Ombudsman
COMMUNICATION

THE PEOPLE’S ADVOCATE: NON-OBSERVANCE OF THE PRINCIPLES OF PARLIAMENTARY / REPRESENTATIVE DEMOCRACY CAN LEAD TO THE DEGRADATION OF THE RULE OF LAW AND AUTHORITARIANISM

The People’s Advocate, Mihail Cotorobai, expresses his concern about the way in which some important laws with a crucial impact on human rights and freedoms were voted in the plenary session of the Parliament on December 3, 2020, by ignoring the internal procedural rules, the principles of transparency, good governance and restricting the possibility for the opposition to

Article 60 of the Constitution of the Republic of Moldova stipulates that the Parliament is the supreme representative body of the people and the sole legislative authority of the state. Based on this constitutional provision, the People’s Advocate considers inadmissible the neglect of democratic norms and principles for legislating and adopting laws of a wide public interest, preventing the participation of the parliamentary opposition in making decisions of decisive importance for citizens.

Mihail Cotorobai emphasizes that the member states of the Council of Europe have made a commitment to make an effort to work towards the development of common standards and practices aimed at promoting a free and pluralistic parliamentary democracy and the means to implement them in national parliaments.

In the Resolution of the Parliamentary Assembly of the Council of Europe no. 1602 (2008) “Procedural guidelines on the rights and responsibilities of the opposition in a democratic parliament” states that “democracy is based on the right of all to participate in the management of public affairs, therefore requires the existence of representative institutions at all levels and, in in particular, a parliament in which all components of society are represented and which has the necessary powers and means to express the will of the people by legislating and overseeing government action. A representative political parliament will embody society in the diversity of its composition and will work with due respect for the plurality of opinions”[1].

Mihail Cotorobai recalls the rules established by the Venice Commission regarding the collaboration of the parliamentary majority with the opposition parties in the Legislature[2], which involve strengthening a framework of parameters and guarantees regarding the interaction between the majority and the opposition. “In the absence of such guarantees for the opposition, constitutional democracy can turn into an authoritarian regime. In order to avoid such degeneration, in addition to the rules of the Constitution and legislation, the principles of pluralism, cooperation and effective decision-making that are essential for a constitutional democracy should be respected.”

The rules of the Venice Commission highlight of the common responsibility of the majority and of the opposition to society – the principle of political solidarity, which should overcome divisions on the basis of party affiliation and act on the same common commitment and responsible for the public interest of citizens, which are the legitimate source of democratic power.

This commitment must come first, overcoming the stakes of any political confrontation – although such confrontations are normal and essential in a democracy. The majority, precisely because it is the majority, must act in the exercise of power with self-control and respect for the opposition, in an inclusive and transparent manner. At the same time, the opposition or their parliamentarians should not abuse their procedural rights either and, in criticizing the policies of the majority, should not demand violence or engage in violent acts or physically obstruct Parliament’s work.

The attitude of the People’s Advocate in the issue is determined by the fact that the Office of the People’s Advocate, as the National Institution for Human Rights (INDO), has a key role in promoting and protecting human rights, strengthening democracy, the rule of law and good administrations [3]. At the same time, according to the GANHRI Marrakesh Declaration [4], an NHRI has the mission to intervene when human rights, democracy and the rule of law are endangered, and the civic space is under threat. The rule of law and human rights are interconnected and mutually reinforcing: a strong regime of rule of law is vital for the protection of human rights, and the rule of law can only be fully achieved in an environment that protects human rights. [5]

The fundamental role of the Office of the People’s Advocate in consolidating democracy, the rule of law and human rights was also emphasized by the Constitutional Court in Decision no. 22 of July 16, 2015 on the control of the constitutionality of the Parliament Decision no. 140 of July 3, 2015 on the appointment of the People’s Advocate for the child’s rights.

The Court have noted that the People’s Advocate Institution “is the guarantor of democratic development”, “may act as a mechanism for democratic accountability” and “may be considered an institution with horizontal responsibility in democratic governments”. The Decision of the Constitutional Court also states that “through its activism, the Ombudsman in a democratic society must fight to strengthen the accountability mechanisms of all actors involved in the protection of fundamental rights, thus facilitating good governance in a rule of law.”

 

[1] https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17626&lang=en

[2] https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2019)015-e

[3] Principiile de la Veneția – standarde internaționale pentru funcționarea instituțiilor ombudsmanilor

https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)005-e

[4] The GAHNRI Marrakech Declaration “Expanding the civic space and promoting and protecting human rights defenders, with a specific focus on women: The role of national human rights institutions” https://nhri.ohchr.org/EN/ICC/InternationalConference/13IC/Background%20Information/Marrakech%20Declaration_EN_%2012102018%20-%20FINAL.pdf

[5] State of the rule of law in Europe, Reports from National Human Rights Institutions, ENNHRI 2020

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