승인소위원회 보고서(2015. 3.)
Report of the Sub-Committee on Accreditation
채택일 2015. 3. 20.
6.5 Republic of Korea: National Human Rights Commission of Korea (NHRCK)
Decision: The SCA defers consideration of the re-accreditation of the NHRCK to the first session of 2016.
The SCA acknowledges receipt of a detailed report from the NHRCK on its cooperation with civil society. The NHRCK reports that it cooperated more than 160 times with civil society during 2014. The SCA accepts the report as satisfying the concern raised at its October 2014 session regarding cooperation with other human rights bodies.
The SCA commends the NHRCK on the steps that it has taken to address the SCA’s concerns since its October 2014 session. This includes:
- proposing a second set of draft amendments to the NHRCK Act which includes provisions on the qualification standards for Commissioners, provide for broad consultation in the selection process and include a clause on immunity;
- enacting the Rules on Office Work of the NHRCK Regarding Selection / Appointment of Human Rights Commissioners;
- announcing vacancies for the position of Commissioners and seeking opinions from diverse civil forces;
- consulting with the three appointing institutions to solicit their support for broad participation and consultation during the selection and appointment process.
The SCA also notes with appreciation that, in response to the recommendations made by the NHRCK, both the ruling party and the opposition party posted an open call for nominations for the position of Commissioner.
However, the SCA notes that the NHRCK has advocated for the passage of the amendments. The SCA encourages the NHRCK to continue to advocate for passage of the amendments.
The SCA reiterates the following concerns:
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:
- 4 persons by the National Assembly;
- 4 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 and appointment 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; 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 an 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 and 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. Functional immunity
There is no provision in the NHRCK 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’.
The SCA notes:
The term of the current Chair will end in August 2015 and the process for the selection of the new Chair will begin in May 2015. The SCA encourages the NHRCK to advocate for the formalization of a clear, transparent and participatory selection and appointment that promotes merit-based selection. Such a process should include 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 and selection process; and
d) Assess applicants on the basis of pre-determined, objective and publicly-available criteria.
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