“The Constitution and Executive Order 163 (EO 163), are silent on whether and how members and staff enjoy functional immunity for actions taken in their official capacity in good faith.
The SCA acknowledges that provision described in Section 27 of the proposed CHR Act adequately addresses this concern by providing for the functional immunity of the members and staff of the CHRP.
External parties may seek to influence the independent operation of an 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 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 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 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.”