Iraq and Gulf Analysis

An Iraq Blog by a Victim of the Human Rights Crimes of the Norwegian Government

Archive for February, 2010

The Secret Election Manifesto

Posted by Reidar Visser on Thursday, 25 February 2010 18:58

We are barely a week away from the 7 March parliamentary elections in Iraq, but the electoral campaign just does not seem to be going anywhere useful.

In line with predictions, the Iraqi National Alliance seems determined to keep the de-Baathification issue on the agenda all the way down to the wire. They keep prodding their allies in the governorates to push the issue, thereby perpetuating a climate of fear where few civil servants may feel safe about their positions. Just today, it was announced that 10 professors at the University of Karbala had been singled out for exclusion in the name of de-Baathification. Earlier, it was reported that the all-important South Oil Company – the keystone of Iraq’s oil-based economy – had similarly been targeted for additional de-Baathification. Large numbers of competent professionals that are vital to maintaining decent output levels in Iraq’s struggling oil industry are at risk because of the insistence of the Iraqi National Alliance to push a fear-oriented agenda that was hatched in exile in Iran and is now being rolled out across Iraq.

The dynamic at work here has the hallmarks of sophisticated political bullying, and creates a quandary for the nationalist and secularist forces that are being targeted. If they seek to simply ignore the de-Baathification hardliners, they run the risk of being seen as passive losers. Conversely, if they engage in criticism, the goal of their opponents to keep the issue on the agenda will ultimately be achieved as well, since the debate will simply continue on the same track. Absent any kind of strong international condemnation, it will be exceedingly difficult for those political entities that have been targeted in the de-Baathification process to bring the whole campaign atmosphere back to a more sensible and constructive level.

In this way, the de-Baathification hardliners are able to use their pet issue as a convenient cover for the lack of more coherent political programmes for how to address the important challenges that Iraq will face in the future. What has yet to receive attention, though, is that despite their current uncommunicativeness on more specific political issues, many of the biggest Iraqi parties have in fact already issued a manifesto about where they want to take the country: The final report of the constitutional review committee was put together last autumn with the support of many of the biggest parties, including the Kurdistan list, the Iraqi National Alliance and Tawafuq. This report represents the minimum that at least the majority of the constitutional review committee (and possibly all the members that took part in the last meetings) could agree on. Back in 2007, the work of the committee had run into difficulties over Shiite–Kurdish disagreement about arrangements for the oil sector; what we currently have is therefore a watered-down version where most controversial issues have simply been left aside. For some time, there were even rumours that a vote on this package would be attempted before the 2010 elections, but with the prolonged debate on the election law that particular ambition seemed to gradually fade away. Nonetheless, for a while the document was promoted quite actively, not least by the chairman of the constitutional review committee, Humam al-Hamudi of the Iraqi National Alliance – the number one “de-Baathification list”.

Much of the revisions are entirely useless. For example, there is a new article 3 which states that the “state should strive to achieve peace and growth”, and that “the peace of the homeland is the responsibility of everyone”. There is even a remark in the margin to the effect that this wonderful innovation is a last-minute addition which requires the consent of the whole committee! Among the few substantial changes to the first part of the constitution is the new article on personal status law (now article 58), which removes any possibility for secular alternatives by unequivocally prescribing the use of religious law in this sphere.

The major new addition is the creation of a second chamber in parliament (starting with article 81). According to the draft, this new institution will consist of two members from each governorate (regardless of whether the governorate is organised in a federal region or not), except that Baghdad will have four representatives – this should mean 38 senators altogether. The members will be elected at the same time as the parliament and the sessions of the two institutions will be concurrent; there will also be 5 additional members to be appointed jointly by the president and the premier on the basis of their “expertise” as well as considerations relating to the representation of the “elements” of the Iraqi people (in this context code for micro-minorities).The powers of the second chamber are not well specified, and appear to add further contradictions to the Iraqi constitutional framework. For example, in article 94 the senate is given the prerogative of initiating legislation that is specifically related to the governorates and the federal regions: This provision seems to be at odds with the basic idea of the existing constitution of residual powers for the governorates and federal regions in everything not specified as the exclusive competence of the central government or a shared area (where presumably the existing parliament legislates). More unequivocally, the senate will review laws passed by the parliament and can send them back for reconsideration within 15 days with a simple majority. However, the parliament can adopt the law as long as it first “considers” the grounds for rejection by the senate. In sum, the proposed second chamber is not a particularly strong body, although it certainly carries the potential for creating further hitches in the Iraqi legislative process. Compared to the presidential council that has existed since 2005 but will expire after 7 March it is nonetheless progressive, both in terms of the basis of its membership (popular election in the governorates; no explicit ethno-sectarian formulas), as well as its more dynamic role (providing criticism instead of a blank veto).

Another interesting change is the rules for adopting a law for the federal supreme court, outlined in the new article 125. The new procedure places the initiative for nominating candidates to the court with the premier and the president (again, jointly), and, importantly, removes the supermajority requirement for the passage of a law implementing these provisions (it used to be two-thirds; it is now a simple majority). Also, the law unequivocally provides for constitutional review of laws and constitutions passed by federal regions and governorates, thereby making them explicitly subject to the constitutional requirement for conformity with Islamic law.

