In late November, the citizens of Geneva will vote on a modification of its constitution concerning the possibility of removing from office a member of the cantonal executive. The procedure presented will be unique; when the constitution of Geneva was updated in 2012, no mention of impeachment was included. It was not included in any previous Geneva constitution.
Official instructions on how to vote clearly state: “In the Canton of Geneva, it is actually not possible to remove from office an active member of the Executive; that is to terminate the mandate before its conclusion.” The new law, it is written, “will fill a void in the actual system in opening the possibility to remove a member of the Executive.”
Why was impeachment never included in Geneva’s constitutions, recognizing that the federal constitution of Switzerland was strongly influenced by the United States Constitution of 1788 which had impeachment in its original text? The notion of impeachment was not foreign to the Genevois.
Various reasons for the omission have been given by those who wrote the recent constitution. “The idea among us,” said one of the authors, “was that an elected official in a compromised position would resign and that other measures would not be needed.” Another author told me that it never occurred to the members of the drafting committee that an elected official would ever be in a compromised position. Or, as one of the authors of the current law admitted in the press; “It was an oversight.”
The current proposal says that members of the executive can be removed from office in exceptional cases when he/she is no longer able to benefit from the electoral body a sufficient confidence to exercise his/her function or has become incapacitated.
There was certainly enough background in the American system for the Genevois to reference in the new constitution.
The United States had impeachment in its original 18th century Constitution. Article II Section 4 says: “The Constitution gives Congress the authority to impeach and remove the President, Vice President, and all federal civil officers for treason, bribery, or other high crimes and misdemeanors,” as we were reminded in the recent Trump trials. (Some people will also remember the failed Clinton impeachment in 1998. Historically, the only other impeachment of a president in U.S. history was that of Andrew Johnson in 1868. Not one of the impeachments has successfully removed the president from office. Richard Nixon resigned before facing impeachment.)
As for incapacity to carry out presidential functions, the 25th Amendment to the U.S. constitution elaborates a series of actions to be taken. It was accepted in 1965 as part of the constitution after John F. Kennedy’s assassination, although questions about presidential incapacity had been raised during the illness of Woodrow Wilson and the fragile health of Franklin Roosevelt. Today, even when presidents are temporarily incapacitated because of a simple health check-up, the vice-president has the power to act on his behalf.
(The only possible dilemma about incapacity in Switzerland concerned Federal Counselor Hans-Rudolf Merz who suffered a heart attack in 2008. Some people subsequently questioned his capacity to direct the Swiss reaction to the taking of Swiss hostages in Libya in 2009 when he was Swiss President.)
It is fascinating to observe the Geneva oversight given the weight of the American experience. While the Founding Fathers of the United States recognized that people in power can commit high crimes and misdemeanors, many of the authors of the current Geneva constitution believe that “an elected official in a compromised position would resign and that other measures would not be needed.” The example of the recent resignation of Governor Andrew Cuomo of New York State after accusations of sexual harassment bears out the resignation position.
Why did it take so long for Geneva to propose a law on impeachment? Fundamental differences between the Genevois and Americans should be underlined. The Founding Fathers were skeptical of human nature. They believed that power can corrupt. That is why they proposed a system of checks and balances among the three branches of government. The Genevois had complete faith in their elected executives. Had there not been the dubious Dubai voyage of Conseil d’Etat Pierre Maudet, would the recent vote have even taken place?
The omission of potential impeachment (as well as incapacity) is not just an oversight. It is based on a profound belief that a self-respecting person will understand when the confidence of the electorate has been lost.
So while a cynic could mock the Genevois for their naiveté in not including impeachment in their constitutions, including the latest in 2012, one should also tip one’s hat to those who believe not only in the goodness of human nature, but also in notions of shame and guilt.