The following interview is with lawyer D.Uurtsaikh, who has recently appealed with lawmaker T.Dorjkhand to the Constitutional Court to change the electoral system. They view that Article 4.4.3 of the Law on Parliamentary Elections of Mongolia on electing 76 members of Parliament from multi-member constituencies violates the Constitution.

The constitutional amendment of 2019 provides for up to four members of Parliament to sit at Cabinet. They also believe that this restriction contradicts the basic principles, ideas and specific provisions of the Constitution.

When the 2016 parliamentary election was to be held with a single-member district plurality system, the Constitutional Court decided to hold it with a multi-member district plurality voting. In general, there is a perception that holding proportional elections is unconstitutional. However, you argued against it and appealed to the Constitutional Court, right?

Yes. In the run-up to the 2016 parliamentary elections, the Constitutional Court ruled that the regulation to elect no more than 48 lawmakers by majority vote and no more than 28 members by proportional representation violated Article 21.2 of the Constitution. Article 21.2 stipulates that legislators shall be elected by eligible citizens on the basis of universal, free, direct suffrage by secret ballot for a term of four years. As a researcher, I believe that the court made a wrong decision based on the notion that direct suffrage requires voters to circle the name of a candidate.

Basically, the court’s conclusion was accepted by Parliament for a specific political purpose. There is a legal misconception that only a majoritarian system is guaranteed at the constitutional level. The current Law on Parliamentary Elections was approved by Parliament in December 2019. At that time, many parliamentarians said that parliamentary elections should be held with either a majoritarian or constituency system in accordance with the Constitutional Court’s past decision. In fact, the court’s decision did not state that the electoral system should be held through majoritarian voting. But even in a proportional system, there is an option to circle a candidate’s name. In other words, the electoral system is not specifically enshrined in the Constitution. The proportional system isn’t prohibited either.

We have an opportunity to correct the wrong decision made by the Constitutional Court back in 2016. Moreover, the composition of the court has changed significantly from that time. Recognized scholars and researchers in the legal field were appointed. Some members of the ruling party and other political parties, whether they have seats in Parliament or not, probably agree with us.

As a researcher, can you explain the weaknesses of the current electoral system?

Of the eight parliamentary elections held over the past 30 years, seven were held with the majoritarian system. In particular, the 2020 version, which elected members from a multi-member and enlarged constituency, was a bad system that violated the principle of representation. One of the disturbances caused by this problem is the Bogd Zonkhova Lama project. Lawmakers project money in the state budget for their constituencies. But we all can see that the government is not able to implement a unified development policy. It depends on the electoral system. Without changing it, parliamentary ethics and democracy cannot be enhanced.

Voter turnout is declining year by year. The current Parliament represents more than 40 percent of the electorate. However, there is no representation of more than half of ministers in Parliament. This puts democracy at risk. The most recent example is the by-elections in October. Even with an additional voting, voter turnout was less than 50 percent. Particularly, E.Batshugar, who was elected from Songinokhairkhan District, received only 20 percent of the total votes. Loss of the principle of representation increases the tendency of voters not participating in elections.

Which electoral system do you think is suitable for Mongolia?

I have done a lot of research on constitutional laws, and laws on political parties and elections. A mixed electoral system is compatible with Mongolia. If we can improve the political education of our citizens, a mixed system like the German one, in which a portion of parliamentarians are elected in single constituencies by plurality and another portion is elected from
larger multi-member constituencies through some sort of proportional representation, is suitable for us. But, it is better to calculate the number of seats based on the percentage of votes cast for a political party. However, it will take time. In any case, if we can form Parliament with the 50:50 mixed-system in the first place, it will be a big step forward.

T.Dorjkhand and you are both members of the National Labor Party (NLP). What kind of change do you hope to bring to political forces like your party?

Of course, if a proportional element is introduced into the electoral system, it will be beneficial for NLP. It is crucial for not only our party but also non-parliamentary political parties and even the authorities. But most importantly, Mongolia must get on the right track.

