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An Unconstitutional Constitutional Amendment. Mongolian Constitutional Court modifies the Checks and Balances. One Step forward, Two Steps back

Geser Ganbaatar, P.h.D Student, University of Milan, Italy.

Mongolia has become a de facto one-party dominant system after two parliamentary elections in 2016 and 2020. Thanks to the highly disproportional electoral system, the Mongolian People’s Party (MPP) has obtained a supermajority of legislative seats (eighty-five and eighty-one percent respectively), while obtaining a mere forty-five percent of total votes in both elections.[1] After receiving a supermajority of seats, the MPP was able to exclusively amend the Constitution, which it eventually did in 2019.

There are two important provisions in the 2019 constitutional amendment. The first limited the number of members of the Cabinet concurrently being members of parliament (MP) to four (Article 39.1, Constitution of Mongolia)[2]. The second granted the Prime Minister the power to appoint and dismiss cabinet members autonomously (Article 39.4, Constitution of Mongolia)[3]. Prior the amendment, legislative approval was required on each candidate.

Limit on the dual mandate

The provision limiting dual mandate has been widely appreciated for strengthening the separation of powers, since the number of members of the unicameral legislature is relatively tiny (seventy-six seats), compared to other (democratic) countries with similar population size.[4] Many also believed that imposing such limitations would de-politicize the executive and allow to establish a technocratic government.

However, it is worth noting that there is no universal approach to the dual mandate. Some countries separate ministerial and parliamentary positions (e.g., most presidential systems, Norway, the Netherlands, and Belgium), some allow the dual mandate (e.g., continental European parliamentary systems), some necessitate entire ministers to be elected representatives in the parliament (e.g., the United Kingdom, Zambia, New Zealand, and Australia), and some require a certain number of ministers to be appointed from the parliament (e.g. Ghana, Bangladesh) and some countries set a maximum limit for the dual mandate (Mongolia limits to four[5], India set limit of fifteen percent and Vanuatu one-fourth).

Of course, arguments aiding pros and cons of restricting or obliging/allowing dual mandate are vast, since it depends on local institutional and political settings. From one side, appointing ministers from the parliament is much more democratic because ministers are directly accountable to the voters, since they can be displaced if they do not win the parliamentary election. To preserve their ministerial positions, dual-mandated ministers would, intuitively, pay more attention to their electoral constituencies and be closer to the citizens. Dual mandated ministers would also make the parliament more knowledgeable, since ministers would obviously know the practical issues dealt with by the executive branch and hence, would help in producing laws coherent to the local context.

From the other point of view, the argument that having members of the executive branch within a parliament would undermine the separation of powers appears to be valid as well, if the size of the parliament and quorum is small, if there is no limit on the number of cabinets (and if a number of ministers is massive), and if the payroll vote[6] is overexpanded within the legislature. When the Prime Minister appoints ministers of his cabinet amongst the MPs without parliamentary approval, the Prime Minister will have big leverage of patronage power over the legislative branch, since it can appoint MPs who are supportive and skip ones who are criticizing.

Before the 2019 amendment, the payroll vote within the Mongolian parliament was considerably high, and it was nearly impossible to hold the cabinet accountable and call a vote of no confidence, especially when the super-majority of the unicameral legislative chamber is occupied by a single party. By limiting the dual mandate, it abolished the country’s long-established practice of appointing ministers almost entirely from the legislature as common in Westminster-derived systems. The influence of the executive branch on the legislature was hoped to be minimized after introducing such a limit.

The amendment also increased the parliamentary quorum threshold. Before the amendment, it was possible to pass a law if there were present only twenty parliamentarians and without any limit on the dual mandate, the cabinet had enormous power in the legislative process.  The amendment increased the threshold to thirty-nine, which prevented passing laws with too few MPs, helped to reduce the influence of the executive on the parliament and overall, it thickened the separation of powers.

Empowerment of the Prime Minister

The 2019 amendment granted the Prime Minister the power to appoint/dismiss members of the cabinet in an autonomous fashion (Article 39.4, Constitution of Mongolia)[7], which was not the case before the amendment. Before the amendment, the parliament considered the candidatures proposed by the Prime Minister one by one and took a final decision on their appointment. Such a provision caused unceasing politicization and lobbying within the parliament on the appointment procedure, and it started a rally race for ministerial positions, especially within the parliament. In the end result, there was a risk for the Prime Minister of not getting approval for desired candidates. By empowering the Prime Minister to form its own cabinet independently forced greater accountability on the Prime Minister.

Same as the problem of the dual mandate, there is no universal attitude towards ministerial appointments. In some countries the head of the executive can appoint ministers unilaterally (most Latin American countries) and in some, approval from the legislature is mandatory (e.g. the USA, Liberia, Kenya, Philippines). This all depends on how the separation of powers is carved within a system — whether a country has a presidential or parliamentary system, whether there is a bicameral or unicameral legislature, whether the size of the legislature is small or big, etc.

