Chalabi and Lami Also Control the “Independent” Elections Commission

One of the many remarkable aspects of the continuing de-Baathification saga has been the apparent willingness of the Iraqi elections commission (IHEC) to more or less mechanically follow the recommendations of the accountability and justice board and its two leading figures, Ahmad Chalabi and Ali Faysal al-Lami. Nonetheless, until now the IHEC has at least maintained a semblance of formal independence in its decision-making by providing its own “independent” consideration of the advice from the justice and accountability board before implementing it. This was the procedure that was followed for example in the recent exclusion of 511 candidates for the 7 March parliamentary elections.

However, with the release of the minutes from one of the latest meetings of the IHEC, both its independence and the distinction between the elections commission and the accountability and justice board are thrown into question in a serious way. Recently, on top of the ban of 500 plus candidates, the IHEC also moved to cancel the approval of nine political entities. The logic that was followed was apparently that when an entity leader was subject to de-Baathification the entire list should have its approval annulled; however the sole legal justification offered was a reference to an order issued by Paul Bremer in 2004 (CPA order 97) which gave the predecessor of the IHEC the right to basically cancel any political entity it wished to cancel – probably reflecting the absence of more plausible, precise and up-to-date legal justifications for establishing links between entity heads and their electoral lists in terms of de-Baathification. Importantly, when the IHEC first issued its decision, one did get the sense that the elections commission had come up with the idea itself, which would have been the most natural procedure since the CPA order relates to the election law that was in use in 2004 and 2005 and since it is the commission itself that is empowered by the CPA reference. But the newly released minutes reveal that the specific idea of reverting to a sweeping CPA edict in order to ban unwanted political entities came not from the IHEC but directly from the accountability and justice board!

In other words, the accountability and justice board is not merely influencing the IHEC. Rather, at times the board is capable of acting as the guardian of the “independent” commission, thinking on its behalf and supplying the very arguments that are being marshalled to defend its supposedly autonomous position. In this case, the brief summary of the relevant meeting on 18 January reveals in an unambiguous way the origin of the idea to use CPA order 97: “The assembly [of the IHEC] discussed letter 231 from the accountability and justice board dated 18 January, entitled ‘ban on participation’ and referring to section five of law number 97 on elections and political parties from 2004, and accordingly decided…” When this was later issued as a decision it looked like something that had been agreed by the IHEC. In reality, it was an accountability and justice board decision in everything but the name.

The shocking part of this is not that the IHEC is politicised; that is an open secret recognised by most Iraqis. The new element is that one particular political bloc – the Iraqi National Alliance – seems capable of pushing through its own view at the expense of others, thereby crushing any idea of a neutralising balance of power in this important body that is  incidentally also charged with counting the votes after the 7 March elections. The exact timing of the response to the decision by the appellate court last week is particularly interesting in this respect. Around 5 PM local time on Wedsnesday, the IHEC through its spokesman Khalid al-Shami had essentially set out its argument about the appeals court interfering in the prerogatives of the IHEC. Still at 7:30 PM, Hamdiyya al-Husayni of the IHEC (who is close to the Daawa), seemed to signal acceptance of the decision. But at 9:45 the Iraqi National Alliance issued its condemnation, which was followed later in the evening by a statement by one of its allies in the IHEC, Qasim al-Abbudi, to the effect that the commission had not even received the decision by the appeals court and that the apparent approval by Husayni merely reflected her “personal opinion”. Soon thereafter, the Daawa followed suit with its own condemnation, thereby once more effectively succumbing to the Iraqi National Alliance and its goal of having de-Baathification at the top of the political agenda ahead of the elections. The next day, the IHEC asked the supreme federal court for a clarification but this was superseded by a meeting of the “four presidencies”.

