Overview of NHRI Legislative Features

Annex 3: Overview of NHRI Legislative Features

NHRI laws vary widely, but should conform to the Paris Principles.

A detailed analysis of the Paris Principles, including how they should influence the drafting of enabling legislation is in Chapter 10.

The following are some basic features of a draft law that may be considered once the institutional model is chosen.

Details on the types of model for NHRI are found in Chapter 2.

Institutional leadership

The law should identify the head of the NHRI, and the powers and authorities that the person will have. In particular, some institutional heads are not responsible for day to day operations (for example if the law provides for a permanent secretary or executive director) or if the NHRI is entitled to delegate operations a senior official of the NHRI.

National human rights institutions can have many Commissioners, a feature that shifts the leadership burden to a larger number of people. It also helps to create better opportunities for pluralism or diverse membership.

Commissioners can be full time with specific operational mandates, or in the case of members other than the Commissioner herself or himself, part time. Titles vary: senior commissioners can be called a President of the Human Rights Commission, Chief Commissioner or simply Human Rights Commissioner.

Similarly, a Human Rights Ombudsman can have one or more Deputies, who can act in her or his absence, and/or can assume specific functions (for example gender equality, or social and economic rights, or promotion).

Preamble

Some NHRI enabling laws contain preambles. Preambles are declaratory, introductory statements that set out the context for the law, its importance and, in this case, may also make reference to the relationship of human rights to international norms. States may use preambles to:

• Declare commitment to fundamental human rights and freedoms, e.g. the Universal Declaration of Human Rights and/ or a regional charter;
• Express compliance with the Paris Principles, including asserting the NHRI’s independence;
• Pronounce commitment to human rights, the constitution, and compliance with international instruments ratified by the country; and
• Affirm the desire to create an NHRI, and to promote and protect human rights and freedoms and guarantees, within the rule of law.

The use of preambles is largely a matter of the legal culture and national practice.

A statement to establish the NHRI

Not all enabling laws do this, but expressly acknowledging the establishment of the NHRI in law can create clarity. For example: Section 68 of the Northern Ireland Act provides, simply, that:

There shall be a body corporate to be known as the Northern Ireland Human Rights Commission.

Statement of Principles

A statement of principles is appropriate in NHRI laws. For example, one law provides that the Commissioners’ acts are informed by principles of “publicity, transparency, legality, justice and impartiality.”

Definitions

Enabling legislation often uses terms that require definition or clarification. For example, this may include the definition of terms such as:

• “commissioner” (if commissioners are chosen rather than ombudsman);
• “complaint”
• “conciliation”
• “disability”
• “equal”,
• “government”
• “human rights”
• “mediation”
• “member”
• “ombudsman”
• “public authority”

Mandate and Scope of Application

At a minimum, NHRI’s should be vested with competence to both protect and promote human rights (Paris Principles Section A1). A simple statement to this effect is appropriate in the early sections of enabling legislation. A broad statement to the effect that the NHRI is entitled to look into, investigate or comment on any human rights situation, without any form or prior approval or impediment, is also desirable, to ensure independence and autonomy.

The Paris Principles also provide that national institutions shall be given as broad a mandate as possible, which shall be clearly set forth in a constitution or law, or both, specifying its sphere of competence. Reference to applicable international instruments is also desirable.

For example, the Law of the Public Defender of Georgia states:

Article 2

In his activities, the Public Defender shall follow the Constitution of Georgia and the present Law, as well as the universally recognized principles and rules of international law, international treaties and agreements concluded by Georgia.

Human rights laws typically apply to the government, which includes all departments and administrative branches of the State, law enforcement bodies, the Army, correctional and detention facilities, local government administration; government committees and agencies; State owned companies and companies where the Government exercises control, for example, where it owns over 50% of the capital; or other bodies as prescribed by law.

Questions can still arise: does the NHRI have power over state-owned corporations? State-controlled bodes? To avoid arguments in future, some statutes will solve this problem by defining terms such as “government”, “public service”, “public authority” or other entities whose actions are subject to the NHRI’s reach.

It should also be noted that international cooperation is an important part of most NHRI mandates.

