Ronald Ray K San Juan, Bryan Dennis G Tiojanco
- Impeachment — Removal of officials
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law. General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. Impeachment is a formal proceeding instituted by a public body (usually the legislature) for determining through a trial whether a public official—usually although not necessarily high ranking, and who has a fixed term of office or protected tenure—must be either removed from office or held accountable in other ways. The word impeachment means ‘accusation’ or ‘charge’ (Black 5) and pertains, in most jurisdictions, to the indictment stage of the entire proceeding. After a public official is impeached, trial follows to determine their guilt or innocence.
2. This essay identifies central features of impeachment that are common to several countries. Countries where impeachment or impeachment attempts have taken place (United Kingdom, United States of America, Philippines, Brazil, Italy, Pakistan, Romania, Russia, Ukraine, South Korea, South Africa, Sri Lanka, Nigeria, Venezuela, Colombia, Ecuador, Paraguay, Argentina, and Madagascar) are emphasized. Also considered in this essay are the impeachment processes of the following countries: Albania, Argentina, Armenia, Azerbaijan, Bangladesh, Benin, Bolivia, Bulgaria, Burkina Faso, Cape Verde, Central African Republic, Chile, Comoros, Congo-Brazzaville, Costa Rica, Croatia, Cyprus, Czech Republic, Djibouti, Dominica, Dominican Republic, East Timor, El Salvador, Finland, France, Gabon, Georgia, Germany, Ghana, Greece, Guatemala, Guyana, Haiti, Honduras, Hungary, India, Ireland, Israel, Ivory Coast, Kiribati, Kyrgyzstan, Latvia, Liberia, Lithuania, Macedonia, Madagascar, Malawi, Mali, Malta, Mauritania, Mauritius, Mexico, Moldova, Mongolia, Nicaragua, Palau, Panama, Peru, Poland, Portugal, Senegal, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Tanzania, Trinidad and Tobago, Turkey, Uruguay, Yugoslavia, and Zimbabwe.
2. Nature of Impeachment
3. Impeachment is both a political and legal process (Amar (1999) 294). Four features explain why impeachment is considered a political process. First, the power to impeach is lodged, not in courts, but in other, political institutions. Second, the offences committed and penalties imposed are also generally considered political. Third, not all impeachable offences are criminal in nature. And fourth, the outcome of an impeachment case is largely influenced by both public opinion and the public official’s political capital (see Baumgartner and Kada 8–12, 148–150). As James Wilson points out, impeachment is ‘confined to political characters, to political crimes and misdemeanours, and to political punishment’ (Wilson 426; political crimes). Also, from its beginning, impeachment has been ‘associated with moments of political crisis’ and ‘used as a weapon in factional rivalry’ (Tite 7; factions).
4. Because of its political character, impeachments will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly or inimical, to the accused. In many cases, an impeachment will connect itself with pre-existing factions, and enlist all their animosities, partialities, influence, and interest on one side or on the other. In such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt (Hamilton 350).
5. To avoid this danger, emphasis is placed during the conduct of the actual indictment and trial on the nature of impeachment as a legal process. This can be seen from the respect of the proceeding respect for minimum due process requirements, as well as certain textual cues (eg ‘trial,’ ‘violation of common crimes,’ ‘charge’). This ensures that a public official, who usually holds a democratic mandate, may be removed from office only on clear grounds and in accordance with accepted standards of fairness.
3. Impeachment vis-à-vis Other Modes of Removing Public Officials
6. Impeachment is not the only official proceeding for removing public officials. But while it shares certain features with other removal proceedings (eg recall or no confidence vote), impeachment is distinguishable by its nature, scope, and procedure. In an impeachment, an official is removed from office only after an indictment and a trial conducted by a constitutionally designated body. In contrast, recall partakes the nature of a general election initiated by voters to remove or replace an elected official before the end of his term. While the subjects of impeachment are usually high ranking elective or appointive officials, recall usually concerns low ranking elective officials.