The discussion about the “independence” of the IHEC is of crucial importance to the next stage in the de-Baathification process for a number of reasons. Firstly, it has to be remembered that the rationale for the protest by the accountability and justice board and the Shiite Islamist parties against the appeals court was that the latter had supposedly “infringed” on the prerogatives of the IHEC by going as far as “permitting” participation instead of dealing with de-Baathification status only. It should now be perfectly clear that the accountability and justice board itself is guilty in this respect, not only of carrying out such infringement but moreover of doing it in a way that clearly serves the political ends of its leaders, who are affiliated with the main Shiite alliance. Secondly, this point will assume renewed importance when the appeals court issues its final decision over the coming two days – this time probably limited to the question of whether individual candidates are subject to de-Baathification or not. Already, there is divergence of opinion as to the consequences of a ruling by the appeals court. On the one hand, Ali al-Lami and others in the accountability and justice board have repeated their view that it is the job of the IHEC to make the final decision, and that the commission does not necessarily need to follow the appeals court ruling to the letter. Expressing the opposite point of view, Iraqiyya representatives say the ruling is binding upon the elections commission.

In view of what has now emerged with respect to the ability of the accountability and justice board to dictate the decisions of the IHEC on some occasions, it becomes more important than ever that the IHEC should follow the recommendation of the appeals court one hundred per cent. If not then the whole Iraqi process would become utterly farcical: What is the point of an appeals institution if the court that was overturned has the power to reinstate its original decision in the end by using its “independent” proxies? Under that kind of scenario, the new democracy in Iraq would become about as interesting and competitive as parliamentary elections are in Syria and Egypt.

Back to Work for the Appeals Court

[Update 2, 8 February 11:45 CET: It is being reported that with the appeals court having resumed its work Maliki has told Samarraie there is no need for an emergency session of parliament today and this is likely to be called off]

[Update 7 February 14:15 CET: Iraqi state television reports that the emergency session of parliament has been postponed until tomorrow, Monday]

Those who had wanted a purely legal solution to Iraq’s de-Baathification crisis experienced a setback today. In a rather blunt attack on the principle of separation of powers, “the four presidencies”, i.e. the president proper (Talabani) plus the “presidents” of the cabinet (Maliki), the parliament (Samarraie) and the higher judicial council (Midhat al-Mahmud) had been summoned to a meeting that probably was aimed at pre-empting any independent decision by the federal supreme court on the query from the elections commission (IHEC) regarding the latest decision by the special appeals court for de-Baathification cases. In the event, Talabani absented himself but Maliki and Samarraie were joined by one of the deputy speakers of parliament (Khalid al-Atiyya) and one of the deputy prime ministers (Rawsch Shaways), ensuring a setting that was entirely dominated by politicians from the big parties.

Unsurprisingly, perhaps, this quartet apparently strong-armed Judge Midhat into accepting the procedure they had been advocating all along: That the appeals process must run its course in a normal way, with the added caveat that the work of the appeals court must now be completed before the start of the electoral campaign on 12 February. That probably means good bye to any idea of due process given the short period that remains, which had been a main argument in the decision to postpone the appeals (incidentally, it is also a violation of the 60-day period for consideration of appeals stipulated in the relevant legislation). Still, article 17 of the accountability and justice law does provide the appeals court with rather unambiguous powers to decisively reverse any decision by the accountability and justice board as far as the de-Baathification status of an individual is concerned. The court is also protected by the absence of any mechanism for its dismissal in the accountability and justice law. This latter point was apparently lost on members of the legal committee of parliament who earlier today called for a “withdrawal of confidence” in the court, thereby just confirming a growing tendency of Walt Disney-style behaviour that has also included calls for de-Baathification of figures like Vice President Tareq al-Hashemi and even General David Petraeus. Unfortunately, parliament is still scheduled to meet tomorrow to make “adequate decisions” in the matter, suggesting that there may be yet more theatre to come (maybe to provide some kind of formal cover for the procedure that was already reported from today’s meeting, whose prerogatives to actually “decide” on anything seem unclear).

