August 22, 2017

STALEMATE IN “MONGOLIANIZED” GOVERNANCE

All people desire to lead a life of happiness and equality. Any person should be able to do the job they choose, sell the goods and services they produce, use the income to satisfy their needs, grow and develop, travel where they please, and bring up their children in a happy household. This opportunity is only allowed by freedom, justice, and the rule of law, which can be seen from the long history of human progress.

However, due to natural differences in people’s nationality, wealth, habits, level of productivity, and opinions, people influence each other in different ways. Given an individual cannot ensure their freedom and security, and protect their property on his own, people decided to set up a governing institution – the government.

The laws regulate how the government provides security and protection to people and what degree of power it would have. The government is owned by people because it is them who pay taxes to allow it to operate. It is only the government who has the right to enforce and restrict people’s freedom. Therefore, people must always oversee how the government is operating and keep a close eye on the boundaries of its authority.

The development of our country, prosperity of our livelihood, and the difficulties we may face are heavily dependent on how the people and the government uphold the law.

Regime under constant repair

It has been 25 years since Mongolia had an opportunity to instate the rule of law for the first time in her history. This opportunity is called democracy. Nearly 200 years ago, people invented a system where the governing power is granted to a political party that reflect the opinion of the majority, having recognized that everyone would never have the exact same opionion. If the elected government does not deliver within a specific period of time, it would be replaced. Although Mongolians have been mongolianizing democracy in many different ways to make it work, there has not been great success so far.

Mongolia first ratified its constitution, which becomes the basis for all other laws, in 1992. Replicating the experiences of other democracies, we divided the power of government into three branches: legislative, executive, and judicial. But, it did not take long before the government started facing impasses in its operations. Decisions from the parliament and its standing committees used to become effective only when the absolute majority (54 members) took part in the voting. This was the reason why a political party who won 50 seats in the parliament was not able to set up its government. It led to a revision of the constitution in 2000, which resulted in seven amendments.

Today laws can be passed by 20 members of the parliament once the quorum is met by the attendance of 39 members. There was an instance where nearly one fourth of the legislative branch of the government became ministers in the executive branch. It blurred the lines between the powers of legislative, executive, and judicial branches, and completely disabled the system that was supposed to ensure oversight. The system had not even been found its feet yet. If you look at the experiences in western countries, there would often be a parliament with 400-500 members in two houses. When only a few members of parliament act as ministers in the government, the balance of power can be maintained, which is something we overlooked.

The power of the president grew enormously, and corruption expanded while the court decisions are no longer abided by. In these circumstances, the authorities have once again made the decision to amend nearly 40 clauses in the constitution. A public referendum is expected to take place soon, with the plan to make the amendments within 2017.

Mongolian society now needs to carefully assess what went wrong in previous instances and make sure the mistakes will not be repeated again in the wake of another mongolianization of our state and government.

Lessons

The underlying reason for the stalemate in governance is our inability to form the conditions for the three branches of government to have clear boundaries, good balance, and strong oversight.

When an individual or a group of few people obtain unlimited power, the others are oppressed and restricted. Therefore, separation of power in a democracy prevents from abuse of power and helps protect freedom of everyone.

Although Mongolia has already divided the power of government into three branches, we have not been able to clearly distinguish between them. This is why our three branches do not have good balance, oversight, and the right relationships. It prevents the rule of law from being enforced and lets unfair acts get away without penalties. For these reasons, we are facing the risk of the fall of our democratic system.

The power to make laws and oversee its implementation must belong to the parliament only. The executive and judicial branches are accountable for making sure the laws are implemented. The government and law enforcement agencies belong to the executive branch, whereas the judicial branch is responsible for ruling over any disputes with a complete inpartiality. The judges are accountable for requiring all social relations to abide by the law.

Lawmakers provide oversight on the executive branch, and the government is accountable before the parliament. But Mongolian parliament has become the executive branch itself, where it is not clear who is accountable for the executive duties.

The president has the right to oversee the lawmakers, and disassemble them if required. But Mongolian president today controls the judicial branch, and has set a trend where court decisions can be bypassed or not happen. The judicial power is oversought by the parliament in the form of enactment of laws that require court decisions an obligation.

Any law can be rendered ineffective by the constitutional court if it is deemed to be conflicting with the constitution. But our constitutional court has become dependent on the parliament and has been doing what they are told to do. The principle of proportionality in the parliament has disappeared because the constitutional court made two different decisions on one matter.

All operations of a democratic government have to be transparent. However, Mongolia is still unable to reveal the financing of the political parties that win elections and obtain the governing power. Therefore, the governing power is now essentially in the hands of those who provide the financing. The political parties who did not win the election but have seats in the parliament are not able to become a true opposition that checks if the governing power is being abused.

Mongolian democracy will not strengthen unless the powers granted to the three branches of government are clearly distinguished with clearly defined relationships.