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

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.

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