It seems likely that the relatively strong character of the initial ruling by the appeals court (with a direct attempt at reinstating candidates) was an attempt at pre-empting moves by Ali al-Lami of the de-Baathification board to pressure the IHEC to ignore the court’s decisions on individual appeals (this had already been publicly hinted at by Lami prior to the release of the decision by the appeals court). The minimum the international community can now do is to send a clear signal that any attempt by the IHEC to override the decisions of the appeals court in individual cases next week will make it exceedingly difficult for the outside world to continue to classify Iraq as a “democracy” in any meaningful sense of the word, something which in turn will inevitably have a negative impact on foreign aid and investment.

The Ruling by the Appeals Court

Iraq’s higher judicial council has now published the ruling by the appeals court devoted to de-Baathification cases. The decision comes with the hallmarks of a judicial process that has run out of control, but it also includes some features that should make it relatively easy for the federal supreme council to make a final settlement on the question of who should take part in the 7 March parliamentary elections.

The ruling by the appeals board is straightforward at first. It enumerates the practical challenges involved in examining both the evidence used in the decision to exclude 500 plus candidates as well as the evidence submitted by those who appealed (interestingly, it also mentions the question of the legality of the board which issued the decision as a separate issue), before going on to refer to the short period of campaigning set aside ahead of the 7 March elections, including the fact that several days will lapse as a result of the Arbain holiday. Therefore, it says, the court “is of the opinion” or “thinks it proper” (using the verb “to see”) that the appeals be postponed and that the banned candidates be allowed to run for election provided that their seats in parliament will not be awarded until the appeals process has been completed. Accordingly, the court “decides” (and this is stronger than the above) to postpone the processing of the appeals.

What the justice and accountability board and the elections commission (IHEC) are reacting to when they condemn the decision is presumably the explicit reference to a reinstatement of the candidates to allow the to take part in the elections, which may be seen as an infringement on the prerogatives of the elections commission. However, it is also necessary to see this move as a response to a process which has long ago escalated beyond the judicial parameters to which it supposedly relates, with the main culprit in driving this process of escalation forward clearly being the accountability and justice board itself. The board still seems to live in the atmosphere of 2004, when it developed the idea that it had almost unrestricted rights to go after former Baathists and suspected current Baathists on whatever basis it thought plausible – in other words, the kind of totalitarian witch-hunt approach where a picture of Saddam Hussein in your wallet might incriminate you. Conversely, it continues to systematically violate the accountability and justice act of 2008, which was put in place to create some kinds of checks and balances in the de-Baathification process, and according to which the appeals board has been constituted.

Beyond the obvious example of arbitrarily reducing the period of appeal from 30 to 3 days (article 15), the accountability and justice board has banned several candidates not with reference to the accountability and justice act but to article 7 of the constitution, under which it has no specific mandate  (that article also includes racism and sectarianism and therefore involves a far wider range of potential cases for exclusion of candidates). And with respect to interference in the work of the IHEC (which is what the board is now accusing the appeals court of engaging in) it has already sinned repeatedly in this regard itself, for example in its letter number 189 dated 16 January 2010 to the IHEC where it talks not about de-Baathification according to the accountability and justice law as such (its proper remit) but about the right of candidates to take part in the elections.

Thankfully, the wording of the decision by the appeals court creates a possibility for the federal supreme court to intervene in a way that can take this process back to the realm of legalism. Press reports say that the IHEC has asked the supreme court whether the decision by the appeals board is binding. Arguably, the “decision” in this case is simply the final sentence of the ruling, in which the appeals process is postponed until after the elections, period. In isolation, that does not involve any kind of overreach by the appeals court, and the federal supreme court can simply say “yes, it is binding”, and refer to article 17 of the accountability and justice act which establishes that the decisions of the appeals court are “final” and “decisive” and hence cannot be appealed to any other court. It would then be impossible for the IHEC to deny the affected candidates the right to take part in the elections pending the settlement of their appeals.