Application to both public and private sectors

As noted in the previous section, it is important to establish whether the law will be restricted to government or whether it will also apply to non-governmental sectors. Although human rights commissions in developing and post-conflict countries tend to focus on State action, human rights violations can also be caused by the actions of other entities in other sectors, for example, corporations, partnerships or persons in employment, housing and other sectors.

It is true that international human rights obligations bind the State. Nonetheless, non-state actors also have human rights responsibilities, and the obligations put on the State by international obligations extend to ensuring human rights are respected by non-state actors. The Paris Principles are consistent with a broader application of the NHRI mandate to cover both the private sector and the public sector. This is especially important as regards equality rights in the areas of discrimination in employment, housing, goods and services because these are typically offered by the private and non-profit sectors.

More information on the role of NHRIs in respect of private sector business is found in Chapter 3.

Exclusions

The judicial branch and Parliament are generally excluded from the jurisdiction of NHRIs, or are included only to the extent of their own administrative actions.

For example, if an administrative assistant employed by the court system complains of discrimination, she should be able to complain to a human rights commission. Denial of justice is also often one of the complaint subjects some NHRIs are entitled to handle. Conversely a human rights complaint that is also the subject of a judicial decision cannot be “reviewed” by a NHRI.

Appointment and Dismissal of Members

The Paris Principles require that appointment processes of members should support pluralism. The process should support independence and transparency and preferably be set out in law.

In practice this means that, as a minimum, the appointment process should involve nominations from civil society, and could engage Parliament by having the latter responsible, as the elected body, for naming the members. Executive appointments are not to be recommended. Similarly, members should be protected in law from arbitrary dismissal.

The National Parliament shall appoint the Ombudsman for Human Rights and Justice through absolute majority votes of its members on active duty.

The same law also sets, in article 21, stringent conditions on which a member may be dismissed:

1. The Ombudsman for Human Rights and Justice can be removed from office by a two-third (2/3) majority in the National Parliament…

Pluralism

The ICC Sub-Committee on Accreditation, in a general observation, notes that that there are different ways in which pluralism may be achieved through the composition of the NHRI, and these should be set out in the legislation. For example:

a) Members of the governing body represent different segments of society as referred to in the Paris Principles;

b) Pluralism through the appointment procedures of the governing body of the National Institution, for example, where diverse societal groups suggest or recommend candidates;

c) Pluralism through procedures enabling effective cooperation with diverse societal groups, for example advisory committees, networks, consultations or public forums; or

d) Pluralism through diverse staff representing the different societal groups within the society.1

Immunity

The ICC Sub-committee has strongly recommended that provisions be included in national law to protect legal liability for actions undertaken in the official capacity of the NHRI.2

Investigation and monitoring powers

NHRIs usually issue opinions and recommendations following full investigations and an assessment of the evidence. They can decide whether it is more likely than not that a human rights violation has occurred. A specific legislative authority is required to investigate human rights matters, and to undertake independent investigations.

The Paris Principles mention that there is an “additional” power to receive individual complaints. Related to this is the capacity not only to receive complaints from individuals, but also to investigate on the Office’s own initiative.

The power to monitor human rights should be set out explicitly and in particular, the power to monitor prison conditions and visit places of detention without warning should be set out in the law.

The Right to obtain information and documents

The Paris Principles provide that NHRI should have the authority ‘hear any person and obtain any information and any document’ and generally enquire into any matter. Enabling legislation should specify the powers that the institution has at its disposal in this regard.

An Ombudsman may not be denied access to any file or administrative document or to any document relating to the activity or service under investigation,

Article 31 (2) provides that:

Where an official of a government body impedes an investigation by refusing to send documents required by an Ombudsman, or through negligence in sending such documents or by refusing an Ombudsman access to administrative files or documents necessary to the investigation, the Ombudsman shall send the relevant file to the official’s superior or to the competent prosecuting authorities for the appropriate disciplinary or penal action to be taken, in accordance with the law.

Power to Issue Recommendations and Decisions

Most NHRIs can issue decisions, or at least recommendations. In many ombudsman-style jurisdictions, there is no power to legally enforce recommendations, but there should at least be power to compel the production of information and documents.

For further information, see chapters 3 and 10.

 

 

 

 

 

1 ICC Sub-Committee On Accreditation General Observations (Geneva, June 2009).

2 Ibid.