Impeachment law has recently gained new prominence in the public eye. In the United States, Donald’s Trump’s opponents call for him to be removed from the Presidential office. In the Philippines, Chief Justice Maria Sereno currently faces an impeachment trial. Even within UCD, students have petitioned for a referendum over whether or not UCDSU President Katie Ascough should be impeached. These ongoing events show that impeachment proceedings are always a possibility in politics and not just a discussion for academics. With this in mind, we should always closely examine our impeachment laws. In order to apply this proceeding properly, it has to be fair and democratic. Otherwise we risk great injustice.
Currently our Constitutional provision on impeachment can be found in Article 12.7. This reads, “The President may be impeached for stated misbehaviours”. While it does not list what a stated misbehaviour is, it can be assumed that it arises from the President’s oath to uphold the Constitution. However there is some speculation from academics that this could be expanded to include even ordinary criminal offences. The rest of the section is written with much more clarity. 30 members of the Seanad or the Dail must bring a written motion (similar to a petition) to either House of the Oireachtas. The House in question must then vote on whether to adopt. They must vote and if that vote numbers at least two thirds of total membership then they shall initiate an investigation.
A committee must be formed to determine if these charges are serious. Interestingly the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 says that if a motion starts in the Seanad, the committee must then be formed or chosen from members of the Dail. The opposite is true if it originates in the Dail i.e. the Seanad shall form the committee. Under the 2013 Act this Committee shall have the power to record evidence, make findings of fact and even call the President as a witness. The President can also seek legal representation during these proceedings. If the committee finds that ground that the President should be impeached then the house the charge originated in must vote again. If it reaches two-thirds majority, then the President must be removed from office. Thankfully this procedure has never been used. It also means that it is hard to comment on it. Even in Irish academic circles, impeachment rarely draws much attention. The only way to fully gauge how fair this is, is to compare it with other countries legal systems.
The US approach to impeachment is quite similar, but it has actually been used before. The US Constitution states in Article 2, Section 4 that the President, Vice President, or other civil officers may be removed from office for treason, bribery, or high crimes and misdemeanors. This is a lot more specific than the Irish provision and can encompass a wide range of offences, from perjury under Bill Clinton to removing officers without senatorial approval under Andrew Johnson. The rest of the proceedings mirror Ireland’s own fairly closely. A resolution starts in the House of Representatives, where it is brought before the House Committee on Rules. If the House Committee decides that there are grounds for impeachment then the House of Representatives must vote on whether to begin a trial. If a simple majority of all members present is achieved then the resolution is passed to the Senate. A trial begins which the Senate oversees. Members of the House Representatives present evidence and call witnesses. After the trial the Senate votes on whether to impeach the officer in question. If a two-thirds majority vote ‘yes’, then the officer in question is immediately removed from office. Only twice in America’s history has this procedure ever been used. First for Andrew Johnson in 1868, and later for Bill Clinton in 1998. Both times ended in an acquittal by the Senate. Perhaps this result shows that impeachment is not taken lightly in the US. If it is enacted, it is done with such scrutiny and care, that the claim must be extremely serious in order to pass both Houses.
Also of interest is Britain’s impeachment process. This is now more of a historical curiosity than an actual tool. The last time it was fully used was in 1806 to impeach Lord Melville for corruption. Once again one house raises the resolution while the other adjudicates. An MP in the House of Commons raises a claim and the House votes on whether it is serious or not. If it passes then a trial begins which the House of Lords presides over. After the trial, the House of Lords decides whether the accused is guilty or not by vote of simple majority. If the vote carries then the House of Lords may choose whatever punishment they believe is necessary. However, it should be noted that the Crown can pardon the impeached official. While this does not save them from losing their office, it does mean they won’t have to undergo whatever punishment is chosen for them.
As I have said, impeachment is a political tool rather than some abstract concept. Current events further prove this. Impeachment may seem like a long deliberative process but it is a necessity. And as Benjamin Franklin noted, the only other way to permanently remove an elected official is assassination, something which we do not endorse.
Daniel Forde – Business & Law Writer