That kind of approach would at the same time serve to restore both Iraqi imprimatur and a sense of judicial independence in a context where accusations of foreign interference and “politicised decisions” abound. Whatever parliament will try to do on Sunday, it will still be a game of politics that will threaten to further violate the principle of separation of powers. But whereas the appeals board itself has been subjected to politics (it was seated after a split vote in which Sadrists and other Shiite Islamists tried to dismiss three of its members as “Baathists”), the federal supreme court has often been seen as capable of rising above politics, both with respect to Iraqi players and in contexts where there are pressures from the outside. By simply approving of the postponement as “binding”, the federal supreme court should be able to de-escalate Iraq’s current crisis and create a better atmosphere for the upcoming elections campaign.

The Backlash from the Hardliners

Perhaps the most surprising aspect about yesterday’s developments in Iraq was that the whole thing was allowed to proceed quite far before a reaction materialised. However, when it came – towards the end of the evening, when many Western newspapers were already in print – it was just as ferocious as one would expect.

Part of this confusion may have to do with the fragmented character of the communications from the Iraqi elections commission (IHEC) on the issue. For once, we heard a lot from Amal al-Biraqdar, who is thought to be the only commissioner with ties to Iraqiyya. She said the appeals court had “cancelled” the decision by the accountability and justice board to exclude more than 500 candidates. Hamdiya al-Husayni, who is considered to be close to Nuri al-Maliki, also conveyed the decision of the appeals board mostly as a fait accompli, although she did present it as a postponement rather than as an outright annulment. The head of the commission, Faraj al-Haydari who has a past in the KDP, went further then Biraqdar and Husayni in expressing doubt about the decision; none of the commissioners with ties to the Shiite-led alliance known as the Iraqi National Alliance – including Qasim al-Abbudi, who is the most prominent of them – made any public comment at all.

Since the IHEC on many occasions has followed the diktats of the accountability and justice board rather robotically, its apparent recognition of the reinstatements for some hours yesterday could conceivably have been interpreted as a signal from powerful figures in the Iraqi government (Kurds? Pro-American Daawa figures??) that enough was enough and that there had to be limits to a de-Baathification process that has been spinning out of control. And for a while, the Daawa was silent whereas the Iraqi National Alliance including Chalabi, Lami and their partners in ISCI and the Sadrists took the lead in condemning the decision and branding it “unconstitutional”. However, towards the end of the evening, Maliki, too, joined this chorus, and even some of his more pro-American advisers like Sadiq al-Rikabi went on record with criticism of the decision to reinstate candidates. It was, in other words, becoming clear that the Shiite Islamists were singing from the same sheet, probably to the satisfaction of the forces behind the de-Baathification drive.

Symptomatically, not one but two possible ways forwards have been sketched out today. Maliki has called for an extraordinary session of parliament (which had adjourned for the last time after passing the budget), to take place on Sunday. That means that even more politics will be injected into this affair, and it cannot escape notice that Maliki was already working on a rapprochement with some of the Shiites in the “other” alliance that would involve either a presidential veto of the budget or precisely an extraordinary session of parliament to put in place the special committee that will confirm some 115,000 positions in the state bureaucracy which Maliki had hoped would be taken care of prior to the elections (but which the other Shiites have continued to deny him as “penalty” for not joining their alliance).

Additionally, the IHEC says it will seek the opinion of the federal supreme court on the legal implications of the decision by the appeals court. Crucially, according to a statement by Faraj al-Haydari, it will only ask whether the decision is “binding” or not (figures in the accountability and justice board like Ali al-Lami and Khalid al-Shami have already expressed the view that it is not). Since the wording of the decision by the appeals board is not in the public domain, it is a little difficult to predict how the supreme court will react to this kind of query. However, if it is indeed correct that the board has tried to rule on the right of the banned candidates to take part in the elections (i.e. by stipulating a procedure for postponement until after the elections instead of simply ruling on their de-Baathification status) there is a danger that this may be seen as overreach with respect to the prerogatives defined in articles 15 to 17 of the accountability and justice act of January 2008. On the one hand, there is no doubt that the appeals court has the right to reverse decisions by the accountability and justice board, and that its decisions are “final”. It can clearly trump the accountability and justice board and the IHEC on the question of whether someone is subject to de-Baathification (in Arabic mashmul versus ghayr al-mashmul), and it would be scandalous if either of them tried to overturn the decision of the appeals court in this respect. But if the court has gone further than that in its decision by prescribing modalities for participation in the elections and for a post-election reassessment of the cases (as reported by Husayni), then things become more complicated and the decision may be more vulnerable to an attack on purely procedural grounds. It has to be remembered that whereas the federal supreme court is often referred to with optimism by secular Iraqis, it did produce a rather weak ruling last December when it had the opportunity to strike harder against the accountability and justice board and the IHEC. That said, it would be throroughly shameful if the court simply opted to describe the latest ruling as “non-binding” on procedural grounds while turning the blind eye to the many procedural infractions by the accountability and justice board itself, including most flagrantly the abrupt and unexplained reduction of the appeals period stipulated in the accountability and justice law from 30 to 3 days.

