Abstract
Do impeachments act the way they act because of their actors’ intentions or because of the institutes inherent design? To answer this question, chapter four makes a comprehensive analysis of different systems of impeachment and their national interpretations. This analysis entails: (i.) coverage of legal debates about the nature of impeachments, that is, about what kind of sphere(s) of accountability it is supposed to address and accommodate; (ii.) detailed description and discussion of substantial (e.g., actus reus, mens rea, joint perpetration, vicarious liability, limitations) and formal aspects (e.g., procedural variations and surrogates, phases, standards of proof) of impeachment legislation; (iii.) judicial review; (iv.) peculiarities of the rule of law in the context of impeachments. The analysis of these elements reveals an ambiguous perception of the legal communities in Latin America in the past decades that, however, has been changing slowly with shocks given by the reality of impeachments and political crises. Trends indicate that court intervention in impeachment proceedings is becoming more accepted, and that impeachment legislation is moving towards the use of political-constitutional categories rather than criminal, civil or administrative ones. Although there is a long way for these communities to fully accept a paradigm of rule of law that can work in the realm of impeachments, the ambiguities inherent to the procedure are being accommodated by novel legislation and novel practices.
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Notes
- 1.
This should not be confused with the question debated in Sect. 2.3. In that instance, the discussion aimed to describe how jurists and laymen associate and use the words ‘legal’ or ‘political’ to describe impeachments. There, the conclusion was that calling impeachments political was value-laden description of the procedure, claiming a certain impeachment had gone beyond its constitutionally or morally allotted authority. Here, on the other hand, the discussion purports to answer what set of rules within a constitutional system ought to be applied of impeachments. This sort of judgment strives to be descriptive, albeit it must be admitted that, whenever talking about ‘aims of impeachment’, some normative judgment unavoidably infiltrates the analysis.
- 2.
Supplement to the US Senate (1868), p. 464 (40th Congress, 2nd Session, Trial of Andrew Johnson).
- 3.
Labovitz (1978), p. 58 ff. Though Johnson’s impeachment charges were ‘translated’ into legally grounded articles of impeachment by the House Judiciary Committee, they were first discussed under broader labels. Representative James Ashley first introduced them as ‘the corrupt use of appointment power’, ‘corrupt use of pardoning power’, ‘corrupt use of veto power’, etc. See also Congressional Research Service (1998), pp. 4–7.
- 4.
There are a few contrarian but minoritarian opinions, however, as will be pointed out in the next sections.
- 5.
As expressed by Hamilton et al. (2001), p. 338: “The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to society itself” (emphasis in original).
- 6.
Samuel Chase’s defence attorney stated that the Senate does not sit “to scan and punish paltry errors and indiscretions too insignificant to have a name in the penal code, too paltry for the notice of a court of Quarter sessions”. Labovitz (1978), pp. 38–41.
- 7.
See Hobbes and Warrender (1983), Chapter V; and Hobbes (2014), Chapter XIV ff. Modern state theory has moved past Hobbes’ fiction of social contracts for explaining state formation, but the conclusions argued by Beccaria remain sound. Cooperation to overcome (mutual) predation, as proposed by Tilly (1985), p. 172 ff., for example, is still the most common explanation of state formation, but the essentialism and the dimensions of ‘consent’ and ‘general will’ presumed by contractualism are now seen much more critically.
- 8.
Beccaria and Bellamy (1995), pp. 9–20. There are other justifications for punishment which will not be discussed here since they are more based on conceptions of justice, rationalizations of moral principles (e.g., punishment as retribution for harm), or criminal policymaking (e.g., punishment as deterrent) rather than on institutional functions of the criminal system. For the purposes of this section, they do not provide as much explanatory power. For a detailed account on these other justifications, see Honderich (2006), or Roxin (2006), pp. 69–96.
- 9.
Beccaria and Bellamy (1995), p. 20.
- 10.
Beccaria and Bellamy (1995), p. 25.
- 11.
The theory of legal goods (Rechtsgüter) or legally protected interests has its obvious flaws, as one may observe from the not totally clear reason for why life should be a public good and honour not, or vice-versa, as both have private and public dimensions. Jareborg (2004), pp. 524–525, fn. 6, claims it caused more confusion than clarity. Nonetheless, it is still a theory widely employed in civil law systems (i.e., all of Latin America). For critical appraisals, see Paeffgen (2013), or Roxin (2006), pp. 14–18. In the common law systems, the harm principle is more current. Its focus is on the harmfulness of the behaviour rather than the legal goods. See Dubber (2006).
- 12.
Jareborg (2004), p. 524 ff. Some authors may treat the ultima ratio principle under different names or argue for its logical equivalence for other principles, such as the “prospect proportionality principle” or the “subsidiarity principle”. See Ibid., pp. 532–533, including footnotes. Roxin (2006), pp. 31–32.
- 13.
- 14.
Rusche et al. (2003), p. 14 ff., trace a parallel between criminal sanctions, predominant modes of production, and certain features of social organization. In their account, fines were applied nearly indistinctly as primary punishments, giving place to corporal punishments only when the subjects were unable to pay fines. The brutality of punishments correlated with the need for deterrence, which, on its turn, was largely determined by a particular population’s degree of pauperization.
- 15.
- 16.
Despite often being described as a barbaric offshoot from distant times, imprisonment for debt is present in many countries. Debtor’s prisons and the legally prescribed periods of incarceration (‘detention’), however, are substantially less punishing than their criminal counterparts—currently, of course. It bears reminding that debt in Roman law could be ‘compensated’ as brutally as criminal punishments, including subjecting debtors to execution, slavery, or abduction of their flesh. Patterson (2008), Ford (1926).
- 17.
- 18.
Black and Bobbitt (2018), pp. 15–19.
- 19.
Berger (1974), pp. 78–85.
- 20.
This is done without discussing a material concept of crime or of criminal punishment. At other points, he cites English scholarship using the criteria of “life and limb” instead. Berger (1974), p. 81.
- 21.
Berger (1974), pp. 84–85. A few authors disagree with this last part. They agree the procedure is political but insist that any form of punishment introduces a criminal aspect. To them, therefore, it would be a mixed-nature procedure, in which the procedures are political, but the consequences are criminal. E.g.: Juan García Cotarelo 1995, p. 570, El regimen politico de los Estados Unidos, apud Roldán (2017), p. 13; or Brossard de Souza Pinto (1965), p. 78 ff., quotes on Pedro Lessa.
- 22.
Roxin (2006), p. 60.
- 23.
Jellinek (1929), p. 2.
- 24.
Jellinek (1929), pp. 3–4. A third possible difference is that disciplinary (administrative) infractions tend to be duty-oriented, whereas impeachments are action-oriented. A lower officer generally suffers sanctions when he or she fails to comply with certain expectations, whereas a President is punished when he performs an act typified as impeachable. See Roxin (2006), p. 61. As will be comment in the Sect. 4.2, however, there a few countries in which both orientations coexist.