Optimists had expected that the meatiest changes in the revision process would come in the definition of the powers of the central government, but it is noteworthy that in this draft hardly anything has changed from the exceedingly weak status accorded to Baghdad in 2005. Rather obvious areas like civil aviation are now formally a central-government prerogative, as are the environment and migration issues. But nothing has changed with respect to key questions concerning the administration of the oil sector.

Instead, article 188 provides the clearest expression of the mindset of the drafters of the revised constitution. In it, the three-man, ethno-sectarian presidency council that will expire in a few weeks is given an extended period of life, stipulated to last until the first senate has been elected (although not more than one parliamentary cycle). In other words, under these arrangements, Iraqis would get at least four more years of formal muhasasa or ethno-sectarian power-sharing, with the concomitant potential of legislative deadlock caused by disagreement between the powerful members of the presidency council. It is perfectly conceivable that this kind of arrangement could lead to further postponement on key legislative projects like those related to the oil sector.

In sum, the parties behind this proposal wanted to strengthen religious law in Iraq, keep Baghdad weak, and perpetuate the Bremerian model of government of oversized governments of national unity and strong presidential vetoes at least until 2015. Today, when everyone talks about “unity” and being a “nationalist”, the draft for a revised constitution may serve as a more faithful manifesto of where parties like the Kurdistan alliance, the Iraqi National Alliance and Tawafuq really want to go. The interesting thing is the position of two of the minority parties on the constitutional committee that are today considered among the strongest candidates for providing the next premier of Iraq: Daawa and Iraqiyya. In terms of getting the political debate back on track, perhaps issues like these could be a useful vantage point for Iraqiyya, which traditionally has had a firm nationalist position on constitutional issues. And what about the Daawa, whose centralism and resistance to power-sharing has sometimes put them at odds with fellow Shiite Islamists? Recent reports from Iraq say that the accountability and justice board is now attacking high-level security officials that have ties to Maliki, possibly with the aim of marginalising him as a future premier; is this the point where Maliki might finally wake up and reverse his position on the de-Baathification disaster?

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Iraqi nationalism | 21 Comments »

Ambassador Hill and the Decision by Iraqiyya

Posted by Reidar Visser on Sunday, 21 February 2010 9:43

It is easy to understand the dilemma for Iraqiyya leaders who gathered in Baghdad over the weekend to decide on the question of participation in the 7 March elections. The outcome was not unequivocal: Whilst they will resume campaigning, Iraqiyya still has complaints concerning the procedure and will continue to monitor the situation, including the fate of a query to the higher judicial supreme council by the speaker of parliament, Ayad al-Samarraie of Tawafuq, regarding the legality of exclusions under article 7 of the constitution. Several candidates who were previously affiliated with the Hiwar front that was led by Salih al-Mutlak before it merged with Wifaq – some reports say as many as 75 individuals – still talk openly about a boycott. This all comes against the backdrop of the latest “elections campaigning” trend: Increasing ad hoc and vigilante de-Baathification in the Iraqi governorates, with stricter criteria coming into effect by the day. If this tendency continues, Iraqis will eventually need to have lived most of their lives in foreign capitals in order to be considered sufficiently “clean” for public service in Iraq!

Before they met in Baghdad, Iraqiyya had been hoping that there would be some kind of reaction by the international community against the almost boundless highhandedness by the de-Baathification board, which has taken the lead in excluding candidates that were seen as challengers to the Shiite Islamist list of two of the board’s dominant personalities, Ali al-Lami and Ahmed Chalabi. This, it was hoped, could in turn both stimulate turnout and make it easier for the secularists and nationalists to return to the political process as a unified front. However, during the visit to Washington by Ambassador Chris Hill last week it increasingly became clear that this kind of warning from the United States is unlikely to be forthcoming. In fact, as shown by the annotated excerpts below from Hill’s press briefing on 17 February, Washington is going surprisingly far in the direction of actually ascribing legitimacy to the recent de-Baathification antics, and this absence of a clearer American counter-position at least goes some way towards explaining the continued ambivalence among some Iraqiyya members with regard to participation in the upcoming elections.

AMBASSADOR HILL: …I think anyone who follows Iraq knows that there are twists and turns to any destination in Iraq. Certainly, de-Baathification was a major issue and a very tough issue, a very emotional issue, but I think we’ve gotten through that issue. The campaign has really started in earnest. There are campaign placards all over every surface in the country, it seems, right now. There are some 6,172 candidates. There are 18.9 million registered voters. There are 300,000 poll station workers. There are 50,000 polling stations spread over 9,000 polling centers….

So the problem has been solved already? Really?? Hill’s focus on placards and statistics reveals a dangerous preference for making the façade tidy instead of taking a critical approach to the real democratic content of the process.