7. A vote of no confidence (or motion of no confidence), on the other hand, is a legislative procedure to remove a person or persons in the government whom the legislature deems unfit to continue in office. While impeachment targets officials with protected tenures or terms of office, a vote of no confidence is practiced mostly in parliamentary systems—where ministers are not protected by fixed tenures and are subject to the pleasure of the parliament. A vote of no confidence in presidential systems is generally symbolic, and cannot remove a public official on its own (eg United States and Russia), since cabinet members serve at the pleasure of the president (Berger 4). Impeachment, on the other hand, is used mostly in presidential systems (Baumgartner and Kada 2). At present, while impeachment exists in some countries with parliamentary systems of government, it has rarely been used. Usually, a less tedious way of removal is available and produces similar results. That said, impeachment in parliamentary systems remain an effective tool to remove public officials who are beyond the ambit of ordinary procedures such as no confidence and dissolution of parliament (dissolution of the legislative body).
B. Brief History
8. Drawing inspiration from the ancient German practice of trying in their great councils certain capital accusations relating to the public (Blackstone 257), the Parliament of Great Britain devised impeachment in the fourteenth century as the ultimate weapon in its constant power struggles against the Crown (see Hatsell 63). The first recorded impeachment in Great Britain was that of Lord William Latimer in 1376. The procedure lay dormant from the middle of the fifteenth century until 1621, when unsuccessful petitions to the king to punish his own men led the House of Commons (the country’s lower house) to revive it. The doctrine of the divine right of kings rendered the monarch divine and thus unaccountable. The king’s ministers and his favourite men, however, shared neither this divinity nor unaccountability, and impeaching them was a way of defeating or reversing unpopular acts or views which the king supported (Morgan 17–37; Tite). This early variant of impeachment implemented Parliament’s criminal jurisdiction—with the House of Commons and House of Lords acting as prosecutors and jurors, respectively (Tite 1; Morgan 31; Lidderdale 66). Punishments ranged from a fine, restitution of property, forfeiture, banishment, or imprisonment, to execution (Tite).
9. This process, however, was deemed clumsy and by 1641 better methods for keeping ministers accountable (eg parliamentary approval of Crown appointments) were already being proposed (Morgan 36). Because of the development of collective ministerial responsibility, which holds the entire government responsible instead of ministers individually, and because of the fact that this early version has not been used since 1806, this variant may now be considered obsolete from disuse (see Keeton 46; Hamilton 349). Also, the problem of cabinet accountability to Parliament may now be more easily addressed through a vote of no confidence. This notwithstanding, some ministers led by Scottish National Party leader Alex Salmond have indicated their intention to table a motion for impeachment against former UK Prime Minister Tony Blair for the UK’s wrongful involvement in the 2003 Iraq invasion (Syal). A successful impeachment could send Blair to prison and serve as a precedent for using impeachment to criminally charge non-sitting public officials outside their term of office.
10. Americans developed their own forms of impeachment and used them against loyalists during the America War of Independence. Afterwards the process found its way into various state constitutions and then the United States Constitution (Hamilton 349). The ratification of the United States Constitution in 1789 marked the birth of the United States, and the replacement of an unimpeachable king with an impeachable president (Berger 55). American framers envisioned impeachment as a principal check against executive tyranny after deciding to separate the executive branch from the legislative, thereby creating a presidential system of government. Familiar with British politics and the excesses that marred the English treason trials, the American framers opted to limit the powers of the legislature not only by banning bills of attainder and ex post facto laws, but also by separating impeachment from criminal prosecution (see Berger 54–55). Finally, while in England almost anyone except royalty could be impeached, the US Constitution limited impeachment to public officers (Hamilton 349).
