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.