I think everyone is aware of the complexity of putting together coalition governments. At the end of the day, I think we will be looking at a government that has a Shia representation, that it does indeed have Sunni representation, and will also have Kurdish representation. Now, what particular configuration, which parties those three identities will be represented, well, that will be up to the Iraqi voters on March 7th.

Saddam also had Sunnis and Shiites and Kurds represented. Sectarianism in Iraq is a little more subtle than this and Hill just gets it wrong if he thinks this a puzzle where can he check three boxes and then relax. By the way this whole “Sunnis and Shiites” paradigm reached a higher stage of ridiculousness yesterday as AP declared Hiwar as the “Sunni wing” of Iraqiyya, with Ayad Allawi’s Wifaq as its “Shiite wing”!

I would be cautious about comparing these elections to those in 2005. You’ll recall in 2005 we had a Sunni boycott. There are no signs whatsoever of a boycott by any of the communities at this time. In fact, all of the communities have been urging their voters to – their members to get out and vote.

So it is sufficient to the US to see some “Sunnis” show up for a vote? What about the question of turnout among secular Iraqis?

But we don’t see that this issue of excluding Baathist candidates is one that is leading to violence. Frankly, they were able to come together and work out a solution, and I think it’s a solution that most people are living with.

So as long as there is no outright violence the US will be happy with the elections no matter what?

AMBASSADOR HILL: I think it’s important to understand that there are candidates who are unhappy at having been on the list, but there was a process by which they were able to appeal, there was a sequestered panel of judges from the cassation court that looked at these cases. In some cases, they ruled that the people should be able to stand for office; in others, they ruled against it.

Well, two weeks ago that court postponed all the cases and wanted to ask critical questions about the legitimacy of the accountability and justice board; one week later it dismissed all the appeals save 26. Not terribly reassuring as far as the question of political interference with the work of the judiciary is concerned?

QUESTION: Good to see you in person. Yesterday, General Odierno accused two Iraqi officials – let me read the names – Ali Faisal al-Lami and Ahmed Chalabi, who were both key members of the Accountability and Justice Commission, of being clearly influenced by Iran. I’m wondering if you agree with General Odierno’s comments, and are you concerned with Iran’s influence over this process concerning the candidates and the election in general?

AMBASSADOR HILL: Yeah, I absolutely agree with General Odierno on this. And absolutely, these gentlemen are affected by – are certainly under the influence of Iran. These were people, or in the case of Chalabi, he was named by the CPA administrator, Ambassador Bremer, back in ’03 as the head of the de-Baathification Committee. It was a committee that went out of existence two years ago, replaced by the Accountability and Justice Committee. Everyone else understood that they – that that would – that their terms expired with the expiration of the committee, except for Mr. Chalabi, who assumed by himself the role of maintaining his – a position in a new committee to which he was never named.

There are two problems with the way Odierno and Hill address the Lami/Chalabi dimension. Firstly, they tend to isolate these two persons from the wider political alliance in which they take part – the Iraqi National Alliance, which was constructed in Iran in May 2009 with Chalabi as a key mediator between the Sadrists and ISCI. Hence to reduce the Iranian influence in Iraq to two individuals involves a severe underestimation. Secondly, the comments by Odierno and Hill merely express frustration; they are not using the dubious activities of Lami/Chalabi to create leverage with respect to the democratic quality of the upcoming elections by saying what will follow if the elections are fraudulent.

The issue of de-Baathification was – came up in the context of the actual election process being underway. It became a very emotionally charged issue. I think Americans need to understand that if you’re an Iraqi, very few people are indifferent to the issue of de-Baathification. After all Baathists pretty much destroyed that country, destroyed many families, destroyed many hopes in Iraq. So understandably, people are very concerned about ensuring that there is – that Article 7 of the constitution is lived up to and that there is action against Baathists.

In this paragraph, Hill actually goes as far as embracing the jurisprudence of Ahmad Chalabi. The idea of using article 7 of the constitution to exclude candidates from the elections is flawed – primarily because the law supposed to implement it has never been passed and secondarily because the article also covers sectarianism and racism which, if made applicable, would raise the question of a host of possible exclusions including key Shiite Islamist and Kurdish parties. A query by Ayad al-Samarraie to the higher judicial council concerning the legality of article 7 exclusions is still pending; hopefully someone will follow through on this since there is no way the de-Baathification board can get around this issue if an attempt is made to address it in a purely legal way.

I met with the sheikhs in Anbar who are, by and large, Sunni sheikhs. I met with other sheikhs in – tribal sheikhs in Baghdad. I had them over to my home for lunch. And the Sunni tribal sheikhs all said that they are very much in a get-out-the-vote mood. So we do not have a problem as of now in terms of Sunni nonparticipation.

