CC BY
17Dr. AMARSANAA Jugnee,
Academician, Merited Lawyer Member of the Constitutional Court of Mongolia Director of Legal Research Center, Academy of Sciences
THE CONSTITUTIONAL LEGISLATION OF MONGOLIA: CURRENT ISSUES AND WAYS FOR ITS ENHANCING
Mongolia was a country with a centrally planned economy and totalitarian political regime, and as a result of pro-democracy movements took place at the end of 1980s, which abolished the totalitarian regime in March 1990 and twin transition to establishing a democratic governance regime and a free market economy has started. On 13th of January 1992, the People's Great Hural (Grand Assembly) of People's Republic of Mongolia (MPR) approved the first democratic Constitution of Mongolia. Thus, the Constitution have defined and established the Parliament, the President, the Government (Cabinet), the Judiciary organizational structures, including the Constitutional Court, specialized administrative courts and local self-governance institutions. However, some of the legislative acts were way behind the time it needed, whereas some of them are overlapping, in the nature of copying from others, not reflecting Mongolia's country specifics and local conditions, and conflicting with each other. Therefore, it is important to consider both of the national legal and cultural traditions as well as international or foreign best practices and experiences in order to improve the Constitutional legislation.
One. Development and future trends of the new Mongolian constitutional legislation:
Until 1990 Mongolia was country with a centrally planned economy and totalitarian political regime. However, as a result of the pro-democracy movement at the end of 1980s, a twin transition to both the plural political democracy as well as to the market economic system began from March 1990.
Mongolia people have a rich history of adopting and implementing three Constitutions before this transition began. The State Great Hural (Grand Assembly) approved the first Constitution of the Mongolian People's Republic (MPR) on 26th November 1924 and it has 6 chapters with 50 articles. Thereafter the State Great Hural of 8th convocation has adopted the second Constitution of the Mongolian People's Republic on 30th June 1940. This Constitution of 1940 contained 12 chapters and 95 articles, but during the following 20 years of its enforcement it was amended with some changes 7
times and enlarged to 108 articles. The first session of the People's Great Hural convened from 4th direct general elections has approved the third Constitution of the Mongolian People's Republic on 30th July 1960. This Constitution of 1960 had 10 chapters with 94 articles and during its 30 years of being in force was amended with minor changes 13 times. Although these three Constitutions have had differences in terms of their content structure and some substantive provisions, they were considered to be a socialist type of Constitution (Fundamental Law) with regard to their determination of goals and basic principles of the societal and governance system.
The Mongolian pro-democracy revolution has unfolded in 1990 and abolished an old regime of totalitarian bureaucracy, and in order to implement a totally new policy for establishing a democratic order in the country, there was a dire need to change immediately and reform the old system strengthened by the Constitution of 1960.
Subsequently a Law on Amendment to the Constitution was approved on 12th May 1990 and this was Constitutional Act of transitional period. Since the Amendment Law was entirely different in terms of substantive nature, this was not an additional chapter of the Constitution of 1960, but rather a separate law, which was effective in force on par with the existing Constitution and has performed its historic role. This Amendment Law was constituted from 2 chapters, namely "Principles of Highest State Power of the MPR" and "Government of the MPR", and contained 22 articles.
In accordance with this Law the People's Great Hural (Grand Assembly) of the MPR and the Government of the MPR were provided, though with old names but principally novel institutions in terms of their fundamental nature and legal status, as well as with new institutions of the State Small Hural (Parliament) of the MPR and the President of the MPR. The reason was that an idea and basic principle of the sovereignty of people was recognized for the first time and it was a novel feature of highest body of the people's representatives. Moreover, the People's Great Hural was entirely different from the previous
body in terms of its election principles, composition of its members, and with regard to its powers and fundamental principles of its activities.
Based on the abovementioned developments, after extensive public discussion, proposals and reviews, the People's Great Hural has adopted the first democratic Constitution of Mongolia on 13th January 1992.
