Impeachment

9.2.1 Overview of the Impeachment Clause

The word “impeachment” derives from Latin expression impedicare meaning becoming caught or entrapped. The constitutional term impeachment describes a procedure which establishes that a President is guilty of a serious offence in office, with the consequence that the President is removed from office.

9.2.1.1 No Anti-impeachment Clause

The challenge for most countries will be to formulate an impeachment clause, which is de-facto not an anti-impeachment clause. Most countries tend to overprotect the office of the President and make the procedure so complex that an impeachment can in reality never occur. Even though the initiation of an impeachment procedure as such is intimidating and a challenge for the President and weakens his or her position as Head of state,^[591] the instrument is an important check and balance and should provide a feasible modus operandi.^[592] Recommendations for a feasible procedure are made below. In a democracy an impeachment procedure is important as it provides a legitimate process to challenge a President during the term instead of ousting the President via a coup d’etat or by revolution.^[593]

9.2.1.2 Historical Context and the Unsuitable Example of the US Constitution

One of the main questions to be answered when drafting the impeachment clause will be which role is given to the judiciary. The mother of all impeachment clauses, the US impeachment clause, was drafted at a time when Parliament (and, in particular, the House of Lords in Great Britain, which to a degree served as an example for the US impeachment clause) still had court-like functions.^[594] Addition­ally, the judiciary in the US had not yet been properly established.

9.2.1.3 Additional Considerations for Presidential Systems

Presidential and semi-presidential systems only will have to consider whether to also include a motion of no confidence against the President in addition to an impeach­ment, (as, for example Fiji or South Africa have done) in order to challenge Presidents in their capacity as Head of Government (instead of the head of state) in the presidential system. In contrast to an impeachment a vote or motion of no confidence is a political procedure which leads to a forced resignation of the President.^[597] The main difference that jurisdictions have established between an impeachment and a motion of no confidence is that the procedure of impeachment requires a serious misconduct and often a majority vote of 2/3rd to remove the President from office (art. 89; South Africa). In contrast to this a vote of no confidence does not require specific grounds and only a simple majority vote is necessary in order to a forced resignation (art. 102 (2); South Africa).^[598] Whilst the motion of no confidence may seem an appropriate instrument in presidential systems next to impeachment in order to lower the bar and tighten the control over the presidential powers, the impeachment procedure most likely will become obsolete, unless the system allows different initiation processes. It must also be taken into account, that a forced resignation of the President with such low requirements is likely to cause a danger of destabilisation within the political system, as the entire cabinet may have to resign as well (art.

9.2.1.4 Procedural Questions

An impeachment clause is usually quite complex as it contains a process during which the impeachment is commenced and then reviewed before a formal decision is being taken (Fig. 9.3).

The impeachment process should be regulated in the impeachment clause.

9.2.1.5 Structural Approach and Guiding Questions

When drafting an impeachment clause various questions need to be answered, see Fig. 9.4.

Fig. 9.3 Procedural questions when drafting impeachment clause

Fig.

9.2.2 Details of the Impeachment Clause

9.2.2.1 Which Officials Aside from the President Can Be Impeached?

Some countries use the impeachment procedures at times not only for the President, but for other officials as illustrated in the table above. Impeachment is about misconduct and a proper judicial assessment of allegations of misconduct when they arise. The question is always whether there is an easier way to dismiss another official whose office may simply be terminated by his superior or whether the independence of the office is so important that only an impeachment procedure can provide justice to the dismissal process. In the constitutions of Lithuania, India, Jamaica and the Philippines it is possible to impeach or remove a justice of higher courts such as the Constitutional Court or the Supreme Court. What distinguishes these officials from others, e.g. a minister, is that they occupy a powerful and independent role. Therefore, it should not be easy for other officials to dismiss them from office. The procedure of impeachment with its numerous steps, guarantees a fair procedure and moreover a consistency in these positions. Especially for justices of higher courts like the Constitutional Court/Supreme Court it will often be reasonable to use the procedure of impeachment^[600] for their removal from office unless they are appointed for life. There may also be specific conditions for the removal, for example the constitution of Jamaica (art. 100(4)) allows the removal of a judge of a Supreme Court only in case of an inability to discharge the functions of his office.

Many countries however do not permit the removal of a judge altogether but only allow the reallocation of a judge to another court to strengthen the independence of the judiciary and prevent other powers to impeach judges altogether.