And Vice-President Joe Biden once met with “Sunni sheikhs” who believed in a Sunni federal region “in their hearts” but dared not say so publicly…

AMBASSADOR HILL: Well, I think there are political reconciliation issues across the board. I mean, it is – I think it’s something that we try to be helpful with the Iraqis. But I think increasingly we’re seeing the Iraqis try to deal with these issues. And to see how the – some of the Shia parties reached out to the Sunni during the election law issue, where we had Shia and Sunni in the same room working on the law – in fact, working off the same piece of paper and trying to make adjustments on that piece of paper, showed that the election process, difficult as it is, is making people work together. So I think that – I think elections, if they’re well done, can be a source of political reconciliation.

You had Sunnis (Tawafuq) working with the Shiites in 2005 as well. The problem is, as long as they work within the confines of narrow sectarian frameworks this will be theatre by figureheads instead of sustainable national reconciliation.

*****

More generally speaking, the remarks by Ambassador Hill seem to indicate refusal by Washington to challenge Chalabi and Lami in a meaningful way beyond a little public bluster. That kind of attitude will lead many Iraqis to once more revert to the widespread conspiracy theory to the effect that the US is using their country as a giant dangling carrot in its dealings with Iran, searching for a great bargain or safqa instead of having Iraqi reconciliation issues as a number one priority. Depressing as that scenario is, it might at least help Iraqiyya make a decision on participation: More than ever before it seems clear that no support from the international community is likely to materialise; only a massive voter turnout on 7 March can now reverse the negative trend in Iraq and prevent the country from falling prey to rapacious regional forces.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Sectarian master narrative, US policy in Iraq: Leverage issues | 10 Comments »

Three’s a Crowd: System Change in Iraq

Posted by Reidar Visser on Thursday, 18 February 2010 11:11

In the past four weeks, the world has rediscovered the political complexities of Iraq. The continuing de-Baathification mess, which saw numerous candidates barred from the upcoming elections thanks to partisan score-settling, has demonstrated that there are still serious limits to democracy and the rule of law in the country. Journalists and commentators have focused on the systematic efforts to undermine politicians and parties hostile to the ruling coalition and its allies; some have even suggested that the plan to withdraw US forces from Iraq might be in jeopardy. What has yet to receive serious attention in this chaos is that regardless of the outcome of the de-Baathification process, the fundamental rules of government formation in Iraq are scheduled to change in less than a month’s time… Full story here.

Posted in Iranian influence in Iraq, Iraqi constitutional issues, Iraqi nationalism, Sectarian master narrative | 8 Comments »

Governorate and Party-Level Indicators of De-Baathification, Plus Some Breaking News

Posted by Reidar Visser on Tuesday, 16 February 2010 20:49

Since the Iraqi elections commission flatly refuses to release aggregated statistics at the party/governorate levels of its exclusions with reference to the de-Baathification procedure, the temptation to try to interpret the more indirect indicators of de-Baathification that exist in the public domain is irresistible.

The most promising source in this regard may be the list of 6,172 candidates for the 7 March elections that was issued last week. Or, more specifically, the lacunae in that list. As a rule, candidates are listed for each electoral list from number one right down to the last candidate (in Baghdad, some lists have more than one hundred candidates); where the numbered sequence of candidates is broken and someone is missing, the IHEC has indicated that there is a problem with that person’s candidacy. In the majority of those cases, probably around 170–200 of the some 350 that can be identified in a rough count, the omission will relate to a de-Baathification appeal that was pending at the time the list of approved candidates was published. The remainder likely relates to other sorts of procedural problems that may have delayed or prevented the approval of a candidate, including document forgeries, although there is so much contradictive information about a second batch of de-Baathification exclusions that it is not inconceivable that at least some such cases are also included. What we have, at any rate, is not a perfect measurement of de-Baathification as such, but a somewhat more messy indicator of “conflict level with the IHEC”. Predictably, in the few cases where actual de-Baathification statistics can be found for a party or a particular governorate, the numbers that emerge using these methods show similar trends but are not identical.

Some additional methodological points are in order. Obviously, if an individual was originally placed at the bottom of the list but then got excluded then the exclusion will not be discovered using this method since the numbering will not be broken. Similarly, one-person entities that fail to appear in the list for reasons of exclusion will go unnoticed. More related to the interpretation of the data: Out of 511 exclusion cases originally reported, several hundreds prompted the affected entities to voluntarily replace their candidates, whereas a more limited number simply led to withdrawals. In other words, the numbers reported here, which are mostly related to appeals, do not tell the full story about intimidation of electoral candidates by the accountability and justice board.

Tawafuq Alusi Kurd INA Ahrar SOL Unity of Iraq Iraqiyya Other secular & nationalist Total
Basra 2 3 1 1 3 3 13
Maysan 1 1 2 1 5
Dhi Qar 2 1 2 3 8
Muthanna 1 2 2 3 8
Qadisiyya
Babel 2 1 2 2 5 12
Najaf 1 4 5
Karbala 1 3 4
Wasit 1 1 3 5
Baghdad 3 4 7 3 6 9 18 20 31 101
Anbar 1 1 2 4 2 25 35
Salahaddin 1 2 1 1 2 14 21
Mosul 5 2 2 3 12 2 9 35
Diyala 1 2 4 2 3 12
Kirkuk 1 1 1 2 4 10 19
Sulaymaniyya 4 1 1 3 1 10
Arbil 1 1 2
Dahuk 1 5 6
11 13 16 23 18 21 42 50 107 301*

*Excluding around 55 cases related to local/individual/smaller lists. These are back-of-an-envelope calculations! Firefox recommended for viewing.

