“CONCEPTUAL ISSUES RELATED TO MAKING AMENDMENTS TO THE CONSTITUTION OF MONGOLIA”

 

Lundeejantsan /the first recipient of the Award in Honor of ByaraagiinChimid, Member of State Great Hural, PhD and Professor in Law, and Honored Lawyer of Mongolia/

Esteemed lawyers, scholars, researchers, ladies and gentlemen,

It has been 25 years since the Constitution of Mongolia, that served as a fundamentfor transition of Mongolia to democracy, was approved in 1992. The Constitution being in force for 25 years is a significant achievement by itself.

The general purpose of the Constitution was to establish a legal basis directed at facilitating the transitionto democracy, protecting human rights and developing a market economy. This purpose was formulated as a preamble to the Constitution as follows:“We, the people of Mongolia: strengthening the independence and sovereignty of the nation, cherishing human rights and freedoms, justice and national unity, inheriting the traditions of national statehood, history and culture, respecting the accomplishment of human civilization, and aspiring toward the supreme objective of developing a human, civil democratic society in the country hereby proclaim the Constitution of Mongolia.”

The framework of the Constitution of Mongolia that was approved in 1992 can be concluded to have fulfilled its functions when reviewed it against the criteria such as,its stable enforcement, legitimate recognition, ability to regulate political conflicts, restriction on allowing the state and government authority to act improperly, and empowering the state and government.

Every constitution is encountered with a need for a change in line with the social development, as well as challenges that were not fully presumed by its makers at its development.

The present society of Mongolia has significantly changed since 1991, the time when the Constitution was first developed, and owing to these social, economic and political changes, an inevitable need to make amendments to the Constitution of Mongolia has arisen. To clarify, for the period of 25 years when a regime of the new Constitution has been in force, out of this social developmenta need for settling some issues related to ensuring mutual control-balance between state powers, strengthening ahighly reputed public service that is independent from politics, professional, competent, refining administrative and local administration structures, enhancing public accountability, discipline and justice, and improving law implementation structures has been faced.

            Since the approval of the Constitution, the State GreatHuraladopted amendments and revisions to the Constitution in 2000, but the amendments have been criticized for failure to get reviewed by public discussion, being decided within a limited political circle, deepening state power crisis, and were named as “undermining seven amendments”.

Drafts for making amendments to the Constitution of Mongolia on particular issues were submitted to the State Great Hural in 2000, 2011, 2012 and 2015 by members of the State GreatHural.

The Action Programme of the Government of Mongolia for 2016 till 2020 approved by decree No.45 of the State Great Hural in 2016 states that “amendments and changes to theConstitution shall be approved upon public referendum, in consideration of the current needs and requirementsin order to establish a mutually controlled, stable and accountable state.”

In addition, the State Great Hural passed the“Law on Public Opinion Poll”on 09 February 2017, and the Provision 6.1.1 of the Article 6 of this law states that a compulsory consultative pollhas to be carried “in order to  determine justification and requirements for having the State Great Hural discuss and make decision on issues described in the provision 5.3.3 ofthe Article 5 of the “Law on Procedure for Making Amendments to the Constitution of Mongolia.”

Accordingly, in compliance with the provision 5.3.3 of the article 5 of the “Law on Procedure of Making Amendments to the Constitution of Mongolia, and the provision 6.1.1 of the article 6 of the Law on Public Opinion Poll, the State Great Hural organized the first consultative pollon making amendments to the Constitution of Mongolia during the period from 29th to 30th of April 2017.

The results of the consultative pollon making amendments to the Constitution of Mongolia were reviewed by a Consultation Council in compliance with provision 12.2 of the article 12 of the “Law on Public Opinion Poll” and recommendations made by the Council have been submitted to the State Great Hural.

According to the recommendation, the Chariman of the State Great Hural, on the basis of the provision 5.3.4 of article 5 of the Law on Making Amendments to the Constitution of Mongolia, adopted Decree No. 78 dated the 5th May 2017 to establisha working group in charge of developing a draft of amendments to be incorporated into the Constitution of Mongolia.

