승인소위원회 보고서(2014. 03.)
Report of the Sub-Committee on Accreditation
채택일 2014. 3. 21.
3.2 Republic of Korea: National Human Rights Commission of Korea (NHRCK)
Recommendation: The SCA recommends that consideration of the re-accreditation of the NHRCK be deferred to its second session of 2014.
The SCA notes that some of its recommendations from November 2008 have not been implemented, and that the NHRCK did not provide sufficient explanation for this. The SCA emphasizes the need for its recommendations to be actively considered and implemented where appropriate, even when ‘A’ status has been granted.
The SCA notes:
1. Selection and appointment:
The SCA had previously expressed a concern about the failure of the legislation to provide a clear, transparent and participatory selection process in compliance with the Paris Principles. Article 5(2) of the enabling law provides that Commissioners are appointed by the President of the Republic of Korea, including 4 persons selected by the National Assembly, 4 persons nominated by the President, and 3 persons nominated by the Chief Justice of the Supreme Court.
While Article 5(2) specifies limited ‘eligibility’ criteria, the SCA is of the view that this provision does not ensure a sufficiently transparent and participatory selection process, and one that promotes merit-based selection. In particular, the SCA notes that the enabling law does not appear to:
- require the advertising of vacancies for Commissioners;
- establish clear and uniform criteria upon which all nominating parties assess the merit of eligible applicants; and
- promote broad consultation and / or participation in the application, screening, selection and appointment process.
A clear, transparent and participatory selection and appointment process for membership of the NHRI’s decision-making body must be included in relevant legislation, regulations or binding administrative guidelines, as appropriate. A process that promotes merit-based selection and ensures pluralism is necessary to ensure the independence of, and public confidence in, the senior leadership of a NHRI.
The SCA encourages the NHRCK to advocate for the formalization of a process that includes requirements to:
a) Publicize vacancies broadly;
b) Maximize the number of potential candidates from a wide range of societal groups;
c) Promote broad consultation and / or participation in the application, screening, selection and appointment process;
d) Assess applicants on the basis of pre-determined, objective and publicly available criteria; and
e) Select members to serve in their own individual capacity rather than on behalf of the organization they represent.
The SCA refers to Paris Principle B.1 and to its General Observation 1.8 on ‘Selection and appointment of the decision-making body’.
2. Pluralism (Diversity)
While the enabling law contains a provision regarding gender diversity in the selection of NHRCK members, it does not contain provisions to ensure diversity in other ways.
Diversity in the membership and staff of a NHRI facilitates its appreciation of, and capacity to engage on, all human rights issues affecting the society in which it operates. In addition, it promotes the accessibility of the NHRI for all citizens.
While the SCA notes that the NHRCK indicated that its membership reflects the diversity of Korean society, it encourages the NHRCK to advocate for the inclusion of provisions in its enabling law to ensure diversity in its membership and staff.
The SCA refers to Paris Principle B.1 and to its General Observation 1.7 on ‘Ensuring pluralism of NHRIs’.
3. Functional immunity and independence
The SCA notes that there is no provision in the law to provide immunity for its members from legal liability for actions undertaken in good faith in their official capacity.
External parties may seek to influence the independent operation of a NHRI by initiating, or by threatening to initiate, legal proceedings against a member. For this reason, NHRI legislation should include provisions to protect members from legal liability for acts undertaken in good faith in their official capacity. Such a provision promotes:
- security of tenure;
- the NHRIs ability to engage in critical analysis and commentary on human rights issues free from interference;
- the independence of the senior leadership; and
- public confidence in the NHRI.
The SCA recognises that no office holder should be beyond the reach of the law and thus, in certain exceptional circumstances, such as corruption, it may be necessary to lift immunity. However, the authority to do so should not be exercised by an individual, but rather by an appropriately constituted body such as the superior court or by a special majority of parliament. It is recommended that the law clearly establishes the grounds, and a clear and transparent process, by which the functional immunity of the decision-making body may be lifted.
The SCA encourages the NHRCK to advocate for the inclusion in its founding legislation of provisions that clearly establish functional immunity by protecting members from legal liability for actions undertaken in good faith in the course of their official duties.
The SCA refers to Paris Principle B.3 and to its General Observation 2.3 on ‘Guarantee of functional immunity’.
The SCA encourages the NHRCK to seek assistance and advice from the OHCHR and the Asia Pacific Forum of NHRIs.
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