7.5.2 “Established by law”

The Paris Principles require that NHRIs be established by law. In practice this means by constitution or a law passed by the legislature, or both.

For example, the National Commission Human Rights of Togo was established first by the legislative Act n°87-09 of 9 June 1987 and was later entrenched in a constitution during a subsequent democratic process in 1992. The founding law was then revised by the Act n°96-12 of 11 December 1996.

While the Principles do not favour one over the other, there are advantages to a constitution: it is more difficult for the State to eliminate or cut back the institution when its existence is guaranteed in a constitution. It is worth reiterating, though, that according to the ICC’s General Observations, the creation of an institution by an instrument of the Executive (for example a presidential decree) is not adequate to ensure permanency and independence. To avoid perceptions of interference in State sovereignty, UNCTs should not initiate proposals for constitutional amendments unless there is already a constitution-building or reform exercise underway and a request for specific assistance in this is made by the state authority.

Laws, either alone or in combination with constitutional provisions, offer certain advantages. They can address the operational and functional aspects of the NHRI in more detail than would generally be appropriate in a constitution. Laws can also be modified more easily than constitutions: for example, a NHRI may initially have recommendatory powers only, at least until such time as the judicial system is strengthened and is capable of accommodating quasi-jurisdictional powers of accepting individual complaints and taking issues to court. If the judicial system is eventually strengthened, it is far easier to amend legislation than to try to change a constitutional provision.

UNCTs should ensure that the provisions describing the nature, responsibilities and powers of the institution are consistent with international and regional best practices and with the Paris Principles.

Continuing the consultative and inclusive approach described in earlier sections offers many advantages, ones that have already been discussed. Additionally, involving stakeholders in the process will improve understanding of the future NHRI, as well as the constraints under which it will operate.

For further details about the content of legislative provisions and compliance with the Paris Principles, see Chapters 1 and 10.