- 25.
- 26.
Douglas Adams (1987), Dirk Gently’s Holistic Detective Agency, Chapter 30.
- 27.
Two other discussions could be considered part of ontology, namely the discussion of how to approach these ontological questions (ontological commitment) and the discussion of what asking such questions really mean (meta-ontology). Both were already discreetly addressed in the previous introductory sections.
- 28.
A cautionary note to avoid the misrepresentation/misunderstanding of the literature: despite this section’s division between individual features, the authors mentioned mostly argue for (or against) a set of features, which will hold a ‘net positive’ in favour of impeachment’s political nature.
- 29.
Hamilton et al. (2001), p. 338.
- 30.
US Senate (1868), p. 464 (Senator Charles Sumner).
- 31.
- 32.
Gerhardt (2019), pp. 120–121.
- 33.
Berger (1974), p. 86, quoting Congressman Gerald R. Ford.
- 34.
Luís María Diez Pícazo (1996), La criminalidad de los gobernantes, p. 69 apud Roldán (2017), p. 10 (Peru).
- 35.
E.g., Collor’s behaviour was often contrasted with the dignity expected of a President. Fujimori’s removal was presented as the rehabilitation of Peru’s democracy and international respectability.
- 36.
Lozano Villegas (2009), pp. 243–244 (Colombia).
- 37.
Author’s translation of Supreme Court decision AP 307-3/DF, pp. 2785–2786 (voto sobre Art. 299, CP – Paulo César Farias).
- 38.
Hamilton et al. (2001), p. 338, noted that “The prosecution of [impeachable offenses] (…) will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly, or inimical, to the accused.”
- 39.
Berger (1974), p. 95 ff.
- 40.
Some authors are content in positing that, by the mere fact that the trial is led by a political organ and not a judicial organ, impeachments should have political nature. They do not go the extra step of arguing how exactly the adjudicator may imprint its political character onto the procedure. E.g., Acuña (2012), p. 21 (Paraguay); Sabsay (2004), p. 506 (Argentina), US Senate (1868), p. 464 (Charles Sumner).
- 41.
Impartiality, neutrality, and independence are important aspects of the procedure, but they manifest differently. See Sect. 4.7.2 for a detailed discussion.
- 42.
Hamilton et al. (2001), pp. 339, 344.
- 43.
Emphasis in the original. Hamilton et al. (2001), p. 338.
- 44.
- 45.
The Higher House, by contrast, was seen as a council of sages, guardians of legality and tradition. In more modern accounts, the Higher House enhances other forms of representation (e.g., regional, institutional), introducing a counter-majoritarian aspect to Congress.
- 46.
Hamilton et al. (2001), p. 339.
- 47.
- 48.
- 49.
- 50.
The rule still seems to be a separation between liberty deprivation in criminal law and the penalty of removal and disqualification from office in administrative law. Also in Latin America, generally, if a criminal conviction leads to removal or disqualification, it is usually indirectly, through different (non-criminal) procedures.
- 51.
Zaffaroni and Risso (2008), pp. 725–729 (Argentina), for example, argue that disqualification is a criminal consequence meant to inflict pains upon one’s honour, and that Congress does not have competence to impose criminal sanctions. The authors ultimately argue that such portion of impeachment dispositions constitute an unconstitutional constitutional rule.
- 52.
Joseph Story, for example, does not consider disqualification a personal punishment, others do. Berger (1974), p. 79.
- 53.
Berger (1974), pp. 75–81, cites authors who consider any sanction against “life or property” or “life and limb” a criminal punishment.
- 54.
Berger (1974), p. 81.
- 55.
- 56.
- 57.
Hamilton et al. (2001), p. 338.
- 58.
- 59.
- 60.
- 61.
One could perhaps analogously consider how this happens even in other ‘strictly legal’ contexts such as inheritance disputes. While the fact of someone’s death is the starting point of such disputes, the actual court proceedings and legal interests that originate from it may be enormous, spanning in all fields of law.
- 62.
Labovitz (1978), pp. 91–98. This case dealt with the impeachment of a Supreme Court Justice, but the logic is sound also when applied to the President and has since made reappearances in presidential impeachments. In the Framer’s logic, separation of powers was a central point in the choice for the match between impeachments and presidentialism. This reasoning was later also restated by the US Supreme Court in the attempted judicial review of Nixon’s case. See Gerhardt (2019), pp. 120–121. Guimarães Natal (Brazil) also claimed non-criminal offenses would be incompatible with the presidential system of government. Brossard de Souza Pinto (1965), p. 80. See also Berger (1974), pp. 78–85.
- 63.
Cesar Delgado Gembes 2012, p. 423, apud Roldán (2017), pp. 10–11. Roldán rather call it “diffuse political responsibility” to differentiate from other forms of political control he considers more genuine and are enforceable against the presidential cabinet (“institutional political responsibility” in his words). Roldán (2017), p. 11.
- 64.
- 65.
A sitting President may be impeached for curtailment of elections, treason, hampering of the functions of other constitutional organs and the illegal dissolution of Congress (Art. 117 of the 1993 Peruvian Constitution).
- 66.
Jorge Carpizo (1986), El presidencialismo mexicano, p. 212, apud Lozano Villegas (2009), p. 243 (Mexico). The original argument combines the element of political confrontation with that of radical discretion by Parliament. Although political branches confront each other with some frequency, this is one of the few instances in which one of the parties holds practically unrestrained power to decide about the fate of the other, which would, in Carpizo’s understanding, give the procedure a particular political characteristic.
- 67.
Alexander Hamilton in The Federalist n. 65, Labovitz (1978), pp. 28–29.
- 68.
Diário do Senado Federal n. 141/2016, p. 8 ff.
- 69.
Supplement to the US Senate (1868), p. 463.
- 70.
In Husserl’s own words: “Only phenomena are genuinely given to the knowing subject, and the knowing subject never gets beyond the interconnections of its own experiences”. Husserl and Hardy (1999), p. 17.
- 71.
- 72.
Perkins (2003), in particular p. 44.
- 73.
E.g., Alexis de Tocqueville takes for granted that impeachments are political, even in their English and European forms which allowed for criminal punishments. See Tocqueville et al. (2002), Chapter 7.
- 74.
Author’s translation of Nieves Ruiz (2017), p. 59 (Peru).
- 75.
Other countries may use the terminology unofficially, likely due to the influence of comparative legal works and common translations of literature on English and North American impeachments.
- 76.
Articles in the respective, current constitutions: Argentina, art. 53, 59; Colombia, art. 174, 175; Ecuador, art. 129, 145; Honduras, art. 234; Mexico, art. 110, 111; Paraguay, art. 225; Peru, art. 99, 117 (and parliamentary by-laws, art. 89); Uruguay, art. 93, 102.
