President Donald Trump is extremely unlikely to capitulate to pressure to resign in the final days of his presidency. And his Cabinet is equally unlikely to force him out by invoking the 25th amendment of the Constitution, despite calls from the Democrats to do so.

So, in the wake of last week’s insurrection at the US Capitol, which left five people dead and the Trump White House in free fall, the final option available to lawmakers who want to punish the president for his role in encouraging the rioters is impeachment. Again.

The House Democrats introduced an article of impeachment against Trump yesterday for “inciting violence against the government of the United States”.

House Speaker Nancy Pelosi said the Democrats “will proceed” with impeachment proceedings this week if Vice-President Mike Pence does not respond to a separate resolution calling for the Cabinet to invoke the 25th amendment.

This will no doubt be a complicated task in the waning days of the Trump presidency. No US president has faced impeachment twice. And there are many questions about how the process will play out, given Joe Biden will be sworn in as the 46th president of the US in just nine days.

Impeachment: a two-step process
This is how the impeachment process works under the Constitution. (Trump will be familiar with this since he has already been through it before on charges of abuse of power and obstruction of Congress.)

Impeachment requires both chambers of Congress — the House of Representatives and the Senate — to act. The House has the “sole power of impeachment” for federal officials, and all that is required is a simple majority to initiate proceedings.

The House essentially takes on the role of a prosecutor, deciding if the charges warrant impeachment and a trial.

The Senate is where the actual trial takes place. Under the Constitution, the chamber acts like a court, with senators considering evidence given by witnesses or any other form deemed suitable.

Impeachment managers appointed by the House “prosecute” the case before the Senate and the president can mount a defence. The chief justice of the Supreme Court acts as the presiding officer.

While these proceedings have many of the trappings of an actual court, it is important to bear in mind that impeachment is a political process.

Under the impeachment clause of the Constitution, a president may be removed from office “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

This language has been the source of considerable debate, with some legal experts, like Trump’s first impeachment lawyer, Alan Dershowitz, arguing that impeachable offences are limited to actual crimes. Others (correctly) disagree.

Conviction requires two-thirds of senators — a deliberately high threshold to prevent politically motivated impeachments from succeeding. No previous impeachment of a president has ever met this bar: Andrew Johnson (1868), Bill Clinton (1998) and Trump (2019) were all acquitted.

Even though some Republican senators have indicated they would vote in favour of impeachment — or at least be open to it — the number is likely nowhere near enough for conviction.

Complicating factors: time, shifting majorities and a difficult process
With only days left before Trump leaves office on January 20, time is of the essence.

The Constitution does not mandate any particular timeline for the proceedings to take place. Outgoing Senate Majority Leader Mitch McConnell has indicated a Senate trial could not begin before January 19, as the Senate is in recess until then.

Moving that date up would require all 100 senators to agree — an unlikely prospect.

But this may not be an obstacle to starting the process. The Constitution is silent on the question of whether a Senate trial can be held after a president has left office. The 1876 impeachment of War Secretary William Belknap for graft after he left office may serve as precedent.

So, if the House votes to impeach Trump before January 20, a trial could theoretically happen after that date. The maths also change slightly in the Democrats’ favour on that day.

The Democrats will take back control of the Senate, albeit on a 50-50 split with incoming Vice President Kamala Harris casting any tie-breaking vote.

Democrats are pushing for impeachment because the Constitution not only allows conviction, but also provides for barring Trump from holding federal office again. This would thwart his ambitions to run for president in 2024 — a prospect not lost on Republicans with the same goal.

The Constitution does not stipulate how many senators need to vote in favour of disqualifying an impeached official from holding office again, but the Senate has determined a simple majority would suffice.

This tool has also been used sparingly in the past: disqualification has only occurred three times, and only for federal judges.

The bigger hurdle, however, is that it still requires Trump to first be convicted of impeachment by a two-thirds majority in the Senate.

Political implications of impeachment
Biden has remained lukewarm at best to suggestions of a Senate trial after January 20. Such proceedings would allow Trump to style himself a political martyr to his followers even more than is already the case.

