近日平等機會委員會主席林煥光應否辭去行政會議召集人一職，引起公眾討論，當中大部分討論的焦點，在於他同時出任行會召集人這身分會否出現潛在的利益衝突。然而，根據《巴黎原則》確立的「獨立性」卻未有被充分討論、探討及理解。成立國家人權機構（National Human Rights Institution,NHRI），以保障、推廣及實施國際人權文書所保障的各項人權，政府責無旁貸。
英文原文 original article in English
Title: WK Lam should defend the independence of EOC
Written by Patrick Yu
The recent debate whether the Chair of the EOC, Mr. Lam Woon Kwong, should resign on his recent appointment to the convenor of the Executive Council. A lot of the debates focus on the potential conflict of interests of his new dual roles. But the concept of ‘independence’, under the Paris Principles, is not fully discussed, explore nor understood. State has an undeniable obligation to protect, promote and fulfil human rights under international human rights instruments through the establishment of the National Human Rights Institution (NHRI).
Independence is the key element under the UN Paris Principles of the NIHR in which the EOC qualified as one. UN explains that “[a]n effective national institution will be one which is capable of acting independently of government, of party politics and all other entities and situations which may be in a position to effect its work.” (1) NHRI’s independence is also arguably the most difficult and controversial. True independence, such as arms length with the Government, adequate resources to carry out its functions, operational independence without direct or indirect interference and/or create obstacles for investigation, etc., is fundamental to the success of an institution. An institution that cannot operate independently cannot be effective. It does not matter how well an institution measure up against other aspects of the Paris Principles. If it is not independent, or is not seen to be independent, it is highly unlikely that it will be able to achieve much of lasting worth. “Independence and the public perception of independence are essential to a well-functioning of NHRI.” (2)
The very fact that EOC is a public authority funded by the SAR Government raises difficulties. Some may ask how such an institution can ever be independent and this question is especially relevant in countries where the Government is not entirely human rights friendly. The most direct answer is that the SAR Government also funds other important independent institutions such as the court. The fact that this is so does not in itself mean that courts in Hong Kong can never be independent. Experience shows that courts, by and large, can and do act with independence of the SAR Government of the day.
In order to understand the principle of ‘independence’ we should look at both the mandate and competence of the NHRI.
The Paris Principle highlights to give a mandate as broad as possible reflecting the diversity of institutional models that exist. It should clearly set forth in a constitutional or legal text specifying its composition and its competence.
As a NHRI, its competence is to promote and protect human rights. If human rights are to be fully secured and fufiled, it must take comprehensive action to promote and to protect them. Institutions whose mandates are limited to one or the other do not comply. This inclusive approach to human rights underscores the universality and interdependent of human rights, a factor that is linked to the broadness of the NHRI mandate.
One of the key functions of the EOC, under the Paris Principles, is to advise the Government, including the Executive Council (3) , the Legislative Council and any other competent bodies on specific violations of human rights, on issues related to the current anti-discrimination law and general compliance and implementation with international human rights instruments.
It follows that if Mr. Lam plays a dual role in the SAR Government machinery on the one hand and the Chair of the EOC on the other, the obligation of independence under the Paris Principles is questionable in terms of both the real and the perceived independence.
The real one is easier to understand as the prime role of the EOC is to monitor the violation of discrimination on various grounds, including government’s law, policy and practice which are discriminatory. The most difficult one is the ‘perceived independence’ in which the general public has lost the confidence and/or no confidence to such an institution if they are too cosy with the Government.
The last but not the least is the accountability of the NHRI. There are two levels of accountability: one to the State and one to the public. Therefore it is not uncommon for the EOC to submit its annual report to the SAR Government and the Legislative Council in order to discharge their reporting and accountability responsibilities. This is in addition to the comprehensive review and evaluation of the NHRI through an independent and transparent process to ascertain the proper functions and the effective use of the resources.
Being accountable to the public also strengthens their independence, particularly to the stakeholders and the civil society. The Paris Principles also requires the EOC to keep the public informed of their work, in particular of their recommendations and opinions, and promote the use of the media to this end.
There is no doubt that the general public has more confidence and the perceived independence under the Chairmanship of Mr. Lam following the conduct and integrity issue of two ex-chairs. It follows this common sense that he should exercise his self-determination to defend his own integrity and the independence of the EOC in order to discharge his obligation under the Paris Principles.
(1)United Nations Centre for Human Rights (1995) Professional Training Series No. 4 National Human Rights Institutions—A Handbook on the Estyablishment and Strenthening o National Institutions for the Promotion and Protection of Human Rights. Geneva: United Nations, paragraph 68
(2)Commonwealth Secretariat(2001) National Human Rights Institutions—Best Practice. London: Commonwealth Secretariat, p14. This booklet was to develop a consensus on progress based on the Paris Principles. Each of the best practices outl;ines in this work is applicable to an NHRI in any country. The requirement of independence is so fundamental that it is, therefore a theme reflected throughout the booklet. See pages 4-5 of this booklet.
(3) Article 54 of the Basic Law states that “[t]he Executive Council of the HKSAR shall be an organ for assisting the Chief Executive in policy-making.”