- 77.
This is common strategy used by Courts, e.g., Peru, 2010, TC 00013-2009-AI, or Brazil, 1937, HC 26.544. There are also those who claim a sort of mixed political-criminal nature, as if to be found, for example, in Juan García Cotarelo 1995, p. 570, El regimen politico de los Estados Unidos, apud Roldán (2017), p. 13.
- 78.
See the respective case study for details.
- 79.
Brazil: art. 86 of the 1988 Constitution; Colombia: art. 175, 3 and 235, 2 of the 1991 Constitution.
- 80.
Arts. 161, 7 and 184, 4; and art. 170, respectively, of the 2009 Constitution. There are no mentions to presidential immunities in the Constitution.
- 81.
Former Presidents lack most of the institutional power, legitimacy, and relevance that makes the presidency impact the nature of impeachments as politicized procedures, making the mixed-nature thesis defensible.
- 82.
Countries with automatic suspension upon immunity removal: El Salvador (art. 236, 237; lasts duration of trial); Costa Rica (art. 121, 10; duration contingent on provisional arrest for common crimes only), Mexico (art. 111; lasts duration of trial); Venezuela 1961 (art. 150, 8; lasts duration of the trial). The Constitutions of Ecuador (2008), Peru and Guatemala do not stablish suspension.
- 83.
In Spanish and Portuguese this is called respectively formación de causa/condiciones de procesabilidad; and formação de causa/condição de procebilidade.
- 84.
In the parliamentary records of pretrials against Pérez Molina (Guatemala, 2015), or Jimmy Morales (Guatemala, 2016–2020), for example, there is very little to work with in terms of legal argumentation. Dedicated comparative studies on this impeachment surrogate are needed for a better assessment, however.
- 85.
All reasons given in the previous sections may also apply here. Particularly impactful is the distance between ethos and habitus of the legal community vis-à-vis the Parliament.
- 86.
The issuing of an arrest warrant would nonetheless cause removal from office under such conditions.
- 87.
Pretrials against Pérez Molina: Antejuicio n. 197-2015 and n. 401-2015; Pretrials against Jimmy Morales: Antejuicio n. 246-2017 (voted twice), and n. 815-2018. Other charges against both Presidents have offered since these pretrials but were blocked by either the Constitutional or the Supreme Court.
- 88.
Prensa Libre, August 13th, 2015: “Congreso salva a Pérez Molina y busca cambios en el MP”; Prensa Libre, September 1st, 2015: “Pérez Molina queda sin inmunidad”.
- 89.
Diario de Sesiones del Congreso de la República de Guatemala n. 61, September 11th, 2017, pp. 31–47. For a breakdown of partisanship, see Prensa Libre, September 22nd, 2017: “Jimmy Morales: Así votaron los diputados para frenar de nuevo el antejuicio contra el presidente”.
- 90.
El Faro, July 20th, 2021: “Un poder a la sombra se ensaña contra la resistencia en Guatemala”; BBC News, January 10th, 2019: “Expulsión de la CICIG de Guatemala: Supremo tramita desafuero de jueces de la Corte de Constitucionalidad en medio del pulso de poderes”.
- 91.
Fujimori was impeached for violating a statute that required parliamentary approval for presidential travel, while Vizcarra was impeached for skipping queue for taking the COVID vaccine. Admittedly, the latter was framed as abuse of office for personal gain. See Informe Final Denuncias Constitucionales 423 y 427.
- 92.
Wood (2006), p. 48 ff.
- 93.
- 94.
For further discussions on other aspects relevant to such balance, see Hamilton’s comparison of Presidents and Monarchs in The Federalist n. 69.
- 95.
Mason’s proposal of impeachable “maladministration” was rejected on such grounds. Farrand (1911a), p. 550.
- 96.
- 97.
Farrand (1911a), p. 550. Madison’s notes become scarcer by the end of the Convention, this instance being a particularly notorious case.
- 98.
Hamilton et al. (2001), pp. xli ff. and 337 ff.
- 99.
Hamilton et al. (2001), p. 339.
- 100.
Hamilton et al. (2001), p. 338.
- 101.
As quoted (and endorsed) by Senator Charles Sumner in Andrew Johnson’s impeachment: Supplement to the US Senate (1868), p. 464.
- 102.
Mukherjee (2005), pp. 589–590.
- 103.
Tite (1974), p. 170 ff.
- 104.
As described by John Vinning of Delaware. Labovitz (1978), pp. 23–24.
- 105.
Roberts (1975), p. 1431. In the cited article, Clayton Roberts corrects many imprecisions regarding this terminology and associated assumptions, which somehow keep being repeated even in recent studies on the American impeachment. An eventual clash between what is said here and major works on impeachment may be due to their oversight of Roberts’ contributions.
- 106.
Roberts (1975), p. 1432 ff.
- 107.
Roberts (1975), pp. 1432–1433.
- 108.
- 109.
Roberts (1975), pp. 1436–1439.
- 110.
Roberts (1975), p. 221 ff.
- 111.
Gerhardt (2019), p. 107 ff.
- 112.
A. MacLaine of South Carolina, Elliot (1836c), p. 47.
- 113.
S. Stillman of Massachusetts, Elliot (1836b), pp. 168–169.
- 114.
Hamilton et al. (2001), p. 338.
- 115.
Gerhardt (2019), pp. 107–108, quoting Justice Joseph Story.
- 116.
These arguments are inspired in those presented by the defence counsel of Supreme Court Justice Samuel Chase. For details and a much more eloquent exposition of such arguments, see Labovitz (1978), pp. 38–47. For other related considerations, see the section on rule of law in this Chapter.
- 117.
van Tassel and Finkelman (1999), pp. 221–224.
- 118.
van Tassel and Finkelman (1999), pp. 261–266.
- 119.
van Tassel and Finkelman (1999), pp. 267–287.
- 120.
House Resolutions n. 755, of December 18th, 2019, and n. 24, of January 25th, 2021, respectively.
- 121.
E.g., Brossard de Souza Pinto (1965), p. 13 ff.; Eguiguren Praeli (2008), p. 111 ff.; Zaffaroni and Risso (2008), p. 717 ff. Many authors (e.g., Eguiguren Praeli 2008, p. 113) indicate the trial of residence as a possible precursor to impeachment in Latin America. For a discussion of that hypothesis, see Sect. 2.1.9.
- 122.
Hamilton et al. (2001), p. 338.
- 123.
Other countries offer criminal standards that could be used analogously, but these are arguably not binding. Regarding the constitutions of Ecuador, this conclusion, however, depends on how one interprets the word ‘delitos’. In a strong or textualist interpretation, it would refer exclusively to criminal offenses, in which case the arts. 336 to 364 of the criminal code would establish binding standards. In a broader interpretation, it could refer generically to the constitutional violation described here. See Pacheco Pinos (2019), p. 43 ff.
