Academic journal article Journal of Politics and Law

The Discordant Combination of Civil-Law Prosecution System and Presidentialism: A Theoretical Framework

Academic journal article Journal of Politics and Law

The Discordant Combination of Civil-Law Prosecution System and Presidentialism: A Theoretical Framework

Article excerpt

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.

Keywords: common-law prosecution system, civil-law prosecution system, consensus forms of government, presidentialism, the judicialization of politics

1. Introduction

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). This tendency of judicial independence globally contributes to the judicialization of politics (the politicization of justice). Thus, among democrats, there is a substantial concern about increasingly unaccountable judiciaries (Ginsburg, 2003; Przeworski, 2010). Especially according to Maravall (2003: 279) and Zannotti (1995: 182-183), a rigid insulation of civil-law judicial officers from elected politicians could intensify the danger of the judicialization of politics, given the absence of institutional elements of a common-law system which prevent judges and prosecutors, from making partisan decisions, to a certain extent. Even in some developed democracies with the civil-law tradition, such as Italy and France, judicial officers obtaining more independence from the political branches than previously began to come into conflict with democratic processes (Guarnieri, 2003). Above all, civil-law prosecutors unaccountable to any electoral branch can seriously pervert democratic processes, unlike common-law counterparts, although the political role of prosecutors has rarely received attention. Indeed, they have damaged particular politicians' moral foundations by manipulating criminal proceedings with their own timing and extent, via their wide discretionary power over pre-trial criminal procedures (Di Federico, 1995; 1998). In this way, it seems undoubtedly fortunate that prosecutors are still controlled by the executive leadership and are correspondingly required to be accountable to democratic bodies in most civil-law countries.

Here, a neglected but critical question should be raised. Can civil-law prosecutors, if accountable to electoral branches, always be induced to observe political neutrality? Obviously, a quarrel over prosecutors' partisan behavior has seldom arisen in the continental European countries which have a civil-law system and a consensus form of government such as the parliamentary or dual executive system. By contrast, 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. In these new democracies, as liberal critics point out, prosecutors frequently serve as a political weapon only in favor of an incumbent president. …

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