11. The twentieth century saw the collapse of several despotic regimes and the consequent rise of new liberal constitutional democracies in Asia, Africa, and Latin America (Chen 3; Tate and Vallinder 2). These young democracies incorporated impeachment in their constitutions as a democratic safety valve which could obviate familiar extra-constitutional methods (eg coups and assassinations) for resolving political crises. In Latin America, for example, impeachment has displaced military coups as the preferred method for removing unpopular presidents—a development that has contributed to a significant decline in regime disruptions or breakdowns following political crises (Pérez-Liñán 3, 62). Pérez-Liñán documents a sudden decline in military interventions since 1978. Impeachment became a regular news headline during the 1990s and 2000s. From 1992 to 2004, six Latin American presidents faced impeachment, and four of them were removed from office (Pérez-Liñán 1).
12. Above the equator, in 1998, both US President William J Clinton and Russian President Boris Yeltsin also faced impeachment (Clinton was acquitted, while Yeltsin’s impeachment did not reach trial) (Baker and Dewar; Baumgartner and Kada 95–112). In 2000, then Philippine President Joseph Ejercito-Estrada was also impeached and ultimately removed from office due to events spiralling out of his impeachment trial (see Estrada v Desierto (Phil)). Impeachment was in the news again recently, in 2012, as Philippine Supreme Court Chief Justice Renato Corona was impeached and removed from office (Ager), and in 2016 as Brazilian President Dilma Rousseff faces an impeachment trial which is expected to end when the Senate votes again in late August 2016 (Trevisani and Jelmayer).
C. Grounds for Impeachment
13. In modern democracies, the expressed electoral will of the people is protected by guaranteeing certain public officials a definite term of office. Impeachment threatens to reverse the popular will by removing an elected public official. Respect for this expressed will of the people and the need for government stability have limited the scope of impeachment to egregious types of offences.
14. The specific grounds for impeachment in various constitutions differ, but the nature of the differing impeachable offences are similar. These offences can be grouped into two types: determinate offences are those which constitute violations of written laws, such as the constitution (eg Argentina, Philippines, Germany, India, South Africa, Croatia, Romania) and criminal statutes (eg Argentina and Poland), or wrongdoings that are well-defined in jurisprudence; and corruption, which covers a wide range of unscrupulous activities such as graft, plunder, and bribery, is almost always statutorily prohibited (corruption and bribery). Treason, a ground widely found in numerous constitutions (eg United States, Philippines, Russia, Ukraine, Bulgaria, Czech Republic, and Italy), is also included in this category, since it is generally well-defined in almost all countries.
15. Open-textured offences are those which are not specifically defined in the constitution, law, or jurisprudence, but are of such a grave nature as to render a public official unfit for public office. They are typically related to conduct and performance in public office, and may take the form of misbehaviour, misdemeanour, misconduct, betrayal of public trust, poor performance, or other similarly couched terms. Misdemeanour, misconduct, and other terms used for open-textured offences are broad enough that they may include mere petty offences, but it is doubtful that impeachment courts would consider such an offence a sufficient ground to remove a high ranking official with protected tenure (eg a president or Chief Justice) from office. To avoid confusion, some constitutions have qualified these terms with adjectives, such as ‘gross,’ ‘high’ or ‘grave’, which emphasize that in order for an offence to be impeachable it must be serious (eg Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992), Art. 2, s 4 (US); Constitution of the Republic of the Philippines, 1987, Art. XI, s 2 (Phil); Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014), Art. 93 (Russ); Constitution of the Federal Republic of Nigeria: 29 May 1999 (as Amended to 29 November 2010), 143(2)(b) (Nigeria); Constitution of the Republic of Sierra Leone: 24 September 1991 (as Amended to 7 February 2002) Act No 6 of 1991, Art. 50(1) (Sierra Leone); Constitution of the Republic of Palau: 1 January 1981 (as Amended to 4 November 1992), Art. X, s10 (Palau))—although they need not be strictly criminal (Amar 200 (2005)).
