To be or not...
Thoughts on the issues of impeachment, recallSunday, May 02, 2021
The alleged conduct of a sitting Member of Parliament has led to calls for the enactment of provisions for the impeachment of public officials. This has been long in coming.
It is an issue on which agreement between the Government and Opposition was reached from as far back as 1995. A Bill to give effect to this was introduced in Parliament in 2011 but lapsed when Parliament was dissolved to make way for elections and was never brought back.
Impeachment is primarily a political rather than a judicial process, although in some jurisdictions the judiciary is involved in the hearing of evidence and final determination. Thus, in every jurisdiction, impeachment must be either initiated or at least authorised by the legislature.
Grounds for impeachment
The grounds for impeachment vary widely, but they are generally confined to offences that are considered to be crimes against the State. In the United States, for example, they are restricted to treason, bribery, or “other high crimes and misdemeanors”.
In the impeachment of President Bill Clinton, in 1998, the basis of his impeachment was not his affair with Monica Lewinsky — which could hardly be considered a crime against the State — but the fact that he lied under oath about it and thereby obstructed justice. These are both federal offences, but Congress, by majority vote, ruled that they fell within the scope of “high crimes and misdemeanours”.
Many eminent constitutional scholars at the time disagreed with that determination and, in his memoirs published just last month, On the House: A Washington Memoir, former Speaker, John Boehner, expressed regret that he had voted in favour of impeachment.
The term “high crimes and misdemeanours” is a catch-all phrase, the offences of which have never been specified. It was a compromise arrived at when some of the framers of the US Constitution insisted that maladministration should be included among the grounds for impeachment. Others, however, argued that this would render an impeachable official a hostage to the legislature who could be removed for specious and nakedly political reasons. The term “high crimes and misdemeanours” was eventually accepted and intended to mean “abuses of power that subvert the constitution, the integrity of Government, or the rule of law”.
The late eminent Professor Charles Black, in his book Impeachment: A Handbook, which was published in the wake of the Watergate scandal, argues that this term encompasses “offences that are clearly wrong — even if not criminal — and seriously threaten the society such as to make it dangerous for the perpetrator to remain in office”.
Broadening the scope for impeachment
Of course, Jamaica is a sovereign country, and we are free to define the grounds for impeachment as we see fit, provided it does not violate the constitution. Indeed, the bipartisan agreement reached in 1995, as reflected in the Bill that was tabled in 2011, went beyond the provisions set out in the US Constitution and was more aligned to British Common Law.
It cited as grounds for impeachment acts of corruption, misappropriation of public funds, wilful neglect of the duties or responsibilities of the office, and abuse of official authority. Charges would first have to be laid by a joint parliamentary committee, but the “trial” and ultimate determination would be by an independent impeachment tribunal chaired by a high court judge.
The reignited calls for impeachment provisions triggered by the alleged actions of a Member of Parliament are cause for us to consider how much broader the definition of impeachable offences should be. The foundational question is whether impeachment should be confined to “crimes against the State” or should be extended to include conduct that is unbecoming of an office holder, or brings the office and, by extension, the institution in which he or she serves into disrepute.
If the latter approach is adopted, it is presumed that it would have to be applicable to a wide range of offences, including, for example, fraud, tax evasion, and failure to maintain a spouse or minor child. In the case at instance, gender neutrality would demand that the person be subject to impeachment even if the victim were another man.
The constitution and the standing orders
The constitutional and parliamentary authority for dealing with the personal conduct of Members of Parliament is extremely limited. The constitution provides that a member shall cease to hold office if any of the circumstances that would have made him or her ineligible in the first place arises — becoming a party to a government contract without declaration or parliamentary exemption, being under sentence of death or serving a term of imprisonment of six months or more, legally declared bankrupt or insane, or being convicted of an election offence.
Parliament's authority under the standing orders, except for actions by a member that constitute contempt of Parliament, is limited to offences committed in the House, or within its precincts, and allows it only, by affirmative resolution, to suspend a member for a period not exceeding the remainder of that session.
Sessions of Parliament come to an end annually when Parliament is prorogued and a new session begins, traditionally with the delivery of the Throne Speech.
In the instant case, Parliament's authority would not apply since the alleged offence was committed far outside of its precincts. The recent attempt by the Opposition to have the member suspended by way of a resolution has no procedural validity.
Our standing orders provide that, where it is silent on any matter, resort shall be had to the usage and practice of the British House of Commons. Its powers there, except for contempt, are also limited to offences committed in Parliament or within its precincts and do not go beyond suspension for a defined period. It has treated the acceptance of bribes or pecuniary benefits by members as contempt, but only on the basis that it impairs the exercise of their duties as members.
In a departure from the practice in the House of Commons, the British House of Lords amended its standing orders in 2015 to allow it to expel members for breaches of its code of conduct. Included in the code is a prohibition against “any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of either violating a person's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them”.
Members of the House of Lords, like the Senate in Jamaica, are appointed, not elected. The only explanation for this deviation seems to be that to establish a similar power in the House of Commons would infringe on the right of voters to choose their representative.
In dealing with misconduct outside of its precincts, parliaments throughout the Commonwealth have had to resort to censuring members. I recall the late Michael Manley being censured in 1970 in relation to accusations of corruption he had levelled at a press conference against the then Minister of Agriculture John Gyles. In what became known as the Cicale scandal, he had produced a document that had been given to him purporting to be a government contract with a British firm bearing Gyles' signature. The signature was subsequently proved by handwriting experts to have been forged.
Our Parliament, of course, has the power to amend the standing orders to strengthen and broaden its disciplinary powers. It could consider expanding the power of suspension to include conduct unworthy of a Member of Parliament that brings the House into disrepute.
We should be mindful, however, that suspension of a member, especially if prolonged, deprives the innocent constituents of the representation to which they are constitutionally entitled. We should note, as well, that, in eschewing the harsher punishment of expulsion, the Committee on Standards of the British House of Commons argued in 2014: “There is a danger that the power of expulsion could be used to remove people because their opinions were unpopular, rather than because of misconduct. Members are elected, and the decision of the electorate should be respected.”
Recall of Members of Parliament
This brings us to the issue of instituting provisions for the recall of Members of Parliament through a petition signed by an appropriate number of voters in that constituency. Some groups strongly advocated this during the constitutional reform deliberations in 1995. It is an idea that has much to recommend it. Voters enter into a contract with their Member of Parliament to serve for the life of that Parliament.
Most contracts that I know of contain provisions for termination by either party during the life of the contract. A Member of Parliament can terminate the contract by resigning. The voters have no means of termination, even if a majority of them are utterly dissatisfied with the member's performance or consider him or her unfit to continue to serve.
The recall of a Member of Parliament would result in a by-election, which he or she would be entitled to contest, thus making the people themselves the ultimate arbiters.
There is, however, an aspect of the recall of members that has always bothered me. Our representatives often have to make tough choices that are likely to be unpopular. Faced with the possibility of recall, they may be inclined to opt for decisions and actions that enable them to retain popularity rather than those that are in the best interests of the country. This notwithstanding, the issue is worthy of renewed debate.
Bruce Golding is a former prime minister of Jamaica.
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