In order to assess if the impeachment of the President and justices of a higher court such as the Constitutional Court or the Supreme Court is advisable the background of a country’s constitution needs to be studied more closely.

9.2.2.2 Organ and Majority to Initiate Impeachment Process

The first procedural step is the initiation of the impeachment process (Table 9.5).

As the procedure of impeachment is likely to cause a major uncertainty in the political system and weakens the position of the President, many countries require a majority of total members of Parliament (in two-chamber systems at least of one of the chambers) to initiate an impeachment process.^[601] However, if the initiation requires a member majority, it is unlikely that an impeachment procedure will actually occur since initiation is de facto impossible for opposition parties, who by definition only hold a minority in parliament. Accordingly, the constitution of Finland which requires even a 3/4th majority is not an effective process. Neither is the required 2/3rd majority of total members in the constitutions of North- Macedonia, Costa Rica or Slovakia a suitable solution nor for the more initiation of an impeachment procedure.

A simple member majority or more to initiate an impeachment therefore is prima facie not recommended unless the role of the President in a parliamentarian system is merely such of a figurehead where his or her removal mainly serves to obtain rule of law principles. However, the assessment may depend on the individual circumstances. In the United States of America the initiation of an impeachment is likely only possible after the mid-term elections when the House of Representative is led by a party opposing the President. Countries which do not have interim elections and in particular those dominated by a multi-party system will not even be able to initiate the impeachment process if a member majority is required.

Table 9.5 | | Initiation of impeachment

^a Meant is the initiation of the impeachment procedure

Among the countries that require less than a simple majority, a wide range of required quotas exist ranging from one third to an only 20% minority in Lithuania. Two different interests have to be taken into account:

On the one hand, the procedure of an impeachment causes an uncertainty in the political system, so therefore it should not be possible for a single individual, such as the Prime Minister of Singapore (art. 22L (3)), or a small group of parliamentarians to initiate an impeachment procedure. The constitution of Estonia (§ 85) for example enables the chancellor of justice to initiate an impeachment, nevertheless Parliament should additionally be empowered.

On the other hand, the procedure of impeachment is a vital instrument in a democracy as a mutual control system of the different powers (and in particular, to prevent a dictatorship). To ensure stability in the political system to initiate an impeachment a vote of 2/5 of the total members or 1/3 of the total members of Parliament is recommended, like in Romania, the Philippines or in Afghanistan.

9.2.2.3 No Immediate Substitution of the President

Mostly the President will remain in office during the impeachment procedure. However, some countries like the Czech Republic (art. 66) or Egypt (art. 159, 150) the initiation of impeachment procedure immediately suspends the Presi­dent from office and replaces the President by the Prime Minister.

As soon as an impeachment decision has been issued, the President of the Republic ceases all work; this is treated as a temporary impediment preventing the President from carrying out presidential duties until a verdict is reached in the case [....]

If on account of a temporary impediment, the President of the Republic is rendered unable to carry out the presidential functions, the Prime Minister acts in his place. (art. 159, 150; Egypt)

This procedure contravenes the presumption of innocence in a trial. Unless a high threshold is set for the commencement of impeachment (which is not recommended as outlined above) the immediate suspension can make it easy for opposition parties to remove, by legal means a President who cannot be removed by democratic means (and at a stage of the impeachment process where no proof of misconduct has been established). Therefore, this procedure is not recommended.

9.2.2.4 What Constitutes the Misconduct?

The misconduct for which the President may be impeached needs to be defined in the clause (Table 9.6).

The misconduct is the essential element which determines whether an impeach­ment process is likely to proceed or not. Due to the different cultural and historical backgrounds of the countries mentioned above, the nature of the misconduct neces­sary to support impeachment shows significant differences between countries. One rather outstanding feature is that in African countries like Gambia and Ghana, any inimical acts to the country's economy can be regarded as a misconduct allowing an impeachment. This is not at all advisable, because there should be substantial requirements before misconduct is established. Furthermore, the misconduct should be described with sufficient clarity and should not contain legal concepts which are

Table 9.6 | | Misconduct by the President

Table 9.7 ? Right of defence for the President

not precisely defined. Some draw a distinction between the penal and the constitu­tional violations of the President.^[602]

Thus description like a “serious misconduct” or “inability to perform the functions of office ” (e.g. South Africa) are far too indefinite terms and likely to create uncertainty.^[603] Also a “poor performance” as noted in the constitution of Argentina and Fiji can be interpreted in different ways and is not a preferable solution.