- 124.
Such was arguably the case in the oustings of Carlos Andrés Pérez, Abdalá Bucaram, Alberto Fujimori, Jamil Mahuad, Lucio Gutiérrez, and Pedro Castillo.
- 125.
Notice that Colombia also establishes indignity as an impeachable offense, but not as a particularity of presidential misbehaviour. Peru may be included in the list of countries with this “impeachable offense” if the surrogate of declaration of vacancy on grounds of moral incapacity is given equivalency with impeachment.
- 126.
Hamilton et al. (2001), p. 82. The existential aspect of honour was arguably also something close to the Framers at a personal level. Hamilton himself, after all, died from a lethal wound inflicted by his rival Aaron Burr in a duel for his honour in 1804.
- 127.
Hamilton et al. (2001), pp. 82–83.
- 128.
Hamilton et al. (2001), pp. 82–83.
- 129.
Linz (1990), p. 52 ff.
- 130.
More than just being acknowledged as a representative of the State, some Constitutions further state that the President truly embodies, in part or in whole, the Nation. This can be seen, for example, in the art. 188 of the 1991 Constitution of Colombia, which states that “the President symbolizes the national unity (…)” or art. 110 of the 1993 Peruvian Constitution, stating that “the President of the Republic is the head of State and personifies the Nation”. Author’s translations.
- 131.
Hamilton did not directly argue that the person of the President could spark such unrest, but in his understanding the presidency would logically only be filled by someone who is “in an eminent degree endowed with the requisite qualifications” and such possessed such talents that “establish him in the esteem and confidence of the whole union”. Hamilton et al. (2001), p. 354.
- 132.
See respective case studies for details.
- 133.
Diário do Congresso Nacional n. 1/1992 (Diversos n. 12), pp. 7–27.
- 134.
Farrand (1911a), pp. 61–69, 116, 337.
- 135.
Farrand (1911a), p. 550.
- 136.
Commentaries to the relevant constitutions (i.e., Argentina, Colombia, Honduras, and Paraguay) typically admit this condition and only indicate standards applicable to other higher officers such as judges and ministers. See for example Gelli (2004), p. 457 ff. on Argentina, Londoño Ulloa (2020), pp. 43–39, on Colombia, or Balbuena Pérez (2013), pp. 359 ff. and 371 on Paraguay.
- 137.
Libelo acusatorio presented to the National Congress in response to Resolution n. 1431 of 2012, of the Chamber of Deputies, pp. 1–7.
- 138.
The evidence and demonstration were simply declared as of common knowledge by the accusation.
- 139.
- 140.
See Labovitz (1978), pp. 104–107; and the Sebastián Piñera case study. As argued during Nixon’s impeachment: “’No President who attempts to make full use of the lawful powers of his office is likely to complete his term without having committed, even in good faith, a constitutional violation’ (…). His duties and responsibilities ‘frequently expose him to conflicting constitutional demands,’ when he must choose whether to act, knowing that his action may prove to violate the Constitution, or to refrain from acting, knowing that inaction while technically not a violation of his oath of office may be the worst policy of all”. Labovitz (1978), pp. 106–107.
- 141.
Sajó and Uitz (2019), p. 41 ff.
- 142.
See Sect. 3.2.1.5 for details.
- 143.
The two impeachments for human rights violations were directed against ex-Presidents, namely against Gonzalo Sanchéz de Lozada (2004) and Janine Áñez (2021). Alberto Fujimori had multiple impeachment resolutions against him for such violations, but he was impeached and convicted for ‘abandonment of office’ before these were brought to trial (2001), making them superfluous. He was criminally convicted in 2010.
- 144.
Roxin (2006), pp. 339–340. The Constitutions written in Spanish do not refer to proper crimes in general, but rather to a specific category of delitos oficiales.
- 145.
Roxin (2006), p. 340. The literature also differentiates between genuine and non-genuine proper crimes (echte/unechte Sonderdelikte). Genuine are those that may only be committed by the power given by the office; non-genuine are crimes that may be committed by anyone, but because they are committed in office, they are qualified as different crimes altogether. A common example of the latter for Latin America would be the difference between embezzlement (abuzo de confianza, apropriação indébta) and peculate (peculado, peculato), which describe the exact same criminal activity, but in the latter is committed by an officer over public property.
- 146.
(*) Venezuela is accounted for twice. Before being amended, the Mexican Constitution considered only “serious common crimes” and the Honduran Constitution had an irresponsible presidency. Peru only deals with common crimes of former Presidents. Accountability for crimes may also be sought through the pretrial modality in the case of Peru, Bolivia (1967), Guatemala, and El Salvador. The inclusion of the United States is debatable for reasons discussed in Sect. 2.1.11. Arguably, the Clinton trial decided that crimes committed in the private life of the President are not impeachable offenses, but that may be subject to change.
- 147.
Ecuador’s impeachable offenses, for example, are also the crimes which have no prescriptive period according to its criminal codex (art. 75).
- 148.
Orozco-Henriquez et al. (2010), p. 37 ff., especially p. 47.
- 149.
See Los Angeles Times, May 17th, 1994: “Dominicans Vote; Signs of Fraud Emerge”; The Washington Post, January 3rd, 1996: “Colombian president took drug funds, aide says”; BBC News, March 28th, 2017: “Ação que pode cassar chapa Dilma-Temer entra na reta final: e agora?”; Tribunal Superior Eleitoral, June 30th, 2020: “TSE retoma julgamento de ações que apontam abuso eleitoral pela chapa Bolsonaro-Mourão”; BBC News, December 6th, 2019: “Evo Morales: Overwhelming evidence of election fraud in Bolivia, monitors say”.
- 150.
The Samper case (see Sect. 3.2.1.3) addressed with the proxy use. Illegal campaign financing could not be used as a charge in the impeachment accusation, but the attempts at cover up could.
- 151.
Thomas Jefferson famously wrote: “Treason (…) when real, merits the highest punishment. But most codes extended their definition of treason to acts not really against their country. They do not distinguish between acts against the government and acts against oppressions of the government; the latter are virtues; yet they have furnished more victims to the executioner than the former; real treasons are rare; oppressions frequent. The unsuccessful strugglers against tyranny have been the chief martyrs of treason laws in all countries.” Letter to Carmichael and Short, April 24th, 1792.
- 152.
For discussions on treason, see: Federal Convention: Farrand (1911a), p. 345 ff.; Ratifying Conventions: Elliot (1836a), v1: pp. 382–383 (Luther Martin’s letter); v2: pp. 469, 487–488 (Pennsylvania debates); v3: pp. 168, 493–494 (Virginia debates); v4: p. 209 (North Carolina debates). See also James Wilson’s lectures on article 3 (“Of Crimes Immediately against the Community”), and James Madison’s considerations in The Federalist n. 43.