Meanwhile, the IHEC has announced that the start of campaigning, previously scheduled for 7 February, has been postponed until 12 February.

Reinstated, for the Time Being

In an increasingly messy process, all the 500 plus politicians that initially had been banned from standing as candidates in the 7 March elections have reportedly today been given the green light to take part unless their names have already been changed unilaterally by the political entities affected by the ban.

The hard facts of this sudden reversal appear to be as follows. The seven-member appeals board that was abruptly appointed by parliament some weeks ago in an attempt at approximating the legal modalities set out in the January 2008 accountability and justice act has today issued a decision that all the appealed cases will be dealt with after the elections. It was the elections commission (IHEC) through two of its commissioners, Hamdiya al-Husayni and Amal al-Biraqdar, that transmitted this breaking news. The IHEC thereby seemed to imply its own approval, but at least in the statement by Biraqdar also seemed to ascribe responsibility for the decision to let the candidates take part to the appeals court (i.e. rather than to the IHEC itself; at least some sources talk of a straightforward “annulment” of the ban on participation by the appeals board.)

Of course it is good news that the elections will be more inclusive. It should however be stressed that several judicial aspects concerning the reinstatement process remain murky. Under the accountability and justice legislation, the appeals board has the final say with regard to the de-Baathification status of an individual. However, that piece of legislation was basically crafted to deal with de-Baathification in the state bureaucracy and has in principle nothing to do with the elections. The link to the elections is the election law, which in turn excludes candidates that are covered by the de-Baathification procedures. Accordingly, the ultimate decision on participation in this case probably rests with the IHEC and/or the federal supreme court. Although one would expect those institutions to mechanically follow the recommendation of the appeals board as regards the de-Baathification status of an individual (or muster exceedingly convincing arguments for overriding the board), it seems inappropriate for the latter to venture an opinion about participation in the elections as such. In this way, the rebuke by the appeals commission seems as legally ambiguous as the exclusions it was meant to deal with, at least if press reports out of Iraq today are anything to go by (it is Arbain holiday season so reporting may be substandard for that reason).

Predictably, the hardliner accountability and justice board has already made this point about the supposedly “independent” role of the IHEC in deciding on participation, and it also repeated that position just hours after the latest news on reinstatement of the banned candidates broke. The problem for the board is of course that it is itself so legally questionable both in its origins and its behaviour that it long ago lost the moral authority to employ such lofty concepts as “constitutionalism” and “legalism”. As for the IHEC, as late as yesterday it was busy implementing the orders of the accountability and justice board. More generally, in recent weeks it has increasingly appealed to CPA order 97 as a basis for virtually unlimited authority to restrict participation in the elections.

The apparent success of the appeals board in pushing through a move that in strict legal terms may be partially outside its jurisdiction suggests that the latest decision on reinstatement may have been taken elsewhere. Inevitably commentators will see certain parallels between today’s news and the initial American reaction when the ban was first announced some weeks ago. Back then, the idea in Washington was precisely to have the decision on de-Baathification postponed until after the elections. Accordingly, reactions by hardliner Shiite media such as Buratha news (which today described the latest development as a diktat by Joe Biden) should be unsurprising.