Nonetheless, even if aspects related to these caveats conflate the figures somewhat, the picture that emerges is a rather remarkable one. Out of the big coalitions, the Kurdish list as well as Tawafuq – the Sunni Islamist entity that is seen as most oriented towards compromise with the Maliki government – rank top of the class in terms of a frictionless relationship with the IHEC. They are followed closely by the (increasingly more) Shiite-oriented alliances, the Iraqi National Alliance and State of Law. Both of these have certain lacunae in their lists, but it is noteworthy that this occurs mostly in governorates that are rather unimportant to these parties (such as the Kurdish ones for INA), and tend to involve candidates far down on the list (suggesting the omissions may well involve problems with documents rather than de-Baathification). Due to its intimate relationship with the IHEC and the accountability and justice board, INA was in fact able to exclude many of these names when they published their own electoral lists before they were approved by the IHEC – conceivably because INA may have had inside information about potential problems related to some of their candidates in the more marginal constituencies!

The picture is sharply different for the secular and nationalist lists. Even after the process of replacement of candidates, Iraqiyya and Unity of Iraq still account for a third of all exclusions. Additionally, in their cases, it is often top candidates in key constituencies that have been struck from the lists. In terms of having problems with the IHEC, these parties are followed by other, smaller secular lists that also experience problems that are disproportionate to their party size. Ahrar of Ayad Jamal al-Din and the list of Mithal al-Alusi stand out, but there are also others. In fact 8 lists about which less is known except that they have a secular and/or nationalist orientation and some of them with a particular strength in Sunni tribal areas (310, 324, 327, 348, 349, 357, 358, 373) account for another third of the lacunae in the list of candidates. Geographically speaking, the patterns of discrimination seem clearer than was the case with the original 511. In this material, Anbar, Salahaddin and Kirkuk have been targeted in a way that is disproportionate to their population size – more detailed information from Kirkuk confirms that it is the anti-Kurdish blocs that are suffering. The areas south of Baghdad have been left comparatively untouched.

In other news, the IHEC tells us today that the legal board for the elections of the ordinary Iraqi court of cassation (distinct from the extraordinary appeals court for de-Baathification cases) has rejected a second appeal apparently related to the exclusion of candidates (as ever, no legal details provided), once more including Salih al-Mutlak and Zafir al-Ani. So that hitherto unconfirmed board actually exists, or it has come into existence, and might in theory perhaps form a more appropriate appellate board for cases arising under article 7 of the constitution than the de-Baathification appeals court (except that a law implementing the provisions of that article is of course still lacking). This is another case of obvious front-page news dropping off the radar of the Iraqi media in a chaotic situation: It is quite sensational that the IHEC should suddenly backtrack from its previous position, namely that their use of the special appeals court for de-Baathification cases was correct and not subject to any kind of other appeals procedure. The outcome of the appeal was of course no big surprise, given the high level of political pressure that is evidently being exerted on the Iraqi legal system these days. Only two weeks ago, the special appeals court talked about examining the legitimacy of the accountability and justice board; the reversal of its position one hundred percent within one week suggests that the members of that court may have been subjected to intolerable levels of pressure from political circles. But the bigger point is this: The revelation today that the IHEC once more rather abruptly changed its procedure is at least a small indication that even the members of the commission understand the weakness and the contradictions of the legal framework to which they make reference. The “State of Law” is no more; only raw power seems to be working.

Posted in De-Baathification, Iraq's 2010 parliamentary election, Iraqi constitutional issues, Iraqi nationalism | 3 Comments »

Iskandar Witwit Reinstated in Babel; Most Others Still Excluded

Posted by Reidar Visser on Saturday, 13 February 2010 21:30

Rather than publishing the names of the hundreds of candidates that in the end were excluded with reference to de-Baathification, the Iraqi elections commission (IHEC) today contented itself with releasing a list of 26 politicians whose appeals were successful and who have been reinstated as candidates.

Perhaps the most prominent of these is Iskandar Witwit, an Iraqiyya candidate in Babel where he already serves as deputy governor. While his reinstatement in itself is perhaps a small piece of good news, the complexities of his case just add to the worrying picture of a situation in Iraq where the rule of law no longer exists. To start with, no one knows why the de-Baathification committee tried to exclude Witwit in the first place, since it generally does not publish the reasons for its decisions. According to information that is in the public domain, Witwit was a general in the Iraqi army before 2003 and a low-ranking Baath member  of the ‘udw ‘amil category – this is often (correctly) translated to English as “active member” but it should be noted that the expression refers to a particular category of (low-ranking) membership and does not in itself connote a high level of activity in (or affection for) the Baath party. Given his low rank and his apparent affiliation with the ordinary army rather than with any of the special security services it seems unclear why he should be even considered for de-Baathification under the accountability and justice law of January 2008 (although the combination of low-ranking Baath membership and a job in the security forces would have made him subject to de-Baathification under Paul Bremer’s CPA order no. 1 from 2003).

