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Europe: Analysis From Washington -- The Legalization Of Politics

Washington, 5 January 2000 (RFE/RL) -- The criminal investigation of former German Chancellor Helmut Kohl has called attention to a fundamental shift in the balance of power among legislatures, executives, and courts in European democracies.

Far more than in the past, the judicial authorities in these countries are playing a much greater role, not only in ensuring public accountability but also in taking decisions about issues for which legislatures and executive officials traditionally had been responsible.

On Monday, German prosecutors officially opened a preliminary investigation to determine whether charges of corruption should be brought against Kohl, who has already admitted to accepting illegal contributions during his 16 years as his country's head of government.

The Kohl investigation is only the latest such case in Europe where increasingly activist prosecutors and judges are pursuing corruption and other charges against legislative and executive branch officials in Belgium, Great Britain, France, Italy, and Spain.

Indeed, the increasingly assertive stance of prosecutors and judges has led one Italian observer, political commentator Sergio Romano, to suggest that the future of Europe may belong to them rather than to ordinary politicians.

"If the 19th century was regarded in Europe as the period of great legislatures," he notes, "and the 20th century as the era of the powerful executive, then the 21st century could turn out to be the special time of the judiciary."

On the one hand, this new judicial activism has the support of most citizens in these countries who have been disturbed and even alienated by what they say is the corruption of elites long in power. And it is certainly the case that the publicity surrounding such high-profile figures will deter future officials from behaving in the same way as their predecessors.

But on the other hand, the increasing power of prosecutors and judges raises some serious questions about the balance of power among the three branches of government, about the balance between the expression of popular will, the rights of individuals, and the responsibility of both citizens and officials to obey the law.

In the past, theorists of democracy suggested that the legislative and executive branches should both reflect and be contained by expressions of popular will while the judicial branch should apply the laws in cases brought before it.

The actual relationship among the three has never been that simple in any country, but the principle that the voters would serve as the primary check on official misbehavior was generally accepted, an arrangement that gave the voters enormous power and discretion, even if sometimes it allowed corruption to flourish.

The new judicial activism, fueled both by deadlock on key issues in the legislative and executive branches of some European countries and by reports of corruption among entrenched elites, threatens to call that balance and understanding into question in at least three ways.

First, it suggests that ever more political fights will be "legalized." That is, the struggle for power will take place in charges and countercharges of personal misbehavior rather than discussions and debates about the particular policy preferences of specific politicians.

Second, this rise of the judicial branch could mean that legislators and executive branch officials will be ever more willing to turn difficult issues over to the courts, which may be ever more prepared to take on such duties, rather than deal with the politics of deciding such issues themselves.

And third, such a shift -- even when taken in the name of promoting democracy -- may in fact reduce popular control both by leading officials to cling to office and the immunity it may bring lest they face charges once they are in opposition and by contributing to the notion that political issues can be adjudicated rather than decided.

Because so much power is at stake in such a shift, there is likely to be a backlash from both legislative and executive officials as well as ordinary citizens who may come to view the prosecutors and judges not as independent protectors of the rights of all but as deeply political actors on their own behalf.

And if that happens, the new activism of European prosecutors and judges could backfire, undercutting public confidence in the ability of the courts to mete out justice, yet another way in which a shift in the balance of power among the three branches of the state could have enormous and unpredictable consequences for democracy in the future.