Therefore, the Working Group, established by the Decree No. 78 of the Chairman of the State Great Hural, developed a draft of amendments to the Constitution of Mongolia as needed following the principle of “measuring seven times before cutting once” with careful consideration of the needs to maintain the importance of the Constitution in Mongolian society,to strengthen and keep the main structure of the Constitution without changing it.

One. The draft of amendments proposed to be incorporated to the Constitution of Mongolia was developed through the following four stages:

            Stage One. Suggestions and recommendations issued from a research conference that was held on the 12th December 2016 in honor of the 25th anniversary of the Constitution of Mongolia, a research conference titled “Development of Constitutional State and National Consensus” that was held on the 25th January 2017, and suggestions and conclusions made by research conferences that were organized by the Academy of Sciences state that “…to analyze the roles played by the Constitution in the society, economics and politics of Mongolia, it is legitimate to make evaluation and conclusion on integrated inter-coordination of state administration, and enforcement of control-balance of powers.”

            Accordingly, a “Working Group in charge ofConducting Research on Needs for Making Amendments to the Constitution, and Developing Proposals” was set up by a Decree of the Prime Minister of Mongoliaon  21 December 2016. The Working Group organized meetings and discussions at 21 aimags and 9 districts of Ulaanbaatar covering 3,692 citizens to hear public opinion.

Stage Two. In 2016, the Working Group chaired by D.Lundeejantsan, Member of the State Great Hural and consisted of members of the State Great Hural, scholars, researchers and specialists studied whether it was needed to make amendments to the Constitution.

The Working Group approved 6 topics to be addressed by the consultative pollbased on a conclusion of a working group headed by L.Tsog, Deputy Chairman of the State Great Hural and assigned to study whether or not to make amendments to the Constitution within the term of the State Great Hural from 2012 to 2016, draft amendments to the Constitution that were developed by a group of representatives of political parties that hold a seat in the State Great Hural and headed by N.Batbayar, a member of the State Great Hural, studies and analysis that were carried out by the Survey Department of the Office of the State Great Hural, reports of working groups consisted of scholars and researchers and studied whether to make amendments to the Constitution, suggestions and recommendations issued from research conferences, and analysis and conclusions made by the Group of the Mongolian People’s Party in the State Great Hural.

            The State Great Hural approved a Resolution on “Establishing a Consultative Council on Carrying out the First ConsultativePollonMaking Amendments to the Constitution of Mongolia” dated on the 7th of April 2017.

Stage Three. The first consultative poll was organized on the issue of making amendments to the Constitution of Mongolia in two stages in compliance with the Law on Procedure to Make Amendments to the Constitution of Mongolia, the Law on Public Opinion Poll, and the Resolution No.24 of the State Great Hural of 2017. The poll was carried out at national level covering 1570 citizens of Mongolia who were chosen by random sampling, a key statistical survey method. For the second stage, 785 citizens were invited from 1515 citizens who were covered in the poll/questionnaire and 669 citizens participated in the second stage of the survey.

The citizens who took part in the consultative poll support making amendments to the Constitution on the following matters:

  1. Ensuring control-balance of powers of the State Great Hural and the Government;
  1. Changing some of the full powers of the President of Mongolia stipulated in the Constitution,

andhalting the rights to initiate a law and issue a decree to provide directions to the Government;

  1. Strengthening aprofessional, competent and highly reputable public service that is

independent from politics;

  1. In terms of territory and administration of Mongolia, the country shall be subdivided into provinces, capital and cities, the provinces subdivided into soums and cities(belongs to local government), soums subdivided into baghs and towns, the capital subdivided into ditstricts, the districts subdivided into khoroos, and the cities subdivided into khoroos. The governor of the bagh, khoroo and towns will be directly appointed as the national city, soum and district.

5.Strengthening state accountability, discipline and justice and improving law implementation structures.

