Will the Constitution be amended again?

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-- Restricting ‘double deel’ violates Constitution, Constitutional Court concludes --

On August 15, the Constitutional Court reviewed a dispute regarding some provisions in the amendment to the Constitution of Mongolia. In particular, lawyer D.Uurtsaikh and parliamentarian T.Dorjkhand appealed to the Constitutional Court to change the electoral system in view that Article 39.1 of the amended Constitution and Article 4.4.3 of the Law on Parliamentary Elections of Mongolia on electing 76 members of Parliament from multi-member constituencies contradicts the basic principles, ideas and specific provisions of the Constitution. Lawmakers N.Ganibal and Sh.Adishaa also addressed the court on the same issue. 

The constitutional amendment of 2019 allows up to four members of Parliament to sit in Cabinet. More specifically, Article 39.1 of the Constitution stipulates that the prime minister and no more than four members of Cabinet may concurrently hold positions as members of Parliament.

It should be noted that the decision of the Constitutional Court is final. Therefore, its decision attracted a lot of attention from the citizens. In specific, the dispute about whether some amendments to the Constitution violated the relevant provisions of the Constitution was reviewed again in accordance with Article 30 of the Law on Constitutional Court Procedure. The court ruled that the above provision is contrary to the basic concepts of the Constitution and does not comply with the Preamble and Articles 1, 2, 29 and 70.1 of the Constitution of Mongolia. Therefore, it issued Resolution No. 02 to cancel it.

On top of that, previous decisions of the Constitutional Court, which reviewed the amendments to the Constitution of Mongolia, were annulled.

First of all, due to this decision, it is clear that Parliament will convene and amend the Constitution again in the near future. Specifically, this time, some lawmakers are talking about amending the Constitution to increase the number of members of Parliament to at least 120. They say that the restriction on “double deel” (holding dual posts in Cabinet and Parliament) should be removed.

Lawyer D.Uurtsaikh said, “The constitutional amendment gives the prime minister the right to appoint and dismiss ministers. However, the current activities of Parliament and the government show that the prime minister has not been given full authority. The work of ministers, who are not lawmakers, is not supported. For instance, ministers without a ‘double deel’ have little opportunity to explain their problems to Parliament and get support, so the coordination between the activities of Parliament and the government is limited. If this link is improved and a Parliament with a stable majority that supports the government’s policies is formed, the quality of its activities will be improved. As a result, parties’ internal responsibility and discipline will improve and they will start talking about long-term policies. From an individual researcher’s point of view, the difference between the government and legislature must be very clear. Therefore, the legislature was of the opinion that no member of Cabinet should have a ‘double deel’. However, this should be reconsidered as the prime minister continues to face parliamentary pressure.”

“The amendment contradicts certain provisions of the Constitution. The provision to have only four ministers with ‘double deel’ undermines the basic idea of the 1992 Constitution. Therefore, we appealed to the Constitutional Court that all Cabinet members should have the opportunity to have dual posts. Consequently, the Constitution needs to be amended to strengthen parliamentary democracy, depending on how the court decides. Although some progress has been made under the amendment, its groundwork has not been laid. That is why we are still in crisis today. The number of parliamentarians needs to be increased if it is possible for a lawmaker to serve as a minister. According to political analysts, the Mongolian Parliament should have 140 to 150 members. Parliamentary democracy will be intensified only if Parliament has at least120 members. In this case, the ‘double deel’ will no longer be a problem,” he expressed.

The Constitutional Court decided that limiting the “double deel” contradicts the relevant provisions of the Constitution, which means that the reasons for persuasion of the “dreamers” of the constitutional amendments have increased by one. In other words, they will insist that “since the Constitutional Court has decided that the Constitution has been violated, let’s introduce amendments”.

Of course, if the Constitution is amended again, several other issues will be introduced in addition to the changes related to the “double deel”. First of all, they will increase the number of legislators. Consequently, it will be considered to include the arrangement for the election of a president by Parliament. Clearly, these are topics that are currently being discussed in the context of constitutional amendments.

According to the decision made by the Constitutional Court at the end of last June on the issue of changing the electoral system, it can be said that the issue of further amendments to the Constitution has been basically settled.

