OSCE/ODIHR Opinion on the Draft Federal Law on the Support to the National Human Rights Institution of Switzerland advisory role, and several thematic clusters on various human rights-related issues, all of them supported by a Secretariat.91 Under the current scheme, there is also a Steering Committee consisting of representatives of the Federal Department of Foreign Affairs (FDFA) and the Federal Department of Justice and Police (FDJP), which approves the service contracts and regularly monitors the use of the funds from the Confederation, as well as an Advisory Board comprised of representatives from the public administration, politics, economy and civil society spheres.92 As it stands, the composition of the leadership body, which consists exclusively of representatives of partner universities, fails to meet the requirements of the Paris Principles, in particular in terms of pluralism. Similarly, the oversight exercised by the Steering Committee calls into question the independence of the NHRI. 67. In that respect, General Observation 1.8 requires that NHRI legislation or other binding instruments provide a clear, transparent and participatory selection and appointment process of the NHRI’s governing body,93 which promotes merit-based selection and pluralism. This aims to ensure the independence of, and public confidence in the senior leadership of the institution. Moreover, the process for selecting and appointing the members of an NHRI’s governing body should be made on the basis of clear, predetermined, objective and publicly-available criteria,94 which should be precisely formulated in relevant legislation or other binding legal instruments. That being said, the eligibility criteria for appointment should not be unduly narrow nor too restrictive,95 in order to not unduly exclude persons from diverse societal groups (see also Sub-Section 5.2 infra concerning the pluralism of the NHRI, including of its governing body).96 68. The Draft Act or secondary legislation should also specify possible roles or activities that are incompatible with membership in the NHRI’s governing body. It is noted that the Explanatory Statement mentions that pluralist representation covered by Article 5 of the Draft Act refers not only to civil society representatives, but also to representatives from the Parliament and from ministries (see also additional comments on Article 5 in Sub-Section 5.2 infra). In that respect, General Observation 1.9 expressly states that government representatives and members of parliament should not be members of, or participate in, the decision-making organs of an NHRI, since this has the potential to impact on both the real and perceived independence of the NHRI. As expressly stated in Paris Principle B.1, if government representatives participate in the NHRI’s deliberations, this should only be in an advisory capacity. The Draft Act should specifically address this issue, either by excluding the possibility for members of Parliament and government representatives to be members of the governing body of the NHRI, or by specifying that they should only participate in an advisory 91 92 93 94 95 96 See <http://www.skmr.ch/en/about/structure/structure1133.html>. See <http://www.skmr.ch/?idart=1133#lenkungsausschuss>. The SCA generally considers that such a selection and appointment process requires competent authorities to: a) publicize vacancies broadly; b) maximize the number of potential candidates from a wide range of societal groups; c) promote broad consultation and/or participation in the application, screening, selection and appointment process; d) assess applicants on the basis of pre-determined, objective and publicly available criteria; and e) select members to serve in their own individual capacity rather than on behalf of the organization they represent (see op. cit. footnote 9, General Observation 1.8). e.g., no conviction for a serious criminal offence, recognized competencies, personal history of integrity and independence, etc. For examples of such provisions in NHRI legislation, see e.g., Section 3 of the Law on the Public Defender of Rights (1999, as amended 2009) of the Czech Republic and Articles 3 and 4 of the Ombudsman Act (1995) of Malta, <http://www.legislationline.org/topics/topic/82>. See also op. cit. footnote 16, pages 123 and 152 (2010 UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions); and op. cit. footnote 17, Section 2.1 on General Criteria for Office (2016 Venice Commission’s Compilation of Opinions concerning the Ombudsman Institution). Op. cit. footnote 9, General Observation 1.7. ibid. General Observations 1.7 and 1.8. 22