Understanding the Impeachment Process

Written by Chris Cork • April 2008

Impeaching a head of state is a difficult and risky business, not least because where it has happened there seems to be little good that has come of it, writes Chris Cork

April 2008 - As the political processes wind their tortuous and opaque way towards something that probably isn’t a military dictatorship but is also something less than fully-fledged democracy; the matter of ‘what do we do with the President’ is being much discussed in the media and political circles. Those discussions have occasionally drifted in the direction of ‘impeachment’, a word that brings to mind the battle between President Clinton and the American House of Representatives in 1999.The Clinton impeachment was an unseemly affair, sordid and tawdry, the dirty underwear of political life out of which nobody emerged with much in the way of honour or vindication. Clinton was acquitted by the US Senate in February 1999 and the Monica Lewinsky scandal and the Paula Jones lawsuit died a death but both haunt Clinton still and will forever be a blot on his escutcheon. Impeachment is a matter not to be lightly entered into, as the costs for all concerned often far outweigh the benefits accrued from the action.

‘Impeachment’ is a word often used but frequently misunderstood. It is the first of two stages in a process by which a legislative body seeks to remove a government official without that officials agreement, and the second stage of the process is a ‘trial’ by the upper house where such a body exists. Impeachment of the highest office-holder in the land, for all its high media profile, is a relatively rare occurrence in the life of nations. A common misconception is to confuse it with an involuntary removal from office; whereas it is merely a legal statement of the charges against the individual, roughly equivalent to an indictment in criminal law. Any official who is impeached then has to face a second legislative vote – which could be by the body bringing the impeachment but more usually is conducted by another body - which will decide whether he or she is guilty or not.

In the UK the House of Commons has the power to initiate impeachment, and if successful the case is heard in the House of Lords where the hearing resembles an ordinary trial. If found guilty the Lords will decide on whatever punishment fits the crime, so long as it is within the law. The USA has a not dissimilar process, the difference being that impeachment can occur at both state and federal levels. At federal level impeachment is limited to the President, Vice-president and all civil officers of the United States government. They may be removed from office if found guilty of…”treason, bribery, or other high crimes and misdemeanours.” President Nixon resigned rather than face impeachment because he knew that a guilty verdict was inevitable. President Clinton thought he could wriggle through the cracks and stayed in office. He wriggled through, but at a cost few felt worth the price.

The constitutions of most countries have within them a mechanism for impeachment and most require an absolute majority within the body seeking to impeach for it to go ahead. (The more common form of impeachment is that of a person who is in the role of a witness in a criminal case, and seeks to challenge the honesty or credibility of that person.) The Pakistan Constitution is clear about impeachment. Article 47 is titled ‘Removal or impeachment of president.’ It reads thus…

“Notwithstanding anything contained in the constitution, the President may, in accordance with the provisions of this Article, be removed from office on the ground of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct.

“Not less than one-half of the total membership of either House may give to the Speaker of the National Assembly or, as the case may be, the Chairman written notice of its intention to move a resolution for the removal of, or, as the case may be, to impeach, the President; and such notice shall set out the particulars of his incapacity or of the charge against him.

“If a notice under clause (2) is received by the Chairman, he shall transmit it forthwith to the Speaker.

“The Speaker shall, within three days of the receipt of a notice under clause (2) or clause (3), cause a copy of the notice to be transmitted to the President.

“The Speaker shall summon the two Houses to meet in a joint sitting not earlier than seven days and not later than fourteen days after the receipt of the notice by him.

"The joint sitting may investigate or cause to be investigated the ground or the charge upon which the notice is founded.

“The President shall have the right to appear and be represented during the investigation, if any, and before the joint sitting.

"If, after consideration of the result of the investigation, if any, a resolution is passed at the joint sitting by the votes of not less than two-thirds of the total membership of Majlis-e-Shoora (Parliament) declaring that the President is unfit to hold the office due to incapacity or is guilty of violating the Constitution or of gross misconduct, the President shall cease to hold office immediately on the passing of the resolution.”

A close examination of Article 47 tells us that the notice for impeachment can originate in either the Senate or the National Assembly, and the Speaker of the lower house takes over the conduct of any trial that may ensue. The President, if subject to impeachment has the right to defend himself or be defended by learned counsel. In theory this could be the sitting Attorney General who has been a Presidential spokesman as well as a senior adviser to the previous prime Minister; and has appeared on behalf of the president in all his litigation in the course of his battles with Chief Justice Iftikhar Chaudhury in the Supreme Court. Given the way in which the president is losing support within his close inner circle the Attorney General may not wish the exposure that would come with a failure to successfully defend the President – in which case the President would have to engage, and pay for, counsel like any other defendant.

The consequences of impeachment are to large degree imponderable and in the realms of hypothesis, and it is a long way between a position of discussing impeachment and actually starting the process in parliament. Positions are polarizing, with the President and the electoral mandated parties who now oppose him taking seemingly intractable positions – with little ‘wiggle room’ for either side, and neither side much in the mood for compromise.

Notwithstanding the holding of what passes for free and fair elections by Pakistani standards, it is clear that the President wishes to hold on to power. He is partisan in support of the PML-Q and appears reluctant to accept some of the grittier realities of electoral defeat. The victors, being sworn in on March 17th were clearly in no mood to put up with havering and vacillation by the President, and wanted his ouster – an ouster rather more loudly proclaimed by the PML-N than by the PPP.

Internationally, the president retains a modicum of support, but even that is waning and there is growing recognition that his presidency may be in its final stages. Senator Kay Bailey Hutchison (who was one of the monitors during the February 18th election) warned in early March that attempts to impeach Musharraf may destabilize the country. She felt that impeachment was perhaps a step too far, saying… ”President Musharraf must be allowed enough room to peacefully transition to a strong democracy, and to figure out how to exit the stage with the grace of a leader who recognizes the will of the people.” Writing in the Wall Street Journal she went on to say… ”

Impeachment could destabilise Pakistan and postpone work that needs to be done to establish an independent judiciary, crack down on terrorists and jump-start development.” She also expressed the view that the leaders of the PML-N and the PPP were themselves flawed, and that impeachment might be a case of the pot calling the kettle black! Her views have been broadly echoed and endorsed by other commentators and analysts in the EU and the USA, as well as in a string of signals on the diplomatic grapevine. Impeachment, worry those outside Pakistan, could make a bad situation worse. Conversely, some Pakistani legislators see impeachment as the right and proper way of seeking redress for what they perceive as a raft of “high crimes and misdemeanours” for which the president must be held to account.

Impeachment could indeed further destabilise Pakistan, and as the new government finds its feet there may be yet another face-off between the president and the parliamentarians.

The difference this time is that the President is no longer the head of the armed forces – and the man who is may not wish to dance to the tune of the man who was.