16. Because of the inherent ambiguity of these terms, what would constitute a behavioural impeachable offence is left to the wide discretion of the public body or bodies with the power of impeachment, converting impeachment from a matter of legal interpretation into one of political judgment (discretion of the legislative body. Gerald Ford, then a US Congressman, said that an impeachable offence is ‘whatever a majority of the House of Representatives considers it to be at a given moment in history’, alluding to this political character of impeachment (116 Cong Rec H 3113–3114 (daily ed 15 April 1970) (US)).
17. The essence of an impeachable offence, whether determinate or open-textured, is that it is such a grave violation of the public trust that the offender becomes unfit to continue enjoying the trust reposed on him by the people. Alexander Hamilton’s remarks about US impeachment remain true for other countries:
The subjects of (the impeachment court’s) jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself (Hamilton 349–350).
18. Other scholars, such as Story and Black, agree. To Story, impeachment ‘partakes of a political character, as it respects injuries to the society in its political character’ (Story 744). In defining the phrase ‘high crime or misdemeanour’ found in the United States Constitution, Black states that the phrase ‘ought to be held to be those offences which are rather obviously wrong, whether or not criminal, and which so seriously threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator’ (Black 39–40). The gravity of the offence and injury to society, therefore, elevate an offence from an ordinary wrongdoing to one indictable by this extraordinary remedy.
D. Impeachable Officers
19. Impeachment is most prominently a check against chief executives who by constitutional design wield considerable power and have fixed terms of office. But, any public official can theoretically be the subject of impeachment. This is the case under English law, where the process originated. Similarly, under the US Constitution ‘all civil officers’ are impeachable; while in practice members of the US Congress are not included in this phrase, Berger surmised that they should be included (legislative body members). Citing discussions during the ratification of the United States Constitution, he emphasized that the debates centred, not around on whether members of Congress are impeachable, but on whether they should try their own members. He added that if judges are included in the phrase ‘all civil officers,’ so too should the legislators (Berger 214–223). In Norway, even members of the Storting (the legislative branch) can be impeached (Constitution of the Kingdom of Norway: 17 May 1814 (as Amended to 9 May 2014), Art. 86 (Nor)).
20. Other countries make the list of impeachable officials exclusive. For example, the Philippine Supreme Court has ruled that the enumeration of impeachable officers in the Philippine Constitution is exclusive, thus the Deputy Ombudsman is not an impeachable official (Office of the Ombudsman v Court of Appeals (2005) (Phil); ombudsman). In Paraguay, only the President, the Vice President, cabinet ministers, justices of the Supreme Court, the attorney general, the public defender, the comptroller and deputy comptroller general, and members of the Superior Electoral Court are impeachable (Constitution of the Republic of Paraguay: 20 June 1992 (as Amended to 8 November 2011), Art. 225 (Para)). While many countries list only executive officials, others include members of the judiciary in their list of impeachable officers. The Philippines, Norway, South Korea, Paraguay, and the United States are among those which also allow removal of members of their high courts by impeachment (judges at constitutional courts / supreme courts).
21. Many parliamentary regimes limit impeachment to that of the president, whose role in parliamentary systems is principally ceremonial, but whose office is nevertheless protected by tenure (heads of state and government; immunity of heads of state under constitutional law). Other executive officials or ministers are accountable to the parliament and can be removed through the less cumbersome process of a vote of no confidence. In presidential systems, members of the cabinet serve at the pleasure of the president, who can dismiss them at will.