This would distract from the critical goals Biden has for his first 100 days and beyond: tackling spiralling COVID infection numbers and the country’s lagging vaccination program, providing immediate financial relief to struggling families, rejoining international climate action efforts and repairing the damage done to the fabric of government by the Trump administration. Last, but not least, it would make confirmation of Biden’s Cabinet picks more difficult.

Achieving these goals while Trump sets off the political fireworks he so cherishes is implausible.

The Democrats have floated the idea of impeaching Trump before January 20, but not sending the article of impeachment to the Senate for trial until weeks later — or even longer — to give Biden a chance to get started on these initiatives. But a distraction is a distraction no matter when it happens.

Democrats would also do well to remember that political fortunes can change. It’s understandable to want to punish Trump for his actions, but
rushing into a political trial in the Senate, which Democrats are bound to lose, may have unintended consequences for the future.

What’s to stop the Republicans from pursuing impeachments of future Democratic leaders they disagree with, even in the face of certain defeat in the Senate? This could poison the political atmosphere even further.

Democrats may also want to consider the fact that Trump could face federal charges for allegedly inciting the violence at the Capitol or state charges for urging Georgia Secretary of State Brad Raffensperger to “find” enough votes to overturn his defeat to Biden.

While this outcome is far from certain, the chances of conviction in a court of law would likely prove to be less toxic politically for both Democrats and Republicans alike.

This story has been updated to add Democrats formally introducing an article of impeachment on January 11.

By Dr Markus Wagner, associate professor of law, University of Wollongong. This article is republished from The Conversation under a Creative Commons licence. Read the original article.

Article by AsiaPacificReport.nz

By Ralf Rivas in Manila

After the ousting of the Philippines’ Chief Justice Maria Lourdes Sereno, the six justices who voted against the quo warranto petition have claimed the decision has made the Office of the Solicitor-General more powerful.

The justices raised their concern in their separate dissenting opinions following the Supreme Court’s 8-6 unprecedented and historic vote in favour of the petition – a prerogative warrant – on Friday.

Associate Justice Mariano del Castillo wrote in his dissenting opinion that the decision of the majority had granted the Solicitor-General (SolGen) powers to “remake the composition” of the High Court, “causing the removal of its members”.

READ MORE: Quo warranto v elected impeachable allowed, says Supreme Court

“With the SolGen wielding a quo warranto sword of Damocles over the heads of these officers, the Filipino people cannot be assured that they will discharge their constitutional mandate and functions without fear or favor,” said Del Castillo.

Without such assurance, there can be no guarantee that the primordial interest of the sovereign people is promoted.”

-Partners-

Del Castillo called the SolGen’s move a form of “constitutional adventurism”.

The quo warranto petition to remove Sereno from office was on the basis of an alleged invalid appointment.

The decision is “immediately executory without need for further action,” SC spokesperson Theodore Te said during Friday’s press briefing.

‘Violated requirements’
Nine of the justices said she violated requirements on the Statement of Assets, Liabilities, and Net Worth (SALN). The same number of justices ruled that quo warranto was the proper remedy in the ouster of Sereno.

This is the first time that the Supreme Court has removed its own chief, in a petition widely slammed for violating Sereno’s constitutional right to an impeachment process.

Sereno is the second chief justice to be removed from office after Renato Corona was ousted in 2012. He was found guilty of betraying the public trust and committing culpable violation of the Constitution.

Associate Justice Mariano del Castillo’s sentiment was echoed by the dissenting opinions of Associate Justices Marvic Leonen and Benjamin Caguioa.

Lawmakers, including Senate Minority Leaders Franklin Drilon, a former justice secretary, shared the same concern.

The others who voted against the petition are Senior Associate Justice Antonio Carpio and Associate Justices Presbitero Velasco Jr, and Estela Perlas-Bernabe.

Quo warranto or impeachment?
The six dissenters all agreed that impeachment was the only way to unseat an impeachable officer like Sereno.

Del Castillo stressed that allowing the quo warranto proceeding “impairs the independence of constitutional offices”.

Bernabe wrote in her opinion that the OSG should have questioned the discretion of the Judicial and Bar Council (JBC) to include Sereno in the shortlist of chief justice applicants.

Bernabe pointed out that the OSG “voluntarily admitted that the JBC’s grave abuse of discretion is not at all an issue.”

In his dissenting opinion, Velasco relayed the same sentiment.

