The Henrik Sass Larsen case – law and politics in the Ombudsman world
express severe criticism of the highest authorities in the land. And it certainly is
not common for the Ombudsman to get so close to issues related to the formation of a government.
Nonetheless, I had no doubts about considering Henrik Sass Larsen’s complaint
about the order to remain silent.
As a clear starting point, the formation of a government is of course a purely
political issue which is entirely the Prime Minister’s responsibility. However,
when actual legal instruments – such as imposing an order to remain silent,
whose breach may lead to a prison sentence – are suddenly used in connection
with the formation of a government, other mechanisms come into force. As
Professor Michael Gøtze put it in a newspaper feature, the law also applies in
the dark. And Henrik Sass Larsen had a completely legitimate wish to find out
whether the order to remain silent was legal.
I began the article by mentioning my predecessor’s analysis of the issue of the
Ombudsman’s role in cases with a political aspect. The Henrik Sass Larsen case
is an excellent illustration of two of Hans Gammeltoft-Hansen’s theses, i.e. that
the Ombudsman must not avoid taking up a case merely because it (also) contains political substance and that in ‘mixed’ cases – i.e. cases which include both
political and legal aspects – the Ombudsman must stick to the legal aspects.
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