- 153.
- 154.
Fletcher (2004). Fletcher suggests, moreover, that the current ambivalence about treason is founded on the category’s anachronism, as it no longer fits certain of its feudal assumptions.
- 155.
Roberts (1966), p. 95 ff.
- 156.
Requerimiento fiscal contra el Presidente de la Republica José Manuel Zelaya Rosales, June 25th, 2009, p. 8. It bears reminding that Zelaya was not removed by an impeachment procedure, but by a secret and summary criminal procedure.
- 157.
The 1929 Referendum of the Republic of Weimar rejecting the Treaty of Versailles, which is often associated with the rise of Adolph Hitler, or the 1996 Belarusian Referendum, which enabled Alexander Lukashenko’s entrenchment in power, are arguably strong examples of this practice.
- 158.
- 159.
In the past, a mens rea was immaterial to criminal convictions. Often, however, pardons were conceded, for example, to those who “committed homicide by misadventure, in self-defence, or while of unsound mind”, eventually being incorporated by criminal law. Maitland and Pollock (2010), pp. 494–505 [470–480].
- 160.
- 161.
This is assuming Beccaria’s justification of criminal law or prevention theory of criminal law, which is the mainstream position in Latin America. See Beccaria and Bellamy (1995), p. 10 ff. or Roxin (2006), pp. 205–211, 64 ff. If punishment for the sake of punishment is considered acceptable or criminal law is understood to serve no functional goal, this argument falls apart. For a broader debate, see Roxin (2006), pp. 211–220.
- 162.
The subjective element as constitutive part of the offense itself will be discussed in the next section.
- 163.
Roxin (2006), p. 436 ff.
- 164.
This form is relevant for ‘impersonal crimes’, that is, crimes committed not by individuals, but by corporations. A parent company, for example, may be held criminally liable for the harms created by its subsidiaries. They are also relevant for situations in which the agent has a positive duty of protecting special juridical goods. E.g., bankers may be prohibited in taking large loans from their own institutions; parents may be obliged in providing education to their children; car drivers may be obliged to keep safe distance from bikers—in all these cases, agents could be held criminally accountable whatever their mental state may be. See Wasserstrom (1959).
- 165.
Only Peru (art. 100, Const. 1993) and Bolivia (art. 4, Law n. 44 of 2010) allow for grading of the sanction of disqualification. Ecuador, (art. 129, Const. 2008), Paraguay (art. 225, Const. 1992), Uruguay (art. 102, Const. 1967), and Venezuela (art. 233, Const. 1999), allow only the sanction of removal. The Constitutions of Argentina, Brazil*, Chile, Colombia, Dominican Republic, Mexico, and Panama indicate removal and disqualification for fixed durations as automatic consequence of conviction. As seen in the case studies, the procedure against Rousseff (Brazil) had the consequences of conviction voted separately, creating the possibility of removal without disqualification. The 1949 Const. of Costa Rica (art. 121, 9) is unclear about consequences for constitutional violations, but criminal violations can cause disqualification for a gradable period (art. 57, Penal Code).
- 166.
Roxin (2006), pp. 309–319.
- 167.
Ecuador has one mention to “homicide for political or conscientious reasons” (art. 129, 3, Const. 2008); Brazil has “use of violence or threat to coerce judges” (art. 6, VI, IL), “use of subordinate authorities to practice abuse of power or tolerate the abuse of power of subordinate authorities” (art. 7, V, IL), “intentionally delay the enactment of laws” (art. 9, I, IL), “use violence or threat against public officer to coerce him to commit illegal acts” (art. 9, VI, IL); Honduras has “[impose illegal orders] over others, to satisfy personal objectives outside of the scope of law” (art. 5, I, IL), “manifest (…) malice (…) that causes harm to the public interest” (art. 5, III, IL). Note: Brazil’s impeachment law (IL) is Law n. 1.079 of 1950; and Honduras’ is Decree n. 51 of 2013.
- 168.
- 169.
- 170.
Stewart (2016).
- 171.
Labovitz (1978), p. 106.
- 172.
Some lawyers suggest that the criminal standards should be applied where impeachment law is silent. This has some truth in it, as some impeachment laws do indeed elect the rules of criminal procedure to have subsidiary application where they leave gaps (e.g., Brazil, Colombia). This consideration cannot be extended to the rules on the subjective element, however, because such rules are of substantive and not procedural law.
- 173.
Stewart (2016).
- 174.
This contrasts much with the objective element, which receives more attention and critical consideration.
- 175.
Author’s translation. Curiously, however, Chile’s impeachable offenses give mixed signals when they mention the “presidential administration” and not the only the President as their potential perpetrator.
- 176.
See Eguiguren (2007), p. 197 ff.
- 177.
“Art. 221. The delegation [of presidential duties] exempts the delegating party of any accountability, which will correspond exclusively to the delegated party, whose acts or resolutions may at any moment be reformed or revoked by the former, resuming the ensuing accountability”. Author’s translation. Art. 198 does, however, acknowledge the President’s responsibility for his omissive acts, which may expand his liability for the acts of others.
- 178.
Author’s translation.
- 179.
Author’s translation.
- 180.
This is a particularity of the system of impeachments created by the 1993 Constitution of Peru. This creates a conflation between pretrial and impeachment procedures in the special case of former Presidents.
- 181.
See respective case studies. The contractual mismanagement of Rousseff was the leading impeachment charge in the accusation piece, which was later scrapped by the President of the Chamber of Deputies for violating the rule of impeachable period. Similarly, Samper had to be charged for his acts which attempted to cover up the campaign financing fraud, as the fraud itself was not amenable to impeachment (both for material and temporal reasons).
- 182.
Despite the impeachment dispositions of the 1917 Constitution, many Mexican jurists to reject the possibility of presidential impeachment due to the separation of powers. See Martínez Robledos (2008), pp. 170–172.
- 183.
The discussion led to a referendum which took place in August 2021. The Guardian, September 15th, 2020: “Mexico’s Amlo proposes referendum on prosecuting country’s ex-presidents”.
- 184.
James Madison (October 1788), commenting Jefferson’s draft of the Constitution of Virginia. Accessible here: https://founders.archives.gov/documents/Jefferson/01-06-02-0255-0005.
- 185.
Such trade-offs may be immanent to the design or may appear only when interacting with other institutions or environmental conditions. For a general discussion on possible factors that influence institutional ‘success’, change and stability, see North (1990), p. 73 ff.
- 186.
- 187.
See, for example, the account offered in Gerhardt (2019), pp. 33–65, on the impeachment of judges.
- 188.
Most US-American authors use the term judicial impeachment to refer to the impeachment procedure against Judges and Justices, and parliamentary impeachments to refer to procedures against members of Congress. In this book or part of the Latin-American literature, however, the terms judicial/parliamentary are not referring to the persons subjected to impeachment, but to the form of impeachment.
