This chapter has provided an overview of this study and a brief introduction to the modern constitutional developments in Iraq. Chapters Two and Three develop the conceptual framework which is used as a basis for the analyses of the case study which follow in Chapters Four and Five. Chapter Six summarises the conclusions of the case study, highlights the research findings,
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and presents a way forward for the FSC and future research directions in this area.
To be more precise: Chapter Two explores the theoretical and practical debates seeking to provide a conceptual understanding of and a framework for the rule of law, democratization and the relevance of the courts to transitional democracies. It begins by analysing an extensive body of literature discussing the theory of the rule of law in more developed democracies, focusing on the range of understandings and definitions of the rule of law which ultimately emerges as a contested concept. Then, it explores the formal rule of law, which focuses on the manner and the form the law takes; and the more substantive principles and values, which might inform the rule of law, for example, the protection of human rights. The focus then shifts to debates concerning the relationship between the rule of law and democracy, including the constitutional judiciary and its constitutional review powers. It considers a longstanding debate concerning constitutional judicial review and counter-majoritarian difficulties and goes beyond that, arguing that courts have different roles and positions within a democratic order, and as institutions they are integral to establishing the rule of law system.
The third section of the chapter considers the conceptual difficulties related to the application of the rule of law to the challenging context of transitional democracy. It argues that in transitional states, substantive attributes of the rule of law are constitutionally and principally accepted and preserved as equal to or more important than the formal ones. However, these often might or might not be the central focus or priority when they are applied. Therefore, it argues that legal reforms in transitional democracies should not cling to the ideals of the rule of law, but rather develop more practical and workable versions which take into consideration the changing circumstances of the transition. Indeed, the primary concern of the rule of law reforms then becomes the establishment of those institutions required for creating, interpreting, and enforcing laws, checking and holding to account the arbitrary and abusive exercise of power, and restoring the non-violent settlement of disputes. The chapter briefly reflects on the relevance of the constitutional judiciary, positing that transition from an authoritarian to a constitutional democratic system not only involves holding regular elections but also upholding the rule of law
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system, both of which serve to control and constrain the arbitrary exercise and abuse of power. It argues that demands for the rule of law and the constitutional judiciary tend to improve with enhanced democracy.
Chapter Three builds on the arguments developed in the previous chapter regarding the position and role of the courts in a democracy. It begins by considering the proliferation of judicial power and influence, also known as judicialisation, and analysing how this has been conceptualised. The next two sections examine various factors that are thought to account for the rise of judicialisation and to explain its persistence as a phenomenon, respectively. It is argued that judicialisation may occur and develop as the result of the interaction of various factors. The supply side argument highlights those factors that enhance the institutional and formal powers of the courts. These include a reasonably empowered, independent and accessible constitutional judiciary; as well as opportunities in the form of disputes and conflicts which arise in interpreting (unclear) constitutional norms. On the demand side, these conflicts can become constitutional cases that are brought before the court by different actors including individuals, interest groups or the government. The judiciary is involved in addressing or resolving such conflicts by exercising its jurisdiction. Therefore, relatively easy or direct access to the constitutional judiciary combined with the increasing influence of public interest groups appears to support the ability of individuals and marginalised groups to bring their cases to the courts.
The fourth section explores opportunities and challenges for judicialisation to emerge and continue in transitional states, considering a number of factors which are relevant to the periods leading to the transitional moments, during the constitution writing process and in the immediate years following these crucial moments. Factors such as incomplete and often unclear constitutional structures and rules governing a country together with the fragility and weakness of the political and constitutional culture and institutions. Thus, the very difficulties of transition might provide for broader interaction between ‘supply and demand’ factors. Thus, the interaction here implies that the government and individuals might turn to the judiciary to resolve potential conflicts in interpreting the provisions of the new constitution. If a newly established court begins to gain power and influence within this transitional
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context, this could also affect its independence with the other branches of government trying to establish their powers. Comparative insights from the case law of some constitutional courts in countries going through a democratic transition reveals the common difficulties they have faced. These courts can find themselves at the centre of inter-institutional and jurisdictional power struggles involving state institutions and entities. Thus, the formal rule of law might become the central focus of constitutional judiciaries in transitional democracies, leading them to frequently refrain from deciding on substantive matters. This is due to the fact that involvement in substantial questions might provoke political interference, undermining judicial independence and bringing about a counter-reaction that will infringe on the judiciary’s institutional autonomy.
