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.