Nonetheless, Iraqi politics has for many months played out as an ugly wrestling match where no holds are barred and claims of “legality” and “constitutionality” are entirely fictional. Forces seen as supported by Iran launched its attack using the de-Baathification weapon; the hand of the United States is now seen by many in the recent move to reverse the exclusions. This could possibly reflect some continued American leverage in Kurdish circles and among some of the Shiite Islamists, but of course it also refers to the fact that the movers behind the exclusions have already achieved their main aim which was never exclusions per se but rather to have de-Baathification as a defining issue at the time of the elections.

At any rate, dirty tricks are being used on both sides. Still, in terms of the overall atmosphere of the elections this latest development will at least serve to create a greater sense of balance of power. The de-Baathification board tried to create an air of intimidation and the impression that they controlled the system; with the abrupt postponement of the de-Baathification process their opponents will now feel that the international community has intervened, albeit covertly and indirectly, and therefore somehow remains capable both of diagnosing systemic problems in Iraq and of responding to gross irregularities in the electoral process. Husam al-Azzawi of Iraqiyya today welcomed the latest development and went on to propose an even better solution: An emergency session of parliament that would simply get rid of the current de-Baathification board. That sort of catharsis is probably a too optimistic scenario, but today’s developments, despite their ambiguities in legal terms  – and maybe because of those ambiguities, which after all seem to reflect that the de-Baathification board still has some competition – may at least be a step in the right direction. Not least, they may go some way towards motivating Iraqis that are critical of the current system of government to at least try to change the system from within through taking part in the 7 March elections.

The Reign of Terror Continues in Iraq

It is not only suicide bombers that make up the problem of terror in today’s Iraq. Also the new republic itself is looking more Jacobin by the day.

After the French revolution, Maximilien de Robespierre in 1793 famously concentrated almost all power in a committee called Comité de salut public or the committee of public safety. Until its dissolution in 1794, this body fought a relentless war against real and imagined enemies of internal and external origin. Its preferred method for dealing with dissent was the guillotine; its year in power became known as “the reign of terror”.

In today’s Iraq, another committee is becoming increasingly important at the highest level of government: the de-Baathification board. Its procedures are different from those followed by Robespierre and his allies, but their impact is very similar: An atmosphere of fear designed to intimidate political opponents, increasingly on the pattern of what is going on in neighbouring Iran.

Developments over the past days have only underlined the extent to which the whole de-Baathification process has become politicised and devoid of any legal guarantees. After having previously presented a list of 511 banned candidates, Ali al-Lami of the de-Baathification board recently announced that a second batch of some 700 additional names was on its way to the independent election commission (IHEC). He also declared that the outcome of the ongoing appeals process for the banned candidates would not automatically mean reinstatement: That decision was for the IHEC to make, and would not necessarily follow the advice of the seven-member appeals court panel that has recently been put together. Meanwhile, the Iraqi parliamentary committee that supposedly exercises some kind of oversight over the de-Baathification board has suddenly declared that it is looking into the details of some of the appeal cases, after having initially given its stamp of approval for the first round of exclusions. In sum, it appears as if the idea of due process has been merrily abandoned in favour of an impromptu procedure that is being made up as we move along. Under CPA order 97 – the only legal authority to which these forces now bother to make reference – everything seems possible.

Just to underline the capriciousness of what is going on, late last night, Hamdiya al-Husayni, an IHEC commissioner who is close to the Daawa party, announced that a second batch of 57 names of persons that would be banned from running as candidates had been received from the de-Baathification board, incidentally meaning that around 650 names from Lami’s assessment on Sunday apparently had gone lost somewhere along the way. The commission has also announced separately that Zafir al-Ani, a breakaway leader of Tawafuq, has been banned, presumably reflecting the outcome of his appeal (Ani’s case, alongside that of Mutlak, was reportedly due to be reconsidered by the parliamentary sub-committee “today or tomorrow”; that has presumably been called off). Finally, the IHEC has declared that campaigning for the elections is to start on 7 February, thereby leaving no more than 4 weeks to the parties ahead of the vote, and opening the question of what will happen to any appeals related to the most recent batch of exclusions. (The idea has always been that campaigning will start when candidate lists have been printed and one would assume therefore that no campaigning takes place until the appeals process has been duly exhausted; however between today and Sunday, much of Iraq will effectively be closed down due to the Arbain Shiite pilgrimage marking the end of the 40 days mourning period for Imam Hussein.)