Chapter Four applies the main argument developed in the previous chapters to the experience of the post-2003 Iraq and its constitutional judiciary. It begins by evaluating the institutional aspects of the constitutional judiciary in Iraq. From the supply side and demand side perspectives, important contributing factors may be the FSC and its assigned jurisdictions, including constitutional review, review of the conformity of legislation to Islamic law, and election- related disputes. The Court has the final say in the arbitration of disputes and conflicts of interpretations concerning separation of powers. The FSC has the pivotal role of policing the boundaries of the constitutionally specified powers given to the institutions of the federal and the sub-federal entities. The Court is also relatively accessible to individuals, interest groups, politicians, and the government. However, despite the constitutional guarantees of the independence of the Court, there are significant concerns about its institutional independence. It is argued that the inclusion of Islamic jurists might put the Court in danger from external pressure from some of the strongest religious institutions. The context within which the FSC operates and the fragility of the rule of law and constitutional culture might also threaten the Court’s independence from political interference, especially from the executive authority.
The second section focuses more closely on the structural and political context within which the FSC operates. In the last decade, the implementation of the new constitution and transition to democracy have been hindered by a
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range of factors including the legacy of decades of legal and political practices under an authoritarian regime, a difficult democratic transition characterised by widespread post-transition violence, ethnosectarian conflict, corruption, and political instability. Furthermore, state institutions remain for the most part fragile and failing. Under a broad coalition government, agreement and compromises can become very difficult and there are struggles concerning the exact meaning of the rules, and where the boundaries of power lie. Therefore, these challenges and opportunities in the form of constitutional disputes are likely to increase the potential for the FSC to be involved in constitutional issues.
Section three discusses the relevance and the use of available support structures for legal mobilisation concerning constitutional litigation in Iraq; and identifies those factors that could contribute to the emergence of a relatively functioning support structure in Iraq. Therefore, the possibility that the Court could develop an expanded concept of standing for public interest groups might serve to broaden access to constitutional judiciary. This standing may also play an essential role in initiating and supporting constitutional litigation that questions the exercise of powers by the government. Although civil society organisations are relatively new in post-transition Iraq, and face obstacles especially in the legal realm, examples from the case law of the FSC indicate that their attempts to use legal means and the judiciary have been reasonably effective.
Chapter Five presents an in-depth analysis of the case law of the FSC, focusing on some of the most contested constitutional and political questions which have been subject to or affected by the Court’s decisions. Each of the four sections in this chapter addresses one particular set of constitutional issues, taking into consideration that the questions involved and decisions issued have or might have had significant implications for Iraqi society as a whole. First, it considers how different actors have frequently used the FSC, noting that to a large extent the Court was involved in questions and cases regarding legislative- executive power struggles and conflicts of interpretation concerning the ‘constitutional balance’ of powers between these two branches. The result has often been substantial for the entire legal and political system in the sense that powers might become consolidated in one or two branches of the government.
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The erosion of such constitutional balance might also be construed as political interference by and in the Court, raising serious concerns regarding its ability to check and preserve arbitrary powers or government attempts to concentrate power. The FSC’s struggles over an ongoing public concern, related to widespread institutional corruption in the state institutions and officials, especially the members of the Parliament, are also addressed. The cases analysed in this part show that conceptual difficulties regarding the rule of law might explain the Court’s approach to avoiding the substance of the laws and government policies, and instead reviewing the formal and procedural aspects of law making.
The second section examines a series of questions which are of central importance to the implementation of the federal structure of the state. It discusses the general constitutional principles and rules of allocation of powers to federal government and sub-federal entities. It is generally agreed that the Constitution establishes a federal system in which the federal government is relatively weak and takes a distinctive approach to distributing powers, allocating the sub-federal entities with significant authority. The laws enacted by the sub-federal government take precedence over federal statutes in matters of shared competence. The conflicts in interpreting the constitutional rules and boundaries of powers have created an ongoing crisis between the federal government and the Kurdistan Regional Governmenmt, the only existing federal region. This constitutional and political crisis involves the constitutional provisions on regulating Iraq’s natural resources, namely oil and gas. Despite the frequent calls for the FSC to decide the issue, the Court has often refrained from addressing the substance of the issue explicitly.
The following section considers the role of the FSC regarding questions and issues central to the democratic transition and the peaceful alteration of power. There has been an increase in election-related cases in the periods leading up to or immediately following the general elections. The FSC has been involved in addressing and resolving questions significant to the principle of representation in a democracy such as the reallocation of the seats in the Parliament. These election cases might be viewed as one of the few areas in which the Court seemed determined to initiate or support reform of the legal and
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political system. The Court is also involved in crises of government formation, which by implication had indeed threatened the court’s institutional autonomy. The final section addresses the area in which the Court has exercised the most self-restrained approach, declining to rule on the substance and conformity of current legislation with Islamic law. Such an approach seems interesting as, although Islamic jurists are constitutionally members of the Court, they do not currently sit in the FSC. Therefore, this review is carried out solely by judges.
