Is the presidency too powerful?

Last Friday, Article 38.2 of the Act of Parliament stating, “The president shall initiate bills within the scope of their basic powers specified in Article 33 of the Constitution of Mongolia”, was amended to read, “The president shall initiate bills on issues other than those specified in Articles 38.1 and 38.3 of this law. The president shall implement Article 33.4 of the Constitution when initiating a bill.”

Article 33 of the Constitution clearly defines the powers of the president in 12 articles. What has changed in this regard?

In general, restricting the powers of the president to a certain extent was one of the reasons for amending the Constitution. In doing so, the Constitution was amended to include Article 26.1, which stipulates, “The president, members of Parliament, and the government shall have the right to initiate legislation, and the scope and limits of this right shall be determined by law”.

In connection with the constitutional amendments, the Act of Parliament was revised.

One of the revised provisions was the previously mentioned Article 38.2.

In other words, the president is prohibited from initiating laws that required large sums of money.

Article 38.3 of the Act of Parliament, which states, “Laws on fiscal framework statement, state budget, its execution, development policy and planning documents, property, tax, and criminal, civil and administrative infringements will be initiated only by the government. It shall initiate bills and other decisions of Parliament on issues specifically provided for in the Constitution”, clarifies many things. This is an incentive to deal with the fact that the president and members of Parliament are overly involved in budget and finance matters of the country.

Particularly, President Kh.Battulga initiated a draft resolution on providing allowances to every child in Mongolia and submitted it to Parliament for discussion in April 2018.

At the time, 60 percent of children in Mongolia received allowances depending on their “living standards”. He also twice submitted a bill to amend the Law on Currency Settlements in 2018.

President Kh.Battulga wanted to add a provision to the law stating, “Mongol Bank can place the settlement account of a legal entity that has entered into an investment agreement with the government, operates a strategically important mineral deposit, and has a minimum export foreign exchange income set by Mongol Bank.”

Consequently, he proposed to amend the Law on Central Bank of Mongolia, which has a provision, stipulating, “…in cases specifically provided by law, the legal entity's account shall be placed on specific terms and payments shall be made…”

It was rumored at the time that the law was initiated in the interests of large corporations with large foreign exchange earnings, such as Rio Tinto. If Article 38.2 of the Act of Parliament was in force at that time, then President Kh.Battulga would have no right to initiate such a law.

The bills initiated by President Kh.Battulga may not be in line with the recent amendment. In particular, Article 38.1 of the Act of Parliament states that only lawmakers shall initiate bills and other parliamentary decisions related to the activities and rules of procedure of Parliament. In other words, the president and government have no right to initiate or interfere in the legal regulation of the activities and sessions of Parliament.

If this law had been in force at the beginning of last year, President Kh.Battulga would not have been able to initiate a bill supposedly aimed at “dismissing” former Speaker of Parliament M.Enkhbold. At the time, members of Parliament staged protests inside and outside the State Palace, demanding that former Speaker M.Enkhbold resign. The majority of lawmakers formally proposed to Parliament to dismiss Speaker M.Enkhbold, while the president initiated a draft amendment to the Law on Parliamentary Procedure. The proposal to “remove” M.Enkhbold from the post of speaker of Parliament was signed by 39 lawmakers and submitted to him. This event was clearly written in the political history of Mongolia with the help of the head of state.

Upon submitting the amendment proposal, the president said, “The crisis, which has escalated to the point of shutting down the highest governing body, could lead to a serious damage to Mongolia's national security, including its very existence, society, state institutions, citizens' rights, freedoms and economic security.”

From this point of view, it is good that the limit has been set for members of Parliament, the government and president. However, it is true that Parliament has backed away from the step that limited the president's right to initiate legislation by the 12 articles mentioned above. In accordance with the Constitution of Mongolia, the president has the power to appoint judges on the recommendation of the Judiciary General Council of Mongolia and chief judges on the recommendation of the Supreme Court. This means that the president can freely participate in the process of reforming the legal framework. Moreover, President Kh.Battulga submitted a bill on the court to Parliament in April 2020.

The current head of state strongly opposes regulations aimed at ensuring the independence of the judiciary by limiting the president’s involvement in the exercise of judicial power. Researchers and politicians, as well as international observers, have warned that the influence of the presidency of Mongolia in the judiciary has been increasing gradually and has been confirmed by other laws, which has undermined its independence and eliminated control and accountability. In particular, the Constitution does not give the president the power to suspend, dismiss, or appoint a chief judge of a court other than the Supreme Court. Lawyers also say that the president's appointment of the Judiciary General Council, the chair and all members of the Judicial Disciplinary Committee, the attorney general, and the nomination of the head and deputy head of the Independent Authority Against Corruption (IAAC) are unconstitutional and require a better appointment mechanism.

In the event of a recommendation from the National Security Council (NSC), the term of office of a judge can be suspended indefinitely and a chief judge may be dismissed without justification. The powers of the attorney general, and deputy head and head of the IAAC were terminated in the same way. However, the NSC is chaired by the president and its working group is appointed solely by the president.

The president can initiate a bill on court, but what if Parliament approves it, incorporating its unconstitutional powers? Two bills on the court are under review, and lawyers are criticizing the fact that some provisions of the bills violate the Constitution. In such a case, can lawmakers remain faithful to the principle of Article 33.4 of the Constitution, which states, “Certain powers of the president can be granted by law only within the limits specified in this article”?

Researchers and politicians, as well as international observers, have warned that the influence of the presidency of Mongolia in the judiciary has been increasing gradually and has been confirmed by other laws, which has undermined its independence and eliminated control and accountability...