Autonomy and independence

The Paris Principles require NHRIs to have sufficient funding to have their own premises and staff “in order to be independent of the Government”. Independence is perhaps the most important principle: it is also arguably the most difficult and controversial. True independence is fundamental to the success of an institution. An institution that cannot operate independently cannot be effective. It does not matter how well an institution measures up against other aspects of the Paris Principles. If it is not independent, or is not seen to be independent, it is highly unlikely that it will be able to achieve much of lasting worth. Several elements are involved:

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■ The mandate of members should be established by “an official act which shall estab-lish the specific duration of the mandate” since a stable mandate is a precondition for independence;

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■ Membership should be renewable, subject to the need for pluralism;

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■ Many of the principles set out under “methods of operation”, which are discussed later in this chapter, serve to reinforce independence.

The very fact that an NHRI is a State body funded by the State raises difficulties.

Some may ask how such an institution can ever be independent and this ques-tion is especially relevant in countries where the Government is not entirely human rights-friendly. The most direct answer is that the Government also funds other important independent institutions, most notably the courts and auditors general.

The fact that this is so does not in itself mean that courts can never be independent.

Nevertheless, independence is a relative concept. An institution is by definition estab-lished by the State and is mandated through a constitutional provision or legislation.

That founding legislation will define its operational parameters and its reporting rela-tionship to the State, and it may impose limits on the degree of independence enjoyed by the institution. For this reason, independence must be considered in the light of a number of structural and procedural factors that should be in place to ensure a high degree of operational independence for an institution. These are discussed in the fol-lowing paragraphs. In the final analysis, however, while these factors are fundamental, the key to, and proof of, independence lie in the institution’s actions and its members’

commitment. Whatever structural guarantees exist, an institution will quickly become known, both nationally and internationally, for what it does.

Legal autonomy

The constitutional provision or law that establishes an institution should give it a distinct legal personality to allow it to make decisions independently and act independently. An institution that is a department of a government ministry, for example, is not indepen-dent. Institutions that report to or through a ministry are in a less independent position than those reporting directly to parliament or to the Head of State.

Operational autonomy

Institutions should have the ability to conduct day-to-day affairs independently of any outside influence. This means that they have the power to draft their own rules of pro-cedure, which cannot be modified by an external authority. An institution’s recommen-dations, reports or decisions should not be subject to an external authority’s approval or require its prior review. The same applies to programme activities.

All NHRI staff should ultimately report to and be accountable to the head of the NHRI, although day-to-day responsibilities may be delegated. It should not be possible for senior staff to be appointed or dismissed except by a decision of the head, preferably in consultation with all members. Doing otherwise would seriously compromise the independence of the institution.

The Paris Principles state that an institution should have the right to hear any person and obtain any information necessary for an examination it is undertaking. The founding or enabling law should provide the legal authority for this. In fact, this legal authority is a prerequisite for institutions with the power to investigate. (This issue is examined in greater detail in chapter V.)

Financial autonomy

The Paris Principles require the State to ensure that an institution has the resources to have its own staff and premises. Financial autonomy is crucial. An institution with no control over its finances or how they may be used cannot be independent. The Sub-Committee’s general observations (para. 2.6) specify:

Provision of adequate funding by the State should, as a minimum, include:

(a) The allocation of funds for adequate accommodation, at least its head office;

(b) Salaries and benefits awarded to its staff, comparable to public service salaries and conditions;

(c) Remuneration of commissioners (where appropriate); and

(d) The establishment of communications systems, including telephone and Internet.

Adequate funding should, to a reasonable degree, ensure the gradual and progres-sive realization of the improvement of the institution’s operations and the fulfilment of its mandate.

Funding from external sources, such as from development partners, should not com-pose the core funding of the NHRI as it is the responsibility of the State to ensure a minimum activity budget in order to allow it to operate towards fulfilling its man-date.

Financial systems should be such that the NHRI has complete financial autonomy.

This should be a separate budget line over which it has absolute management and control.

The source and nature of funding for an institution should be identified in the founding law and it should, at a minimum, cover basic functions. Some NHRIs can draw up their own budgets, which are then submitted directly to parliament or the national legislative body and defended before that body. Parliament is then responsible for reviewing and approving the budgetary allotment as well as reviewing and evaluating financial reports submitted to justify the use of those funds.

It is less advisable to link an institution’s budget to the budget of a government ministry.

