Lloyd Barnett | Impeachment – procedural defects in the legislative proposals

In the previous article in this series, I highlighted several defects in the substantive provisions of the Golding Impeachment Bill which was tabled in Parliament. In this article I will deal with several serious defects in the procedural provisions of the Bill.

The first procedural problem of the Bill relates to the initiation of the impeachment proceedings. The Bill provides for the impeachment process to be initiated by a request made by several categories of persons, including three Senators or three Members of Parliament in furtherance of a petition which has been lodged in Parliament and is supported by the authenticated signatures of at least one thousand electors from the official list of electors. This figure of 1,000 is to be applicable whatever the size of the constituency.

These signatures are required to be authenticated by the certification of a Justice of the Peace that he or she is satisfied upon the presentation of the signatory‘s Electoral Identification Card that the person who has signed the petition is the elector who he or she represents himself or herself to be. These provisions are open to political manipulation and misrepresentation, since the verification of the authenticity of the petitioners’ signatures will be extremely difficult.

In addition, the number of persons registered to sign the petition is likely to be only a small percentage of the total number of persons who had voted in support of the member against whom the process is being instituted.

PRELIMINARY ENQUIRY

The Bill provides that an Impeachment Committee should be responsible for conducting what is essentially a preliminary inquiry, the preparation of the Articles of Impeachment and the initiation of the trial before an Impeachment Tribunal. The proposed composition of this Committee places the decisive role of Chairman in the President of the Senate who will nominally be a politician selected by the Prime Minister. The other members of this Committee are to be appointed by the Prime Minister and Leader of the Opposition. Accordingly, this important stage would be controlled by politicians and subject to partisan manipulation or influence.

The Impeachment Tribunal which is to be responsible for adjudicating is proposed to be appointed by a system in which the Prime Minister and Leader of the Opposition play a crucial role. It would consist of both members of parliament as well as non-members. The members of parliament appointed need not have any legal qualifications. The non-parliamentarians, although they must have the qualifications needed for judicial appointment, may be members or sympathizers of the Government or Opposition party. Accordingly, the entire process is open to domination by political adversaries and partisan motives.

The sentencing, as provided by the Bill, is to be conducted by the House of which the indicted person is a member, so that the ultimate penalty of censure, removal from the House and/or disqualification is to be determined by a political partisan body.

At all these stages, the target member will have a constitutional right to challenge the process and interrupt the proceedings so that most of the parliamentary term will be spent in contests over the impeachment process.

NEGATIVE IMPACT

It is not difficult to visualise the negative impact impeachment proceedings would have on the parliamentary process and the conduct of the business of government. It would divert time and resources from the normal business of Parliament and intensify political tensions.

The impeachment process proposed for adoption in the Bill has not avoided the defect of being inconsistent with due process and the rule of law. There is no doubt that it provides a mechanism for the exercise of partisan vindictiveness and harassment. The process as has been demonstrated in other countries will be extremely contentious, time consuming, disruptive and inimical to good governance.

Since impeachment is primarily concerned with the adjudicating of allegations of criminal offences, trials of charges for the commission of such offences ought properly to be left in the control of the ordinary courts. When a person has been convicted by such a court for a serious offence involving sexual abuse, dishonesty or violence that person should be disqualified from membership of Parliament. The present Constitution does not provide for disqualification on this ground. This is the great defect which demands reform rather than the adoption of the problematic impeachment process.

Dr Lloyd Barnett is an attorney-at-law and author. Send feedback to columns@gleanerjm.com