Chapter V. The HKHRC in Operation
3. The Number of Commissioners
3.1. THE TWO COMPETING CONSIDERATIONS: SCARCITY OF RESOURCES AND PLURALITY
864. With regard to the number of leading members, the amount of resources available for the commission has to be taken into consideration and in relation hereto the Paris Principles stress that:-
“Governments experiencing severe economic difficulties may be forced to establish small institutions [...] because they are unable to afford larger ...ones”.912
865. The advantage to appointing a smaller number of commissioners is to free more funds for various projects and activities, and additional operating staff instead of the costly salaries of high profile commissioners. While the staffing levels must be able to adequately support the commissioners for an effective discharge of the full mandate of the NHRI,913 the amount of money spent on the salary of the commissioners, the operating staff and the programmes of the Commission should be allocated in fair proportion.
866. On the other hand, the Paris Principles stress that the composition of the NHRIs should reflect the composition of the Community.914 Nevertheless, appointment of too many commissioners, solely on the ground to guarantee an adequate and balance representation of vulnerable groups, with a deliberate blind eye as to whether the commissioners are appointed at the cost of effectiveness and working efficiency of the commission, is definitely unwarranted.
910 Canadian Human Rights Commission, Annual Report 2005 at 45.
911 Id at 40.
912 Handbook, paragraph 123.
913 Best Practice at 13.
914 The Paris Principles, Article 4.
867. The difficulty of balancing this two competing consideration is best illustrated by the consultation on the Scottish Human Rights Commission. The structure and the number of commissioner was one of the areas of greatest dissent in the responses to the second consultation. In the second consultation on the Bill the Scottish Executive suggested that
“‘broad representation of Scottish society as a whole’ should be one of the factors considered in making Commissioner appointments [emphasis in original]”915; at the same time, “keeping numbers small and manageable makes sense both for ease of strategic control and decision making and to put less pressure on resources”. Hence, the Second Consultation recommended a Commission consisting of three or four full-time commissioners.916
868. 15 out of 36 of respondent to the Second Consultation agreed with the proposal three or four full-time commissioners as it could ensure consistency among decisions; while another 15 respondents argued for more part time Commissioners on the ground that such a small commission is not adequately pluralistic; and the rest expressed no preference either way.917
869. Later on in the revised proposal, Section 1 of the Scottish Commission for Human Rights Bill provides a model of one single commissioner supported by two deputy commissioners, either full or part-time if the Scottish Parliamentary Corporate Body agrees.918 The Policy Memorandum states:-
“Ensuring broad representation of civil society among the commissioners is not necessarily an overriding priority in Scotland… the SCHR is not being established as part of a wider initiatives to overcome deep discord between different communities, as in Northern Ireland or South Africa.”919
3.2. THE EXPERIENCE WORLDWIDE
870. The Best Practice sets forth the base line on the number of commissioners by suggesting that, at least three leading commissioners should serve on a full time basis.920
915 Scottish Executive, “The Scottish Human Rights Commission,” (2003), available at http://www.scotland.gov.uk/consultations/justice/shrs00.asp at 38.
916 Id.
917 Scottish Executive, “The Scottish Human Rights Commission: Analysis of Consultation Responses,” (2004a) available at http://www.scotland.gov.uk/library5/social/hrcacr00.asp
918 Scottish Executive, “Scottish Commissioner for Human Rights Bill: Policy Memorandum,” Session 2 (2005), SP Bill 48PM, available at http://www.scottish.parliament.uk/business/bills/pdfs/b48s2introdpm.pdf, paragraph 94.