“There was no attempt to assail and contest much less nullify the JBC’s findings that the respondent possessed all qualifications, the JBC’s decision must stand,” Velasco said.

Yes to quo warranto but…
Velasco said that the “remedy of quo warranto is available to unseat, in the extreme, even an impeachable officer”.

However, he clarified that the one-year prescribed period for filing such a petition had lapsed. He said that Sereno’s nomination and appointment “has not been timely challenged, much less nullified,” and that “the findings and qualifications should be respected.”

Velasco insisted that the OSG had to file a petition for certiorari against the JBC before seeking Sereno’s removal from office.

Bernabe also said that impeachment was not the sole move of removing impeachable officials as it would be “clearly absurd for any of them to remain in office despite their failure to meet the minimum eligibility requirements”.

She said that there “should be a remedy to oust all our public officials, no matter how high-ranking they are, or how critical their functions may be,” but after clear “determination that they have not actually qualified for election or appointment”.

Bernabe stressed that the JBC’s rigorous process was lenient on the Statement of Assets, Liabilities, and Net Worth (SALN) requirement. In fact, none of the applicants were able to submit all SALNs up to 2012.

Despite voting for the retention of Sereno, Bernabe said she made no claim that Sereno “is or is not a person of integrity.”

“In fact, if there is one thing that is glaringly apparent from these proceedings, it is actually the lack of respondent’s candor and forthrightness in the submission of her SALNs. Integrity must be threshed out in the appropriate case for certiorari,” Bernabe said.

Article by AsiaPacificReport.nz

By Abdul Qowi Bastian

Sri Bintang Pamungkas was arrested in his home in Cibubur, in the outskirts of Indonesia’s capital Jakarta, on early Friday morning, December 2.

The civil society leader of People Power Indonesia 2016 – a group that aims to repeal the constitution before it is amended – was supposed to join the rally against Jakarta Governor Basuki “Ahok” Tjahaja Purnama later that day.

Ahok, an ethnic Chinese-Christian politician, a double minority in the world’s most populous Muslim nation, is accused by conservative Muslim groups of committing blasphemy.

Pamungkas and 9 others were accused of attempting to impeach the current government led by President Joko “Jokowi” Widodo.

Among them are high profile individuals including rock musician Ahmad Dhani; human rights activist Ratna Sarumpaet; retired two-star Army general Kivlan Zein; and Rachmawati Soekarnoputri, sister of former president Megawati. They were arrested on treason charges under Article 107 of the penal code (KUHP).

The mobile phone video of the arrest Sri Bintang Pamungkas, filmed by his wife.

In a short video circulating on social media, Pamungkas was enjoying his cup of morning coffee on his porch when police officers handed him the warrant.

“Honey, I’m being arrested,” Pamungkas said to his wife who recorded the video on her mobile phone.

“Why?” his wife, Ernalia, was heard saying from behind the camera.

“They have the power to. Of course they can,” Pamungkas replied.

Pamungkas and People Power originally planned to occupy the parliament building, asking the council to revoke Jokowi’s presidency for, according to him, the former Jakarta governor’s inadequacy to follow the “people’s mandate”.

Seven people were released later that day because the police did not have sufficient evidence. Pamungkas in still in detention, along with two others who are still behind bars for allegedly insulting the President on social media, and violating the Internet Transaction Law.

Racial undertones
The December 2 rally was the third in a series of protests demanding Ahok to step down from his post as governor, for his remarks that allegedly insulted Islam.

The controversy started in September 2016 when he accused his opponents of fooling the electorate by misusing a Quranic verse, to sway voters to not vote for him in the upcoming gubernatorial election.

He has apologised for the remarks but is still being prosecuted for blasphemy.

Ahok is now a suspect and faces his first trial hearing next Tuesday. If proven guilty he could be jailed for up to 5 years.

But the issue has since spiraled to include other aspects. Critics have since accused the President —who was inaugurated two years ago—  of being inadequate to manage the country. Ahok became governor after Jokowi won the presidential election in 2014. As Jokowi’s deputy governor at the time, Ahok assumed the position.

Ahok himself is an outlier in the Indonesian political landscape. He was the former regent of Belitung Timur, a small region in Sumatera island, and was also a member of parliament before running as Jokowi’s deputy – but has always been considered as the “outsider” who came to the capital.

