Impeachment is to ensure checks and balance not to protect criminals

Impeachment is not protecting any misbehaviour but to ensure checks and balances and due process of law. Historically the concept of impeachment comes from a British Constitution in the early 14th Century (Good Parliament of 1376) to initiate criminal proceedings based on “clamour”. It was designed to address the serious misconduct of King Edward III and his ministers or even officials. Impeachment in the British Empire not only resulted in removal or convictions but even executions.  The grounds for impeachment have remained similar for centuries such as treason, bribery, other high crimes, and misdemeanours.

In Bhutan, Article 32(1) and (2) of our constitution provides that “the holders of the constitutional offices shall be removed only by way of impeachment by Parliament” for “incapacity, incompetency or serious misconduct.” Further Article 21 (15) states that to protect the “independence” of the judiciary, “Drangpon may be censured or suspended by a Command of the Druk Gyalpo on the recommendation of the National Judicial Commission for proven misbehaviour, which in the opinion of the Commission, does not deserve impeachment.” Same provisions are also provided under Section 13, 147 and 148 of the Judicial Service Act of Bhutan, 2007.  

While what constitutes “serious misconduct” remains unclear, Article 21(15) provides two offences, one for suspension and another for impeachment. Under this Article, the suspension applies to lessor crime and impeachment applies to more serious crime because it says “in the opinion of the Commission, does not deserve impeachment. 

As suggested by a Constitutional Scholar, one of the ways to understand the intent of the provision is through history. The Chairman of the Constitution Drafting Committee records that Drugyel Zhipa said that “if the holders of the constitutional offices either resort to criminal activities or in conflicts with any laws, not in accordance with the powers and privileges they are mandated, they would be impeached from the office. Parliament has the sole power to impeach the holders of constitutional office and no other including the King and the Prime Minister.” His Majesty The Fourth King also said that the impeachment clause empowers officials to carry out their duties well “without fear or favour” under good behaviour.  His Majesty said, “When we say that only Parliament has the power to impeach” means “giving power to our people” and “the power to judge or checks the functions of these constitutional office holders” as “it would always benefit our country.”   

Thus, impeachment is neither an immunity from a criminal trial nor to protect constitutional post holders from committing any crime or misbehaviour. Impeachment is inserted in the constitution to protect the independence of these institutions, and instill confidence among the constitutional post holders.  For example, under Section 86 of the Police Act of Bhutan, 2009 police personnel can be investigated only by an Internal Inquiry Committee set up by the Chief of Police, irrespective of offences they are accused of, to ensure checks and balances from baseless accusations and not to protect them. Such provision ensures the confidence and authority of the police personnel.   Further, Article 7(1) and (15) guarantees the due process of law and equal protection of the law. Impeachment is a part of both due process and equal protection with regards to constitutional post holders. In short, as His Majesty The Fourth King said, if they have only responsibilities but no power, “they would not serve the country well.” 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.

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