Can we impeach in NZ?
As Robert Mueller’s investigation into possible Russian interference with the 2016 US presidential election draws closer to an end, one word not far from anybody’s mind is ‘‘impeachment’’. That process, to which all federal officials are potentially subject, involves the US House of Representatives levelling charges which are then tried in front of the Senate. If convicted the official faces removal from office.
Since impeachment is an inherently political act, the risk of it occurring (and of any conviction) really depends on the makeup of the US Congress.
While the Republicans controlled the House, it seemed very unlikely that it would move to impeach Trump. With the Democrats taking power in last year’s midterm elections, however, that could change.
The most famous impeachment of the modern era was that of former president Bill Clinton.
Contrary to popular misconception, he was not charged with having an affair, but of obstruction of justice and abuse of power. Clinton was, ultimately, acquitted by the Senate.
Richard Nixon was looking at the certainty of impeachment over the Watergate affair in 1974. It also appeared members of his party would abandon him in the Senate, leaving him open to conviction. He preferred to resign.
The all-consuming nature of the US political circus may lead you to believe that impeachment is an American innovation, but the process has its origins in the English system of government. Indeed, it remains law today that any person may be tried and convicted by the British Parliament. The House of Commons undertakes the prosecution and the House of Lords renders the judgment.
Funnily enough, the last serious attempt at impeachment was of then foreign minister Lord Palmerston – who was accused of making a secret agreement with the Russian Empire in 1848.
‘‘Pam’’ beat the accusations, the impeachment motion failed and the matter was never tried.
This was all back in the days when the Crown retained some political clout, of course.
The subsequent evolution of responsible government – which requires ministers be answerable to Parliament – means the procedure has been rendered obsolete, falling into abeyance. For now, that is.
The power has been successfully revived in the past. Who knows what the future will bring?
There were murmurings by minor parties in 2004, for instance, about impeaching Tony Blair over the Iraq war fiasco.
As far as I can tell, the matter went nowhere, with Labour, the Tories and the Liberal Democrats ordering their caucus not to sign the motion.
One of the interesting things about constitutions, especially unwritten ones, is that antique processes and institutions can regain relevance. The Roman tyrant Sulla, for example, revived the dormant office of ‘‘dictator’’ to confer historical legitimacy on his overthrow of the government.
A less explosive example is the revival of Parliamentary Under-secretaries in recent years, with the office seeming to come and go out of fashion over time.
Since we inherited our system of government from England, you might wonder if impeachment is a latent feature of the New Zealand system too.
It’s an interesting subject. The advent of MMP has meant that governments aren’t assured total control of the House. On several occasions in recent years, the government position has not prevailed.
A private member’s bill increasing paid parental leave cleared the House over the Government’s objections in 2016 (though it was then vetoed).
This year New Zealand First and National have voted in concert to move legislation through the House against the wishes of the governmentleading Labour Party.
So, if there was sufficient support, could Parliament move the impeachment of a minister (or other state official) with the aim of removing him or her from office?
The short answer appears to be no.
Quite simply, there would be nobody to render a verdict.
We don’t have a House of Lords (or a Senate) before whom the trial would be conducted.
Impeachment proceedings would, therefore, lead to a dead end.
It would be a pointless action.
Of course, we used to have an upper house, which was called the Legislative Council.
Abolished by the First National government, this body played a role somewhat analogous to the House of Lords in the UK.
As New Zealand lacks a nobility, all seats were appointed and there were no hereditary places in the chamber.
But even if we had not abolished it, it’s doubtful that the Legislative Council would have had the authority to play the role of jury.
In New Zealand, both the upper and lower Houses of Parliament inherited the rights and privileges of the British House of Commons.
Since the Commons didn’t have the power to convict, this right was never inherited by the Legislative Council.
So impeachment has never really been a feature of New Zealand’s political or constitutional arrangements, not even on a theoretical level.
This is unlike the United States, of course, where the president may have to grapple with its entirely non-hypothetical possibility.
The most famous impeachment of the modern era was that of former president Bill Clinton.