the underlying principle of the changes.

Mongolia has stable and positive relations with both its major neighbors, Russia and China, and its so-called “third neighbors,” major international players such as the United States, the European Union, Japan and India. While this lack of drastic changes in the balance of power between different branches of government will mean stability in relations with immediate neighbors and “third neighbors,” for foreign investors it will do nothing to remedy Mongolia’s reputation as a country with a slow and contradictory decision-making process.

A clause on the exploitation of natural resources caught the attention of investors.

A specific clause caught the attention of investors. Amendments to Article 6 state that “In conformity with the principles of the people’s power over natural resources, a legal basis will be established to ensure that the majority of the benefits from the exploitation of mineral deposits of strategic importance should go to the people.” Few deposits have been designated as strategic, so the clause affects only a few large projects. However, it is unclear how this will translate into law, and this uncertainty may discourage foreign investors, at least in the mining sector, until the situation is clarified in subsequent laws.