“The process of selection and appointment of the members of Komnas HAM continues to be governed by Regulation 3/2016 issued by Komnas HAM under Article 86 of Law 39 of 1999 on Human Rights (enabling law). However, the SCA notes that this process was initially applicable only to the 2017- 2022 selection process and has now been made applicable to the 2022-2027 selection process.
The SCA notes that this Regulation has not yet been formalized or made a permanent addition to Komnas HAM’s regulatory framework. The SCA is concerned that the enabling law of Komnas HAM has not been amended to formalize a clear, transparent and participatory selection and appointment process, as recommended by the SCA in its previous report. According to Article 83 of the enabling law, Komnas HAM comprises of 35 members. Currently, Komnas HAM comprises of 7 members whose term expires in November 2022 and will be reportedly replaced by a new board comprising 9 members. The Komnas HAM previously had 13, 11, and 23 members appointed to previous boards.
The Komnas HAM informed the SCA that a Constitutional Court judgement dated 20 June 2022 interpreted the enabling law to mean that 35 is the maximum number of members that can be appointed.
While the SCA notes this interpretation, it is concerned that there has not been consistency in the number of members that have been appointed and that this framework does not establish a minimum number of members.
The SCA is further of the view that the decision-making body of NHRIs should have a reasonably consistent number of members in its composition in order to effectively discharge its mandate to fully promote and protect human rights in a consistent manner.
The SCA also emphasizes that a consistent, clear, transparent and participatory selection and appointment process for the selection of members 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 recommends Komnas HAM to advocate for the formalization and application of a consistent and permanent process for the selection and appointment of its members. Such process must include provisions to:
- Publicize vacancies broadly;
- Maximize the number of potential candidates from a wide range of societal groups and educational qualifications;
- Promote broad consultation and / or participation in the application, screening, selection and appointment process;
- Assess applicants on the basis of pre-determined, objective and publicly-available criteria; and
- Select members to serve in their individual capacity rather than on behalf of the organization they represent.”