1. Models of Impeachment
22. How an impeachment process is carried out depends largely on which public bodies are tasked to investigate and try an impeachable official. Based on the actors involved, two models of impeachment can be distinguished:
23. Type I impeachment solely involves the legislature, from indictment stage to trial, and is of two sub-types: those with unicameral legislature (Type I unicameral) and those with bicameral ones (Type I bicameral) (Baumgartner and Kada 142); Kada classified countries with Type I impeachment as ‘legislature-dominant’ systems ( bicameralism). The United States’ model, where indictment is conducted by the House of Representatives and the trial by the Senate, is a Type I bicameral impeachment. Other examples of countries following this model are Argentina, Brazil, Chile, Colombia, Comoros, Dominican Republic, Haiti, India, Ireland, Israel, Liberia, Malawi, Mexico, Nigeria, Palau, Paraguay, Philippines, Russia, Trinidad and Tobago, Uruguay, and Yugoslavia. In these jurisdictions, it is generally the lower house of the legislature which controls the indictment or charging phase and acts as prosecutor, while the upper house conducts the trial, acting as juror. Those with a Type I unicameral system, where a unicameral legislative branch acts as both prosecutor and juror, include Armenia, Bangladesh, Dominica, Ecuador, Georgia, Guatemala, Guyana, Kiribati, Latvia, Lithuania, Malta, Mauritius, Panama, Peru, Seychelles, Sierra Leone, Singapore, Slovakia, Sri Lanka, Tanzania, Turkey, Ukraine, and Zimbabwe.
24. Type II impeachment, on the other hand, involves a constitutional body other than the legislature—either the judiciary or a special ad-hoc body—or employs other means such as plebiscite (eg Iceland) or referendum (eg Austria; direct democracy). This model adds another veto point in order to prevent potential legislative abuses (see Baumgartner and Kada 142). The number of countries following this type matches that of the first: Albania, Azerbaijan, Benin, Bolivia, Bulgaria, Burkina Faso, Cape Verde, Central African Republic, Congo-Brazzaville, Costa Rica, Croatia, Cyprus, Czech Republic, Djibouti, East Timor, El Salvador, Finland, France, Gabon, Germany, Ghana, Greece, Honduras, Hungary, Italy, Ivory Coast, Kyrgyzstan, Macedonia, Madagascar, Mali, Mauritania, Moldova, Mongolia, Nicaragua, Poland, Portugal, Romania, Senegal, Slovenia, South Korea, and Venezuela all involve a judicial body, whether a Constitutional Court or Supreme Court, in their respective impeachment clauses.
25. With the exception of Azerbaijan and Mongolia, the judicial body is the one in-charge of impeachment trials, and which finally removes an impeachable officer from office. In South Korea and Hungary, for example, the Constitutional Court is the final arbiter of impeachment (Constitutional Court Act: 5 August 1988 (as Amended to 21 December 2007), Art. 2 (S Kor); Constitution of the Republic of Hungary: 18 April 2011 (as Amended to 26 September 2013), Art. 13 (Hung)). In Albania, the Constitutional Court also has the final say, through its power to either affirm or quash the decision of the Assembly to impeach the president (Law on the Organization and Functioning of the Constitutional Court of the Republic of Albania: 10 February 2000, Art. 63 (Alb)).
2. Stages of Impeachment
26. Regardless of which model a country follows, the whole impeachment process is divisible into two stages: (1) impeachment proper (or indictment); and (2) trial. Impeachment proper is that stage where one public institution, usually the legislative, formally charges an official of an impeachable offence or offences. Trial, usually conducted by another public body (except in Type I-unicameral), determines the guilt or innocence of the respondent official, and imposes the penalty, eg removal from office (removal of officials).
27. In the impeachment proper, the body in charge receives an impeachment complaint; it would then assess the sufficiency of the complaint (usually through a committee) or launch its own investigation. The charges, conventionally called ‘Articles of Impeachment’ (Black 5), will then be drafted, presented to, and endorsed by the full membership of the body. Once this preliminary step is accomplished, the body votes on the recommendation. With the notable exception of the Philippines (Type I bicameral), Turkey (Type I unicameral), and Ghana (Type II), which all textually require a lower threshold (a one-third vote of the entire membership), almost all constitutions require at least a majority vote before an official can be formally impeached or charged. Some other countries actually allow impeachment of a public official at a much lower threshold, depending on the number of members present when the complaint is voted upon. Colombia and the United States, for example, require only half of the members present. Since in these two countries a quorum of the lower house is only half of the whole membership, the threshold requirement could be as low as a quarter of the house membership. Each of these different threshold requirements reflects a balancing of the inherent tension between the public’s right to demand government accountability and the need for government to have a certain amount of stability and freedom from harassment (1 Journal of the Phil. Const. Commission 40 (26 July 1986)).
