Abstract
Civil-law prosecutors could damage particular politicians’ moral foundations with their own timing and extent, manipulating criminal proceedings through their broad power within the centralized criminal procedure. This is why they must be cautiously checked by any other body of government, contrary to their common-law counterparts who exercise limited power because of the decentralized criminal procedure. Fortunately, in most civil-law countries, prosecutors are required to be accountable to democratic bodies, despite the global trend of judicial independence. In several new presidential democracies, however, civil-law prosecutors are often involved in the judicialization of politics through criminal proceedings, despite their accountability to a political branch, unlike in the continental European countries. Why is there such a difference? To answer this question, this article provides an innovative theoretical framework explaining that civil-law prosecutors would be induced to abuse their great power in a partisan position, not under a consensus form of government, but under presidentialism, with the new institutionalist approach. According to this framework, empirical researches will also be encouraged.
Highlights
Judiciaries have recently attained institutional independence, from the other branches of government, in the administration of members’ careers as well as in judicial review of legislation, regardless of legal traditions, all over the world (Tate & Vallinder, 1995)
Russian President Boris Yeltsin, Peruvian President Alberto Fujimori, Taiwan President Chen Shui-bian, and South Korean President Yong-sam Kim and Dae-jung Kim had once dominated and made use of the prosecutor’s office, but could not escape this miserable fate. Why has this pattern of the politicization of prosecutors repeatedly happened in the new presidential democracies with a civil-law tradition? As a scholarly contribution, this paper provides an innovative theoretical framework to answer this question, with the perspective of new institutionalism, and encourages further empirical research
Civil-law judicial officers who have recently gained an exemption of accountability to electoral branches are problematic, and the prosecutors, among them, could often intensify the risk of the judicialization of politics through the manipulation of criminal proceedings against major politicians
Summary
Judiciaries have recently attained institutional independence, from the other branches of government, in the administration of members’ careers as well as in judicial review of legislation, regardless of legal traditions, all over the world (Tate & Vallinder, 1995). In several new democracies where presidentialism is combined with a civil-law system, prosecutors often manipulate criminal proceedings against particular politicians, for partisan ends, despite their strong accountability to an elected body. On the one hand, in common-law countries, prosecutors have not displayed overly partisan behavior in criminal proceedings, though they enjoy a fairly insulated position from electoral branches and are frequently involved in the judicialization of politics. The section compares the institutional arrangements of common-law and civil-law prosecution systems, which have carefully preserved a balance between the rule of law and democracy by ensuring the fairness of criminal proceedings in their own way Should this institutional difference be clarified first, it could explain why civil-law prosecutors are often induced to display partisan behavior in criminal proceedings against major politicians under a presidential system, but not under a consensus form of government. Two Types of Prosecution Systems and Balances between the Rule of Law and Democracy
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