승인소위원회 보고서(2014. 10.)
Report of the Sub-Committee on Accreditation
채택일 2014. 10. 31.
3.8 Republic of Korea: National Human Rights Commission of the Republic of Korea (NHRCK)
Recommendation: The SCA recommends that consideration of the re-accreditation of the NHRCK be deferred to its first session of 2015.
In November 2008 the SCA expressed concerns about whether the enabling law was in compliance with the Paris Principles. These included a number of fundamental deficiencies in provisions dealing with the process for the selection of Commissioners, pluralism and immunity.
In March 2014, the SCA considered the application for re-accreditation. It noted that the 2008 recommendations on selection, pluralism and immunity had not been implemented. It deferred its consideration of the application to provide the NHRCK with an opportunity to address these concerns. In so doing, the SCA emphasized the need for its previous recommendations to be actively considered and implemented where appropriate, even when ‘A’ status had been granted.
In considering additional information provided for this session, the SCA noted with appreciation that in the last six months the NHRCK has taken initial steps to promote changes to its enabling law to address these concerns. These include establishing an internal team with responsibility for preparing potential amendments to the National Human Rights Commission Act, the preparation of a Guideline on selection, and consulting with the key stakeholders on the need for relevant changes.
However, the SCA notes that at this stage no changes have been made.
As an interim measure prior to the passage of legislative amendments, the NHRCK has prepared a Guideline for use in the selection of members. It notes that the proposed Guideline may not sufficiently ensure Paris Principles compliance. The proposed Guideline is not binding and does not provide:
- clear and uniform criteria;
- that such criteria are uniformly used to assess the merit of all eligible applicants;
- a mechanism which would promote broad consultation in the screening and selection process;
- a mechanism which would promote broad participation in the application, screening and selection process.
In addition, the NHRCK proposes that the three (3) nominating authorities develop their own rules of procedure based on this Guideline. This may create three different processes for the selection of members.
The SCA is also concerned about the proposed draft amendments, as these too may not sufficiently ensure Paris Principles compliance for the reasons outlined above.
The SCA encourages the NHRCK to advocate for the use of a transparent and participatory selection process in the selection of two new Commissioners in January and February 2015. It again encourages the NHRCK to seek advice and assistance from OHCHR and the APF in addressing these concerns.
The SCA reiterates its previous concerns from 2008 and 2014 as follows:
1. Selection and appointment
Article 5(2) of the enabling law specifies very limited ‘eligibility’ criteria and provides that members of the Commission are selected separately as follows:
- persons by the National Assembly,
- persons by the President, and
- 3 persons by the Chief Justice of the Supreme Court.
The SCA has previously expressed concern that this provision does not establish a sufficiently transparent and participatory selection process that promotes merit-based selection. In particular, it notes that the existing law does not:
- require the advertisement of vacancies for Commissioners;
- establish clear and uniform criteria;
- ensure that such criteria are uniformly used to assess the merit of all eligible applicants;
- promote broad consultation in the screening and selection process; and
- promote broad participation in the application, screening and selection process.
A clear, transparent and participatory selection and appointment process for the selection of Commissioners 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 detailed process in its enabling law that includes requirements to:
a) Publicize vacancies broadly;
b) Maximize the number of potential candidates from a wide range of societal groups and educational qualifications;
c) Promote broad consultation and / or participation in the application, screening, selection process;
d) Assess applicants on the basis of pre-determined, objective and publicly available criteria; and
e) Select members to serve in their 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 of NHRIs’.
2. Pluralism
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. Immunity
There is no provision in the National Human Rights Commission Act to provide immunity for its members from legal liability for actions undertaken in good faith in their official capacity.
The SCA has previously noted that 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 NHRI’s 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 recognizes that no office holder should be beyond the reach of the law and thus, in certain 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 enabling law of express provisions that clearly establish the functional immunity of its members.
The SCA refers to Paris Principle B.3 and to its General Observation 2.3 on ‘Guarantee of functional immunity’.
4. Cooperation with other human rights bodies:
The SCA wishes to highlight that regular and constructive engagement with all relevant stakeholders is essential for NHRIs to effectively fulfil their mandates.
NHRIs should develop, formalize and maintain working relationships, as appropriate, with other domestic institutions established for the promotion and protection of human rights, including civil society and non-governmental organizations.
The SCA encourages the NHRCK to maintain and strengthen these relationships and refers to Paris Principle C(g) and to its General Observation 1.5 on ‘Cooperation with other human rights institutions’.
It requests the NHRCK to provide information on its engagement with civil society including any formal and informal mechanisms, the organisations with which it has regular engagement and the frequency of that engagement.
참고 정보 링크 서비스
| • 일반 논평 / 권고 / 견해 |
|---|
| • 개인 통보 |
|---|
| • 최종 견해 |
|---|