These infractions of basic legal principles notwithstanding, key players in the international community appear to be lining up to give their tacit backing to the de-Baathification committee. The latest addition is the head of UNAMI in Iraq, Ad Melkert, who in a recent meeting with Ammar al-Hakim of ISCI described the de-Baathification process as one based on Iraqi constitutional criteria. Previously, Vice-President Joe Biden expressed his support for the Iraqi process, followed by President Barack Obama who voiced general support for the Iraqi government in his State of the Union address. One can get the impression that Washington could end up sitting idly by, simply hoping that a minimum number of reinstatements of banned candidates will be delivered by the Iraqi system itself prior to the elections.

Election propaganda for the Iraqi National Alliance from the Buratha news agency warning about the return of the Baath

Perhaps most dangerous in all of this is the idea, held by a considerable number of influential think tankers in the West, that this is all a case of a misunderstanding and that most of the key players in Iraq in reality do not support the de-Baathification board – an idea that seemed to gain prominence not least after the recent visit to Washington by ISCI’s Adil Abd al-Mahdi. This view is deeply misleading, for two reasons. Firstly, it goes without saying that if the leading parties in Iraq really disapproved of the actions of Messieurs Lami and Chalabi, they could simply have dismissed them by a parliamentary vote. Secondly, when sweet talk by Abd al-Mahdi in Washington is translated as disapproval by ISCI of the de-Baathification process, this is just plain wrong. For one thing, leading ISCI media like the Buratha news agency and the Forat television channel have been pumping out anti-Baathist propaganda for months, creating a sectarian dimension to the issue by associating the potential rise of Salih al-Mutlak and other banned candidates with an upsurge of violence against Shiites and Shiite mosques. But even the polished Adala newspaper that is owned by Abd al-Mahdi himself publishes this stuff up front. For example, it has recently given ample space to Ibrahim al-Jaafari, who is part of their electoral alliance, and his defence of the actions of the de-Baathification committee. When Western commentators focus on reassurances offered in Washington they simply miss the bigger picture and the systematic attempt by the Shiite Islamist parties to have  de-Baathification as a defining issue ahead of the 7 March elections.

From Al-Adala, the newspaper of Adil Abd al-Mahdi

After the Jacobins, can Iraq stomach a Thermidorian reaction, a Directory, and a Bonaparte?  President Barack Obama, a Nobel laureate, should not leave behind a situation with this sort of violent potential.

Blacklisted in Baghdad: Can Washington Fix Iraq’s Election Crisis?

On why Iraq keeps blowing up in the face of the Obama administration, and what it can do to prevent this from happening again. Opinion piece at the website of Foreign Affairs; full article here.

Decentralisation Bonanza in the Iraqi Budget

“Pork barrel” may perhaps come across as supremely insensitive in the Iraqi context and yet this very American expression may be the best way of explaining the political compromise that facilitated the passage of the 2010 budget in the Iraqi parliament yesterday.The key to understanding at least some of the underlying dynamic here is hidden in article 43 of the new budget law, which specifies special rates of added income for a number of Iraqi governorates according to their economic structure… Full story here.

The New De-Baathification Board?

The big news out of Iraq today is of course the passage of the 2010 budget, but since the final document  (including the all-important annexes) has been a little slow to emerge, we might as well have a look at another interesting item in the meanwhile, published this morning by Sumaria TV.