919 Id, paragraph 99
920 Best Practice at 13.
871. The Canadian Human Rights Act maintains a fair degree of flexibility by adopting a provision prescribing that the Canadian Human Rights Commission should consist of
“not less than three and not exceed more than seven leading members”.921 The CHRC is currently made up of one full-time Chief Commissioner and four part-time commissioners appointed by the Governor in Council, for a total number of five commissioners. The Chief Commissioner is appointed for a term of up to seven years;
and the other Commissioners, for terms of up to three years. The Chief Commissioner is responsible for the operations of the Commission and supported by the Secretary General.922
872. In 2002, the Canadian Human Rights Act Review Panel found that the structure of Canadian Human Rights Commission at that time, which comprising one full-time Commissioner and several part-time commissioners who meet several times a year to make decisions about individual complaints and policy direction, “permits regional representation through the part-time commission members”, but it could not “permit any input by nongovernmental organizations.” 923
873. As such, the CHRA Review Panel put forward a model comprising three full-time Commissioners and an Advisory Council in order to strike a balance between the competing considerations of scarcity of resources and plurality of the composition.924 Hence, the advisory council guarantees the input to the Commission from civil society and the NGOs despite a small number of commissioners. However, the above recommendation was not endorsed.
874. In the Australian HREOC, there is one position of President and five positions of specialized commissioners, which count a total of six commissioners. It should be noted that the Australian Government has deliberately left two positions vacant in order to reduce mutual competition across strands. As such, there are actually only four commissioners in the board of the Australian HREOC.925
875. The Northern Ireland Human Rights Commission currently consists of one full-time chief commissioner and nine part-time general commissioners who meet regularly and decides policy direction of the commission.926
921 Canadian Human Rights Act of 1985, Article 26 (1).
922 Canadian Human Rights Commission’s website, “Who is the Commission?” available at http://www.chrc-ccdp.ca/about/commissioners-en.asp
923 CHRA Review at 94-5.
924 Id at 2, Recommendation 1.
925 Human Rights and Equal Opportunity Commission (Australia) ’s website, “President and Commissioners” (2006), available at http://www.hreoc.gov.au/about_the_commission/president_commissioners/index.html
926 Northern Ireland Human Rights Commission’s website, “About us,” available at http://www.nihrc.org/index.php?option=com_content&task=view&id=7&Itemid=12
876. The Irish Human Rights Commission has one full-time commissioner and fifteen part-time commissioners appointed by the Government for a period of 5 years. In accordance with the Human Rights Commission Acts 2000 and 2001 (Ireland) , not less than seven of the members of the Irish Human Rights Commission should be female and not less than seven should be male.927
877. The JCHR in the UK considered that nine to sixteen commissioners would be appropriate928, while the UK Government announced that the CEHR board is going to be comprised of ten to fifteen members “to ensure a sufficient range of experience and expertise”.929
878. In Hong Kong, the human rights bill 1994 suggested a board with one part-time chairman and five full-time specialized commissioners, namely the Human Rights Commissioner, the Race Discrimination Commissioner, the Sex Discrimination Commissioner, the Disability Discrimination Commissioner and the Children’s Commissioner.930
879. However, it may be very difficult for a part-time chairperson to fully discharge the role of the chief commander of the HKHRC in terms of commitment and relationship to the administration of the Commission. The Canadian Human Rights Act Review Panel observed that part-time members might feel that they did not have enough access to resources to be effective Commissioners.931 Hence, it is more important that the chief Commissioner of the HKHRC be appointed on a full-time basis.
880. This report submits that the number of lead commissioner shall strike a balance between a pluralistic composition and the availability of limited resources. There should be three to seven general commissioners in the board of the HKHRC, who decide on the policy agenda of the HKHRC and monitor the work of the entire Secretariat. In order to guarantee the public’s participation, an advisory council which reflects the composition of the community, or consists of the members of the community and relevant NGOs should be established to advise the board of the HKHRC on policy issues. The resolution of the advisory council, though not binding, should be highly persuasive and should be accorded with due weight when the Board is deciding issues concerning an area related to that Council’s resolution.
927 Irish Human Rights Commission’s website, “Commissioners,” available at http://www.ihrc.ie/about_us/commissioners.asp
928 JCHR 11th report, paragraph 107.
929 UK Government’s Response, paragraph 27.
930 The Human Rights and Equal Opportunities Commission Bill 1994, Section 7(1).
931 CHRA Review at 94-5.
881. The Chief Commissioner of the HKHRC should be appointed on a full-time basis.
Whether the other commissioners or what number of commissioners should be appointed on a part-time or full-time basis is an issue which requires further deliberation. In case where most of the general commissioners are appointed in a part-time basis, the number of the commissioners should increase accordingly in order to avoid overloading of the board of commissioners.