Constitutional Law Experts Delves Into Proposed Amendments
- By Myagmardorj Buyanjargal -
- Oct 24,2017
Relating to the proposed amendments to the Constitution of Mongolia, The UB Post interviewed Gangabaatar Dashbalbar, an assistant professor at the National University of Mongolia who did his PhD on the Constitution of Mongolia. I believe that the stability of civil services and core ministries could see a positive change from these amendments. What do you see as positive changes from the proposed amendments to the Constitutional Law as an expert? It has been a hot topic for many years to amend the Constitution. This amendment proposal has some advantages and also things that we should be careful with, just as most things have both disadvantages and advantages. It’s a priority for Mongolia to separate public services from political influence or dependence and make civil services professional and stable in order to improve the performance and responsibility of civil servants. We already have regulations in our current laws to separate the civil service from political dependence and keep it professional. However, it’s not working on the ground. Since we are not taking any serious action to implement such regulations, it is obvious that the situation will not get any better by simply amending the relevant regulation in the Constitution. How can we ensure the independency of the supervising agency for civil services if we choose a mechanism to be observed by the supervising agency as it’s stipulated in the Constitution? Parliament will establish the agency, but is there any guarantee that this agency will be stable if the majority of Parliament changes after an election? If there was a reliable system like this, then it would be significant to amend the regulations governing such matters in the Constitution. However the proposal states that there will be an agency for civil services, but it’s legal framework will be defined by other laws. If we are trying to form an independent agency for civil services, we must declare its independency in the Constitution. Otherwise, it’s naïve to believe just mentioning the agency in the Constitution would guarantee its independency. There are some provisions in the Public Service Law that prohibit discrimination for political reasons, and firing employees based on election results. I do not see that adding such regulations to the Constitution would change the current situation. The real question is: do we have a sanction mechanism if someone violates these regulations? I believe an amendment giving independency to the Prime Minister to form his or her own Cabinet could increase the responsibility of the government. How do these proposed amendments compare to those that succeeded in 2000? For example, the 2000 amendments are called “the seven Disimprovements”. We have been discussing the repeal of the seven changes in full or partially. The current proposal would in part restore the initial 1992 situation and repeal some of the changes made in 2000. If we look at the bigger picture of this proposal, it attempts to change almost 20 (articles). It is risky to amend so many provisions related to constitutional institutions, because we cannot make further changes for another eight years. Compared to the 2000 amendments, the advantage of this proposal is its transparency, such as citizens and civil society are able to participate in the discussions, and have their voices heard. On the other hand, organizations like them cannot focus on so many changes within a certain time limit. If we only focused on particular changes, it would increase the contribution of citizens and civil society. There have been critics of the Constitution saying that we declared Parliament as our highest power of state, but it’s actually only one of the three branches of government; the judiciary, the legislative, and the executive. Do you think we should have implemented certain regulations on this? Yes, there have been critics of this. But I don’t see issues with the checks and balances of the three branches of the state. On the other hand, the low level of political culture and our system of governance by the oligarchy have brought us unstable and irresponsible civil services. Factional governance could be a reason as well. Article 41 of the Constitution of Japan has the same regulation about Parliament being the highest power. This is just a warranty for parliamentary governance, but does not seek to place Parliament above the judiciary or the executive. The proposed amendments would form a supervisory committee under Parliament. Is this a way to proceed for the legislative branch or does it diminish the power of the other two branches? The Parliament Supervisory Committee is one of the methods of audit used in western countries. Parliamentary audits can be done by temporary and permanent committees. There have been incidences where such parliamentary audits came into conflict with the judiciary, and therefore we should be careful of overlaps with the judiciary's powers. The proposed amendments specify the formation of the State Audit Organization. Some people see this as Parliament attempting to expand its power. But could it be that they are trying to unite the legal regulations of all audit-related public organizations? How do you see it? According to the proposal, the State Audit Organization could independently monitor state authorities and non-state organizations and entities, as well as their employees. This includes those with financial, budgetary and executive functions, as well as local administrations and public organizations. Since this organization would have an abundance of power, it should be independent from any entities and/ or organization such as the majority of Parliament and the government. Otherwise, one of them could block their power. There are some questions that we would need to agree on to have an organization like this, such as: How is this different than the state audit under socialism? Are the current organizations such as the Professional Observer Authority, the Audit Commission, the Human Rights Commission, and the Independent Anti-Corruption Authority not working efficiently? What kind of power would the proposed organization have? What are the challenges in and reasons for establishing an organization like this? Isn’t it possible to improve the current system and institutions by empowering the current audit organizations? If there is a need to establish this organization, we should discuss the current audit-related organizations and agencies. If there are issues and challenges in establishing this organization, how would this organization solve these problems? We need to have research-based explanations of how such a powerful organization would work independently. As I know, in some well-developed democratic countries, the mechanism to monitor (audit) their government is for Parliament to hold a hearing, or have a contemporaneous committee monitor the government. We now hold a discussion on each member of the government in Parliament in order to appoint them. In the proposal, the Prime Minister could appoint his/ her own Cabinet members. Also there is a limit on the number of Parliament members in Cabinet has: no more than one third. These are improved regulations, aren’t they? We actually have Cabinet principles so that we can ensure that the Prime Minister can appoint his or her own Cabinet independently from any interest groups and factions. Thus, the Prime Minister should take the responsibility on his or her own. Holding a discussion on each minister is violating the Prime Minister's right to form his or her own Cabinet, and of course, influencing the government’s activities. I totally disagree with Parliament members being members of the government. But perhaps the Prime Minister could be a Parliament member. Also related to the government, Parliament will no longer have the right to add a new type of expense, according to the proposed amendments. Do you think that this can ensure a better separation of powers? We have examples of Parliament members planning an additional spending of 250 million and one billion MNT in their electorates. It is absolutely right to oppose Parliament creating additional spending without agreeing with the government. In this proposal, the President's powers would also change, most likely reduced. How do you see this? The public will most likely see this as the parliamentary majority trying to limit the President’s power because he is from an opposing party. However, the proposal was put forward much earlier than the election result. Countries have their own constitutions. We should learn from others, but the regulations that work in other countries do not necessarily work in Mongolia. We should learn more from our 25 years of experience of the Constitutional Law. Some foreign experts classify us as a half-presidentially-governed country. The President of Mongolia has quite a lot of power. I believe the right to appoint judges should belong to the President instead of Parliament. On several amendments in the proposal, it states, “The President shall confirm (approve)”. Is this a mechanism to keep checks and balances? What would happen if the President does not confirm? There have been critics of the President’s power that one time the President did not appoint the 12 (Supreme Court) judges. I do not see any serious implications of changing the word "appoint" to "approve". It could be a symbolic regulation. But there would be a problem if it was taken to mean that the President has a right to not approve. In case these regulations come into force, I assume this will go to the Constitutional Court. Do you have anything more to add? Relating to the judiciary, an amendment that we should pay attention to is that in our current Constitution, the President appoints judges after they have been presented to Parliament. But in the proposal, the President will confirm after the judges have been presented to and ratified by Parliament. In other words, the judicial appointments must be supported by Parliament. There is a regulation like this in the United States to hold a discussion in Parliament, but I don’t believe it would work in Mongolia. To appoint Supreme Court judges by means of political support has serious risks and could be even worse than the current regulations.