As already mentioned above not any kind of misconduct should open the possibility of an impeachment. Consequently, a wide clause including the violation of any “law” as mentioned in the constitution of Hungary is too broad and not recommended. Only a serious misconduct like a violation of the constitution, treason or other high crimes, should be admitted to advance an impeachment procedure. For that reason, a treason as required in the constitutions of the United States of America, Armenia and Finland is a good example. However, an impeachment based on a misdemeanour only which is merely a less serious wrongdoing should not provide sufficient grounds for a removal. The constitution of the Czech Republic provides for a far better solution as it requires a “high treason, a gross violation [...] or other components of the constitutional order [...]” which ought to be severe given the enumeration.”

9.2.2.4.1 What Right of Defence Is Vested in the Constitution?

The clause should consider which rights of defence are granted to the President (Table 9.7).

Table 9.8 | | Review before deciding on impeachment

In order to guarantee a due process, it is vital, that the accused President has a right of defence in writing or orally. Furthermore, a right to legal counsel should also be guaranteed. As the right of defence should be regarded as an essential right of the President in the impeachment procedure, the right should be stated in the constitution and not in an ordinary law. Consequently, the constitutions of Zambia and India which ensure such a right are appropriate implementations. Furthermore, the Maldives and Singapore are an extraordinary example as they also offer an addition­ally legal counsel. In comparison the constitution of Colombia and the Czech Republic which do not offer such a right should not function as a role model.

9.2.2.4.2 Does a Court Review the Alleged Misconduct and Are Those Findings Binding?

A third party may be required to review the alleged misconduct (Table 9.8).

With regard to separation of powers and mutual control a review of the alleged misconduct by the judiciary is strongly recommended. Without review of the judiciary, the legislature alone can impeach the President, however the legislature is not designed (and will often be poorly equipped) to review and run trials. Therefore, constitutions such as the ones of Haiti, India and Mongolia which involve no other institutions are unfavourable solutions. Even though some countries have established special courts for the review of an impeachment it seems appropriate to vest that power with the Constitutional Court or in its absence with the Supreme Court of the country.^[604]

Some of those countries that provide for a compulsory judicial review (such as Romania) do not establish that the Court’s conclusion on the validity of the accusations is binding. This is not recommended because it means that the Court’s conclusion may become little more than an advisory opinion.

In the Russian Federation and also the Ukraine the Supreme Court has to establish the misconduct, moreover the Constitutional Court needs to confirm that all of the impeachment steps were properly executed. These high requirements and involve­ment of two different courts make an impeachment highly unlikely to be successful. Furthermore, the procedure becomes too cumbersome and results in an anti­impeachment clause. In essence the review of the alleged misconduct is recommended and its decision should be binding, otherwise it is likely that the final decision within Parliament over impeachment is a political decision rather than a genuine assessment of the nature of the misconduct.^[605] As a result the French constitution^[606] presents a rather unorthodox solution because it suggests that the review could as well be vested in the Constitutional Court (Le Conseil constituionnel) and does not need to be separately addressed from the ordinary jurisdiction. In addition, the Haute Court de Justice is composed of deputies and not of judges.^[607]

9.2.2.5 Decision Making: What Organ(s) and Majorities Are Required to Impeach the President?

The decision should only be possible if a defined threshold is reached (Table 9.9).

Remarks and recommendations: In some countries the final decision is vested within the Parliament. This procedure is acceptable as long there is also an involve­ment of the judiciary at some stage in the impeachment procedure,^[608] however it is not recommended. In most of continental European countries however, the final

Table 9.9 | | Decision making on impeachment

Table 9.9 (continued)

decision over impeachment has shifted to the judiciary,^[609] by either a court of special jurisdiction^[610] or a Supreme/Constitutional Court^[611] which is highly recommended, unless the President has a right to directly or indirectly appoint several such Court judges him or herself which is the case in Turkey;^[612] or has ousted the elected highest judges and replaced them with Government leaning loyalists.^[613]

The models of the constitution of the United States of America and e.g. the Philippines in which the decision is made by only one chamber and requires a 2/3rd majority of the present Senate members are not recommendable solutions. As outlined previously the President is accused and an accusation should be assessed by a judicial and not a political organ. Modern constitution making has shifted towards a judicial body not only being involved in the decision making, but having the final say. The alternative as for example in the constitution of Gambia where in addition to the 2/3rd majority of all Senate members a prior verification by a tribunal is needed is too complicated. Whilst a third party is involved and the final decision is not only made by the Parliament and impeachment procedure likely only strikes the right balance if the Parliament is not the ultimate decision maker because in most countries the President is after all supported at least by one of the parliamentary chambers.