- 189.
Impedimento means ‘impediment’, ‘hinderance’ or ‘embarrassment’. These are original primary meanings for the cognate ‘impeachment’, which, although no longer current in modern English, remain so in both Spanish and Portuguese. See Oxford Dictionary for etymology and use. In current use, the verb ‘to impeach’ is more commonly employed with the meanings of ‘to challenge’, ‘to call into question’, or ‘to bring accusation against’.
- 190.
See the Bucaram case study. Despite being removed for mental incapacity, the parliamentary records reveal that no representative actually doubted of or argued against Bucaram’s mental fitness for office.
- 191.
In October 2021, the Castillo administration submitted a bill to Congress (Oficio n. 603-2021) proposing a reform to the vacancy provisions. If approved, vacancy on grounds of moral incapacity will be substituted for vacancy on grounds of mental incapacity. As such, the legal basis commented here may soon become outdated. La Ley, October 19th, 2021: “Ejecutivo propone eliminar la vacancia por incapacidad moral”.
- 192.
García Chávarri (2008), p. 17.
- 193.
García Chávarri (2008), p. 15. Guatemala may be an exception to this caveat, as its rules on pretrial openly refuse criminal accusations that may potentially be motivated by “spurious, political, or illegitimate” interests (art. 17, g, Decree n. 85/2002). Presumably, such provision originally meant to raise standards of what could be investigated and thus deny jurisdiction to unsubstantiated, persecutory claims. It might, however, currently be applied in a much broader, stronger sense, as suggested by its use against Jimmy Morales (2017–2018).
- 194.
García Chávarri (2008), p. 4.
- 195.
While historically the impeachment was created to introduce ministerial accountability in England, the pretrial is said to have been originally introduced in France as an attempt at limiting that same accountability and creating a sort of official privilege. Roldán (2013), p. 130 ff.
- 196.
The court proceeding that follows the pretrial does not integrate the pretrial proceeding itself. There is effectively no analogous sort of ‘Court of Impeachments’ in pretrial proceedings. The considerations of this item are meant in a holistic sense.
- 197.
Eberhardt (2017), p. 110 ff.
- 198.
Welp and Milanese (2018), p. 1380 ff.
- 199.
- 200.
Welp and Milanese (2018), p. 1383.
- 201.
The Venezuelan variant (art. 71 ff. of the 1999 Constitution), for example, is usable only once in the middle of the presidential mandate (3rd year of a 6-year mandate). Popular dissatisfaction must take place early and remain sustained for long or be well-timed to fit the window of use the presidential recall may have.
- 202.
Eberhardt (2017), p. 107.
- 203.
Stokes (2001).
- 204.
Eberhardt (2017), p. 127.
- 205.
Although it may be conducted by initiative of the Parliament, collecting signatures is also a legal way of propelling a presidential recall. Eberhardt (2017), pp. 116–117.
- 206.
Eberhardt (2017), p. 121. See, for example, the many suspicions raised against the recall carried out against Hugo Chávez in 2004, or the arbitrary difficulties imposed to the collection of signatures for a recall against Nicolás Maduro in 2022. CNN, January 21st, 2022: “Recolección de firmas para posible referendo revocatorio de Maduro será el 26 de enero, dice el CNE”. El País, March 2nd, 2004: “El Consejo Electoral anula un millón de firmas necesarias para convocar la consulta contra Chávez”.
- 207.
- 208.
This was observed in recent exchanges between President Guillermo Lasso and the National Assembly. In the context of widespread prison riots, Lasso demanded unwavering support for bills he deemed fundamental to the situation, while claiming that any parliamentary resistance would be met with mutual dissolution. El Comercio, October 15th, 2021: “Guillermo Lasso dice que si la Asamblea bloquea sus leyes irá a la muerte cruzada”. On May 17th, 2023, Lasso dissolved the Assembly, interrupting an impeachment against himself. Lasso characterized the impeachment as malicious and intent on generating commotion. See Decree n. 741 of 2023.
- 209.
Lento and Hazan (2022), pp. 4–6.
- 210.
There may be a minimum duration requirement between the introduction and the vote of a motion of no-confidence (e.g., Poland requires 7 days between one and the other). This fixed timeframe may reduce the incidence of the indicated drawback of ‘exploitable moments of unpopularity’, but not in ways comparable to what is expected from impeachments, which take much longer and result in wider public engagement. See Lento and Hazan (2022), p. 6.
- 211.
In the United States, this final report would be referred to as the ‘impeachment resolution’. It should not be confused with the type of resolution that introduces accusations against the President to the plenum of the House of Representatives, asking for referral of the accusations to the House Judiciary Committee. This other type of resolution has no legal name but is at times colloquially referred to as an impeachment probe resolution. For details, see Congressional Research Service (2019), p. 11.
- 212.
Ginsburg et al. (2021) argue in favour of new elections as the golden standard for impeachment design, as it would reduce the likelihood of its abuse. They argue impeachments perceived as unfair would likely bring an electoral backlash to those usurping this power and thus be of unclear strategic advantage. While this is possible, it is important to remember that impeachments take place in moments of special presidential vulnerability and unpopularity, even when used uncharitably. Trespasses are often rationalized under such circumstances, and may be potentialized by presidentialism’s personalistic tendencies, which allow political personalities to act as entities dissociated from their parties.
- 213.
As discussed in Sect. 2.3.3. In short, the key problems of the system of impeachments are that, among other things, (i.) the system is not bound to an unifying habitus and ethos as the legal community would be; (ii.) its decisions are sparse, meaning that the patterns they stablish, if at all existent, have limited informational value; (iii.) impeachment decisions are strongly context sensitive and carry at least two layers of considerations (legal and political), meaning that a conviction or acquittal is not necessarily a step towards crystallizing legal standards; (iv.) impeachment decisions, final or interlocutory, may often be made on tight margins of agreement, which also limit the predictability of the system over time; (v.) the preponderant reasoning behind the decisions is not always clear, as the adjudicators often list a multitude of reasons for their votes, which are weighed differently and which may or may not be mutually inclusive of the reasons presented by their peers.
- 214.
Disclaimer: Some of the conclusions here are based on decisions concerning impeachments of judges. Even though these same decisions often also consider their own implications on the presidential impeachment, it is remains unclear whether the standards stablished in them will be reproduced when the stakes of a presidential impeachment are at play. Moreover, not all countries in the region have judicial decisions on impeachments that reveal relevant pieces of information. At any rate, this is a tentative analysis of a very plural and diverse region and, thus, these conclusions should be taken with a grain of salt.
- 215.
