Sun Woo Lee – The Politics of Prosecution Service Reform in New Presidential Democracies

This is a guest post by Sun-Woo Lee, a post-doctoral researcher of the College of Social Science, Seoul National University. It is a summary of his paper ‘The politics of prosecution service reform in new presidential democracies: The South Korea and Russia cases in comparative perspective’ that is being published by the Journal of Eurasian Studies.

Recently, the political distortion of criminal justice by prosecutors has arisen as a serious dilemma in several new democracies, though this issue has received somewhat less attention than the judicialization of politics by courts. Indeed, prosecutors of civil-law countries must receive more attention in that they generally initiate criminal investigations, command police officers during the investigations, terminate the criminal cases at their disposal, and indict the criminal suspects for trials in the centralized and inquisitorial criminal justice system (e.g. Germany, Japan, Taiwan and South Korea). Thus civil-law prosecutors can exercise enough power to manipulate pre-trial criminal proceedings, not only in order to stigmatize a certain political faction as immoral or criminal suspect, but also to grant immunity to another.

Of course it cannot be concluded that civil-law prosecutors always have chances to distort criminal proceedings for political purposes. Under consensual forms of government in Continental Europe, a suprapartisan coalition has been required to select top-ranking judicial officers. Moreover, the composition of an incumbent government unpredictedly changes when an assembly dissolves, regardless of regular elections, or when a shift of power occurs within a ruling party. Hence, civil-law prosecutors also tend to exercise their far-reaching power not in favor of a particular political faction, but in a depoliticized manner, for their career development.

By contrast, in several young democracies adopting a presidential system, which gave the president almost exclusive control over high-ranking prosecutors’ career, along with the Third Wave of democratization, civil-law prosecutors have a strong incentive to exercise their extensive power in favor of an incumbent president during most of his or her fixed tenure, but to betray him or her at his or her last phase, for their career progress. In practice, Alberto Fujimori in Peru, Chen Shui-bian in Taiwan, Young-Sam Kim and Dae-Jung Kim in South Korea and Boris Yeltsin in Russia dominated that office during most of their tenure but experienced prosecutorial defection at their final phase. However, an interesting point is that a civil-law prosecution system could hardly be reformed, although there were several attempts to correct the dilemma of the politicized prosecutors, in the new presidential democracies. Why?

In presidential democracies, civil-law prosecutors can enjoy a favorable political opportunity for deflecting reform against them and protecting their powers and position, even though politicians actually attempt such a change. An incumbent president will at times pursue a long-term interest in reform against the prosecutors, particularly owing to the possibility of their habitual betrayal before and after his or her retirement. Nonetheless, the prosecutors can easily defeat the president’s reform either by lobbying or placating the president, given that he or she is bound to fear political losses resulting from their defection. In fact, unless the prosecutors guard an incumbent president, he or she may become the most vulnerable political actor to the politicization of criminal justice, considering the probability that the president would be involved in corruption is much higher than for any other politician. Thus an incumbent president is likely to abandon prosecution service reform readily or be satisfied only with small achievements, but to seek his or her short-term interest in forming alliance with this power agency. In this usual circumstance, opposition parties would more often have the long-term interest in prosecution service reform than the president. Nevertheless, as long as the alliance between the president and prosecutors is sustained, the opposition forces will be persecuted and therefore cannot accomplish the reform.

However, if an incumbent president dares to launch major reform against civil-law prosecutors repeatedly, they are likely to resist his or her attempts vigorously. This is clearly a rational option for the prosecutors, because the cost his or her reform would impose on them is heavy, whereas the effect their resistance could provide is great, because of the political opportunity structure favorable for them. Since curtailment of the prosecutors’ great powers as prerogatives runs sharply against their collective interest, all the members can be motivated to engage in collective action. Moreover, the high-ranking prosecutors’ loss, when becoming a traitor to their own organization, is no less than their individual benefit from career advancement in exchange for their loyalty to the reformist president. On the other side, an incumbent president in fact has no way to protect his or her faction members from the prosecutors’ willful investigation or indictment. In addition, opposition parties which have pursued to reform the prosecution system would also reverse their previous position in order to take advantage of the conflict between the president and prosecutors. That is, they would no longer have a strong incentive to support prosecution service reform, given that political scandals involving the president’s faction are being intentionally disclosed by the agency. Then vigorous competition among the media to get the first reports of political scandals could also enhance the prosecutors’ political influence.

Indeed, this logical development may not spontaneously be applied to the prosecutorial reform cases of consensual parliamentary countries. A coalition government relying on parliamentary majority can more easily make an agreement between various political forces, on the curtailment of extensive power of the prosecution service, and therefore enforce the agency to abandon its prerogatives, while the government would essentially have relatively less incentive to attempt such a reform, as noted above. By contrast, an incumbent president would be unable to maintain the momentum for large-scale reform against the prosecutors, encountering their strong resistance, and correspondingly the latter could succeed in protecting their privileges from the former.

Even in presidential countries, nonetheless, the political opportunity enabling the prosecutors to make effective resistance to a reformist president would be gone, if the president becomes no longer vulnerable to the political manipulation of criminal justice. We can assume that a hegemonic party would dominate domestic politics, or a semi-authoritarian regime would emerge in new democracies. Then political competition would be significantly weakened for quite a while. But an important point is that even a semi-authoritarian president would pursue the long-term interest in curtailing the power of civil-law prosecutors and consequently in making them politically impartial, for fear of the time whenever he or she loses his or her own hegemony, as long as regular elections are formally held. Indeed, the more power an authoritarian ruler holds in his or her hands, the more interests he or she has in undermining any power base for future challengers. Under the weak political competition in a semi-authoritarian regime, however, an incumbent president can succeed in the prosecution service reform, differently from the case of competitive democracies. This is because the president would become much freer from losing moral foundations and public support than in competitive electoral democracies, even if the prosecutors intentionally institute criminal proceedings against his or her faction members. As a consequence, the prosecutors are likely to abandon their resistance against the president, and correspondingly to accept even unfavorable changes imposed on them. In June 2007, this occurred in Russia.

Although more empirical research on other countries would be beneficial, this means that a civil-law or inquisitorial country adopting presidentialism along with its democratization, “ironically,” may not be successful in correcting the dilemma of the politicization of the prosecution service until a semi-authoritarian regime reappears.

Sun-Woo Lee obtained PhD (Politics) from University of Glasgow (UK) in 2014. And he is currently a post-doctoral researcher of the College of Social Science, Seoul National University. His research interests are comparative politics, Russian politics, Korean politics and Northeast Asian international relations. He has published several papers in many academic journals, such as Development and Society, and Journal of Politics and Law

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