Constitutional Disintegration (Part III): The IHEC Is Making Up the Law

One of the bewildering aspects of the recent decision to bar Salih al-Mutlak and some 500 other candidates from standing as candidates in the 7 March election is the apparent resolve of both the accountability and justice board as well as the Iraqi elections commission (IHEC) to enforce the ban also at the level of political entities, where some 15 parties are expected to be excluded. The rationale is the idea that an entire political entity should automatically meet the same fate as its political leader.

But where exactly is the legal basis for that approach? One would have thought that the source for such a momentous and far-reaching decision would be easily available. But it does not appear to be in the 2005 constitution. Nor is it included in what today remains of the 2005 elections law. It cannot be found in the series of amendments to that law that were adopted last autumn. Maybe it could be hidden in sections 6 and 7 of the provincial elections law from 2008, which were added to the parliamentary election law through a simple cross-reference in the amendments last autumn? No, it is not there either. Even a quick skimming of the various directives recently issued by the IHEC in relation to the upcoming elections fails to return an obvious reference of relevance.

The fact is that the legal basis does not appear to exist. Rather, it has apparently been made up. The reason we can make such a sweeping claim is that the IHEC itself revealed its uncertainty about the matter back in December last year, when it sent a query to the federal supreme court on the subject. Referring to article 7 of the constitution (which outlaws racist and terrorist parties etc., “and in particular the Baath party”), it asks precisely whether an entire political entity is automatically banned if its leader is affected by de-Baathification measures. The federal supreme court merely answers that this is outside its jurisdiction and is for the IHEC to decide.

So it appears that in this vacuum, the IHEC can make up the law as it pleases, and no force in the new Iraqi democracy feels any obligation to intervene. What is particularly remarkable in all of this is the timing. The request from the IHEC to the federal supreme court is dated 16 December 2009, just a little more than a week after the legal framework for the elections had been finalised in the Iraqi parliament after a second veto had been averted. On 7 January 2010, when the accountability and justice board announced its “bombshell” decision to bar certain candidates, it reproduced the exact language that had been used by the IHEC in its query to the federal supreme court, i.e. “14 entities would be excluded because their leaders were affected by de-Baathification measures”. Subsequent to this, many players on the Iraqi scene appears to have taken this charade at face value, including even some in the Iraqiyya coalition who a few days ago circumvented the IHEC logic rather than protesting it, saying that Iyad Allawi was the formal “leader” of Iraqiyya and therefore the bloc should not be affected as a whole even if Mutlak were banned.

To his credit, Rashid al-Azzawi of Tawafuq has reportedly resigned from the parliamentary committee for accountability and justice, citing precisely the absence of a firm legal basis for the decision to exclude entire political entities. Just to confuse matters somewhat, another Tawafuq representative, Taha al-Luhaybi, today also portrays the IHEC decision as merely reflecting the personal ideas of its chairman (Faraj al-Haydari), but Luhaybi claims to have the federal supreme court on his own side! Also an IHEC spokesperson has said that the final decision on 11 out of the 14 entities has been postponed until next week. But other than that, there appears to be little resistance among the parliamentary forces to the highhandedness of the IHEC, which, it has to be said, has manifested itself on earlier occasions as well. Even more worryingly, the chronology of all of this suggests that there may have been close dialogue on the subject between the IHEC and the accountability and justice board dating back at least to mid-December 2009, and that the decision by the IHEC to go ahead with the exclusions may have been more carefully orchestrated than previously thought.

The big question now is how the political allies of Mutlak and other candidates will react. Are they going to stand up and protest effectively against a malfunctioning and unpredictable system where a shadowy and anachronistic committee whose origins go back to Paul Bremer five years ago (and is supported by Iran today) is still allowed to arbitrarily impose its will? Or will they opt for what some see as the more convenient option of turning Mutlak and the other banned candidates into sacrificial lambs that will make its easier for themselves to gain power and influence? Hopefully, the rest of Iraqiyya will see the futility and hypocrisy of just continuing to accept the current system without any vocal protest. A “democracy” that can be dictated by a partisan character like Ali al-Lami (the head of the accountability and justice board, who, believe it or not, will run as a candidate for the Shiite-led “Watani” list of Hakim/Sadr/Chalabi!) is a system where participation in itself is of limited value.