What is happening now?

Less than a month ago, on 15 August 2022, the Constitutional Court of Mongolia ruled that the 2019 amendment contained an unconstitutional provision. The Court considered the well-known Article 39.1 of the Constitution, which ceiled a number of dual mandated ministers, as unconstitutional and outlined the following reasons.

First of all, the Court viewed itself as a competent authority to review the constitutionality of constitutional amendments and to prevent incompatibility within the Constitution by asserting its role as the guardian of the Constitution.[8]  Secondly, the Court considered that limiting dual mandates, contradicts with the core identity of the Constitution which is enshrined in the Preamble and Article 1 of the Constitution.[9] According to the Court,

“limiting a number of ministers (prime minister included) who can be simultaneously a member of parliament deteriorates and creates the risk of destabilization of the parliamentary system, […] restricts rights of members of parliament,[10] […] undermines principles of democracy and the rule of law, weakens the checks-and-balances, and […] it is attacking the authority of Prime Minister, thus weakening the executive branch.”

The reasoning of the Constitutional Court stresses several important points. In the literature, phenomena of executive aggrandizement and attack on the judiciary are mainly conceptualized and deliberated. However, attack from the legislative on the executive seems an unorthodox and eccentric argument when we consider parliamentary systems not presidential ones.

Limiting number of members of ministers who can also be a parliamentarian, does, in theory, create another layer of insulation for the separation of powers. It would undoubtedly limit executive influence on the legislature, especially if there is a small-sized unicameral legislature. However, the Constitutional Court of Mongolia took an opposite approach by peculiarly considering such restrictions as a downgrading element for the checks and balances, the rule of law and democracy.

It can be said that Mongolia has made a step forward by simultaneously allowing Prime Minister to compose its cabinet autonomously yet limiting the number of dual mandates. Unfortunately, the progress went astray when the Constitutional Court annulled the imposed limit on dual mandates nonetheless leaving the power to the Prime Minister to appoint ministers without legislative approval.

Right after the ruling of the Court, the Prime Minister increased the number of dual-mandated ministers from four to thirteen. The ruling of the Constitutional Court is clearly favoring the process of executive aggrandizement. The emergence of strong political rivalry, abolishment of an extremely disproportionate electoral system that misrepresents voters within the legislature, drawing undistorted electoral constituency boundaries, and most importantly, having an independent Constitutional Court are very much needed to consolidate constitutional democracy.

Suggested citation: Geser Ganbaatar, An unconstitutional constitutional amendment. Mongolian Constitutional Court modifies the checks and balances. One step forward, two steps back,  Int’l J. Const. L. Blog, Jan. 18, 2023, at: iconnectblog.com/2023/01/an-unconstitutional-constitutional-amendment-mongolian-constitutional-court-modifies-the-checks-and-balances-one-step-forward-two-steps-back/


[1] It must be noted that in both elections, the number of voters in electoral constituencies varied significantly, and such gerrymandering has alleviated the incumbent MPP from obtaining supermajority within the parliament.

[2] Article 39.1 of the Constitution of Mongolia: “The cabinet shall comprise the Prime Minister and other Ministers. The Prime Minister and up to four Ministers may also be currently elected members of the Parliament.”

[3] Article 39.4 of the Constitution of Mongolia: “The Prime Minister shall appoint and dismiss the Ministers upon introducing the candidates to the Parliament and the President. The Minister shall swear oath in front of the Parliament.”

[4] Considering the 35% growth in population since establishing the democratic constitution, in terms of representativeness, the number of legislative seats should also increase. However, for some dubious reasons the number has remained the same after three constitutional amendments.

[5] Before the Constitutional Amendment of 25 August 2022.

[6] It refers to a situation where dual mandated MPs, as expected in parliamentary systems, to always vote for the government. If dual-mandated MPs decide to vote against or publicly criticize the government, they shall resign from their ministerial position.

[7] Article 39.4 of the Constitution of Mongolia: “The Prime Minister shall appoint and dismiss the Ministers upon introducing the candidates to the Parliament and the President. The Minister shall swear oath in front of the Parliament.”

[8] Article 64.1 of the Constitution of Mongolia: “The Constitutional Court is an organ exercising supreme supervision over the implementation of the constitution, making a judgment on the violation of its provisions, and resolving constitutional disputes.  It is the guarantee for the strict observance of the Constitution.”

[9] Article 1.2 of the Constitution of Mongolia: The fundamental purpose of state activity is the assurance of democracy, justice, freedom, equality, and national unity and respect of law.”

[10] The Court considered that Article 39.4 is incompatible with Article 29.1, since it inhibits the right of members of the Parliament.  Article 29.1 of the Constitution states “Members of the Parliament […] shall not hold concurrently any posts and employment other than those assigned by law except for the post of the Prime Minister and member of the Government.”

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Published on January 18, 2023
Author:          Filed under: Developments
 

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