“Article 41 B of the Constitution and Section 3 (2) of the law provide that the Commissioners shall be appointed by the President, on the recommendation of the Constitutional Council. The Constitutional Council is a ten (10) member body comprised of the Prime Minister, the speaker of Parliament, the leader of the opposition in Parliament, one member of Parliament appointed by the President, five (5) persons appointed by the President upon nomination by both the Prime Minister and the leader of the opposition (two (2) of whom must be members of Parliament) and one (1) member of Parliament nominated by agreement of the majority of the members of Parliament who do not belong to the party of the Prime Minister or of the leader of the opposition.
The SCA is of the view that the selection and appointment process as enshrined in the law is not sufficiently broad and transparent. In particular, it does not:
– require the advertisement of vacancies;
– establish clear and uniform criteria upon which the merit of eligible applicants is assessed; and
– promote broad consultation and / or participation in the application, screening, selection and appointment process.
The SCA acknowledges that the SLHRC reports, that, in practice, announcements of vacancies are made online and in national newspapers. However, the SCA considers it preferable that this be an explicit requirement of the law.
It is critically important to ensure the formalization of a clear, transparent and participatory selection and appointment process for an NHRI’s decision-making body in relevant legislation, regulations or binding administrative guidelines, as appropriate.
The SCA encourages SLHRC to advocate for the formalization and application 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 and educational qualifications;
c) Promote broad consultation and / or participation in the application, screening, selection and appointment process; and
d) Assess applicants on the basis of pre-determined, objective and publicly-available criteria.
The SCA notes that the 2017 report of the Special Rapporteur on the independence of judges and lawyers recommended that:
– “the composition of the Constitutional Council should balance the number of active politicians with representation from civil society, the Bar Association and academia so as to avoid the politicization of the appointment processes”; and
– “the Constitutional Council should set out and publish its rules of procedure, including the criteria used to evaluate candidates’ suitability for a given position, which should be scrupulously and consistently applied”.1
The SCA encourages the SLHRC to advocate for the implementation of the Special Rapporteur’s recommendations.”