Elections and Government Formation in Iraq: An Analysis of the Judiciary's Role

Article excerpt

ABSTRACT

In 2005, the people of Iraq ratified a permanent Constitution, a significant milestone in the journey from Saddam Hussein's authoritarian rule to democratic governance. Among the Constitution's fundamental guarantees are the separation and balance of powers, the selection of Parliament through regular and periodic popular election, and an independent judiciary empowered as the authority on constitutional interpretation. Iraq's commitment to democracy and the Constitution was put to the test five years later with the first parliamentary election under the new Constitution. The run-up to the elections was marred by political disputes, violence, and legal challenges, as Iraqis argued over controversial amendments to the Election Law and the disqualification of hundreds of candidates pursuant to the de-Ba'athification laws. Following the hotly debated elections, Iraqi leaders continued to argue over who had the first right to form the government, causing a political deadlock that lasted over six months. By the end of 2010, however, the newly elected Parliament approved a new Council of Ministers, concluding a largely peaceful transition of power in accordance with the Constitution.

This Article examines these historic events, focusing on the role of the Iraqi courts in resolving disputes throughout the electoral and government formation processes. After analyzing key decisions from Iraqi courts, it concludes that Iraq's judiciary is emerging as a reliable, independent, and neutral arbiter of disputes. Through its measured and careful jurisprudence, the judiciary is fostering a political culture that respects and upholds the rule of law.

TABLE OF CONTENTS

  I. BACKGROUND
     A. The Transitional Period
     B. Preparations for the 2010 Elections
 II. AMENDING THE 2005 ELECTION LAW
     A. Constitutional Challenge to the 2005
        Election Law
     B. The November 8, 2009 Amendment and
        Subsequent Veto
     C. Overcoming the Veto Challenge
III. THE DE-BA'ATHIFICATION FIASCO
     A. Brief History of De-Ba'athification
     B. The Post-Constitutional Legal Framework
     C. De-Ba'athification Crisis
 IV. ELECTIONS AND THE LONG ROAD TO CERTIFICATION
  V. GOVERNMENT FORMATION
     A. The Largest Bloc
     B. The (On Again Off Again On Again) First
        Session of the CoR
 VI. AN EMERGING JUDICIAL INDEPENDENCE: REALIZING
     THE GREATEST CHALLENGE
     A. Upholding the Constitution: The FSC's
        Charge and Chief Objective
     B. The FSC's Methodology
        1. Judicial Restraint
        2. Promoting Political Dialogue
     B. The Court's Legitimacy as Head of an
        Independent Third Branch of Government
        1. Compliance with FSC Decisions
        2. The FSC Model in Lower and
           Administrative Courts
VII.    CONCLUSION

In 2002, Iraqis went to the polls to choose their nation's leader. The only hitch was that Saddam Hussein, the nation's President since 1979, was the only name on the ballot. Not surprisingly, Hussein was "elected" to another seven-year term. According to Government of Iraq officials, 100 percent of the 11,445,638 eligible voters cast their ballot in support of Saddam Hussein, up from the 99.96 percent who voted for Saddam in the previous referendum. (1) The election results were widely dismissed by international observers and Iraqi opposition groups in exile. The government's claim that 100 percent of eligible voters went to the polls was absurd, and those voters who did turn out knew that they could be imprisoned, or worse, for voting "no" to another seven years of dictatorship. An Iraqi opposition leader living in Iran called the referendum "[t]otally fabricated, and a complete fiasco." (2) Ari Flescher, White House spokesman, commented, "Obviously it's not a very serious day, not a very serious vote and nobody places any credibility on it." (3)

Less than eight years later, Iraqis prepared for another election but under drastically different circumstances. …