The preamble to the Constitution of Mongolia reflects the highest aspirations of the Mongolian people in the following forms:
For the first time in its constitutional history, the new Constitution of Mongolia has undertaken the issue of all human rights in its Chapter on "Human Rights and Freedoms" (Chapter 2 of the Constitution) and determined them by encompassing within larger framework not limited to the specific group of citizens but including its each and every citizen as well as applicable to foreign citizens and stateless persons residing in the territory of Mongolia. The previous Constitutions of 1924, 1940 and 1960 have contained provision that disenfranchised or discriminated certain groups of its population based on social class criteria.
The 1992 Constitution of Mongolia has created an entirely new system of the state governance structure. In doing so, the aim was to abolish the old system of centralization of the sate power in one hands and unlimited exercise of this power by a single political party, and instead to establish a system of checks-and-balances with the principle of separation of powers between the legislature, the executive and the judiciary.
In the article three of the Constitution of 1992 it is stipulated that "the State power shall be vested in the people of Mongolia. The people shall exercise this power through their direct participation in the State affairs as well as through the representative bodies of the State power elected by them." This clearly shows that the State Great Hural (Parliament) is an organ that represents all people with one single chamber (unicameral) and 76 members.
The article thirty of the 1992 Constitution of Mongolia has legally strengthened the post and position of the President in the system of the State structure by providing that "The President of Mongolia shall the Head of State and embodiment of the unity of people." Thus, related with this provision, the Law on the President of Mongolia, the Law on Presidential Elections, and the Law on National Security Council were approved and enforced. Since the President has a power to represent the State in all domestic and international relations as the Head of State, as well as
he/she is the embodiment of the unity of people since directly elected on the basis of universal suffrage. Some constitutional researchers tend to consider the President as the highest official of the executive power, because the State Great Hural (Parliament) is formally mandated to recognize his/her powers, accountable to the State Great Hural (Parliament) for his/her work, the Presidential decrees has to be in conformity with the laws and if not consistent with them, then the State Great Hural (Parliament} will repeal such decrees, as well as most of its powers are within the framework of executive authority.
The article thirty eight of the Constitution of 1992 stipulates that "The Government (Cabinet) of Mongolia is the highest executive body of the State." This implies that the Government (Cabinet) is one of main branches of the State power and has main function to lead and implement the executive power.
The fundamental principles of the judicial power and the courts and other relevant organs in their implementation are provided in the article forty seven of the 1992 Constitution of Mongolia as "The judicial power shall be vested exclusively in courts." By doing so, the distorted situation during the previous regime when the courts were the instruments in the hands of the ruling single party and government was abolished, as well as the independence of judiciary and judges were constitutionally legalized and institutionally guaranteed.
Article sixty four of the 1992 Constitution of Mongolia provides that "The Constitutional Tsets (Court) of Mongolia shall be an organ exercising supreme supervision over the implementation of the constitution, making judgment on the violation of its provisions and resolving constitutional disputes. It shall be responsible for guaranteeing the strict observance of the constitution." The Constitutional Tsets (Court) shall have the following 3 main powers and duties:
- Exercise supreme supervision over the implementation of the Constitution;
- Make judgment on the violation of provisions of the Constitution;
- Resolve any disputes on violation of the Constitution.
For these salient features, the Constitutional Tsets (Court) is considered a constitutional court. Its powers and duties are stipulated in detail by the Law on Constitutional Tsets (Court), and the Law on Constitutional Court Procedure.
In addition, the Constitution of 1992 has legalized a new principle of local self-governance by separating
the basic structure of local administration from double responsibility for local economic and business operations. Article fifty nine of the 1992 Constitution provides that "Governance of Administrative and Territorial Units of Mongolia shall be organized on the basis combination of the principles of both self-governance and central government." This new principle has defined the local authority neither as centralized 'vertical', which was during the previous political regime, nor as a solid 'horizontal', as declared in some countries, but properly combines abovementioned two interests. The Law on Administrative and territorial units and their governance and the Law on Local election were approved to regulate relations concerning this issue.
The Legal Reform Program of Mongolia, the Main Directions for Enhancing Mongolian Legislation until 2000" and "Action Plan for implementation of the Legal Reform Program of Mongolia have been approved by the State Great Hural (Parliament) of Mongolia Resolution № 18 of 22nd January 1998.