Even if there is no actual interference, it may give the impression of a lack of indepen-dence. This is especially so if the institution may hear complaints, as the financial con-nection may give rise to a real or apparent conflict of interest.

The funding should also be secure, that is, protected against arbitrary reduction for the period it covers. This will prevent the institution’s decisions or actions being used to justify cuts. Obviously, parliament is the final authority on spending matters and, when faced with difficult financial circumstances, has both the duty and the responsibility to oversee spending and to limit State spending if necessary. In such circumstances, at a minimum, a budget reduction should not be disproportionate to that of other core func-tions, especially in the area of rule of law.

Independence through appointment and dismissal procedures

Institutions are only as independent as their members. The appointment and dismissal procedures are thus crucial. The terms and conditions that govern appointments and dis-missals should, therefore, be set out in the constitutional provision and/or founding law.⁴⁴ Method of appointment: see the previous section.

Criteria for appointment:members should have the professional qualifications and experience to perform their jobs. The criteria for appointment should be clear and well known. There should be recognized competence and experience in human rights and a personal history that demonstrates integrity, competence and independence. The terms and conditions that govern the appointment of members should be transparent, i.e., set out in the constitutional provision or law (or both) that establishes the NHRI. They should include:

– Method of appointment;

– Criteria for appointment (professional qualifications, recognized competencies, personal history of integrity and independence, etc.);

– Duration or term and possibility of reappointment (guaranteed, fixed-term appoint-ments, which may be renewable).

Duration of appointment and possibility of reappointment: members of NHRIs should be granted guaranteed, fixed-term appointments. The length of the term may vary, but it should be sufficient to ensure that the institution can function effectively. In some cases, the term is longer than the normal term of Government (five to seven years)

members, consideration should be given to staggering the end of the terms so as to guarantee continuity. The Paris Principles provide that terms should be renewable.

Terms that are too short—two years, for example—may limit independence or be seen as limiting it. Members may feel that their reappointment is dependent on how accept-able 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 institution’s potential effectiveness.

Who may dismiss members and on what grounds? Freedom from arbitrary dis-missal is crucial to independence. Since institutions have authority to comment on gov-ernmental action, they should be shielded from retaliation. For this reason, the founding legislation should specify, in detail, the circumstances under which a member may be dismissed. Dismissals should be limited to serious wrongdoing, clearly inappropriate conduct or serious incapacity. Mechanisms for dismissal should be independent of the executive, such as a committee of senior judges, a court or a vote of parliament. When parliament is entrusted with this authority, a majority vote is often insufficient to cause dismissal. This is to minimize the possibility of a governing party acting arbitrarily. In its general observations, the Sub-Committee on Accreditation has further noted that:

(a) The dismissal or forced resignation of any member may result in a special review of the accreditation status of the NHRI;

(b) Dismissal should be made in strict conformity with all the substantive and pro-cedural requirements as prescribed by law;

(c) Dismissal should not be allowed based on solely the discretion of appointing authorities.

Quick facts about independence, terms of office and dismissal

In an OHCHR survey almost 80 per cent of respondents indicated that the terms of their members were between three and five years, which is reasonable to ensure tenure of membership. Nevertheless, barely 70 per cent of respondents’ founding laws state the grounds on which members may be dismissed and even fewer (just under 60 per cent) included a procedure for the dismissal of members.

Independence through privileges and immunities

NHRI members should enjoy immunity from civil and criminal proceedings for acts per-formed in an official capacity. Such privileges and immunities help secure independence by giving members a legal guarantee that they will not face retaliation from disgruntled parties, for example. Hence, privileges and immunities may be especially important for institutions which are granted the authority to receive and act on complaints of hu-man rights violations. The Sub-Committee has strongly recommended provisions to be included in national law to protect against legal liability for actions undertaken in the official capacity of the NHRI (general observations, para. 2.5).

Moreover, members and staff should be held inviolable and immune from search, sei-zure, requisition, confiscation or any other form of interference in their archives, files, documents, communications, property, funds and assets of the office or in their pos-session. This immunity is important to protect the ability of the NHRI to gather and maintain evidence and documents, and is vital to ensuring the safety of complainants and witnesses. This, in turn, is a requisite for the NHRI to undertake its responsibilities, which will often involve dealing with allegations of violations concerning individuals in positions of power, including the police, the armed forces and the security services.

4. Principles that apply to national human rights institutions