One interesting thought is that a country coming straight out of a democratisation process where the judiciary is still weak—like for example some former Soviet Republic members in the beginning of the twenty-first century, the decision to impeach a President may (for a time and as an exception) be vested in Parliament as only Parliament has the strength to oppose the President in such a young democracy.^[614] However, given the circumstances that it is very challenging to change such fundamental mechanisms at a later stage we nevertheless recommend the involvement of the judiciary for young democracies as well.

One type that cannot be recommended at all is to vest the final decision within a Plebiscite, like in Slovakia and Romania. The last impeachment procedure in Romania against President Traian Basescu was not successful.^[615] Even though the principle idea is driven by a democratic motif, in that the body which elected the President should also be the body to recall the President, the main problem with a Plebiscite is that the voters are easy to influence and the final decision is rather a popularity vote than a vote over the misconduct.^[616] In addition, whilst the President is accused of a legal wrongdoing, the office holder is made “politically responsible before [...] the electorate”.^[617] The constitution of Lithuania involves verification by a tribunal but additionally a rather political decision of the Seimas (Senate) and is therefore not to be recommended.

The possibility of impeachment is a vital instrument in a democracy, therefore countries that do not have an impeachment process at all, are considered to be or tending towards an autocratic rule or a dictatorship. It is strongly recommended to have an impeachment provision in the constitution.^[618] Consequently constitutions such as Saudi Arabia, Cuba and Guatemala which do not foresee an impeachment are not advisable. Neither is the constitution of Taiwan^[619] which requires a recall election of a recall referendum as an advisable procedure for an impeachment.

Table 9.10 | | Replacement of the officeholder

In comparison to those solutions the constitutions of Croatia, North-Macedonia and Turkey are appropriate role models in this context as they require a decision from a court with qualified members.

9.2.2.6 Who Replaces the Impeached Person?

The clause needs to consider who will take the impeached President’s place until a new President is elected (Table 9.10).

In order to ensure a stable government, it is necessary that the constitution clearly specifies who will replace the impeached President. Normally, the constitution should provide only for a temporary assumption of office until a new President is elected. Given the nature of the position of Vice-President the most suitable official to replace the President is the Vice-President. Another suitable mechanism is vested in the constitution of Greece and that of Hungary which delegate the power to the Speaker of the Parliament for the period of the impeachment.^[620] However, there should also be further regulations in case of circumstances which prevent the Vice­President from assuming the office. Therefore, a graduated system for representation as it can be found in the constitution of the United States of America is recommended. The Dominican Republic and El Salvador delegate the power to the Vice-President and are equally appropriate temporary solutions.

Table 9.11 | Timeframes during impeachment process

9.2.2.7 Timeframe Between Procedural Steps and Limitations to Impeachment

It may be regulated that a final impeachment decision can only be reached if the procedural steps have been taken in a particular time frame that is set out in the clause (Table 9.11).

To ensure a fast proceeding and to limit the instability that arises with an impeachment, a timeframe for the impeachment process is recommended. Therefore, the constitution of the Czech Republic which does not contain a limitation is not advisable. If countries do not have an established timetable within which the impeachment process should be finalized, it is likely that it will take too long (which increases the risk that impeachment can be abused, with the consequence that it results is an anti-impeachment clause). A time frame with less than 2 months, as in France can be recommended to guarantee a procedure without undue delays. Presidents also have to be granted a fair trial and the opportunity to defend themselves which takes time. Therefore, impeachments such as that of President Fernando Lugo from Paraguay on 26 June 2012 within 6 days and with a miniscule 2-h hearing should not be permissible.^[621]

In addition to the timeframe for the impeachment process, a timeframe for new elections after impeachment of President is also recommended, if not already regulated elsewhere. There should be a specific period of time within new elections have to take place, as defined in the constitution of Egypt, in contrast to an undefined period of time or an expression, like “as soon as possible” (e.g. Finland).

Another feature that can be found in some constitutions is a limitation of the impeachment process. For example, in the constitution of the Philippines impeach­ment against the President is only possible once a year.

No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (art. 11 Sec. 3 (5); Philippines).