Analysis of recalling the members of Mongolian Parliament by the voters / Анализ отзывов членов парламента Монголии избирателями

Сухбаатар Жавхлан кандидат политических наук аспирант, кафедра Политических наук, National University of Mongolia 210646, Монголия, Улан-Батор, г. Улан-Батор, ул. Их Сургуулийн Гудамж, 1 Sukhbaatar Zhavkhlan PhD in Politics Postgraduate student, the department of Political Sciences, National University of Mongolia 210646, Mongoliya, Ulan-Bator, g. Ulan-Bator, ul. Ikh Surguuliin Gudamzh, 1 vip.battelmen@gmail.com

Introduction:

The Law on Civil Service was adopted by the parliament of Mongolia in 1995 and amended in 2002, which defines the principles of membership in the civil service and provides a legal basis for disciplinary action. The Constitution and other laws and regulations also provide for the principles, ethics, and conflicts of interest of members. However, due to factors such as the principle of separation of power and the legal status of high-ranking political officials, the accountability system remains uneven and regulations for the removal, dismissal, and recall of public officials is not implemented in practice. Also, the legal framework for prosecuting a member for criminal offenses is unclear, except in the case of a valid court conviction. These circumstances call on the public to improve the roles and responsibilities of members and to create a legal framework for accountability with the participation of constituents.

Some issues of the concept of parliamentary representation and the nature of change

Explaining that parliamentary representation is a means of expressing the common interest of society, G.Ellinnek explained that "There has never been a common will in society, and the parliament must reflect a common will in its decisions" ^[1], whereas Rousseau argued that common interests are not competition of the conflicting interests but explained that the "permanent" interests of all citizens to be considered common interests ^[2].

Because this common interest is not the sum of the wills of a particular group or communities, the legislature is exempt from the mandate of its electorate but recognized as exercising national sovereignty ^[3]. In this sense, in this sense, the idea that a representative of the British parliament is a representative of the will of the electorate means that a member of parliament is a representative of the will of all peoples, not of his or her elected group ^[4].

In modern times, the demands of citizens to hold politicians accountable have become a major topic of debate on political representation. This is detailed in the United Nations Development Program and the International Parliamentary Union's "Parliamentary Report of the World" ^[5]. According to the report, the nature of parliamentary representation is changing due to public pressure on political accountability. During elections, politicians are required to report to the public on a regular basis. This suggests that the traditional notion of a “free mandate” needs to change.

According to the report, public pressure on members of parliament in recent years can be divided into three main categories. These include:

- First, be more transparent, especially about personal interests.

- Second, to develop a special parliamentary oversight body through which to establish and enforce forms of accountability, such as reviewing and recalling work.

- Third, members of parliament should regularly report on their activities in the media.

Politicians in every country oppose these trends, especially the need to improve accountability. However, in the future, public pressure to increase the responsibility of members of parliament will increase in each country, and politicians will have no choice but to find a solution ^[6]. He stressed that the parliament is adapting to changing times and expectations. In order to ensure the legitimacy of the people, the parliament needs to constantly adapt to the political, economic and social conditions, which will be the future direction of parliamentary reform. Politicians in most countries are predicting the scale and challenges of this change, and the issue of the responsibility of members of parliament will arise in every country, and even reluctantly the public will soon demand them to be open and transparent.

There is an initiative to create a legal environment to recall a member by the voters

In recent years, high-ranking government officials, political parties and citizens have been actively raising the issue of improving the discipline and accountability of members and creating a legal environment for the recall by the voters. For example, since 2016, two draft ^[7] laws have been submitted to the State Great Hural on the recall of members by popular vote. The basis of these draft laws states that due to the principle of separation of powers and the legal status of high-ranking public officials, the system of disciplinary liability provided in the Civil Service Law does not apply in all areas, and the legal regulations for dismissal and dismissal of high-ranking officials are not implemented.

