PART I
For example, Spain’s parliament formed a Joint Committee of
both houses of parliament to be in charge of relations with the
ombudsperson. Furthermore, according to the legislation of
many European states, the ombudsperson institution is given
the active role of commenting on governmental and parliamentary initiatives.
The power of the Estonian Legal Chancellor to comment on
general and parliamentary initiatives appears to be very wide.
According to the 1999 Legal Chancellor Act, copies of all generally applicable legislation of the legislative and executive
powers and of local governments, international agreements
which have not yet entered into force, and all judgments of
the Supreme Court which concern constitutional disputes and
which have already entered into force shall be sent to the Legal
Chancellor within ten days after their corresponding proclamation, passage, signature or entry into force.
The Russian Federal Law on the Commissioner for Human
Rights provides that “the Commissioner shall facilitate restoration of violated rights, the improvement of legislation of the
Russian Federation on human and citizens’ rights and bringing
it into accordance with universally recognised principles and
norms of international law.”
Finally, the Georgian Public Defender is authorized, after examination, to “submit proposals concerning the improvement
of legislation to the Parliament in order to secure human rights
and freedoms.”
The ombudsman should be able to criticize or comment on legislation that
has been adopted.
The role of the specialized minority ombudsperson in advancing minority standards
will not be fully effective if he/she is not able to criticize or comment on legislation
that has been adopted. Usually it is both practically and politically easier to comment on draft law than law that is already in force. Some ombudsperson institutions
develop special policy regarding the publicity of reports. Thus, they publish their
reports only after allowing time for compliance with their recommendations. This is
usually a good method in exercising an advisory role on (draft or adopted) legislation because it enables authorities to save face before the criticism reaches the
public.
The vast majority of ombudsperson institutions are authorized to comment on legislation (i.e. almost all of those authorized to comment on draft laws) and they
should exercise that function properly, whenever necessary.
Some commentators and ombudspersons argue that the ombudsperson should
not be involved in the legislative drafting process as it may subsequently leave
them open to criticism should there be any faults in the legislation once it is passed.
In that respect it should be recalled that the ombudsperson should have only advisory power in legislative drafting, whereas the drafting role remains with parliament
and/or government bodies. In exercising this advisory role, it is presumed that the
ombudsperson will have sufficient expertise or, when necessary, that the ombudsperson will ask for expert assistance.
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