In particular, the Constitutional Court ruled that the legislature retains the exclusive right to elect and legislate any electoral system in accordance with Article 21.4 of the Constitution of Mongolia and concluded that the electoral system will be legislated by Parliament within its mandate, not by the Constitutional Court. In other words, the prohibition and obstacles of the Constitution have been removed from conducting parliamentary elections by a mixed system, not only by the majority.

On the other hand, there may be significant changes in the composition of the government. The prime minister has long been criticized for not being able to hold ministers accountable for their mistakes.

It is no secret that the reputation of the government has declined due to the personal ability, experience and recognition of some ministers. Not to mention, the two newly established ministries still have no ministers. Therefore, people demanded the prime minister fulfills his duties and holds Cabinet members accountable before changing the Constitution and allowing all ministers wear a “double deel”.

In fact, the government waited for the issues related to the amendments to the Constitution and the decision of the Constitutional Court, as seen from the fact that the prime minister has not made any changes in Cabinet until today. Therefore, it will become clear in the coming days when the ministers will be dismissed or appointed since the court has made its decision. In this regard, it cannot be denied that some people are rejoicing at the prospect of becoming the next minister with “double deel”.

In general, even if a different decision was made by the Constitutional Court, the discussion about amendments to the Constitution would not have subsided. Moreover, this is a process that must be carried out under strict time limits and restrictions stipulated by the Constitution and the Law on Amendments to the Constitution, so Parliament will be busy discussing this issue next fall.

In any case, by order of the prime minister, a working group for amendments to the Constitution has been established. Before the adjournment of the spring session of Parliament, the leaders of the political parties signed a letter of declaration on amending the Constitution initiated by the Mongolian People’s Party and expressed their support for the constitutional amendments.

Former President N.Enkhbayar is leading the working group for the consolidation of studies, projects, relevant documents and information developed at the level of political parties on the issue of amendments to the Constitution. The members include Chairman of the Civil Courage Republican Party Ts.Gankhuyag, Chairman of the United Traditional Party of Mongolia B.Batbold, Chairman of the Mongolian National Democratic Party B.Tsogtgerel and Chairman of the United Citizens’ Coalition Party Ts.Gantulga. The working group was tasked to present its proposals in the near future, no later than next month.

When N.Enkhbayar was the chairman of the Mongolian People’s Revolutionary Party just two years ago, he presented his draft throughout the country during a discussion on amendments to the Constitution. The content of his draft, which was variously called “New Constitution” and “Fifth Constitution”, is completely different from today’s democratic Constitution. That is why he was one of the people who strongly opposed the amendments to the Constitution approved in 2019. We hope that the chairman of the ruling Mongolian People’s Party and the head of the government thought about this issue when they entrusted this work to N.Enkhbayar.

In addition, it is said that an irregular session of Parliament will be announced at the end of this month, and the issues directly and indirectly related to amendments to the Constitution will be discussed. After Naadam, members worked in their constituencies, exchanged information and monitored public opinion. The ruling party also announced that it would announce an extraordinary session in August.

Under a parliamentary resolution, members of Parliament also visited their constituencies from June 18 to 26 to hear the views of citizens on proposed amendments to certain provisions of the Constitution.

According to Chairman of the working group in charge of studying the election system S.Byambatsogt, citizens were asked to comment on 11 issues on four topics: strengthening the human rights protection system, increasing the public representation capacity of Parliament, improving the system of local governance and changing the national emblem of Mongolia.

But there were members who thought this work was not effective. Specifically, legislator J.Batsuuri expressed that one week was not enough to get feedback from citizens and that the four topics are unclear.

“For instance, the people are tired of politicians who fail to fulfill their duties, not the electoral system. Lawmakers are going to increase seats in Parliament. Moreover, some people are talking about having a double deel, taking advantage of their positions in order to become a minister. Parliament should not initiate anything to increase the privileges of its members. It must be initiated by the president or the government,” he said.

In any case, it is clear that once the irregular session of Parliament is announced, several issues will be discussed to amend the Constitution in connection with the conclusion of the Constitutional Court.

Misheel Lkhasuren

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