The main directions for enhancing the legislation set tasks to newly draft and/or revise 69 laws and amend 49 laws in order to: 1/ ensure human rights, freedoms and its legal guarantees, 2/ enhance legal basis of economic relations, 3/ enhance legal basis of the State structure, 4/ enhance legal basis of social sector within 2 years until 2000 and the State Great Hural (Parliament) newly approved the main direction in 2001 and 2005.
The implementation of this Program was monitored and evaluated in 2007. The following conclusions have been drawn:
1. Because the Legal Reform Program of 1998 was basically implemented at legislation level, the new program concerning the next stage legal policy shall be drafted and be approved by State Great Hural (Parliament) Resolution. To implement this, correlate with the National Development Strategy based on Millennium Development Goals (MDGs).
2. The following tasks should be particularly included/reflected in the new program of legal policy document:
- to take measures to review the meaning, the original text, legal terms of all laws in effect and enhance thereof in the nearest 4 years under specific stages and plans;
- to enhance legal regulation of drafting, reviewing and enacting laws and legal acts that include procedures enforced publicly, to renew the requirements for drafting laws and methods for drafting, and to include finance sources in the state budget.
- to organize and supervise the implementation of laws and to review and change the structure of law enforcing institutions in order to ensure the implementation of duty of the Government to ensure nation-wide implementation of laws (Article 38.2.1 of the Constitution), and duty of the Prime Minister to be responsible to the State Great Hural for the implementation of state laws (Article 41 of the Constitution);
- to revise and enforce criterion of profession, disciplinary, and ethics, and standards of workplace and procurement/supply focused on improvement of capability and activities result of institutions exercising judicial power;
- to take comprehensive measures to enforce principle of respect of law in activities of the state, and to establish social legal culture and consciousness of respecting and complying with laws;
- to permanently monitor and assess laws and the implementation thereof and activities of law enforcing institutions in advance or during the process, and to establish a structure (Monitoring Institute) with/ having such mandate/function.
National Development Strategy based on Millennium Development Goals was approved by the State Great Hural (Parliament) of Mongolia Resolution № 12 of 31st January 2008. This policy document considers and provides for its implementation in conjunction with Mongolia's long-term development policy, priority directions, strategies for their implementation, outputs and results to be achieved in 2007-2015 with attainment of the Millennium Development Goals, accelerated economic development, and transition to the knowledge based economy during 2016-2021. Section 3.2 of this National Strategy provides to respect the value of fully compliance with the Constitution of Mongolia shall be respected in the National Development Strategy based on Millennium development challenges. It also provides that the National Development Strategy based on Millennium development challenges shall be implemented under the following 6 leading directions and it includes the issue of enhancing political democratic system and establish the system which is free from corruption, red tape, and transparent, and fair.
Two. Current Implementation Status of the Constitutional Legislation of Mongolia
Even if legislation of the Constitution of Mongolia has been approved and in effect, results of abovementioned monitoring certifies the necessity for enhancement thereof. For instance, 7 provisions of the Constitution were amended in 2000. That was
sudden amendment made by "collusion" of group of 3 parties had seats in parliament /majority and minority/ in the period between 1996 and 2000. Even if it was annulled by the Constitutional tsets, the State Great Hural restored it. It was the action breaking the law. Due to the quorum of the Session of the State Great Hural became 50%, it became possible that 39 members attend the Session and majority thereof or 20 members can enact a law. Because more than 10 of members enacting the law can be members of the Government, it became possible to enact the law in compliance with Executive power, or interests of group of people. In other words, the executive power exercises legislative power.
In addition, the amendment that the Session shall last not less than 50 working days every six months resulted in neutralization of legislative activity. Activities of State Great Hural of 2007 markedly show the outcome of this. For example, the State Great Hural enacts many laws a day, Speaker of the State Great Hural corrected the laws, and some articles of Criminal Law disappeared "enigmatically".
Due to the provision stating that if any coalition in the State Great Hural disintegrates, any coalition can not be created again, a political party having 26 seats in the State Great Hural operated under the structure named "council" which is not provided by the law. In addition, there were unusual scenes such as group of 62 were. Structures of the State Great Hural or name and number of standing committees have constantly been changing. Currently there is tendency that political parties will understand negative effect of the amendments to the Constitution.