The lawmakers also explained the rationale for drafting the law, arguing that the legal framework for prosecuting members in Mongolia is unclear, except for the fact that a member has committed a crime by a valid court order. These include:

- The legal framework for prosecuting and prosecuting members of parliament is underdeveloped;

- Uncertainty over the scope of a member of parliament's inviolable mandate makes it difficult to hold him or her accountable;

- The rules governing the conduct of members of parliament are not well developed;

- There is no legal possibility to hold a member of parliament politically accountable.

In addition, the draft amendments to the Constitution of Mongolia were submitted to the parliament on June 6, 2019 by 62 members. On this basis ^[8], the Standing Committee on State Structure and the Secretariat of the parliament organized activities to announce information related to the draft law and discussion, to publish the draft and receive comments, to compile the results, and to issue opinions. During this period, members introduced the draft amendments to the Constitution to the public and organized a referendum. The final results were obtained from 40,930 citizens of 18 aimags and 9 districts of the capital city (Note of the 2019 Extraordinary Session of the State Great Hural dated August 28, 2019). As a result of this referendum, the most frequently asked suggestions from citizens were to improve the role and responsibilities of members and to create a legal environment for the recall of elected members.

The experience of countries where a member of parliament is recalled by the electorate

In the late 19th and early 20th centuries, countries such as the United States and Switzerland began legalizing the practice of recalling members of parliament by popular vote. This arrangement has been reflected in the constitutions of many Latin American countries since the 1990s, when the idea of combining representative and participatory democracies became widespread. In the last century, countries withdrew from the regulation, considering the recall of the representative by the vote as a manifestation of the "imperative mandate" ^[9]. However, in recent years, the issue of accountability of high-ranking government officials has been actively raised in many countries, requiring members to act in a transparent, fair and accountable manner to their constituents, and there is a growing tendency to create participatory accountability arrangements.

Currently, more than 50 countries, including Australia, Canada, Venezuela, the Philippines and Belarus, have the legal framework to recall elected officials by popular vote.

Table 1. Countries that regulate the recall of officials elected by the electorate

European commission for democracy through law (Venice commission). report on the recall of mayors and local elected representatives. Strasbourg, 4 July 2019

There are 31 countries ^[13], including Algeria, Canada, Belarus, Venezuela, Gambia, Cuba and Switzerland, which recall members of parliament by popular vote. According to the regulations of these countries, the following two methods and forms of recall are commonly used. These include:

a) Direct recall by voter vote. It’s based on a poll or collection of signatures of certain percentage of voters registered in a given constituency.

b) Mixed method. In this case, based on voters’ initiative the parliamentarians and other authorities decide whether to recall an official; or voters decide to support or reject a decision to recall an official by the authorities.

A comparative study of the legal framework in countries where MPs are recalled by the electorate differs depending on the form of government and the type of governance, the procedures to be followed, and the powers of the actors involved ^[14]. For example, the 31 countries that recall members of parliament by electorate can be divided into 22 unitary states and 9 federal states. In the unitary states, there are a number of options for recalling a representative by the authorities, while in the unitary states, the option for recall is discussed by all constituencies.

Table 2. Forms of government in countries where members of parliament are recalled by the electorate, and officials and methods that may be recalled.

This suggests that in presidential and semi-presidential, parliamentary, and constitutional governments, the right to propose and finalize a member is usually reserved for the electorate, while in socialist countries, the option for recall is decided by the authorities.

Researchers have criticized the authorities' preference for recall as a form of holding voters accountable for their votes, but in reality citizens are unable to exercise their right to recall their elected representatives. They cite the example of Belarus. In 2007, there were 31 attempts to recall members of parliament, none of which were successful. In Belarus, voters who have initiated a recall are required to obtain parliamentary approval in order to hold discussion among registered voters, and all 31 cases have failed to pass this stage.

Uganda's Constitution states that representatives of any group or class can be recalled before the end of their term. However, the country's recall regulations are different from those in other countries, and even if a voter is asked to recall a member, the competent authority or official who does not vote in the constituency will check and decide whether there are grounds for recall.

This suggests that countries have different voter recall arrangements, and that in some countries the arrangements are “nominal arrangements” that do not materialize.

