“The enabling law of the MHRC does not explicitly provide protection from criminal or civil liability for official actions undertaken in good faith to Commissioners and staff.
External parties may seek to influence the independent operation of a 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 the senior leadership; and
– public confidence in the NHRI.
The SCA recognizes that no office holder should be beyond the reach of the law and thus, in certain circumstances, such as corruption, it may be necessary to lift immunity.
However, the authority 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 the Law clearly establish the grounds, and a clear and transparent process, by which the functional immunity of the decision-making body may be lifted.
The SCA reiterates its previous recommendations of March 2012 and November 2012, that the MHRC continue to advocate for amendments to its enabling law to provide functional immunity for members and staff for actions and decisions undertaken in good faith.
The SCA refers to Paris Principle B.3 and to its General Observation 2.3 on ‘Protection from criminal and civil liability for official actions and decisions undertaken in good faith’.”