Impeachment

Impeachment is a process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. Impeachment tends to be confined to ministerial officials as the unique nature of their positions may place ministers beyond the reach of the law to prosecute, or their misconduct is not codified into law as an offense except through the unique expectations of their high office. Both "peers and commoners" have been subject to the process, however.

From 1990 to 2020, there have been at least 272 impeachment charges against 132 different heads of state in 63 countries. In Latin America, which includes almost 40% of the world's presidential systems, ten presidents from seven countries were removed from office by their national legislatures via impeachments or declarations of incapacity between 1978 and 2019.

Most democracies (with the notable exception of the United States) involve the courts (often a national constitutional court) in some way. National legislations differ regarding both the consequences and definition of impeachment, but the intent is nearly always to expeditiously vacate the office. Most commonly, an official is considered impeached after the commencement of the charges, and a trial of some kind is required to remove the official from office.

Impeachment is distinct from the motion of no confidence procedure available in some countries whereby a motion of censure can be used to remove a government and its ministers from office. Such a procedure is not applicable in countries with presidential forms of government like the United States. Because impeachment involves a departure from the normal constitutional procedures by which individuals achieve high office (election, ratification, or appointment) and because it generally requires a supermajority, it is usually reserved for those deemed to have committed serious abuses of their office. In the United States, for example, impeachment at the federal level is limited to those who may have committed "Treason, Bribery, or other high crimes and misdemeanors". Under the United States Constitution, the House of Representatives has the sole power of impeachments while the Senate has the sole power to try impeachments (i.e., to acquit or convict); the validity of an impeachment trial is a political question that is nonjusticiable (i.e., is not reviewable by the courts).

Etymology and history

The word "impeachment" likely derives from Old French empeechier from Latin word impedīre expressing the idea of catching or ensnaring by the 'foot' (pes, pedis), and has analogues in the modern French verb empêcher (to prevent) and the modern English impede. Medieval popular etymology also associated it (wrongly) with derivations from the Latin impetere (to attack).

The process was first used by the English "Good Parliament" against William Latimer, 4th Baron Latimer in the second half of the 14th century. Following the English example, the constitutions of Virginia (1776), Massachusetts (1780) and other states thereafter adopted the impeachment mechanism, but they restricted the punishment to removal of the official from office, in contrast to the English Parliament's broad power to punish impeachments.

In West Africa, rulers of the Ashanti Empire who violated any oaths taken during their enstoolment were destooled by Kingmakers. Reasons include punishing citizens arbitrarily or being exposed as corrupt. The process involved Kingmakers forcibly removing the sandals of the guilty party, then bumping his buttocks on the ground three times. Once destooled, a king automatically lost sanctity and honours as he could not exercise royal powers such as being chief administrator, judge, and military commander. Also withdrawn from him were the Golden Stool (a throne functionally equivalent to crowns), swords, and other regalia. While a deposed king no longer held custodianship of the realm, he remained a member of the royal family from which he was elected.

In Korea, the Goryeo dynasty installed Sahundae (司憲臺) in 983 AD, which oversaw the impeachment of officials.

In various jurisdictions

Brazil

In Brazil, as in most other Latin American countries, "impeachment" refers to the definitive removal from office. The president of Brazil may be provisionally removed from office by the Chamber of Deputies and then tried and definitely removed from office by the Federal Senate. The Brazilian Constitution requires that two-thirds of the Deputies vote in favor of the opening of the impeachment process of the president and that two-thirds of the senators vote for impeachment. State governors and municipal mayors can also be impeached by the respective legislative bodies. Article 2 of Law no. 1.079, from 10 April 1950, or "The Law of Impeachment", states that "The crimes defined in this law, even when simply attempted, are subject to the penalty of loss of office, with disqualification for up to five years for the exercise of any public function, to be imposed by the Federal Senate in proceedings against the president of the republic, ministers of state, ministers of the Supreme Federal Tribunal, or the attorney general."

Initiation: An accusation of a responsibility crime against the president may be brought by any Brazilian citizen; however, the president of the Chamber of Deputies holds prerogative to accept the charge, which if accepted will be read at the next session and reported to the president of the republic.

Extraordinary Committee: An extraordinary committee is established, consisting of members from each political party in proportion to their party's membership. The committee is responsible for assessing the need for impeachment proceedings. The president is given ten parliamentary sessions to present their defense. Following this, two legislative sessions are held to allow for the formulation of a legal opinion by a rapporteur regarding whether or not impeachment proceedings should be initiated and brought to trial in the Senate.

The rapporteur's opinion is subject to a vote within the committee. If the majority accepts the rapporteur's opinion, it is deemed adopted. However, if the majority rejects the rapporteur's opinion, the committee adopts an alternative opinion proposed by the majority. For instance, if the rapporteur recommends against impeachment but fails to secure majority support, the committee will adopt the opinion to proceed with impeachment. Conversely, if the rapporteur advises impeachment but does not obtain majority approval, the committee will adopt the opinion not to impeach.

If the committee vote is successful, the rapporteur's opinion is considered adopted, thereby determining the course of action regarding impeachment.

Chamber of Deputies: The chamber issues a call-out vote to accept the opinion of the committee, requiring a supermajority of two thirds in favor of an impeachment opinion (or a supermajority of two thirds against a dismissal opinion) of the committee, in order to authorize the Senate impeachment proceedings. The president is suspended (provisionally removed) from office as soon as the Senate receives and accepts from the Chamber of Deputies the impeachment charges and decides to proceed with a trial.

The Senate: The process in the Senate had been historically lacking in procedural guidance until 1992, when the Senate published in the Official Diary of the Union the step-by-step procedure of the Senate's impeachment process, which involves the formation of another special committee and closely resembles the lower house process, with time constraints imposed on the steps taken. The committee's opinion must be presented within 10 days, after which it is put to a call-out vote at the next session. The vote must proceed within a single session; the vote on President Rousseff took over 20 hours. A simple majority vote in the Senate begins formal deliberation on the complaint, immediately suspends the president from office, installs the vice president as acting president, and begins a 20-day period for written defense as well as up to 180-days for the trial. In the event the trial proceeds slowly and exceeds 180 days, the Brazilian Constitution determines that the president is entitled to return and stay provisionally in office until the trial comes to its decision.

Senate plenary deliberation: The committee interrogates the accused or their counsel, from which they have a right to abstain, and also a probative session which guarantees the accused rights to contradiction, or audiatur et altera pars, allowing access to the courts and due process of law under Article 5 of the constitution. The accused has 15 days to present written arguments in defense and answer to the evidence gathered, and then the committee shall issue an opinion on the merits within ten days. The entire package is published for each senator before a single plenary session issues a call-out vote, which shall proceed to trial on a simple majority and close the case otherwise.