No. 4




How the Legal Chancellor protects the legitimacy of the legal system

  • Allar Jõks

    Advisor under a UN mandate to the office of Ombudsman of Georgia

From the activities of the Legal Chancellor so far, it can be inferred that there is a need for more comprehensive analysis of the problems that have become evident, both from the requests and proposals presented to him, and as a result of an audit performed on the Legal Chancellor’s own initiative. There is also a need for development of proposals for more effective protection of individual rights.

The wholesale supervision of legislative acts should be replaced by purposeful norm control that would arise generally from a particular complaint or request. We will have to define the more important risks, and based on this, the priorities of the activity of the Legal Chancellor.

Besides control arising from specific requests, we will have to focus in the future on one or two legal fields set as priorities a year in order to analyse the effect of the legal acts of the given field in depth, and to make reasonable proposals for amendment of the legal acts if necessary. The analysis considering the lawfulness of the closing of small schools, which is at the stage of completion and will give an answer to the question whether the constitutional right for education provided by Section 37 of the Constitution is factually guaranteed or not, may be pointed out as an example.

The Legal Chancellor does not fight consequences but causes, and therefore it is important to make clear how a violation of fundamental rights became possible. For this purpose the so-called norm control of legal acts and settlement of particular requests and complaints should be better associated. Then the drawing of necessary generalisations on the effect of legal acts and their amendment would be possible as a result of relevant analysis. For example, on the grounds of generalisations drawn after visiting two child care institutions in April 2001, the Legal Chancellor made a proposal to the Minister of Education and the Minister of Social Affairs for amendment and clarification of the legal acts regulating the sphere.

Not only the creation of a harmonised legal environment is what matters, but also the establishment of control mechanisms or democratic procedures foreseen for settlement of disputes, in order to achieve factual protection of individual rights and freedoms. Thus the activity of the Legal Chancellor can be effective only if the activity of other supervision and control institutions (including internal audit) is effective. The Legal Chancellor must not be another state supervision institution; he has to influence through his activity and authority the control mechanisms for their effective functioning. Because of this, the mechanisms of state, the supervision organisation and internal audit, as well as work performed in public institutions with memorandums and requests should all be analysed.

Supervision by the Legal Chancellor should extend to the whole of the public sector, i.e. the Legal Chancellor should observe both the lawfulness of the execution of state power as well as the quality of public services. To assess how well the fundamental rights are guaranteed, norms of fundamental rights and norms of providing public services should be developed in the jurisdiction of each governmental institution.

An issue that should become a major goal of the activity of the agency of the Legal Chancellor is active participation in implementation of what has been set out in Section 14 of the Constitution: the guaranteeing of the rights and freedoms shall be a responsibility of the legislative, executive and judicial power and of local government. This in turn implies active and meaningful cooperation and openness between all the carriers of public authority. These watchwords together with the need to plan the agency’s activity more precisely should form the foundation for more effective work of the agency.

Full article in Estonian