Perceptions and information of Mongolian citizens on the legal framework for recalling a member of parliament by the voters

From December 17, 2019 to January 9, 2020, 749 citizens over the age of 22 from Songinokhairkhan, Sukhbaatar, Chingeltei and Bayanzurkh districts of the capital city were asked to clarify their understanding, knowledge and position on the responsibility of recalling a member of parliament. A sociological survey was conducted using a random sampling method. In addition, 15 political science professors from the National University of Mongolia, the Mongolian State University of Education and the Mongolian University of Science and Technology were interviewed.

Thirty-nine respondents said they were “informed and learned from the experience of some other countries,” 77 responded that they had heard of recalling in some countries without complete information, 379 said they had little understanding, and 169 said they had no information or understanding.

According to the table, 181 respondents answered “I completely agree”, 469 “I agree”, 82 “I do not agree” and 32 “I don't know”. In other words, the majority of respondents, or 650, agreed that it would be appropriate to establish a system for recalling members of the Mongolian parliament member by popular vote.

According to the survey, citizens should create a legal environment to recall a member by the vote of voters. However, another factor in the survey is that our citizens do not have enough understanding and information about this method of recall, which can lead to many negative consequences.

On the issue of creating a legal environment in Mongolia for the recall of a member of parliament by the voters:

In light of the above, there is growing public pressure in Mongolia and internationally to create a legal framework for the recall of members of parliament by constituency vote. Therefore, in the case of a parliamentary, unicameral, “majoritarian” electoral system in Mongolia, where members are directly elected by the people for a four-year term, the following factors need to be taken into account. This includes:

Legal regulation

First of all, it is necessary to define the conditions for the termination of the mandate of a member of parliament by the vote of the voters, based on the constitutional provision that democracy, freedom, equality and all government power are vested in the people. In doing so, the process of recalling a member of parliament shall be reflected in the right to recall a voter independently of the authorities and officials, based on his or her own views (not necessarily based on his or her wrongdoing) ^[15]. For example, it is necessary to clarify the conditions of pure political responsibility, such as “every citizen has the right to elect and be elected to public bodies, and the right to raise and discuss the issue of recalling the elected representative if she/he is considered to performed insufficient”. The experience of many countries shows that the process of recalling a member of parliament is too dependent on the decisions of any government agency or an official and is not implemented in practice, unless it is enshrined in the Constitution.

However, other issues related to the process of recalling a member of parliament by voters should be regulated in detail by an independent law, and the following issues should be considered in terms of grounds for recall, implementation procedures, and voter turnout.

On the justifications for recalling a member of parliament

The main regulation of the recall of a member of parliament by the electorate is how the basis for recall are defined and legislated. This is because it sets limits on when a member of parliament can be suspended or banned. Since this method of political accountability can have many negative consequences, such as creating parliamentary instability and illegally altering the balance of power between the ruling parties, the researchers believe that the main way to prevent this is to ensure that the Constitution clearly states the grounds.

Given the many factors, such as the inviolability of a member of parliament and the stability of parliament, the conditions for political accountability need to be clarified. For example, the law should include basis that voter can’t recall member except in cases of violations of the official duties of a member of parliament, the implementation of election promises, and the observance of ethical and social norms. In order not to disrupt the stable functioning of the parliament, it is appropriate to prohibit the recall in the following cases. Therein:

- Prohibit the recall of a member of parliament on the grounds of performance of official duties and election promises during the first year of his/her term in the office;

- Only the voters of the constituency shall have the right to propose and discuss the proposal to recall a member of parliament;

- Prohibit political parties, non-governmental organizations, trade unions and other interest groups from initiating, participating or influencing the recall of members of parliament;

- To consider valid, only the discussion and collecting of votes (prohibit the collection of signatures, electronic voting, and polling during meetings and rallies) organized by a competent authority among the registered constituency.

Rights and balance of participants in the recall process

The experience of countries where members of parliament are recalled by the electorate suggests that the rights of participants in the recall process vary depending on the form of government and governance.