So we don’t know why an attempt was made to de-Baathify Witwit, nor do we know why his appeal, unlike that of most others, was successful. What we do know, however, is that pending the decision by the appeals court, friends of Nuri al-Maliki in the provincial administration in Babel went ahead and de-Baathified him anyway! Last week he was summarily relieved of his duty as deputy governor and orders issued by him were annulled.  The remarkable thing is that these actions were reportedly justified with a reference to a government decision that members on his (junior) level would henceforth be prevented from working in high positions in the local administration. Not only would this abrupt dismissal by the local executive represent a blatant breach of the principles of due process and the separation of the powers. It would also specifically contradict the new principles of de-Baathification that were adopted in January 2008.

The number of successful appeals – 26 – is the same as that reported by Iraqi media last Thursday night (28) when the outcome of the appeals first broke in the shape of an announcement concerning the fate of two specific candidates – in itself a rather extraordinary kind of procedure. But other than that, everything appears to be in flux. Earlier in the week, in a much-overlooked statement, Khalid al-Shami of the accountability and justice board said only 37 appeals would be upheld at most, since the rest had been submitted according to the wrong procedure. This in itself would be rather scandalous, since the IHEC itself violates the regulation to which the procedures he referred to applies (by using the special de-Baathification appeals court instead of the prescribed legal body for elections issues). Another fascinating aspect concerns the fate of entire lists. The IHEC has earlier announced a ban on 9 lists with reference to CPA order 97. Today, all of a sudden, some members of the accountability and justice committee in parliament said the lists remained banned; others in the legal committee claimed the bans were now “personal” and the lists had been unbanned. So did the IHEC all of a sudden change its position?

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Iraqi nationalism | 15 Comments »

Mutlak and Ani Are Banned: Miscarriage of Justice in Iraq

Posted by Reidar Visser on Thursday, 11 February 2010 22:59

In his characteristic way, Ali al-Lami of the de-Baathification board late Thursday night, at the beginning of the Iraqi weekend, informed a small number of news agencies that two of the top Iraqiyya candidates, Salih al-Mutlak and Zafir al-Ani, have been barred from standing as candidates in the 7 March election after their appeals were rejected by the special appeals court for de-Baathification cases.

Few new details are known, but enough information about these cases is already in the public domain to label this act as a straightforward miscarriage of justice:

-The whole key to understanding what is going on is the realisation that there is not a single law that governs the de-Baathification process. Instead, the framework that is being applied combines several elements, only some of which are regular laws adopted by the Iraqi parliament, and almost all of which contradict each other or are incongruous.

-The Iraqi constitution outlaws glorification of the “Saddamist Baath” party in article 7, but this clause also stipulates a ban on racism and sectarian cleansing, all of which is to be combined in a special law. Such a law has never been issued by the Iraqi parliament, and it is fairly obvious that without it no “de-Baathification” can be carried out under this heading since one would then also need to investigate many other political parties who may be plausibly accused of racism or sectarian cleansing.

-The only relevant piece of de-Baathification legislation is the accountability and justice law of January 2008. Although this law makes brief references to several constitutional clauses (including article 7) it is clear that the only specific mandate created by it are those actions outlined in article 6, which stipulates that certain ranks and positions in the former regime are subject to de-Baathification. Ali al-Lami has publicly admitted that the case of Salih al-Mutlak does not fall under this category, and the same probably holds true for Zafir al-Ani.

-The appeals procedure in the accountability and justice act is stipulated in articles 15 to 17 and explicitly applies only to those subject to de-Baathification under article 6 of the AJ law. This shows beyond doubt that the law was never intended to specifically implement article 7 of the constitution. It also means that this particular appeals procedure in fact does not apply to the case of Salih al-Mutlak and that Mutlak (and probably also Ani) should have the right to appeal to the federal supreme court and/or the court of cassation instead since their cases supposedly involve glorification of the Baath.

-The appeals procedure in article 15 to 17 involves an appeals deadline of 30 days and 60 days for considering the appeal, both of which have been violated in this case. The apparent explanation for this relates to the bastard character of the “legal” framework that is being applied: Here the accountability and justice act of January 2008 has been welded together with an IHEC regulation (Arabic, PDF) on “registration and approval of entities” that was never passed by parliament but simply enacted by the commission in 2009. That regulation has a three-days appeals procedure that was enforced in this case.