Stage Four. Accordingto the Provision 5.3.4 of Article 5 of the Law on Procedure of Making Amendments to the Constitution of Mongolia which outlines that ”State Great Huralshall discuss the constitutional amendment and establish a working group to develop the draft  of amendments based on the result of the consultative poll”, the working group, established by the Decree No.78 of the Chairman of the State Great Hural, developed the draft amendment to the Constitution and submitted the draft to the Chairman  of the State Great Hural.

            Now the fifth stage which is public toll on of the above mentioned draft amendment  has begun as the decision on “Ensuring Sovereignty and Participation of the People of Mongolia on Amendment to  the Constitution” was made by the State Great Hural of Mongolia on 2 June 2017.

            According to the Provision 5.1 of Article 5 of the Law on Procedure of Making Amendments to the Constitution of Mongolia, the State Great Hural and the law initiators mustabide by the principles of “ensuring the sovereignty and participation of the people of Mongolia and beingconcrete and transparent” in all stages of making amendments to the Constitution.

            Therefore, based on the recommendations of the first consultative poll on the amendment to the Constitution of Mongolia, a public discussion on the draft amendment, developed by the working group which was established by the Decree No.78 of the Chairman of the State Great Hural, will take place from June 5 to September 10, 2017.

            The importance of the decision can be concluded that “It will increase the public trust in the Constitution and its legitimacy by ensuring the participation of the people of Mongolia in the process of making amendments to the Constitution”.

            Subsequently, the 6thstage for the discussion of draft amendmentwill be carried out until the seventh stage to conduct the public poll.

Two.The scope and general structure of the amendments to the Constitution.

2.1.Ensuring control-balance of powers of the State Great Hural and the Government;

            1.The draft amendment to the Constitution respectively reflects the following: “the regular sessions of the State Great Hural shall be held once every half year for no less than seventy five working days; unless otherwise provided in the Constitution, the Member of Parliament shall not concurrently hold any other job or official position that are not related to his/her official responsibilities; election system of State Great Hural shall be determined by the law; Sessions of State Great Huraland sittings of its Standing Committees shall be considered valid with the presence of a majority of its members and issues shall be decided by a majority vote of the members present in the sittings and laws shall be finalized and adopted with the overwhelming majority vote of the members present in the sitting; and the appointment of the Prime Minister as well as other issues, unless otherwise provided in the Constitution, shall be decided with an open vote”.

  1. To grant the Prime Minister with rights to establish the Government, appoint and dismiss its members.

The Prime Minister has the right to nominate a Government member to the cabinet but doesn’t have the right to appoint the member of the Government. This outlines that Prime Minister is not responsible for the Cabinet.

The Constitution allows the State Great Hural to propose at anytime to dismiss ministers. In the past, there were 10 proposals to dismiss the Prime Minister and 6 times out of that it is supported and the Government had been dismissed. The proposal to dismiss a minister was submitted 12 times and 2 proposals out of 12 were supported. Dismissal of a Member of Parliament has been discussed bi-annually and overall the Government has changed 11 times between 1992 and 2016.

            Established by the Prime Minister’s decree, the “Working Group in charge of Conducting Research on Needs for Making Amendments to the Constitution, and Developing Proposals” conducted a survey which showed that 57.3% of the people participated in the poll answered “yes” to the question of whether you think it is right for the the Prime Minister to establish its Government himself/ herself.

Furthermore, out of the citizens participated in the first consultative poll on the amendments to the Constitution, 57.1% in the first poll and 72.7% in the second poll responded that this issue can be incorporated in the draft amendment to the Constitution.

            Therefore, the draft amendment to the Constitution reflects that “the President will ratify the decision within 72 hours the Prime Minister presenting the decision to appoint, release or dismiss a member of the Government to the President and the State Great Hural”.

  1. The structure of the Government shall be determined by the Constitution of Mongolia, and stipulate the names of the ministries in the law in order to ensure the continuity and stability in terms of structure, and put a restriction by stipulating that less than one third of the members of the Government may be the Members of Parliament.

