10.1.5 Independence through appointment and dismissal

The terms and conditions that govern appointment and dismissal of members should be transparent, i.e. set out in the constitutional provision or law (or both) that establish the NHRI. They should include:

• method of appointment;
• criteria for appointment (professional qualifications, recognised competencies, personal history of integrity and independence, etc.);
• duration or term of appointment and possibility of reappointment (guaranteed, fixed-term appointments, which may be renewable); and
• dismissal process (only for wrongdoing of a serious nature, clearly inappropriate conduct, serious incapacity. Mechanisms should be independent of the Executive, such as a Committee of Senior Judges, a court or a vote of Parliament).

Methods of Appointment: The Paris Principles emphasize the importance of the selection process of members, but not the ideal or required process. The following practices should be considered as practices that promote transparency and pluralism:

• Explicitly including respect for pluralism and diversity as part of the selection criteria (see the next section);

• Involving Parliament in the formal selection process, by creating a short list of candidates, selecting candidates from a short list developed by the Executive, or formally ratifying decisions of the Executive; and
• Ensuring that social forces have a meaningful say in the process. This could be achieved through the establishment of a representative Committee of Experts to conduct the nomination and selection process. Alternatively, social forces could be consulted directly to participate in nomination or short-listing decisions, perhaps by a Parliamentary Committee.

One study has noted that procedures are more transparent if civil society representatives are involved and if there are clear rules:

It would be advisable for each country to develop some transparent and widely known procedure for:

1) primary nomination of candidates with mandatory participation of various groups of civil society like trade unions and NGOs;

2) public scrutiny of candidates; and

3) competitive selection and approval of candidates by the parliament.13

Criteria for Appointment: As noted in Chapter 7, the quality of members, leadership and staff are vital to the NHRIs' reputation and effectiveness. Transparent and merit-based procedures will likely result in independent and professional members who have the confidence of the communities they serve. Even if there is no requirement in the enabling law that members have human rights experience, this can be ensured by a transparent and engaged process of appointment.

Merit-based and equitable hiring practices are discussed in Chapter 8.

Government representatives on National Institutions: The ICC Sub-Committee has noted that the Paris Principles require that Government representatives on governing or advisory bodies of National Institutions not have decision making or voting capacity.14

Terms of Office: It should be noted that the term of office of members should be long enough to support independence and effectiveness. Terms that are too short – two-years for example – may limit, or be seen as limiting - a NHRI's independence. Members may feel that their re-appointment is dependent on how acceptable they have been to the government of the day. Moreover, short terms of two years or less do not give members the time to both enunciate a vision and put it into effect and therefore may impact negatively on the NHRI's potential effectiveness.

All staff of the NHRI should ultimately report to and be accountable to the head of the NHRI, although day-today responsibilities may be delegated. There should be no possibility that senior staff can be appointed or dismissed, except through a decision of the head, preferably in consultation with all members. Doing otherwise would be to seriously compromise the independence of the institution.

• Conduct that is contrary to the 'code of conduct' is established by the NHRI.
• Engaging in other paid employment, if the position is full time, or, if part time, activity that is incompatible with NHRI's work.
• Substantive activity in a political party.
• Supporting groups or positions that are clearly incompatible with the office, e.g., racist organizations, anti-immigrant policies, etc.
• Incapacity:
• Mental incapacity as declared by a competent authority.
• Physical infirmity that makes it impossible to undertake the duties of the job.
• Incompetence or failure to discharge the functions of the office, e.g., not attending commission meetings over a prolonged period.
• Failure to meet legislative conditions on vacating previous employment.

 

 

 

 

 

12 OHCHR (2008). "Business and Human Rights: A Survey of NHRI Practices. Results from a survey distributed by the Office of the United Nations High Commissioner for Human Rights."

13 Carver and Korotaev, "Assessing The Effectiveness of National Human Rights Institutions" 2007. Study Commissioned by the UNDP Regional Centre in Bratislava

14 ICC Sub-Committee on Accreditation General Observations (Geneva, June 2009).