-The ambiguous and hybrid nature of this arrangement is further highlighted because the second appeals procedure (i.e. that of the regulation) says nothing about the special appeals court for de-Baathification cases at all, but instead refers to the “elections court”اﻟﮭﯿﺌﺔ اﻟﻘﻀﺎﺋﯿﺔ ﻟﻼﻧﺘﺨﺎﺑﺎت , which may never have come into existence in the real world. In another regulation this court is defined as a court composed of three judges appointed by the ordinary federal court of cassation (not the special appeals court for de-Baathification). But instead of following the regulation, the IHEC has brought in the special appeals court for de-Baathification cases that was hastily created by the Iraqi parliament in January in an attempt at improving the legal façade of the de-Baathification process – this was seen as especially important since the current accountability and justice board (which has been driving the whole process forward) was never selected according to the procedures stipulated in the accountability and justice act… In other words, the IHEC in this case is neither faithful to the accountability and justice act nor in compliance with its own regulations.

-If Mutlak’s case had been properly considered by the elections court then that court would have had the power to either reinstate him or postpone his case and reinstate him temporarily for the elections, in contrast to the special appeals court for de-Baathification cases which only has more limited powers related to the question of de-Baathification status. As said, it is unclear whether this court has ever been seated – if not, then the ordinary court of cassation would have been the more appropriate alternative for the cases of Mutlak and Ani. At any rate, what is clear is that by cutting and pasting from the accountability and justice act and the regulations for approval of entities, the IHEC has created a legal hybrid that is grossly incoherent and with an appeals process that is arbitrary in the extreme and subject to political machinations.

-Mutlak has moreover had his whole list banned with reference to another document that was undemocratically adopted, CPA order 97 of 2004, which basically gives the IHEC unrestricted right to ban any party it does not like. The recourse to this edict by Paul Bremer once more shows how the de-Baathification board has major problems with producing plausible pretexts for its actions.

-This disintegration of the legal framework has set the stage for similar processes at the local level across Iraq, where vigilante de-Baathification is being reported in several governorates, often abetted by local leaders of State of Law and Iraqi National Alliance who apparently compete in being toughest on de-Baathification. Legal justifications are being made up entirely, including a suggestion that “the constitution bars previous Baathists from having high positions in the state” (in Amara; in fact the constitution only stipulates a special de-Baathification requirement for certain jobs including the presidency council), and the idea that a member at the lowest level of the Baath party should be disqualified from the local administration (today in Babel; with the exception of the security sector, according to the law only members higher than the firqa level are to be de-Baathified.)

This all raises the question of whether yesterday’s release of 6,172 candidate names was indeed intended as the final list. Other wire reports today say only 28 appeals were accepted, and a few reinstatements were in fact noted in the list that was published yesterday. In other words, we have seen an almost total reversal of the position of the special appeals court within less than one week, suggesting that considerable political pressure has been brought to bear on its members as they tried to navigate the utter legal chaos that is the Iraqi de-Baathification process.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues | 3 Comments »

The IHEC Publishes the Names of 6,172 Approved Candidates

Posted by Reidar Visser on Wednesday, 10 February 2010 19:44

It is a little unclear why this is not all over the newswires, but at any rate: The Iraqi elections commission (IHEC) today released the list of 6,172 approved candidates for the 7 March elections. This supposedly includes all candidates whose documents were found to be in good order and who are not subject to de-Baathification.

Until now, the Iraqi National Alliance (which enjoys a “special relationship” with the IHEC) has been the sole entity to publish all its candidate lists. The newly released material obviously includes thousands of names that are relatively unknown, but at least some characteristics of the competing top candidates in various provinces can be sketched out at this point. Starting in the south, in Basra the big battle will likely be between the Iraqi National Alliance (INA) and State of Law (SOL). As has emerged earlier, INA has put a Sadrist plus the ex-Iraqiyya representative Wail Abd al-Latif at the top of their list alongside some important local figures like Amir al-Fayiz of the Shaykhi community. Maliki’s top candidate in Basra is Safa al-Din al-Safi, a long-time minister (most recently acting planning minister); Abd al-Hadi al-Hassani, an influential figure in the oil and gas committee is relatively far down the list at number eleven, Khayrallah al-Basri, previously with Iraqiyya, is number eight. Elsewhere in the “deep south”, INA already has revealed a list of well-known figures in the second-biggest prize to be won – Dhi Qar – including Adil Abd al-Mahdi, Bahaa al-Aaraji and ex-governor Alwan. SOL has now placed an independent candidate from a local religious family, Muhammad Mahdi al-Nasiri, at top of their list, with minister of state Shirwan al-Waili third. In the symbolically important Najaf, INA has Nassar al-Rubayi, a Sadrist, on top whereas Maliki has put Khalid Atiyya as his number one candidate in Qadisiyya.