Elections of both Parliament and local assembliess have always been followed by disputes over the final election results.
The form to do State operates in accordance with political party decision appears. Due to this relationship between political party and state became complicated. In other words, the party came on top of the state and proper ratio was lost. Structure of the government changed after regular election of the State Great Hural /1996, 2000, 2004/. But the policy based on theoretical research to make the government functions complied with democratic society requirements has not been used. It is possible to consider that change of structure is based on political interest to make someone an officer because the practice of deciding this issue by means of negotiation of political parties has been established.
The recent statistics show that any change of structure and number of ministries and government agencies, which resulted in the loss of continuity of
the State institutions. For example, 13 ministries were newly created and number of agencies decreased by 11, while there were 11 ministries and 41 agencies in 2002. Currently there are a total of 12 ministries.
Frequent changes of the organizational structure and staff positions in the ministries and government agencies bring many negative consequences and impact. For example, it makes impossible for the civil service to be stable, capable, effective and efficient as well as prone to any political influences.
Moreover, the National Audit Office (NAO) of Mongolia has conducted an organizational audit way back in 2005. The audit findings reveal that the number of ministries and their organizational structure is not optimal, although the Government Cabinet Secretariat is undertaking monitoring and evaluation over activities of the ministries as well as aimag (province) and capital city governors' offices, but it its bale to provide only quantitative and not qualitative assessment of and advice on their work operations, also that there is overlapping of functions and task responsibilities among the various ministries, and number of staff positions has substantively increased which in turn leads to more administrative expenses. Thus, the main audit recommendations were to further improve the organizational structure of the ministries and government agencies, to create more effective internal control and monitoring mechanisms, to establish a clear linkage between the work performance and respective salary compensation and remuneration, and lastly that there is a possibility for the ministries to be downsized and become more efficient.
Also, it should be mentioned that although the Mongolian People's Revolutionary Party (MPRP) has obtained clear majority and won the parliamentary elections in June 2008, it decided to form a coalition government with a minority political party and this is incompatible with the existing Constitutional principles and provisions.
Although the 1992 Constitution provides for an independent status and regulatory framework for the local self-governance institutions and local administrative bodies, the approval and implementation of the Public Sector Management and Finance Law (PSMFL) in 2001 has made impossible any decentralization and devolution, but made more concentration of fiscal powers in the central government and made the local authorities fully dependant on central budget. This is also incompatible with the relevant Constitutional conceptual principles.
In addition, the fact that some high state and
government officials, who made an oath of allegiance for strict observance of the Constitution, are making public their position to alter the existing Constitutional system and structure, as well as intentionally misinterpreting and wrongfully explaining the Constitutional sections and provisions, all of these are bringing negative and Greatilistic legal culture and conscience in the society regarding the Constitution and the legal system as whole.
Three. Conclusion
The next stage and phase for implementation of the Legal Reform Program of Mongolia should be intrinsically linked and closely integrated with the National Development Strategy 2008-2012 based on the Millennium Development Goals (MDGs).
This is also imperative to recover, reinstate and
reinforce the original text of the 1992 Constitution of Mongolia.
Also, it is absolutely important to create and implement a most optimal organizational structure for the public sector institutions, and in turn to make delivery of common public services to the population more accessible, efficient and effective.
Moreover, there is an enormous role and responsibilities on the part of the high State and government officials as well as for the entire body of civil servants to create and strictly enforce the legal culture and practice of abiding by the Constitution, which in turn will create a legal culture and clear conscience among the people to duly respect and abide by the Constitution of Mongolia.
Bibliography
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Автор мацаласында Монголияньщ конституцияльщ зацнамасы туралы, сонымен бiрге оньщ келешеп, цаз1рп мэселелерi жэне де реттеу жолдары туралы эцпме цозгайды.
Автор статьи рассказывает о конституционном законодательстве Монголии: о развитии и тенденциях, о текущих проблемах и путях его усовершенствования.
