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The Judicialisation of Constitutional Disputes in Iraq: Exploring the Rule of Law in Transitional Democracies

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The Judicialisation of Constitutional Disputes in Iraq: Exploring the Rule of Law in Transitional Democracies The Judicialisation of Constitutional Disputes in Iraq: Exploring the Rule of Law in Transitional Democracies Thesis submitted in accordance with the requirements of the University of Liverpool for the degree of Doctor in Philosophy by Majida Sanaan Ismael November 2016 Tables of Contents Tables of Contents .............................................................................................. i Abstract ............................................................................................................. iii Dedication ......................................................................................................... iv Acknowledgments .............................................................................................. v Table of Abbreviations ..................................................................................... vi Table of Cases .................................................................................................. vii Table of International Conventions/National Constitutions and Statutes ......... ix Chapter One: Introduction ................................................................................. 1 Introduction .......................................................................................... 1 1.1 Constitutional and Political Developments in Iraq Pre-2003 ........ 5 1.2 Research Questions and Objectives ............................................. 15 1.3 Research Methodology ................................................................ 17 1.4 Contribution to Knowledge ......................................................... 19 1.5 Outline of The Thesis .................................................................. 22 Chapter Two: Towards an Understanding of the Importance of the Rule of Law in Transitional Democracies ............................................................................ 31 Introduction ........................................................................................ 31 2.1 The Rule of Law as a Contested Concept .................................... 32 2.2 Relationship between the Rule of Law and Democracy .............. 40 2.3 The Rule of Law in Transitional Democracies ............................ 47 Conclusion ......................................................................................... 59 Chapter Three: The Judicialisation of Constitutional Issues: Potential Factors and Implications ............................................................................................... 61 Introduction ........................................................................................ 61 3.1 Expansion of Judicial Powers: Institutional and Non-Institutional Explanations ----------------------------------------------------------------------62 3.2 The Supply Side Factors: Institutional and Structural Factors .... 67 3.3 The Demand Side Factors: Accessing the Judiciary and Legal Mobilisation ----------------------------------------------------------------------76 i 3.4 Transitional Democracy: A Challenge and Opportunity for Judicialisation ........................................................................................... 86 Conclusion ....................................................................................... 101 Chapter Four: Understanding the Iraqi Federal Supreme Court: Applying the Judicialisation Factors .................................................................................... 103 Introduction ...................................................................................... 103 4.1 Post-2003 Constitutional and Political Developments in Iraq . 104 4.2 The Iraq Federal Supreme Court: Composition, Powers, and Independence .......................................................................................... 127 4.3 An Emerging Support Structure: Potential for Public Interest Litigation before the FSC ....................................................................... 152 Conclusion ....................................................................................... 160 Chapter Five: The Federal Supreme Court’s Judicialisation of Constitutional Issues .............................................................................................................. 162 Introduction ...................................................................................... 162 5.1 The FSC’s Rulings on Legislative-Executive Power Struggles 164 5.2 The Role of the FSC in Developing Federal Structure of the State - -------------------------------------------------------------------------------------190 5.3 The FSC’s Approach to Elections and Government Formation 214 5.4 A Deferential and Self-Restrained Approach to Questions of Islamic Law …………………………………………………………...239 Conclusion ....................................................................................... 242 Chapter Six: Conclusion and Synthesis ......................................................... 245 6.1 Research Findings and Synthesis ............................................... 246 6.2 A Prospective View on the FSC and Future Studies ................. 277 Bibliography .................................................................................................. 282 ii Abstract It is generally agreed that the transition from authoritarian rule to a constitutional democracy often coincides with the adoption of a new, incomplete and often vague constitution that empowers, and more importantly constrains newly appointed and elected state officials and institutions. In such a transitional setting, it is to be expected that power will not only be exercised on the basis of democratic principles and practices, but that it will also be based on the rule of law, that serves to limit the arbitrary and abusive exercise of public power. Therefore, this thesis examines the role of newly empowered courts in emerging and transitional states and the far-reaching implications of transferring political conflicts into constitutional cases concerning the rule of law. It argues that resolving and judicialising contested constitutional questions can put the rule of law, the constitutional judiciary and the process of transition itself to the ultimate test in the period immediately following a transition to democracy. This thesis presents an in-depth case study analysing the recent constitutional and political developments in the fragile state of Iraq following the US-led invasion in 2003. It uses original and detailed analyses of the key case law of the Federal Supreme Court of Iraq; the legal doctrinal method and insights from comparative literature on courts, law and the political system. This thesis assesses the Court in the context of broader constitutional principles, such as the rule of law, and modern phenomena, such as the trend towards the judicialisation of politics, in the specific circumstances of transitional democratic states. Findings from this research are complex and multiple; they illustrate how establishing and upholding the rule of law in states that are newly emerged from authoritarian rule can be a formidable undertaking, one that is shaped by a legacy of authoritarianism and at best ‘rule by law’. The research concludes that, judicialisation affects and is affected by the rule of law. Thus, state officials and institutions may well bypass the constitution as well as transfer political disputes into constitutional cases; often using the judiciary to legitimise and institutionalise excessive political powers. When the government is not bound by the rule of law and the law is not sovereign over all, judicialisation might expose the court to external interference, as well as affecting the functioning of a new parliament which is attempting to establish its powers and legitimacy. iii Dedication This thesis is dedicated to: Every life that has been lost to keep our lives safe and, above all, to martyrs and Peshmerga. It is their sacrifices and belief in their cause in defending humanity and Kurdistan that has given me the courage to believe that even the seemingly impossible can be possible. iv Acknowledgments First and foremost, I would like to express my sincere gratitude to my supervisors Professor Michael Dougan and Dr Michael Gordon, for without their great patience, motivation and immense guidance and support this thesis would not have been completed. Their kindness and continual encouragement throughout has been invaluable. I also extend my grateful thanks to the Liverpool Law School, with special thanks going to Dr Thomas Horsley, Director of Postgraduate Research, for his constant support. In addition, I thank all my colleagues and academic staff, both in Liverpool Law School and Dohuk University, with special thanks going to Dr R Salim, who assisted me along the way. I would like to thanks my sponsor, the Kurdistan Regional Government, and the Human Development Capacity scholarship which has funded my doctoral research, for without this I would never have been able to have this once-in-a- lifetime valuable experience of studying and living in the UK. This was a challenging task given the scale of the financial problems, the refugee crisis and, above all, the never-ending fight against terror. Last but not least, I would like to thank my family: my parents and my brothers and sisters, especially my brother Serkat, for supporting me in every way they could not only whilst I completed this thesis but throughout my life, making it possible for me to overcome my personal difficulties during
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