For the purposes of this section, merit decisions (as opposed to interlocutory decisions) are those that import the adjudication of the object under analysis. Three merit decisions are generally made in impeachment procedures, which will answer the following questions: (1.) should presidential misbehaviour be scrutinized (referral resolution), (2.) should the President be brought to trial (impeachment resolution), and (3.) should the President be convicted (sentence). Whether all three steps should be considered merit may vary (e.g., in Chile the referral is automatic and requires no involvement of gatekeepers in adjudication).
- 216.
In Honduras, for example, decisions made during impeachment procedures are expressly declared to be political and, therefore, not subject to any form of review (Decree n. 51 of 2013, art. 8).
- 217.
In Colombia, for example, monocratic decisions that restrict the rights of defence may be reviewed by the plenum of the Impeachment Commission (Law n. 05 of 1992, art. 338). Brazil, by contrast, has no impeachment-dedicated rules on review, but the bylaws of the Chamber stablish general rules that allow Deputies to bring any monocratic decision to the plenum’s review (Resolution n. 17/1989, art. 100, § 1 and 226, I).
- 218.
In Bolivia, for example, decisions made during the proceedings may be reviewed by the Penal Chamber of the Supreme Court. The decisions of the Penal Chamber may be reviewed once by the other Chambers of the same Court (Law n. 044 of 2010, art. 15).
- 219.
The only mentions to judicial review (or lack thereof) in legal documents are to be found in Bolivia (Law n. 044 of 2010, art. 15), Colombia (Law n. 05 of 1992, art. 338), and Honduras (Decree n. 51 of 2013, art. 8).
- 220.
As observed, for example, in 1992 regarding the impeachment of judge Walter Nixon, in the United States (Nixon v. United States, 506 U.S. 224): “(…) there is no separate constitutional provision which could be defeated by allowing the Senate final authority to determine the meaning of the word “try” in Art. I, § 3, cl. 6. While courts possess power to review legislative action that transgresses identifiable textual limits, the word “try” does not provide such a limit on the authority committed to the Senate”. This standard is mentioned by multiple Latin American courts.
- 221.
For an overview of the constitutional jurisdiction in the region, see Pérez Tremps (2003).
- 222.
Such was, for example, the path chosen to challenge Lugo’s impeachment conviction (AI n. 1533).
- 223.
Argentina, for example, presents a peculiarity in its understanding of the Court of Impeachments. In 1993 the Supreme Court (decision 316:2940) established that the Court of Impeachments was equivalent to a court of justice, and that, therefore, its decisions could be reviewed with a recurso extraordinario (i.e., a sort of appeal against aspects of judicial decisions that violate due process). Such decision, however, was directed at the impeachment of a judge (Alberto Nicosia) and it is, therefore, unclear whether the same standard would find application in presidential impeachments.
- 224.
Peru, 2010, TC 00013-2009-AI: “(…) the political-punitive function is not [a prerogative of the Judicial branch]. Neither could it be, as the principle of separation of powers requires the absence of any political judgement [valoración] in the decisions of the Judicial Branch”; Argentina, CSJN decisions in 1922, 136:147 and in 1980, 302:186; Brazil, 1937, HC 26.544 apud Brossard de Souza Pinto (1965), p. 161; see also, from 2019, MS 34970 AgR/DF.
- 225.
As argued, for example, by Justice Paulo Brossard in light of the hitherto dominating opinion (Brazil, 1990, MS 20.941-1/DF, author’s translation): “In matters of impeachment, all takes place, from beginning to the end, in the Legislature, (…) being [thus of its] exclusive and unreviewable [competence]” (vote was defeated); Peru, 2014, TC 04968-2014-HC, acknowledged the same historically overcome thesis: “This Court should not be interpreted to subscribe to the orthodox thesis of interna corporis acta, according to which the acts of Congress have no external incidence, that is to say, they would be exhausted within the Parliament’s own sphere and not susceptible to review”.
- 226.
The 1980s were, moreover, a period of great expansion in the constitutional jurisdiction of Latin American courts. See Feoli Villalobos (2010).
- 227.
For a discussion of this phenomenon as a world-wide occurrence and its implications, see Hirschl (2007), p. 169 ff.
- 228.
Brazil, 1990, MS 20.941-1/DF: “(…) Although it may be certain that the impeachment is a predominantly political measure, acts relative to the investigation of impeachable offenses cannot be excluded from the scrutiny of the Judiciary, as they may be bound to strictly constitutional or legal norms of procedural nature (…)”; Peru, 2010, TC 00013-2009-AI: “(…) the Constitutional Court may review the constitutionality of measures adopted [by Congress] on request of the [affected] party (…) for any arbitrary act would be null according to (…) the Constitution”. Decisions with similar content: Colombia, 1996, C-222-96 (arguably); Argentina, 1993, CSJN 316:2940 (‘Nicosia’); 2004, CSJN 327:1914, and arguably also, 1986, CSJN 308:961 (‘Graffigna Latino Carlos’).
- 229.
Argentina, 1993, CSJN 316:2940 (‘Nicosia’ decision): “To this Court, from the [conclusion of] non-reviewability of the merit of impeachment does not follow that the safeties imposed to the exercise of [impeachment] by the fundamental law are [also] subjected to [non-reviewability] (…)”. Brazil, 2011, MS 30.672/DF: “IV – Matters involving convenience or merit do not compete to the Judiciary, under risk of [usurpation] of the Legislature’s eminently political [adjudication] of such matters”. Paraguay, 2012, AI n. 1323: “‘Poor performance’ constitutes grounds that are to be outlined by the free discretion of Congress”.
- 230.
Brazil, 2016, MS 34.441/DF: “To accept the possibility of judicial review of the merit of the Legislature’s decisions would mean to turn the [rules of impeachment in the] Constitution into dead letter (…)”. Similar decisions: Argentina, 1993, CSJN 316:2940 (‘Nicosia’ decision); Peru, 2010, TC 00013-2009-AI.
- 231.
Brazil, 1937, HC 26.544 (apud Brossard de Souza Pinto 1965, p. 161): “The [Court of Impeachments] is a court of political nature, [thus] bearing no connection or subjection to the Judiciary whatsoever”. Paraguay, 2012, AI n. 1323: “(…) The National Congress is sovereign (…) to conduct impeachment, as it constitutes a fundamental instrument to democratic preservation and the principle of separation of powers (…). [Impeachment] is not an ordinary trial of jurisdictional nature (…)”. Colombia, by contrast, dealt with a similar proposition (C-198-94), but rejected such narrow understanding of ‘political’, and characterized impeachment as a special kind of ‘constitutional jurisdiction’ (C-222-96), which on its turn is subjected to some real legal and constitutional constraints. As such, although not (yet) overtly assumed, the Constitutional Court may have implicitly suggested it is within its jurisdiction to review violations committed in the course of impeachment.
- 232.