            The Law on Government Structure has been amended after every election of the State Great Hural or dismissal and re-establishment of the Government. It has been common over the past 25 years that under different governments,the numbers, names and functions of the ministries and agencies were changed without any research and calculation with justication.

Government main structural changes by year:

Organization/ year 1992 1996 2000 2004 2008 2012 2016
Ministries 16 9 11 13 11 16 13
Government regulatory agencies - 22 17 14 12 11 10
Government implementing agencies - 37 31 23 31 17 17
Total number of agencies - 59 48 37 43 28 27
Total number of agencies and ministries 16 68 59 50 54 44 40

It has been greatly critisized that these changes have been made based on the interest of the political parties that constitutes the majority as a result of the particular parliament election and politicians and on the consensus among them. Moreover, changing the ministries’ sturcture and composition negatively impacts the civil servants’ stability and the public service are not stable and the expertises are not retained.

During meetings of the members of the “Working Group in charge of Conducting Research on Needs for Making Amendments to the Constitution, and Developing Proposals” with the local residents and citizens, the proposal to stipulate the names of the ministries in the Constitution in order to ensure the stability of the civil service has been expressed numerous times.

            Around 73.0% of the participants in the first survey and 78.9% of the second survey of the first consultative poll on making amendments to the Constitution believe that this matter can be incorporated in the draft amendment to the Constitution.

            A number of Members of Parliament have become part of the composition of the Governments established since the Constitutional Amendment of 200, and has held the position of member of Government concurrently.

It has been reflected to be able to propose to the State Great Hural to have the Ministry of Justice and Internal Affairs, the Ministry of Finance, the Ministry of Foreign Affairs, the Ministry of Defenseand the Ministry of Environment, and for the Prime Minister to establish up to seven social, economic and infrastructureministries in addtion.

            The draft amendment reflects the following: the government will constitute of the Prime Minister and Members, andthe Prime Minister and one-thirds of the Members may be the Members of Parliament; the State Great Hural will discuss and decide in case one fourth of the State Great Huralsubmits the proposal to dismiss the Prime Minister; and the appointment of the new Prime Minister will be discussed and decided within seven days in casethe majority of the total Members of State Great Huralsupports the proposal to dismiss the Prime Minister.

            2.2 To clarify rights and roles of the President of Mongolia:

According to the Constitution, the President, the Members of Parliament and the Government have the right to initiate a law. Scholars beleive that the right granted by the Consitution to initiate law provides the President the opportunity to share the powers with the State Great Hural and Government in terms of develop state policies. In international practice, Presidents of republic countries mostly do not exercise power to initiate laws.

It has been reflected in the draft amendment to consider the President’s right to initiate law and the right to issue a decree that provides guidelines for the Government as nullified.

Moreover, it has been stipulated in the draft amendment that “the President shall make a decision to dissolve the State Great Hural if not less than two thirds of its total members consider that the State Great Hural is unable to carry out its mandate, and if the State Great Hural is not able to discuss and decide the proposal for appointing the Prime Minister within 30 days of the first session of the State Great Hural or within 21 days after the expiration of the mandate of the Prime Minister. If the decision on the dissolution is made, the State Great Hural will retain its mandate untill the newly elected members are sworn in.”

            2.3 Strengthening a professional, competent and highly reputable public service that is

independent from politics; 

As of 1 January 2016, total number of civil servants was 186,458, out of which 3,092 were political officers, 19,687 state administration officers, 35,736 state special servants and127,943 state service officers.

            In 2008, the Law on Public Service was amended to make civil servants not affiliated to any party except for the politicians for the civil servive to be stable and independent from politics. However, there have been numorous cases submited to the Civil Service Council, and the first instance courts of the Capital city for administrative cases where complaints and claims have been made that political affiliations were considered in making decisions of appoinment and dismissal to the public service. Moreover, the study results show that turnover and replacement rates are high after the election.

