Constitutional amendment should ensure balance of powers

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  • Apr 21,2019
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Parliament in session

After the Mongolian People’s Party (MPP) won 85 percent of the seats in Parliament in the 2016 parliamentary election, they set up a task force made up of legal scholars, specialists, and experienced lawyers to work on drafting amendments to the Constitution.

The years of 2016 and 2020 are the most probable time for the ruling party, MPP, to make amendments to the Constitution as the amendments to the Constitution can be approved by Parliament when three-fourth of lawmakers (57 out of 76 lawmakers) consent to the amendments.

In accordance to Section 69.2 of the Constitution, Parliament can review amendments to the Constitution twice within four years.

As the Constitution is the nation’s core document, changing it is not easy for a political party or coalition-led Parliament.

Key changes on constitutional amendments focused on redefining the president's powers and responsibilities; ensuring the balance of power between Parliament and Cabinet; strengthening, specializing, and making state administrators more independent; enhancing regional administration and governance systems; strengthening discipline and ensuring accountability among civil servants; and improving the implementation of laws.   

Observers say that since the Constitution was first adopted in January 13, 1992, 15 cabinets were formed, so the average cabinet tenure is 1.7 years. Researchers believe that amendments to the Constitution should be made to maintain political stability and to address many other challenges facing society today.

Section 43.4 of the Constitution states that when more than one-fourth of lawmakers propose to disband Cabinet, Parliament will have to review the matter and Cabinet will be disbanded by a vote of the majority of lawmakers in attendance, but according the proposed amendments to the Constitution, if more than one-fourth of lawmakers propose to dismiss the prime minister and his Cabinet, Parliament shall review the proposal and if the majority (39 legislators) vote for the prime minister’s dismissal, a new prime minister shall be appointed within seven days.

According to the current Constitution, theoretically 21 lawmakers have the power to oust the prime minister’s dismissal if 39 lawmakers (the current quorum) attend a parliamentary session in a review for the dismissal of a prime minister, which bring about high risks of political instability and it is the main reason the average Cabinet tenure is less than two years.

The proposed Constitution would therefore enhanced political stability by increasing the number of votes needed to disband Cabinet to 39, which might help prolong the average Cabinet tenure.

Section 46.1 of the Constitution states that ministries, government agencies and other organizations shall be formed under the law, but the new Section 46.1 of the proposed constitutional amendments states that Cabinet has to have five permanent ministries; the Ministry of Justice and Internal Affairs; the Ministry of Finance; the Ministry of Foreign Affairs; the Ministry of Defense; and the Ministry of Environment.

The prime minister is able to put forward a proposal to form up to seven new ministries in social, economy and infrastructure sectors.

Small and developing countries like Mongolia have a flexible system that can merge or split ministries based on their development policies. If this section is approved by Parliament, the prime minister cannot form a ministry of environment and tourism, or environment and urban development, which is why this section could be problematic for Mongolia.  

A new part stating that one-third of Cabinet ministers can hold office as a lawmaker has been included in the proposed Section 39.1 of the ongoing constitutional amendments. Many lawyers agree that Parliament must approve this section because they believe that this section will be of significant importance to ensuring the balance of power between Parliament and Cabinet. According to the current Constitution, there’s no provision limiting the number of Cabinet ministers who can be members of Parliament.

Currently, all ministers, excluding Prime Minister U.Khurelsukh, are lawmakers, and according to the separation of powers, the legislature, the executive body and judiciary must monitor each other, but when all Cabinet ministers are lawmakers, Parliament’s power to monitor and oversee Cabinet is weakened.

The most recent example where the system failed is when Cabinet ministers who are legislators boycotted parliamentary and standing committees’ sessions for over a month, which shows that Cabinet’s power has extended beyond Parliament. On paper, Parliament should oversee government’s operations, but what we see now is the exact opposite.

In the fall session’s closing remarks, Speaker of Parliament G.Zandanshatar announced that Parliament has to review the proposed amendments to the Constitution during Parliament’s upcoming spring session, but first of all, lawmakers should focus on keeping parts that aim to enhance political stability in Mongolia and work to ensure the appropriate balance of the separation of powers.