28. Once charges are approved or authorized by the legislature (or other public body in charge) in the first stage, the public official is considered to have been ‘impeached.’ The charges are then embodied in a resolution or ‘Bill of Impeachment’. Trial follows; this is handled either by the same public body, the upper chamber of Congress, a high court, or a special body. In a Type I bicameral model, the upper House (eg the Senate) establishes itself as an impeachment court, which signals the taking on of a different role from its regular law-making function (Black 10).
29. Because of the sui generis character of impeachment trials, technical rules of evidence generally do not apply, and all evidence otherwise inadmissible in ordinary cases may be admitted and considered (Black 18). The exception would be when a country’s law provides that rules on criminal litigation apply to impeachment cases, such as in South Korea (Constitutional Court Act: 5 August 1988 (As Amended to 21 December 2007), Art. 40 (S Kor)), or gives its impeachment court discretion to use either criminal or civil procedure depending on the nature of the charge, such as in Hungary (Act No CLI of 2011 on the Constitutional Court: 14 November 2011, s 35(4) (Hung)). Notably, both South Korea and Hungary fall under Type II impeachment, with lawyers not politicians acting as jurors. After receiving the evidence and hearing the arguments, the trying body votes on each charge or Article of Impeachment. Most constitutions with Type I impeachment require at least a two-thirds vote of the entire body (eg Armenia, Ecuador, Philippines, Russia, Sierra Leone, and Seychelles), or two-thirds of those present (eg Argentina, Colombia, Mexico, and United States), before an official can be removed from office. Some require an even greater number (such as Ukraine, Dominican Republic, Guyana, Singapore, and Turkey, which all require three-quarters of membership). Satisfying the voting threshold on at least one charge convicts the respondent public official, and the removal or other corresponding penalty is pronounced by the presiding officer. In Type II impeachments, the court decides as a collegial body without any constitutionally mandated voting requirement (eg Benin, Burkina Faso, Honduras, and Moldova). In Croatia, Macedonia, Slovenia, and South Korea an official can only be removed by a two-thirds vote of their respective Constitutional Court. These voting thresholds, either in indictment or trial, not only insulate public officials from needless harassment, but also give enough sovereign weight to the actions of impeaching public bodies.
3. Standard of Proof and Non-Partisan Character
30. The standard of proof required to convict in impeachment cases is a delicate matter, and is highly intertwined with questions of whether impeachment is a legal or a political process and whether it is a criminal proceeding or not. While Black thinks that ‘overwhelming preponderance of evidence’ is the ideal evidentiary standard in impeachment (Black 17), the issue remains unsettled—especially in cases where a public official is accused of a criminal offence (where the law requires proof beyond reasonable doubt). While it would be convenient to think that the standard of proof depends upon the nature of the charges (eg Hungary), the bulk of surveyed impeachment cases (where the charges ranged from treason to mere misfiling of statements of assets and liabilities) were driven largely by politics, and were thus highly dependent upon the actors involved and not on the charges filed. An attempt to impeach South African President Jacob Zuma in 2016 proved unavailing not because Zuma was innocent, but because the political landscape allowed him to avoid being removed. Zuma’s African National Congress (ANC), the governing political party, dominateed Congress at the time of the impeachment attempt. In the Philippines, Chief Justice Renato Corona’s stigma as a midnight appointee of former President Gloria Arroyo made him the subject of public wrath, giving impeachment the necessary public support for his removal as chief magistrate. Notably, his impeachment was backed by the very popular Benigno Aquino III, scion of two iconic figures of Philippine democracy.