Chapter Six brings together the main arguments concerning the rule of law, judicialisation and transitional democracy. It also reflects on the main findings of this case study and attempts to situate them within a broader perspective. The thesis applies a vast and controversial body of literature related to the rule of law, judicialisation and courts in transitional democracies to the context of Iraq with its entirely new constitutional democratic order. The Court has addressed and resolved some of the major constitutional questions about the nature and function of state institutions and officials affecting the future of the country and society. The major findings based on the analysis of the case study consist of the following. First, the Court has exhibited a considerable degree of inconsistency in deciding apparently similar cases and in observing jurisdictional and admissibility rules. A good number of judgments appear to be inadequately or poorly reasoned, and many others have been written using ambiguous language. This lack of clarity and consistency in its approach raises the question of why the FSC has behaved in this way and raises concerns over the capability of such rulings to guide litigants and provide for certainty and predictably in applying legal norms, which is crucial for the rule of law.
Second, in the absence of already established judicial precedents and the lack of a tradition of functioning constitutional adjudication, the Court has often seen fit to take a pragmatic approach to constitutional issues. In particular areas, such as election laws or reviewing the constitutionality of the pre-2005 legislation and decrees, it seems to have taken into consideration the practical consequences of its decisions supporting legal and political continuity and stability.
Third, the FSC’s composition, extensive jurisdictions and its frequent involvement in contentious constitutional questions has arguably created considerable political interest in and sensitivity to the court’s addressing and
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resolution of such issues. Therefore, there has been considerable potential for external interference or pressure that might partially explain the Court’s inconsistency, its deliberate choice to favour ambiguity in its judgments or to take a relatively pragmatic approach to decision making. It can be argued that such threats to its institutional autonomy might have affected its general reluctance to address or resolve issues of substance related to government policies and to focus instead on the forms and procedures of law-making.
The fourth finding is related to the role of the FSC in preserving the constitutional balance of power. Constitutionally, both the Parliament and the sub-federal authorities have significant powers at federal level. The Parliament is the principal authority in matters of policy making, law making and holding to account the executive authority. There has been a noticeable trend towards the executive branch attempting to consolidate its powers. Conflicts involving this balance of powers, in particular between the executive and the legislature, have constantly been brought before the Court. The case law of the FSC might suggest that it has often legitimised the government’s exercise of powers and supported policies changing the constitutional balance of competences. This interference has weakened the Parliament and further strengthened the government, and affected the development of the federal structure of the state. Given the general implications of the FSC’s decisions for the constitutional and political development in the country, many would question its legitimacy and independence in these cases. On the one hand, there are continuing demands for constitutional adjudication; the court’s ambition is to remain influential and there is an increasing danger of potential infringements of its institutional autonomy if it decides to interfere further in contested political areas. On the other hand, there has been a slight change of approach that suggests that the FSC has reconsidered its position and role regarding some key decisions that were largely criticised by politicians and scholars.
Furthermore, the expectation is that this research will provide a theoretical framework for understanding the constitutional judiciary in Iraq and link its experience to the broader literature in this area. These findings might also point to some general observations that would apply to any emerging democracy. Thus, exploring judicialisation through the lens of the rule of law serves as a means of understanding issues of substantial importance to any
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emerging democracy. It is concluded that the importance of neither the rule of law and independence of the judiciary should be underestimated nor overestimated in transitional states. In a fragile transitional democracy, the government’s constant use of the formal rule of law in the absence or ignorance of its substantive values might enable it to claim its conformity with the rule of law, or to be seen to do so. The increase in judicialisation of constitutional issues might further exacerbate the challenges to the rule of law itself. Thus, there are growing concerns over weak or totally absent judicial independence, authority, accountability and constitutional culture as well as widespread institutional corruption. Given these concerns, a constitutional court with an expanded jurisdiction and relatively open accessibility might become central to political interest, sensitivities and interference. It is possible, therefore, that the government would use the judiciary and its consistant use of formal rule of law reasoning to legitimise the exercise of powers and conformity of such exercises with the rule of law as a means to hold onto power and avoid this being contested. Moreover, the concluding chapter suggests that there is significant potential that the FSC will encounter further challenges, face various questions and become the focus of comparative studies on the role of courts in new democracies.
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Chapter Two: Towards an Understanding of the Importance of
the Rule of Law in Transitional Democracies
Introduction
This thesis engages in an in-depth inquiry of the relevance and role of the judicialisation of constitutional issues from a rule of law perspective focusing on the post-2003 Iraq. It is imperative to begin with a conceptual understanding of and framework for the relevance and role of the rule of law in transitional democracies.
It is generally agreed that the essence of the rule of law is the supremacy of the law, and limiting the arbitrary exercise of power. Beyond that, disagreements occur concerning how the rule of law should approach these ends