“In accordance with section 10(d) of the Act, the King may remove a member, on the advice of the Prime Minister, if he is of the opinion that a member:
(i) has engaged in any paid office or employment which conflicts with his duties as a members of the Commission;
(ii) has misbehaved or conducted himself in such a manner as to bring disrepute to the Commission; or
(iii) has acted in contravention of the Act and in conflict with his duties as a member of the Commission.
This provision provides significant discretion to the Prime Minister in recommending the removal of a member, and, as some of the grounds are discretionary, does not provide sufficient protection against political interference.
The SCA notes the draft amendment to subsection 10(d)(ii) of the Act proposed by SUHAKAM, which would require a finding of guilt by a tribunal or court for a criminal offence or misconduct before a Commissioner can be dismissed.
The SCA emphasizes that, in order to address the requirement for a stable mandate, which is important in reinforcing independence, the enabling law of a NHRI must contain an independent and objective dismissal process.
The grounds for dismissal must be clearly defined and appropriately confined to those actions that impact adversely on the capacity of the members to fulfil the institution’s mandate. Where appropriate, the legislation should specify that the application of a particular ground must be supported by a decision of an independent body with appropriate jurisdiction. The dismissal must be made in strict conformity with all the substantive and procedural requirements as prescribed by law. Dismissal should not be allowed based solely on the discretion of the appointing authorities.
The SCA is of the view that such requirements promote the security of tenure of members of the governing body and are essential to ensure the independence of, and public confidence in, the senior leadership of a NHRI. The SCA encourages SUHAKAM to continue advocate for appropriate amendments to its Law to ensure an independent and objective dismissal process.”