31. That impeachment is political, however, does not mean that it is necessarily partisan. Even the simple wearing of black robes and togas, which are distinctively judicial attires, symbolize the taking on of a new role as an impartial jury. A country’s Chief Justice also usually presides over presidential impeachment trials (eg US, Philippines, Brazil)—another gesture signalling impeachment’s nonpartisan nature (Amar (2012) 3; Constitution of the Republic of the Philippines, 1987, Art. XI, s 3(6) (Phil); Constitution of the Federative Republic of Brazil: 5 October 1988 (as Amended to 2012), Art. 52, Sole Paragraph (Braz)). In theory, because of the solemn oath taken by prosecutors and jurors in an impeachment case they are expected to follow their conscience devoid of any partisan tendency. In the impeachment trial of US Supreme Court Justice Samuel Chase, a sufficient number of senators crossed well demarcated party lines in voting for acquittal (14 Annals of Cong 665–69 (1805) (US); see Rehnquist).
32. In contrast, marred by the hurried and secret conduct of its procedure, the impeachment and removal of Sri Lankan Chief Justice Shirani Bandaranayake in 2013 caused concerns among various groups both within and outside Sri Lanka (see eg Press Briefing Notes on Mali, Sri Lanka, Zimbabwe, and Iran, Office of the UN High Commissioner for Human Rights (18 January 2013); Declaration by the High Representative for Foreign Affairs and Security Policy, European Union (18 January 2013); UK Foreign and Commonwealth Office Announcement (11 January 2013); US Department of State Press Statement (2 November 2012)). In Brazil, the pending impeachment trial of President Rousseff took another turn after findings by the Office of the Prosecutor that there was no crime committed, weakening arguments made by her political opponents backing impeachment (Edgerton). Thus, unless expressly provided in the constitution, the standard that jurors must follow in deciding impeachment cases should be reasonable and appropriate to the nature of the charge.
33. The image of politicians sitting as judges in an impeachment trial in a Type I model remains a classic portrayal of impeachment as a political exercise, but countries recognize that this is also the model most susceptible to abuse. The development of impeachment in various countries shows a departure from the original British or American model to one which curtails in varying degrees legislative control over the process. The involvement of another public body, whether the judiciary or a special ad-hoc body, functions as a potential veto point to guard against attempts to abuse this extraordinary remedy.
4. Impeachment Outcomes
34. Impeachments do not always result in removal. Baumgartner and Kada identify three possible impeachment outcomes: (1) impunity, (2) survival, and (3) exit.
35. There is impunity when there is no vote taken in the impeachment proper to indict a public official (Baumgartner and Kada 15–16). In 2014, two-term Italian President Giorgio Napolitano was accused of exceeding his constitutional power, but the Italian Parliament rejected the impeachment request by members of the opposition, defeating the impeachment attempt at an early stage (Reuters (11 February 2014)). Philippine Chief Justice Hilario Davide Jr avoided impeachment on technicalities when the country’s Supreme Court ruled in 2003 that the second impeachment complaint against Davide was barred by a provision of the Philippine Constitution limiting impeachment attempts against an officer to just one a year (Francisco v House of Representatives (2003) 415 SCRA 44 (Phil)).
36. A public official survives when a vote is taken, either in the impeachment proper or trial, but the prosecution is defeated (Baumgartner and Kada 15–16). In 1996, Colombian President Ernesto Samper ‘survived’ when the Colombian Chamber of Representatives voted to drop the charges for lack of sufficient evidence, preventing the case from reaching trial stage (Hinojosa and Pérez-Liñán 69). Similarly, South African President Jacob Zuma weathered an impeachment bid against him with a 233 to 143 vote in his favour (Brock). On the other hand, the cases of US President William J Clinton, Paraguayan President Luis Gonzáles Macchi, and South Korean President Roh Moo-hyun are examples of survival at trial stage. Both Clinton (in 1999) and Macchi (in 2003) were acquitted by their respective country’s Senate (The New York Times (13 February 1999; 12 February 2003)), while Roh was reinstated by the Korean Constitutional Court in 2004 after having been impeached by the legislature (Impeachment of the President (2004) (S Kor)).