            Among the citizens participated in the survey conducted by the “Working Group in charge of Conducting Research on Needs for Making Amendments to the Constitution, and Developing Proposals”, 1,459 people which is 49.4% said that “party involvement is high at all level”, 72 people which is 2.4% said that “the turnover and replacement with political reason have increased”, and 38 people which is 1.3% said that “the principle to have stable, skilled and competent professional civi service has not beenfollowed and the civil service is not highly skilled” in aswer to the question “what is the main reason of the fact there is no coherence between powers in Mongolia”.

            This means that 53.1% of the participants are stating that civil service is dependent on politics and its capacity is low as a result.

            Out of the 2,246 people who answered the question “which of the following actions should be implemented in order to ensure the stability of civil service”,  1,213 people (54%) proposed “to reflect in the Constitution the impartiality and independence of the Civil Service Council and the legal protection of the civil service”, and 633 people(28.2%) proposed “to legally prohibit political parties to participate in the appointment to the civil service”.

            Out of the citizens participated in the first consultative poll on the amendments to the Constitution, 80.2% in the first poll and 78.2% in the second poll believe that the proposal to add a provision to legally protect the impartiality and independence of the Civil Service Council can be incorporated in the draft amendment to the Constitution. The proposal to be not affiliated any political party has been supported by 73.1% of people in the first poll and 78.7% of the people in the second poll to be incorporated in the draft amendment.

            Out of the citizens participated in the first consultative poll on the amendments to the Constitution, 90.3% in the first poll and 91.3% in the second poll believe that the proposal to make skills and knowledge as the basis for appointing and promoting in the civil service and ensuringjob stability  can be incorporated in the draft amendment to the Constitution.

            Therefore, it has been reflected in the draft amendment as“the civil service shall be competent and stable and abide by merit system principle and its implementation shall be monitored by the central authority of the civil service; it shall be prohibited to discriminate civil servants for political reasons andfire and release civil servants based on election results and grounds not prescribed in the law; and the impartiality of the central authority of the civil service,the legal basis of its operation and the working condition and guarantee for civil servants shall be established by the law”.

            2.4.Enhance the administrative and territorial units of Mongolia and their management system:

            The legal basis for cities and towns has been reflected in the draft amendtment as follows:“in terms of territory and administration of Mongolia, the country shall be subdivided into provinces, capital and cities, the provinces subdivided into soums and cities (belongs to local government), soums subdivided into baghs and towns, the capital subdivided into ditstricts, the districts subdivided into khoroos, and the cities  subdivided into khoroos”.

            It has been stipulated in the draft amendment to the Constitution as “the governor shall be nominated by the Khural (Council) of the respective province, capital, city, soum, city (local); district and the governor of the province, capital and city shall be appointed by the Prime Minister and the governor of the soum, cities (local), and district shall be appointed by the respective Governor of the province and capital for a term of four years respectively; and the governor of the bagh, town, and khoroo shall be appointed by Governor of the respective soum, district and cities for a term of four years”.

  • Strengthening the state accountability, discipline and justice and improving law

implementation structures:   

            Bythe proposed amendment, the State Great Hural shall be able to establish a temporary committee to examine issues concerningthe interest of the public, the Chairman  of the State Great Hural shall establish a temporary committee wih equal representation from the majority and minority groups in the State Great Hural in case not less than one fourth of the Members of Parliament and parties and coalition groups  in the State Great Hural submit an officia proposal to establish such temporary committee, and the procedure of it establishment and operation shall be determined by the law.

            It has been stipulated to prohibit the creation of new expenditure items and expenditure increase without getting comment from the Governmentduring the process of discussion and approval of state budget.

            Out of the citizens participated in the first consultative poll on the amendments to the Constitution, 87.5% in the first poll and 75.8% in the second poll believe that the proposal for improving state accountability, ensuring anti-corruption policy andits implementation,and organizing the authority that secures social justice as impartial and independent from politicscan be incorporated in the draft amendment to the Constitution.

