Impeaching a President: Understanding the process

Sub Article (2) of Article 38 of the Second Republican Constitution (1978) is the provision that deals with impeachment of Presidents. It is necessarily the Parliament that can remove a President from office by impeachment. This can happen only on the passing of a Resolution by the Parliament to that effect.

For purposes of this brief note, such resolution can be called the ‘final resolution’. Such a final resolution will have to be passed by not less than two-thirds of the whole number of Members of Parliament voting in its favour. This means that at least 150 members must vote for such a resolution. However, the Parliament is empowered to do this only upon a report by the Supreme Court. So, how does the process start?

For the Supreme Court to make such report, the process will have to begin in the Parliament itself. Any Member of Parliament may give to the speaker a written Notice of a Resolution. Such Notice of Resolution must allege either one or both of two grounds specified. The first one is that the President is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity. The second one is that the President has been guilty of any or more of the five matters specified, namely (i) intentional violation of the Constitution, (ii) treason, (iii) bribery, (iv) misconduct or corruption involving the abuse of the powers of office of the President, or (v) any offence under any law involving moral turpitude. Such Notice must set out full particulars of the allegation/s. It must also seek an inquiry and report thereon by the Supreme Court.

No such Notice shall be entertained by the Speaker, or placed on the Order Paper unless it is signed by not less than one half of the whole number of Members of Parliament (minimum of 113). However, in this situation the Speaker must necessarily be satisfied that the said allegation/s merit inquiry and report by the Supreme Court. In the event not less than two-thirds of the whole number of members (minimum 150) have signed such Notice, then the Speaker is, by necessary implication, required to entertain it and place it on the Order Paper, irrespective of the Speaker being so satisfied.

The next step?

Such resolution, which for the purposes of this discussion can be called the ‘initial resolution’, needs the passage by not less than two-thirds of the whole number of the members (a minimum of 150) voting in its favour. If and where it is so passed, the Speaker shall refer the allegation/s contained in such initial resolution to the Supreme Court for inquiry and report.

The Supreme Court is then required to hold an inquiry into the matter. The President sought to be impeached has the right to appear and a right of audience. The Supreme Court is required to report to Parliament thereon. Such Report shall contain the determinations of the Supreme Court, and the reasons therefor.

Where the Supreme Court reports to Parliament that the President concerned is permanently incapable of discharging the functions of office of the President by reason of mental or physical infirmity, then the Parliament is entitled to remove the President by passing a resolution to remove the President (the final resolution mentioned above). Similarly, where the Supreme Court reports that the President concerned is guilty of any or more of the matters mentioned above, then too the Parliament is entitled to remove the President by passing such a final resolution. Such final resolution needs to be passed by not less than two-thirds of the whole number of members voting in favour. Upon such a final resolution being so passed, the impeachment process comes to completion.

The impeachment of a judge of the Supreme Court or Court of Appeal is dealt with in Sub Articles (2) and (3) of Article 107 of the Constitution. Here too the process starts in the Parliament, but is somewhat different. The judiciary is not involved at all in the process. The removal is by an order of the President after an address of Parliament. The grounds upon which removal can happen are proved misbehaviour or incapacity. Such address shall be supported by a majority of the total number of the members (minimum 113). Here too, notice of a resolution must be given for the presentation of an address. It must set out full particulars of the alleged misbehaviour or incapacity.

Such Notice must be signed by at least one third of the total number of members (minimum of 75).

Parliament shall by law or by standing orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misconduct or incapacity, and the right of such judge to appear and to be heard in person or by representative.

Two former Presidents were sought to be impeached. In the first case, the Speaker did not entertain the Notice of Resolution. In the second, the process was scuttled using Constitutional provisions available as at then. The only impeachment of a member of the upper judiciary was successfully completed, but consequent to a regime change later reversed by Parliament.

Aravinda Rohan Ivor

Athurupane Via email