‘Crush the Chinese’
During the 200,000-people-strong rally on 2 December, some posters read, “Jail Ahok” and “Crush the Chinese”.

The race card used against Ahok is not new within Indonesia’s politics. It is deeply rooted in the New Order regime under former general Soeharto’s authoritarian regime. President Soeharto —who ruled Indonesia for more than 3 decades— banned expressions of Chinese culture and politically segregated the Chinese, because of suspected ties to communism.

Rally organisers and protestors used the Islam card which is an appealing pull for Indonesian Muslim voters.

One of Ahok’s opponents in next year’s elections, Agus Harimurti Yudhoyono, is the son of former President Susilo Bambang Yudhoyono who led the country from 2004-2014.

Conservative Islamist groups such as the Islamic Defenders Front (FPI) —one of the main rally organizers— have on social media openly supported Yudhoyono’s gubernatorial candidacy.

Shrinking civic spaces
Social media users in Indonesia are divided on the arrests. Some applaud the police force for attempting to prevent an impeachment attempt, while others see it as a violation of human rights.

“There seems to be no clear grounds for the arrest of these people,” said Benny Agus Prima, Human Rights Defender Programme Associate at the Asian Forum for Human Rights and Development (FORUM-ASIA).

Prima stressed that the government must protect its people’s rights to express their freedom of expression.

“The rights to freedom of expression and peaceful assembly are constitutional rights and guaranteed by international human rights law,” he said. “Exercising those rights is a foundation of democratic society.”

The freedom to associate and to assemble, to express written and and oral opinions in Indonesia, are regulated under Article 28 of the 1945 constitution.

If proven guilty, those arrested could be jailed for 15 years up to a life sentence.

Prima regretted the detention of the individuals, which he said was a sign of the shrinking civic space, not only in the country but also in the region as well.

Case4Space
Civic space is where people can freely exercise their basic civil rights, such as freedom of expression and freedom of assembly and association. This kind of problem is not unique to Indonesia.

During the 3-day conference entitled “Youth at the heart of the 2030 Agenda: The Case4Space” held in Bangkok, Thailand, panelists shared how there are 3.2 billion people living in countries where civic space is under threat.

“We’re seeing a trend of shrinking civic space in Asia Pacific with recent examples of the criminalization of activists,” Prima said, citing an example of Maria Chin Abdullah of Malaysia.

Abdullah is the leader of the Malaysian pro-democracy alliance Bersih, who was detained in November 2016 for organizing a mass rally calling on Prime Minister Najib Razak to resign over a corruption scandal.

But in the end, according to Prima, what Pamungkas and his peers did was still in accordance to the law. “They demanded the parliament to review Widodo’s presidency, not bearing arms asking [him] to step down,” Prima said.

The arrests, he said, should not have taken place in the first place as it would take Indonesia —a country who adopted democracy 16 years ago— back to autocratic state.

Rozinul Aqli, an Indonesian student at the American University in Cairo, Egypt, also voiced his disapproval in Twitter, saying, “[Widodo] is increasingly becoming more comfortable in borrowing a page from Soeharto’s playbook”.

“Ideally, there should be clear violent acts for something to deserve the label of treason,” Rozinul said in an email to Rappler.

“In practice, however, this article [Article 107 of the penal code] has been used to criminalize many activists that were not, strictly speaking, threatening national security,” he said.

Freedom of expression at risk
Prima further said this case would set a bad precedent for human rights defenders.

“What I fear the most is, this criminalisation will restrict human rights defenders’ freedom of expression,” he said.

Although he also noted that the people who were arrested should respect Ahok’s freedom expression as well.

“When we’re talking about freedom of expression, we should respect others’ freedom to express their thoughts as well,” Prima said. “We can’t force those who, let’s say, commit human rights violations by also violating others’ human rights.”

Rozinul added that rubber articles, such as Article 107 of the penal code, are problematic as they deprive citizens the right to legal certainty.

“If some of us are alarmed by this development, it is because we know that using rubber articles to silence dissents was one of the cornerstones of the New Order regime,” he said.

Abdul Qowi Bastian is a staff editor for Rappler based in Bangkok.