Brazil, 1992, MS 20.941-DF, argument for the denial of review of a decision of initiating impeachment procedures: “(…) [impeachment] is a procedure of great gravity, which the mere filing (simples abertura) by itself may mean [the installation of] a crisis”. In the US the argument has been presented as an evidence of non-justiciability (Nixon v. United States, 506 U.S. 224): “Justiciability is also refuted by (1) the lack of finality inherent in exposing the country's political life particularly if the President were impeached—to months, or perhaps years, of chaos during judicial review of Senate impeachment proceedings, or during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated (…)”.
- 233.
- 234.
This hypothesis was acknowledged by the Argentinian Supreme Court in 1993 (316,2940): “If any of the impeachable officers claimed, verbi gratia, to have been removed by a majority inferior to the two thirds required (…), it would not be doubtful that, if taken to court, these Justices would be empowered to disqualify the result, as this fraction of the Senate would lack the attributions to resolve in such a fashion”. It is, however, the only situation in which merit could theoretically be affected, as the Court recognized it cannot analyse the merit of impeachment itself: “(…) grounds for impeachment (…) are of exclusive and definitive discretion of the Senate, not being judicially reviewable”.
- 235.
The only exception being that of Argentina in the specific circumstance mentioned in the footnote above. It is nonetheless unclear whether such standard would ever find applicability in the practice of presidential impeachments. Decisions in Peru (e.g., TC 03760-2004-AA, which discusses the penalty of disqualification applied to Fujimori) claim that the application of law by Congress should be subjected to review regarding their reasonableness and proportionality. As it currently stands, the consideration of these two elements has been restricted to what has been described here as non-merit decisions. Given the wording of these decisions, however, it is imaginable that a merit decision with extreme disregard to such elements could prompt an intervention in the future.
- 236.
Brazil, 2016, MS 34193 MC/DF and MS 34441 MC/DF; or Paraguay, 2012, AI n. 1533. These decisions acknowledge certain procedural wrongs, but only engage with those that do not existentially interfere with the course of the procedures. In one of them (MS 34441 MC/DF), the justice rapporteur stablishes very clearly that: “(…) only when the indispensable need to prevent serious grievous harm to institutions or democracy is demonstrated (…) is that an intervention of the kind asked may be justified (…)”.
- 237.
E.g., in Brazil: Estadão, December 21st, 2015: “Cunha e líderes partidários discutirão impeachment com presidente do STF”; or in Peru: 0006-2003-AI/TC.
- 238.
For a general discussion of the judicial advisory function, see Rogers and Vanberg (2002).
- 239.
Paraphrasing his book Politics, Book III, Chapter 16. See Aristotle 1998 trans. CDC Reeve, p. 97.
- 240.
Pierson (2011), p. 20. As famously remarked by Max Weber, perhaps the distinguishing feature of the modern state in comparison to those that are not deserving of the same title, is that its rule is not based on grace, favour, or any other sort subjective and arbitrary will of particular men, but on a “system of order claims binding authority”, extensible to anyone, without exceptions, under its jurisdiction. Weber (1978), p. 56.
- 241.
Paraphrasing of John Adams (1776), Thoughts on Government. See Bernstein (1990), p. 131.
- 242.
Zolo (2007), pp. 7–48.
- 243.
Zolo (2007), p. 21.
- 244.
Zolo (2007), pp. 7–18. The following explanations will not entail how one may get to the conclusions posited by Zolo. The explanations, both historical and philosophical, are too lengthy for the scope of this study. For the sake of brevity, they will be taken at face value and the focus will instead be dedicated to their relationship with impeachments. For those interested, complete explanations from different perspectives and traditions may be found at the same volume from which the referenced framework is taken from.
- 245.
Zolo (2007).
- 246.
Zolo (2007), pp. 19–29.
- 247.
Zolo (2007), p. 23.
- 248.
E.g., in the justification for a ‘special jurisdiction’ for holding high officers accountable, the Colombian Constitutional Court stated: “(…) it is sought to avoid that, through the abuse of the right to access to jurisdiction, one may be able to illegitimately paralyze state activity (…)” (C-222-96).
- 249.
That is, presuming the hypothesis of a criminal conviction causing removal from office, for example.
- 250.
Finkelstein and Painter (2022).
- 251.
As is known, the US has a bipartisan system with alternating hegemony, in which parties tend to vote strictly within partisan lines. As a result, a President will predictably never be convicted within such a system, as the 2/3 threshold is effectively unreachable in such highly polarizing events such as impeachments. Impeachment, thus, offers only an illusion of potential accountability, creating effectively what could be called a violation to the unity of law. The situation can be quite different in Latin America, however, where (fragmented) multiparty systems and low party discipline are the rule.
- 252.
Art. 112, 152, 161 and 184, 4 of the 2009 Constitution.
- 253.
Art. 205, 15 stablished immunities and was revoked in October 2003. Impeachment was introduced in 2013.
- 254.
Zolo (2007), p. 23.
- 255.
Zolo (2007), p. 24.
- 256.
Hamilton et al. (2001), p. 339.
- 257.
- 258.
A few countries created or reformed their own impeachment legislation to make it decidedly more definite (e.g., Bolivia, Colombia, Chile, Ecuador, Peru, and Honduras).
- 259.
Zolo (2007), p. 25.
- 260.
The classic examples would be that of laws instituting slavery, apartheid, and concentration camps.
- 261.
Zolo (2007), pp. 27–28.
- 262.
See the final Chapter, however, for a suggested framework, as well as a list of empirical indicators that may be (and often are) used to inform the judgment of political opportunity.
- 263.
Art. 130.
- 264.
Hamilton et al. (2001), pp. 339, 346–347. There are a few other practices mentioned in the case studies, such as getting courts to exclude compromised adjudicators from the procedure.
- 265.
Zolo (2007), p. 28.
- 266.
As famously argued by Montesquieu, The Spirit of Laws (1777), 11.6. The division of functions, moreover, allows for specialization and increased efficiency. Increased efficiency, on its turn, likely positively impacts the legitimacy of power. Weber (1978), p. 959.
- 267.
Finer et al. (1995), p. 57.
- 268.
See Lanius (2019), p. 169 ff. for a comprehensive list of explanations to the need or unavoidability of indeterminacy.
- 269.
For more details on this argument, see the section on the objective element of impeachable offenses.
- 270.
A similar sentiment is expressed by the Argentinian Supreme Court (316:2940) when it stated: “The National Constitution has given the impeachment a nature that does not necessarily have to hold itself strictly in line with the forms that stablish the procedure or the decision of controversies before the Judicial Power. It needs, however, to equally comply with the basic requisites that make the essence and validity of every trial (…)”.
- 271.
Zolo (2007), p. 28.
- 272.
Zolo (2007), p. 29.
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Palamone, G. (2024). Legal Aspects of Impeachment in Comparison. In: Presidential Impeachment in Latin America. Springer, Cham. https://doi.org/10.1007/978-3-031-44188-2_4
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