LETTER | Parliament must defer to the courts for impeachable offences

LETTER | Impeachment, in common law, is a process that is used to charge, try, and remove public officials for misconduct while in office.

In the United Kingdom (UK), the lower House of Commons serves as the prosecutor while the upper House of Lords the judge in an impeachment proceeding. It is an ancient procedure.

Under the procedure, all persons, whether members of the lower or upper house, may be prosecuted and tried by the two Houses for any crimes whatsoever. It starts in the House of Commons.

A member first charges the accused person of high treason, or of certain crimes and misdemeanours. After supporting his charge with proof, the member moves for impeachment.

If the accusation is found on examination by the House to have sufficient grounds to justify further proceedings, the motion is put to the House. If agreed, a member (or members) are ordered by the House to go to the bar of the House of Lords.

Therek, in the name of the House of Commons and of all the Commons of the UK, the member impeaches the accused person. A Commons committee is then appointed to draw up articles of impeachment which are debated.

When agreed, the articles are ingrossed and delivered to the House of Lords. The Lords obtain written answers from the accused person which are communicated to the Commons. The Commons may then communicate a reply to the Lords.

If the accused is a peer - that is, a lord - he is attached by order to that House. If a commoner - that is, a member of Commons - he is arrested and delivered to Black Rod - that is, the Usher of the House of Lords. The Lords may release the accused on bail.

The Commons appoints “managers” for the trial to prepare attendance of witnesses on the accused person's behalf, who is entitled to a defence counsel. The trial is before the Lords.

When the case, including examination and re-examination, is concluded, the Lord High Steward - the sole legal power to preside over impeachment trial, which last happened in 1805 and has since been abolished - puts to each peer the question on the first of the charges: then to each peer the question on the second charge and so on.

If found guilty, judgement is not pronounced unless and until demanded by the Commons (which may, at this stage, pardon the accused person).

An impeachment may continue from session to session, or over a dissolution. The Act of Settlement of the 17th Century abolished the right of pardon of the sovereign. The last impeachment, as mentioned above, was in 1805. (See Reports of the Joint Committee on Parliamentary Privilege in Session 1998-99 available here.)

The procedure has not been widely adopted in the Commonwealth. However, it survives, in a somewhat different form, in the constitution of the United States.

In the US, the lower House of Representatives institutes impeachment proceedings by authorising a formal inquiry by the House Judiciary Committee, which may then recommend articles of impeachment (an impeachment resolution) for a vote by the full House (articles of impeachment may also be introduced in the House without a formal inquiry).

If the articles are approved, a trial is held in the upper Senate, and conviction is obtained by a vote of at least two-thirds of the senators present.

Even though there have been recent arguments making a strong case for parliamentary impeachment to be revived in the UK, a case has also been made that it be abolished by statute. This is because the law and procedure are archaic and have long been in disuse.

The 1967 House of Commons select committee on parliamentary privilege had indeed recommended that the right to impeach should be formally abandoned and legislation should be introduced for that purpose. (See Parliamentary Privilege Joint Committee First Report, June 1997 available here.)

It is further argued that the circumstances in which impeachment has taken place are now so remote from the present that the procedure may be considered obsolete.

I think we can agree with the above.

While Parliament should retain its right to regulate its own affairs including the power to discipline its own members for misconduct and, further, power to punish anyone, whether a member or not, for behaviour interfering substantially with the proper conduct of parliamentary business, which are as contempt of Parliament, any procedure established by either House for parliamentary impeachment would need to include five key stages, namely:

(i) investigation;

(ii) deciding whether to prosecute;

(iii) presentation of the allegations (prosecution);

(iv) reaching a decision (trial); and

(v) punishment (sentence).

In varying degrees neither House is properly equipped to carry out any of these functions.

There are no facilities to undertake a serious police-type investigation. The only established parliamentary machinery for considering a case is a select committee, either one specially constituted or the existing committee for privileges in the Lords and the committee on standards and privileges in the Commons.

It must, however, be conceded that select committee procedures are not designed to discharge a judicial (adjudicatory) role. Existing procedures do not have the in-built safeguards provided by a court of law.

Nor are the punishments available comparable to those available to a court, particularly in respect of imprisonment.

Parliament must defer to the courts for impeachable offences of high treason, or of certain crimes and misdemeanours.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.