Therefore, it has been stipluated that “the state control organization, with the right to provide support and make conclusions for the implementation of the mandate of the State Great Huraltoinspectthe enforcement of the laws and other decisions by the State Great Hural, implement with impartiality the finance, budget discipline and the operation and accountability control of the executive organization, local administration authority, state owned legal entity and other organizations and officials prescribed in the law on basis prescribed by the law and as assigned by the State Great Hural; and the legal basis for its system, arrangement and operation shall be determined by the law”.

            2.6. Expand the  composition of the Judicial General Council that has the  responsibility to ensure the impartiality of judges and independence of the judiciary, and make the procedure to appoint the judges and Chief Justice clear:

            The draft amendment specifies that Judicial General Council(JGC) will consist of eleven members; the President will ratify within 72 hours the proposal by the JGC to appoint the judges of the Supreme Court has been presented and supportedand the proposal by the JGC to appoint the judges of other courts; and the Chief Justice shall be elected from amongst its judges for the term of six years through the sitting of the total judges of the Supreme Court and the President will ratiufy the decision within 72 hours.

Moreover, the minimum age of citizens who may be appointed as a judge of the Supreme Court was changed from thirty five to forty and the minimum age of citizens who may be appointed as the judge of other courts was changed from twenty five to thirty.

            Out of the citizens participated in the first consultative poll on the amendments to the Constitution, 66.5% in the first poll and 70.8% in the second poll believe that the proposal to expand the composition of the Judicial General Council responsible for ensuring the impartiality of judges and independence of the judiciary, and the proposal to make the procedure to appoint the judge and Chief Justice clearcan be incorporated in the draft amendment to the Constitution.

            Three. The conclusion of the speech on the Concept of Amendments to the Constitution

It is not acoincidence to start by saying “We, the people of Mongolia” in the preamble of the Constitution.

The new Constitution is the work of our people which embodies the concept that reflects the tranditional customs and reforms and which was created by relying upon the national intellectual capacity and by considering the actual condition.[1]

To reply to the question by Professor B.Chimed, the chief architect of the Constitution, on whether the Constitution needs to be amended: “There is no such law that is unchangeable. However, it will bring signifiacant negative consequences to the state and lives of the people if we attempto change the Constitution in regard to the core issues of the state organizational system and its principles”.

This is because the Constitution is not a temporary or definite years of program but it ties the people’s chosen road- the bone and the muscle structure of the societyby its root and it is the foundation law of which every provision is coherent with each and it can damage other parts of system if one vein is cut.

It is clearly seen from the “undermining seven amendments”. Therefore, instead of amending it completely, it   is vital to find less harmful and safe methods.

Therefore, it is appropriate to understand and implement the meaning and concept of every word of it and work with accurate and detailed laws that are constitionalized (organic), regular laws and standards.It is, undoubtedly, an internationally acknowledged practice. We should seeing the Constitution as if it was a simple application manual or procedure, and criticizing it”[2].

Unfortunately, numerous attempts to regulate matters related to power distribution and control and accountability, such as limiting the Members of Parliament in the Government, keeping the structure and composition of the Government under normal and proper size, strengthening the state accoutability, discipline and justice, and such as improving the law enforcement system, by organic lawsand by not touching the Constitution have been a failure in reality due to the subjective factors of the political parties.

However, we have learned that we should not lack vision and devotion and should not rush in these years. We should not make a mistake again in amending the Constitution. We have firmly reminded ourselves that we shall not be distracted by incomplete and wrong actions of the past, pressured by timehaving minimal calculations and take the matter with our emotions when making amendments to the Constitution and wehave followed the principle of “measure seven times and cut once” in developing the draft amendment concept which keeps the importance of the Constitution in the society of Mongolia without deforming the core structure of Constitution,instead incorporated the amendments that will further strengthen the Constitution.

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[1]B.Chimed,Conference on Conceptual Issues of the Constitution, 2005.

[2]B.Chimed,Honoring the Constitution.UB.2006. p.112-113.