Across the Shiite-majority areas south of Baghdad, the big question will be to what extent more secular and nationalist parties such as Iraqiyya and Unity of Iraq will be able to eat into the Shiite Islamist vote and go beyond the 10% threshold that has seemed pretty constant in many areas. A cursory glance at the list could suggest the secular parties could have needed a few more top candidates to radically change that picture, although incumbency and fame are of course not necessarily the best determinants of electoral success in today’s Iraq (or so we may hope). It is noteworthy that some of the few famous “southern” names in the secular coalitions do not seem to have put themselves forward as candidates proper. For example, The Lord of the Marshes (Muhammadawi) does not appear to be on the Iraqiyya lists anywhere in the three southernmost governorates. Abbas al-Mamuri is running as top candidate for Unity of Iraq in Babel, and Jamal Batikh for Iraqiyya in Wasit, but where is Ayad Jamal al-Din, the leader of the Ahrar party and a natural Dhi Qar candidate? Another notable omission in this category is of course Yusuf al-Habubi, the big sensation of the last local elections in Karbala. An ex-Baathist who did well on the basis of a good reputation and an ability to get things done, his performance in religious Karbala was seen as a sign of pragmatism among the electorate and it had been expected that he would run again for national office in the 7 March elections. But even though his “Flags of Iraq” alliance technically became part of SOL, his name is apparently nowhere on these lists – possibly another bad sign in terms of a potential shift back to a more sectarian political climate compared with 2009. Similarly, the Iraqiyya contingent from Basra in the current parliament has bifurcated, with Basri now as an SOL candidate and Wail Abd al-Latif having joined forces with lots of old enemies in INA.

The truly big battle is going to be Baghdad, with 68 seats and some 1,800 candidates, almost a third of the whole list. This is where all the major celebrities congregate. INA has already presented a Bagdhad list comprising two potential prime ministerial candidates (Jaafari and Bayan Jabr Solagh); they will now get serious competition from SOL (Maliki on top, followed by Haydar al-Abbadi, Husayn al-Shahristani and the son of the Shiite Islamist icon Muhammad Baqir al-Sadr as number five) as well as from Iraqiyya (Ayad Allawi is number one, other top candidates include Hassan al-Allawi, Ahmad Radi, Tariq al-Hashemi and Aliya Nusayf). Unity of Iraq has also put most of its top candidates in Baghdad, including Jawad al-Bulani on top, followed by Mahmud al-Mashhadani, Hashim al-Habubi, Wathab Shakir and Nadim al-Jabiri.

North of Baghdad, in Anbar, Iraqiyya has Rafi al-Isawi as their number one candidate. But it may seem as if Ahmad Abu Risha, of Unity of Iraq, has opted to not run for office here and instead has chosen to stay on the sidelines? SOL has the lesser known Abu Risha (Saad) as their number one here, and INA is fronted by Hamid al-Hayis; neither is expected to attract enormous numbers of voters. Further east, in Salahaddin, Maliki is running with his sports minister as top candidate. With several other Shiites following on the next places it does seem that much like INA he is trying to maximise the Shiite minority vote in Salahaddin instead of making a deliberate effort to come across as more “national” in this governorate. For its part, the Sunni-oriented Tawafuq has placed its party chairman on top of the list here and interestingly has also included its controversial (ex) governor here, as number three. Iraqiyya has Falah al-Naqib, a former minister of interior under Ayad Allawi, as its number three candidate in Salahaddin. Up in Kirkuk, Iraqiyya is looking strong with Muhammad Ali Tamim as first candidate. (He is from the Hiwar front of Salih al-Mutlak and an outspoken leader of the nationalist current that is seeking to retain the disputed governorate under central government control.) SOL has Abdallah Iskandar as their number one in Kirkuk, to some extent perhaps an attempt at reaching out to the Iraqi nationalist segment (but weren’t Abbad Mutlak al-Jibburi and Hajim al-Hasani supposed to be here too instead of in Baghdad?)  Finally, in Mosul, unsurprisingly, it is Usama al-Nujayfi on top of the Iraqiyya list. SOL is running with the independent, Sunni Kurdish minister of planning Ali Ghalib Ali Baban as number one; like in Kirkuk Maliki in other words comes across as slightly more “national” in orientation than INA.

The lingering question is of course what, if anything, this release says about the ongoing de-Baathification process. Many had expected that no lists would be published until the appeals process had been exhausted. But the strange thing is that from a sample of 22 banned Iraqiyya candidates from Baghdad, at least 4 have been reinstated on this new list of 6,172 candidates. Nonetheless, since most of the top candidates whose cases are currently being reviewed by the appeals court have not been reinstated on this list (this includes Salih al-Mutlak), and since there has so far not been any major outcry by Iraqi political parties this evening, we must assume that the appeals process is still ongoing and that the limited number of reinstatements may relate to technicalities. Hopefully, the picture will soon clarify, because at the end of the day the general atmosphere of the election debate is probably going to mean much more for the overall outcome than the individual characteristics of these 6,000 plus candidates.

Posted in Iraq's 2010 parliamentary election, Iraqi nationalism, UIA dynamics | 16 Comments »

Chalabi and Lami Also Control the “Independent” Elections Commission

Posted by Reidar Visser on Tuesday, 9 February 2010 18:10

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.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues | 16 Comments »

Back to Work for the Appeals Court

Posted by Reidar Visser on Saturday, 6 February 2010 19:24

[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.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues | 5 Comments »

The Ruling by the Appeals Court

Posted by Reidar Visser on Friday, 5 February 2010 14:22

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.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues | 2 Comments »

 
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