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

Ismael, MS (2016) The Judicialisation of Constitutional Disputes in Iraq: Exploring the Rule of Law in Transitional Democracies. Doctor of Philosophy thesis, University of Liverpool.

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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.

Item Type:	Thesis (Doctor of Philosophy)
Divisions:	Faculty of Humanities and Social Sciences > School of Law and Social Justice
Depositing User:	Symplectic Admin
Date Deposited:	24 Aug 2017 14:02
Last Modified:	16 Jan 2024 17:21
DOI:	10.17638/03004785
Supervisors:	Gordon, M
URI:	https://livrepository.liverpool.ac.uk/id/eprint/3004785