“The Law is silent on whether and how board members and others enjoy functional immunity for actions undertaken in good faith in their official capacity.
It is strongly recommended that these provisions be included in national law to protect legal liability of members of the NHRI’s decision-making body for the actions and decisions that are undertaken in good faith in their official capacity.
The SCA notes that, in accordance with article 4 of the draft law, members and staff enjoy immunity from legal liability for actions undertaken in the course of their duties and, accordingly, the draft law addresses this concern.
External parties may seek to influence the independent operation of an NHRI by initiating, or by threatening to initiate, legal proceedings against a members. 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.
It is acknowledged that no office holder should be beyond the reach of the law and, thus, in certain exceptional circumstances it may be necessary to lift immunity. However, the decision to do so shall 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 national law provides for well-defined circumstances in which the functional immunity of the decision-making body may be lifted in accordance with fair and transparent procedures.”