Asia Pacific Forum of National Human Rights Institutions 4.1. STRENGTHENING INDEPENDENCE AND LEGITIMACY An important element of the CA approach is to understand the broad legal, political and social environment in which the NHRI operates. CAs for NHRIs require a thorough examination of the NHRI’s independence and legitimacy, starting with the NHRI’s constitutional or legislative framework and its capacity to interpret and implement its law. This area also concerns procedures for the appointment of NHRI leaders (the commissioners or ombudsman) and for the provision of the NHRI’s annual budget. It includes how the NHRI is seen by the broader community and the community support it receives for its work. Inadequate legislation constitutes a significant capacity challenge for an NHRI. The CA must consider how the NHRI can do its work as effectively as possible in spite of any legislative deficiencies and also what, if anything, the NHRI itself can do to encourage the enactment of better and stronger legislation. The CA report is directed to the NHRI and so should not propose strategies and actions that are beyond the power of the NHRI. For example, an NHRI cannot make laws or amend laws and so the CA report should not propose that the NHRI legislate! However, the report can propose actions the NHRI can take to recommend, encourage and promote strengthening the legislation. Strategies and actions may include that the NHRI: • review and, where necessary, seek to have the Parliament amend the NHRI’s legislation • propose changes to government administrative policies and procedures concerning the NHRI • adopt a more expansive interpretation of the existing legislative provisions. In the last case, the CA can propose that the NHRI examine its legislative mandate more closely and, through interpretation, adopt realistic but creative ways to overcome perceived deficiencies within the context of the existing law. In doing this the NHRI is assisted by the fundamental interpretative principle in human rights law, that rights and mechanisms for their protection should be interpreted expansively and limitations on rights and on protective mechanisms should be interpreted narrowly. CD strategies and actions can also aim to strengthen the NHRI’s independence and powers through building greater and more strategic community support by: • awareness raising about the NHRI’s own functions and powers • better human rights knowledge inside and outside the NHRI • expanding the NHRI’s public accessibility, including at the local levels • broadening the scope of the NHRI’s work and including all categories of human rights. In examining the NHRI’s independence and legitimacy, the CA will also consider the comments and recommendations of the ICC Sub-committee on Accreditation relating to the NHRI. Those comments and recommendations may assist the development of strategies and actions to strengthen the NHRI’s capacity. 44