“The enabling Law is silent on whether and how members are protected from criminal and civil liability for official actions and decisions taken in their official capacity in good faith. The SCA acknowledges that the DHCR has proposed legislative amendments to its Law to include a provision for protection from criminal and civil liability for its members and staff.
External parties may seek to influence the independent operation of an NHRI by initiating, or by indicating an intention 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 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 welldefined circumstances in which the functional immunity of the decision-making body may be lifted in accordance with fair and transparent procedures.
The SCA recommends that the DHCR advocates for the passage of this amendment to provide for protection from criminal and civil liability for official actions and decisions undertaken in good faith of its members and staff.
The SCA refers to Paris Principle B.3 and to its General Observation 2.3 on ‘Guarantee of functional immunity.’”