Sumaria, which was also the first to publish the names of the 511 banned candidates for the 7 March parliamentary elections, claims to have obtained the revised list of candidates for the de-Baathification board that the government is eager to put in place in order to improve the legal façade of its de-Baathification process. According to the sources, the new names are Kamran Rasul and Bakhtiyar Umar from the Kurdistani list, Haydar Hanun of Daawa, Falah al-Shanshal of the Sadrist list (he has lately been the most outspoken parliamentary supporter of Lami/Chalabi’s de-Baathification policy), Muhammad Salim and Mahdi Salih listed as Iraqi National Alliance (presumably ISCI or close to ISCI since the Sadrists are listed separately), and Abd al-Razzaq Hassan of Tawafuq.

The apparent removal of Walid al-Hilli, Maliki’s preferred candidate to head the commission, is interesting. Other than that, it has to be said that with the exception of Shanshal, these aren’t individuals about whom a great deal is known. But if the party affiliations are correct as reported (the candidature of Shanshal, at least, has been confirmed by other sources) then this is bad news indeed. Blunt, straightforward ethno-sectarian and party-based muhasasa with 4 Shiite Islamists, 2 Kurds, 1 token Sunni Islamist and, as usual, no one representing the secular nationalists. The board was reportedly not voted on today even though Shanshal had pressed for such a vote.

The Ghost of Paul Bremer Strikes Again: Nine Entities Banned with Reference to CPA Order 97

The Iraqi elections commission (IHEC) has earlier queried the constitutional court about the relationship between excluded party leaders and the entities they represent. Last December it asked whether it would be constitutional to ban an entity if its leader were excluded; the court replied it did not want to issue an opinion on this and said the matter rested with the IHEC. It was subsequently rumoured that the accountability and justice board wanted to exclude between 10 and 15 entities, and it was thought that there might be an attempt at linking the banning of entity heads and their entire parties.

Today, the IHEC has acted in a bolder fashion. Referring to section 5 of CPA order 97 from 2004, they have cancelled the approval of 9 entities previously slated to take part in the elections. CPA order 97 is an unmistakable Paul Bremer creation. It pompously begins, “Pursuant to my authority as Administrator of the Coalition Provisional Authority…” The relevant section simply runs as follows, “All further matters regarding the regulation and certification of political entities lie with the Commission exclusively”. Very general and wide-ranging powers indeed. The document was signed on 7 June 2004; the “commission” referred to is what was then the “Independent Electoral Commission”, which later became the “higher commission”.

The entities affected include two sub-entities within Iraqiyya (most famously the Hiwar front of Salih al-Mutlak); two parties within Unity of Iraq; the party of Nehru Abd al-Karim; one party within State of Law, and the rest smaller lists and independents. The commission does not spell out what the annulment of the approval of these entities will mean in practice. It says the candidates in the elections cannot use the names and logos of these parties. That may possibly mean that the practical implications are limited – the case of Iraqiyya is in any case more convoluted because the banned Hiwar technically merged with Wifaq to form a new movement or haraka last autumn, distinct from the coalition, and Ayad Allawi is the head of it.

What this whole issue shows is that once more the IHEC is acting in concert with the accountability and justice board. The reversion to a carte-blanche article in a law authored by Paul Bremer – no specific coherent legal justification for the exclusion is offered, just a brutal attempt at asserting boundless power –  serves to highlight the murkiness of the waters that we are headed for with this election.

Postscript: Finally, one more detail. By highlighting the names of the party heads in the list of excluded entities, one gets the impression that the IHEC wants to focus on the de-Baathification status of the leader as basis for exclusion.  But apparently, four of these leaders are not on the blacklist of the 511 excluded candidates, even though some expected them to be there! The only Arshad on the list is called Arshad Husayn Muhammad Yunis, and yet the party of Arshad Ahmad Muhammad Mustafa (Zibari, a Kurd) has been banned. Similarly, Jamal Nasir al-Karbuli and Saad Asim Abbud al-Janabi have had their lists banned, and yet the list of 511 contains only 4 Jamal and 4 Saad, none of whom have parental names that fits. That inevitably raises the question of whether there is any relationship between the de-Baathification status of the leaders and the banned parties at all, and whether the IHEC thinks that it can outlaw whatever list it bloody well wants to exclude, even for no good reason, as long as it is done in the name of Paul Bremer’s sweeping edict from 2004.