If the next election is held with a majoritarian system, it will create instability. In other words, in a majoritarian system, the winning political party wins all seats. As a result, there will be a real risk of losing the continuity of public policy.

With T.Dorjkhand, you requested the Constitutional Court to change some provisions of the Law on Presidential Elections. As a result, then-President Kh.Battulga was “disqualified” from running for this year’s presidency. At that time, some people said that you did it at the request of the Mongolian People’s Party (MPP). Is there a case of appealing to the court by someone’s order?

Citizens have the right to report to the court on potential violations of the Constitution. However, it is possible that this right may be abused for political purposes. But for us, it was different. We only expressed our position when the people began to argue whether former presidents should be allowed to run in the presidential election again. As soon as the Law on Presidential Elections was passed in accordance with the amendments to the Constitution, we appealed to the court to defend the Constitution. Of course, we considered that it might coincide with the interests of MPP. In any case, it doesn’t matter who benefited from the consequences.

The Constitution was amended to limit the appointment of lawmakers as a minister. Does your party think it is better to withdraw this regulation now?

The constitutional amendment gives the prime minister the right to appoint and dismiss ministers. However, the current activities of Parliament and the government show that the prime minister has not been given full authority. The work of ministers, who are not lawmakers, is not supported. From an individual researcher’s point of view, the difference between the government and legislature must be very clear. Therefore, the legislature was of the opinion that no member of Cabinet should have a “double deel” (holding dual posts in Cabinet and Parliament). However, this should be reconsidered as the prime minister continues to face parliamentary pressure. In other words, the amendment contradicts certain provisions of the Constitution.

The provision to have only four ministers with “double deel” undermines the basic idea of the 1992 Constitution. Therefore, we appealed to the Constitutional Court that all Cabinet members should have the opportunity to have dual posts. Consequently, the Constitution needs to be amended to strengthen parliamentary democracy, depending on how the court decides. Although some progress has been made under the amendment, its groundwork has not been laid. That is why we are still in crisis today.

The prime minister has not yet held ministers accountable for their mistakes in accordance with his mandate. Some ministers are often criticized due to their lack of personal skills, experience, and acceptability. Shouldn’t the prime minister exercise his rights before your demand is considered to allow all ministers to have a “double deel”?

We need to consider more about whether the system is causing this situation. If Prime Minister L.Oyun-Erdene dismisses the ministers who are doing poorly, it is doubtful whether newly-appointed ministers will work better than them. Even if they do work well, previous errors are likely to be repeated due to faults in the system.

How can the government stay strong if all ministers are appointed from Parliament?

The number of members of Parliament needs to be increased if it is possible for a lawmaker to serve as a minister. According to political analysts, Mongolian Parliament should have 140 to 150 members. Parliamentary democracy will be intensified only if Parliament has about 120 members. In this case, the “double deel” is not a problem.

On the other hand, there is no real possibility to dissolve Parliament. Therefore, the irresponsible Parliament will continue to attack and oppress the government. In other words, although the prime minister has the right to change Cabinet members, the head of the government has not been able to act without parliamentary pressure. Therefore, we need to change the system.

Do you also think that Prime Minister L.Oyun-Erdene has not held any of his ministers accountable due to the electoral system?

The prime minister is not well protected. That is why I am saying that the prime minister should be given the opportunity to stand against Parliament on issues concerning the country’s interests. On the other hand, the prime minister’s right to dissolve Parliament should be given by the Constitution. Of course, the electoral system is the most basic solution to this.

When the government develops the state budget, they reflect 4 billion MNT for each constituency. This is an act of the prime minister because there is no better way to “treat” Parliament well, right?

It has been like this before. Lawmakers must keep their promises to voters of their constituencies. In fact, in terms of the development policy, we need to build roads, toilets, water pipelines in ger districts, flood dams and new sources of electricity. The prime minister should have the right to spend money on these projects. If government officials don’t “give” money to lawmakers, they will be overthrown. If the authorities do not take action to resolve these issues, we will fight and demand to change them.