37. Exit refers to the removal of a public official as a result of impeachment, by means other than impeachment, or if the public official resigns before the end of the impeachment trial (Baumgartner and Kada 15–16). It can occur at any point in the entire impeachment process. Three archetypical examples of exit by verdict are: (1) President Fernando Collor de Mello of Brazil (Type I impeachment), who was removed from office by Congress in 1992 (see Kada 123); (2) the removal of Madagascar President Albert Zafy by the High Constitutional Court of Madagascar in 1996 (Type II impeachment) (Décision No 17-HCC/D3 (Empêchement) (Madag)); and (3) the removal of Chief Justice Renato Corona of the Philippines (Type I impeachment) in 2012 (Philippine Daily Inquirer (30 May 2012)). The case of President Carlos Andrés Pérez of Venezuela is a peculiar one, since he was not removed by the Supreme Court but was declared on ‘permanent leave’ by Congress in 1993, effectively removing him from office (see Kada 127). Two examples of exit by resignation are the cases of US President Richard Nixon and Philippine President Joseph Estrada. Nixon, realizing that his impeachment was a certainty, resigned in 1974 pre-empting the House of Representatives from voting on the charges and the Senate from ruling (The New York Times (9 August 1974)). Estrada, on the other hand, was considered to have resigned in 2001 following the massive demonstration dubbed ‘People Power II’ and the mass resignation of members of his government (see Estrada v Desierto (2001) (Phil)).
F. The Judicialization of Impeachment
38. Impeachment is relatively unproblematic when the branch which has final authority to indict and try impeachment cases is undisputed. In fact, many countries recognize impeachment as a necessary political process for settling potentially explosive partisan disputes. Impeachment can also be a democratic safety valve for releasing built-up pressure for significant political reform (see Erskine 31–33). Problems arise, however, when impeachment, instead of resolving political disputes or catalysing reforms, precipitates a constitutional crisis, as when there are several claims over final authority to decide particular issues concerning the impeachment process.
39. In discussing United States impeachment, Posner and Black argue that judicial review has no part to play in impeachment proceedings (Black 23; also see Posner 130). The US Supreme Court, in Nixon v US, warned that judicial involvement in impeachment could prevent finality and expose US political life to disarray during judicial review, exposing the country to a possible constitutional crisis (Nixon v US (1993) (US)). Recent global developments, however, show an emerging trend towards judicialization of impeachment. Increasingly, the judiciary finds itself more and more involved in the process. This trend comes from the expectation that courts, especially in newly established or re-established democracies in Latin America, Eastern Europe, and Southern Africa should be important participants in establishing constitutional rules and in preserving new democratic arrangements (Tate and Vallinder 2). Courts have started to flex judicial muscle by reviewing actions or decisions of impeachment bodies as part of their constitutional mandate, as in the case of President Roh of South Korea (see Impeachment of the President (2004) (S Kor)). Indeed, some constitutions with Type II impeachment make judicial intervention part and parcel of the entire impeachment proceedings. Judicial intervention in these cases is easily justifiable.
40. On the other hand, constitutions with Type I impeachments give the power to indict and remove a public officer solely to the legislative branch, and do not mention any judicial involvement in the process. Nevertheless, courts have started to get involved in impeachment even without an express constitutional mandate to do so. An example of this is the impeachment case of Philippine Chief Justice Hilario G Davide, Jr, where the Supreme Court called a halt to the impeachment complaint filed in the House of Representatives (see Francisco v House of Representatives (2003) (Phil)). In 2015, the Brazilian Supreme Court ordered the reorganization of the congressional special committee originally formed to handle the impeachment of President Dilma Rousseff (STFJ, ADPF no 378, Relator: Luis Roberto Barroso, 17 December 2015 (Brazil)).
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