Constituency voters should have the majority right to participate in the process of recalling a member of parliament by the vote. This is because the experience of many countries shows that the preferential participation of public authorities in the recall process limits the possibility of realizing the wishes of the electorate. However, the rights and responsibilities of other actors should be balanced. For example, voters should be required to comply with the Constitution and other laws and regulations at all stages of the recall, and to comply with legal requirements imposed by the authorities.

Its preferred that the General Election Commission should be responsible for planning and organizing the recall, summarizing the results and approving the “Resolution”. This resolution is a confirmation of whether the recall was conducted in accordance with the law and whether the majority of the electorate supported the recall of the member. The General Election Commission should also monitor the legality of the recall procedure, report any violations to the relevant authorities, and suspend the recall procedure until the violation has been remedied. However, the General Election Commission should not have the right to dissolve voters’ recall decision, organized meetings, or collected signatures in recalling of a member of parliament, or cancel the recall in its entirety.

Based on the General Election Commission's decision that the majority of constituency voters supported the recall of a member of parliament, the parliament should only participate in the “ratification” role and should not have the right to discuss or refuse to discuss the recall decision. However, since the mandate of a member of parliament is confirmed by the parliament, the issue of recall should be presented to the plenary session and a decision made. Instead, the parliament of Mongolia should establish a “Temporary Committee” to oversee the recall procedure and oversee violations of the mandate of a member of parliament. For example, the Temporary Committee under the Law on the State Great Khural of Mongolia has the right to monitor whether the recall procedure is conducted in accordance with the law and whether the rights of members are violated.

Conclusion

While no one disputes that the primary role of a member of parliament is to make laws, in recent years it’s becoming acceptable to include following two additional functions to represent their constituencies' interests and to serve their own political parties. Ultimately, the role of parliamentary representation is to increase transparency in the legislature and to increase public influence and participation in this process. At the theoretical level, the idea that a parliament composed of representatives of various social groups and making decisions by a majority should be a means of expressing the will of the people, rather than a fulfilling direct "tasks" of the electorate. However, due to the growing public pressure to improve the discipline and responsibility of politicians in recent years, there is a need in every country to determine the mandate of a member of parliament.

In Mongolia, the sample survey also shows that there is growing public pressure to improve the discipline and accountability of members of parliament. Legal reforms in countries to improve the discipline and accountability of members of parliament have focused on violations of ethics and morality, with regulations ranging from giving notices to recalling them. Experience has shown that accountability for misconduct by high-ranking officials is implemented under pressure from citizens which has the advantage of leading parliamentarians to understand their responsibilities and creates an environment that holds them accountable. However, it is important to note that this type of accountability is more effective in countries with highly developed democracies, civic participation, and political culture. Experience in many countries has shown that in a country where corruption, official misconduct, and injustice are rampant, high-ranking government officials already have an overwhelming show of power and use it to avoid responsibility by influencing the courts and abusing their positions. In such a country, it would be more effective to impose participatory “political accountability” such as restricting the right to stand for election or recall by voters than to impose ethical sanctions on high-ranking government officials.

However, this method of recalling member/s of parliament by voters has not been well studied in political science, and it is important to note that the results vary depending on many factors such as the state governance, and political culture of citizens. It also has the potential to bring negative results such as destabilize parliament and recall for vested interests if it fails to determine the conditions under which a member's mandate can be terminated; when it can be vetoed; or how the rights and balance of participants can be balanced. Also, the survey shows that the vast majority of Mongolians believe that a member of parliament should be recalled by the electorate, but they do not have sufficient knowledge and information about the recall procedure.

Mongolia has a parliamentary system of government, where members of parliament are directly elected by citizens for a four-year term, and the number of voters in constituencies is relatively small compared to other countries. Therefore, in the case of localization of the legal regulation of recall, it is necessary to clearly state it in the Constitution and other laws the nature of the member's mandate, issues of powers, grounds for recall, and powers of the participating entities. This would limit the risk that political parties and interest groups, such as NGOs and unions, could directly or indirectly influence, participate in, or lead to parliamentary instability. It is concluded that clarifying the rights of participants will reduce the influence of high-ranking government officials and the authorities, and will allow voters to hold politicians elected to the highest legislative body accountable based on their interests.