The impeachment document is going to be a significant historic document; a record important to professional historians and scholars, who, in future, would wish to understand Pakistan, its politics and of course its politicians, and will make it the subject of their doctoral researches. Evidentiary basis of the charges should be irrefutable and indictable before a court of law, so that the document may not become a permanent record and proof of the Machiavellian, partisan and prejudiced politics of our legislatures. Do bell the cat, if you can, but make the bell sound. But before you do that keep in mind the presidential address of Quaid-e-Azam Mohammad Ali Jinnah to the Constituent Assembly of Pakistan, August 11, 1947, “Now, if we want to make this great state of Pakistan happy and prosperous, we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor.”—— “I shall always be guided by the principles of justice and fairplay without any, as is put in the political language, prejudice or ill will, in other words, partiality or favouritism. My guiding principle will be justice and complete impartiality, and I am sure that with your support and cooperation, I can look forward to Pakistan becoming one of the greatest nations of the world.”
Impeachment means a legal statement of charges, exactly like an indictment in criminal law, charging someone with criminal offences. It is initiated by a constitutional body on indictable offenses. For conviction a second legislative vote, differently described in different constitutions, on the charges levelled against the officer being impeached is required to determine the guilt or otherwise of the impeached person. Impeachment, a British invention, though it has not been used there for over 200 years, was incorporated in their constitutions by different countries after the seventies. Since then only the following presidents have been convicted:
Abualhassan Banisadr, President of Iran, 1981.
Fernando Collor de Mello, President of Brazil, 1992.
Carlos Andres Peres, President of Venezuela, 1993.
Rolandas Paksas, President of Lithuania, 2004.
In the UK, only the House of Commons can initiate an impeachment. Any member after duly supporting the charges with evidences can move for impeachment, if these are accepted by the House, the mover impeaches the accused before the House of Lords. The House of Lords hears the case, with both sides calling witnesses and presenting evidences. If the House finds the defendant guilty, the House of Commons calls for judgment and the House of Lords announces punishment, according to law, whichever they find fit.
In the US, according to Articles one and two of the Constitution, first, the House of Representatives passes, by a simple majority, the articles, formal allegations, of impeachment, the scope of impeachment being restricted to “treason, bribery, high crimes, and misdemeanours”, and the process being parallel to indictment in court proceedings in a regular court of law. Next, the Senate, analogous to a trial in a regular court before a judge and a jury, tries the accused and acquits or convicts, whatever the case, by a two-thirds majority of the senators present. After conviction, the Senate may vote for further punishment of the convicted person, this, however, not absolves the defendant from criminal prosecution. In the history of the US only two presidents, Andrew Johnson and Bill Clinton were impeached, and both were acquitted by the Senate. Demands for impeachment, very common, go back to the times of George Washington, and most of them based on frivolous charges and innuendos did not become alive.
In Pakistan, Article 47 of the Constitution covers the idea and the procedure of the removal or impeachment of the president: As per this Article the president can be impeached if he has become physically or mentally incapacitated, has violated the provisions of the Constitution, or has committed a gross misconduct. With the consent of half of the members of National Assembly or Senate a notice carrying the particulars of the charges against the president would be served to the Chairman of Senate or the Speaker of the National Assembly, as the case may be, expressing the intention of moving a resolution of removal or impeachment of the president. The Chairman or the Speaker, whatever the case, will provide a copy of notice to the president within three days of its receipt. After seven days of the receipt of the notice, a joint sitting of the two houses shall be summoned to investigate and consider the charges laid down in the notice. The president shall have the right of representation. After consideration of the charges if two-third members of the two houses favour and pass the resolution, then, the president shall forthwith cease to hold the office.
The anomaly in this Article is in the processes of impeachment in which the accuser and complainant, in this case the National Assembly, when it judges the defendant by voting on the charges it has levelled, in the joint session of the two houses, is the same person. Legal theories suggest that allowing a person to be the judge in a case in which he or she is either the defendant or the complainant is akin to a blatant conflict of interest. “Government, we are told, is a remedy for the inconveniences that arise, in the state of nature, from the fact that, in that state, every man is the judge in his own cause”, Bertrand Russell in History of Western Philosophy says. “Let reverence for the law be breathed by every mother”, Abraham Lincoln. Like the US impeachment process, for a fair trial to the accused, the National Assembly should level the charges on the president and the Senate should judge the charges and propose punishment.
There are five heads under which the charges can be categorised, misdemeanour, corruption, bribe, high treason and constitutional excesses. The only category head under which the legislators eager to shape their vendettas can find any space is constitutional excesses. Considering charges here, we should keep in mind, PLD-2001 SC 233-Doctrine of State necessity and principle of “Salus populist suprema lex”- “Government was being run contrary to the provisions of the Constitution, the armed forces were compelled to move in as a last resort to prevent any further destabilisation”; PLC-2002 52(a)-“Courts are creatures of Constitution and derive their powers and jurisdiction from the Constitution. Courts have to exercise their powers within the limits laid down by the Constitution”; Articles III of the US Constitution states that judges are to remain in office “during good behaviour” meaning that they can be removed for bad behaviour by the Congress through impeachment. Till now the Congress has impeached 13 federal judges of which six were convicted by the Senate.
The judicial activism cannot be allowed where a nation is passing through a state of emergency, requiring extra-judicial and extra-constitutional steps for the executive to combat situations having not been envisaged in the Constitution. The legislature has the authority in exceptional situations to legitimise these excesses.
An inseparable union of personal and national consciences is required to navigate the decision of the members of our legislative bodies at this critical juncture of our national history. They should decide in national interest extending their vision to what the future of the country should be. The spirit of the national Reconciliation Ordinance (NRO) should be maintained that reads, “to promote national reconciliation, foster mutual trust and confidence amongst holders of public office and remove the vestiges of political vendetta and victimisation”. “In Greek Civilisation the purpose of the state was not different from the highest purpose of the individual”, Ernest Barker in Political Thought of Plato and Aristotle.
The writer, an ex-government servant, is presently the President of the South Asian Columnists Council
Source: The Post, 16/8/2008