Constitutional elaboration amid division : court impact on institutional development and minority inclusion in Iraq

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2021-12-03

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Moran, Ashley McIlvain

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Abstract

Iraq's 2005 constitution outlined ambitious plans to build a liberal democracy and inclusive society after decades of autocratic, discriminatory rule. These twin aims produced a range of competing needs—to constrain the executive and maintain institutions strong enough to bind a divided society, to ensure minority representation and prevent social divisions from cementing in politics, and to facilitate both inclusive deliberation and efficient policymaking on urgent issues. Seeking solutions to these diverse needs, constitution drafters adopted an equally diverse set of strategies. These blended accommodative structures that guaranteed minority representation, integrative structures that folded minority interests into a unified polity, and procedural strategies that delayed discussion of critical but contentious aspects of the constitutional order. Given the complex—and often conflicting or ambiguous—arrangements this produced in the constitution, the Iraqi Federal Supreme Court's interpretation of these arrangements has since played a key role in shaping the constitutional order.

Iraq's hybrid approach to constitutional design reflects a growing global trend, with countries increasingly combining constitutional strategies once thought competitors. Yet even as hybrid designs have proliferated, there has not been commensurate scholarly attention to such systems as a distinct subtype of constitutional design. This study introduces new theories and measures that capture the full complexity of hybrid design and the Court's critical role in navigating that complexity. Analyzing the Iraqi Federal Supreme Court's 728 decisions and opinions in the first ten years after the constitution's adoption, this study identifies how Court rulings shaped institutional development and minority inclusion in ways both envisioned and unanticipated by the 2005 constitution.

The Iraqi experience identifies four unique Court contributions to constitutional development in divided societies after a new constitution's adoption. This study finds the Court was critical to: enforcing constitutional commitments on minority inclusion, elaborating constitutional ambiguity to produce new institutional arrangements that were not achievable in drafting or post-adoption political processes, fostering diversity without cementing divisions, and building unified structures without excluding key societal interests. Iraq's experience with early constitutional elaboration and Court guidance of that process provides new insights for other divided societies in early stages of constitutional transitions.

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