Elections and government formation in Iraq: an analysis of the judiciary's role.

• Author: Trumbull, Charles P., IV

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. The elections were the first to be held under the 2005 Constitution, which guaranteed all Iraqi citizens "the right to participate in public affairs and to enjoy political rights including the right to vote, elect, and run for office." (4) Unlike in 2002, voters would be able to choose from among the six thousand candidates running for Parliament, which would then approve the Council of Ministers and elect the President. The Iraqi government invited numerous international observers, including officials from the United States Embassy and the United Nations Assistance Mission for Iraq (UNAMI), to monitor the elections, and it made provisions for "special [needs] voting" and out-of-country voting in sixteen countries. (5)

On March 7, 2010, approximately twelve million Iraqis went to the polls despite al-Qaeda's attempts to disrupt the elections. (6) President Obama praised the elections, stating that the vote made it "clear that the future of Iraq belongs to the people of Iraq." (7) UN Secretary General Ban Ki-Moon "welcomed the overall integrity and transparency of the electoral process, which was widely assessed as having been conducted according to international standards." (8) Iraqis celebrated in streets across the country, voters proudly displayed their purple ink-stained fingers, and Western diplomats expressed audible sighs of relief.

The March 7 election was a milestone for Iraq and the region, but it was just one step in the long and twisted path to a democratic Iraq. The months leading up to the elections were marred by political disputes, violence, and legal challenges, as Iraqi leaders bickered over controversial amendments to the Election Law. (9) The disqualification of hundreds of candidates pursuant to the de-Ba'athification laws brought Iraq to the brink of renewed sectarian warfare. Following the elections, Iraqis faced the more daunting (and at times seemingly impossible) challenge of forming a government in accordance with the procedures set forth by the Constitution. Ayad Allawi's predominately Sunni coalition won a slim plurality of parliamentary seats, leading to numerous legal challenges by Nouri al-Maliki, the incumbent Prime Minister, as to both the election results and individual candidate eligibility. Even after the results had been certified by the Iraqi Supreme Court, politicians continued to argue for months over who had the right to form the government, causing shifting alliances, a dangerous vacuum of power, and an ominous uptick in violence.

This Article examines the winding yet historic road to democratic elections in Iraq and the subsequent government-formation process. In particular, it discusses the legal challenges that Iraqi actors confronted and analyzes the judiciary's approach to resolving these disputes. It demonstrates that throughout this process, the Iraqi courts showed a remarkable resilience to political pressure, and issued decisions that were both legally defensible and generally accepted by diverse political actors and the Iraqi public. Throughout the election saga, a precarious time in the nation's history, courts reinforced judicial independence and the authority of the rule of law, cementing the judiciary's role as a neutral arbiter of disputes pertaining to governance.

Part I places the March 2010 election in its historical and political context. Part II analyzes the passage of the controversial amendments to the Election Law, including the veto by Vice President al-Hashimi and the last-minute compromise that salvaged the elections. Part III examines the de-Ba'athification process that threatened to reignite a Sunni insurgency and the difficult appeals that the courts were required to resolve. Part IV discusses the legal challenges to the election results and the subsequent recount, and Part V examines the Federal Supreme Court's (FSC or the Court) interpretation of a constitutional provision at the center of the government-formation controversy. Finally, Part VI analyzes the judiciary's approach to dealing with these controversial legal questions and challenges the views of commentators who question the independence of Iraqi courts. Part VI ultimately concludes that the integrity of the judiciary throughout this process ensured the legitimacy of the elections and helped promote public confidence in the democratic process and the rule of law.

1. BACKGROUND

   1. The Transitional Period

      In 2003, a UN Multi-National Force (MNF-I) overthrew the regime of Saddam Hussein and placed Iraq on a long and bloody path to democracy. (10) The United States and the United Kingdom assumed the role of occupying powers, (11) and they quickly established the Coalitional Provisional Authority (CPA), headed by L. Paul Bremer, as the governing authority. (12) Shortly after, Bremer formed the Iraqi Governing Council (IGC), which was composed of twenty-five prominent Iraqis who were selected primarily from the pre-war opposition groups. (13) The IGC's principal functions were to advise the CPA, propose legislation, and draft an interim constitution (under close supervision by American officials). (14) On March 8, 2004, the IGC adopted an interim constitution, called the Law of Administration for the State of Iraq for the Transitional Period (TAL). (15) The TAL went into effect on June 28, 2004, the same day that the CPA dissolved and transferred governing authority to the Iraqi Interim Government, headed by Ayad Allawi. (16)

      In January 2005, Iraq held its first national election since the fall of the Hussein regime to select the Transitional National Assembly, the body that would be responsible for drafting the permanent constitution. (17) Pursuant to CPA Order 96, the country was composed of a single constituency, and Iraqis were required to vote for a single political party list rather than individual candidates. (18) Seats were distributed to the political lists based on the percentage of votes received. (19) Sunnis largely boycotted the elections, resulting in predominately Shia and Kurd membership in the Transitional National Assembly. (20)

      The Constitution was approved on October 15, 2005, in a national referendum...