1.2.3 Enabling Laws: Grounded in constitutional law and legislation
National human rights institutions are part of the State structure in the sense that they are creatures of the law – they depend on laws for their existence and to authorise their actions.
According to a recent survey, a third of NHRIs are created by a constitution, about a third are created by legislation, and a further 15% have both.2 The South African example, illustrated here, combines a constitutional foundation with a legislative base. Certainly, having a constitutional base provides a measure of security for NHRIs since it is very difficult to amend a constitutional provision.
Legislation is passed by a national assembly, a parliament, or a state legislature. Enabling legislation may cover human rights generally, or it may define specific rights. In some countries, the law may say that the NHRI must protect and promote human rights which are contained in ratified international treaties. Constitutions and NHRI enabling laws will vary from country to country, and should be read carefully. Some countries do not have a constitutional basis for their NHRIs, but only a legislative base. A NHRI created in this manner complies with the Paris Principles.
HUMAN RIGHTS COMMISSION ACT,
“WHEREAS the Constitution provides that the Human Rights Commission shall, inter alia, be competent and obliged to promote the observance of, respect for and the protection of fundamental rights; to develop an awareness of fundamental rights among all people of the Republic” (emphasis added).
In some countries, NHRIs are created by decree, orders-in-council, proclamations or other executive instruments that do not require the approval of the country’s elected representatives. NHRIs created by such executive instruments do not meet international standards. According to the ICC’s General Observations, the creation of an institution by an instrument of the Executive is not adequate to ensure permanency and independence.
For details on enabling laws and compliance with the Paris Principles, see Chapters 7 and 10.
Generally speaking, human rights laws should be given a broad, liberal and purposive interpretation. NHRIs can provide a central role in building a culture of human rights, while reinforcing the rule of law. And while this cannot be used to “read in” rights that do not exist, a broad reading of an NHRI law can be used to interpret a set of existing rights more expansively and in a way that is more consistent with the achievement of human rights. For example, in some jurisdictions the right to be free from discrimination on the grounds of sex has been read broadly to include the rights of women who are pregnant and breastfeeding.