New information keeps emerging about the attempts by State of Law (SLA) to have three parliamentary seat winners – two from Iraqiyya in Diyala and one from the Iraqi National Alliance (INA) – disqualified and their votes cancelled. The likely net effect of such an action would be a gain for State of Law of one to two seats and a similar loss for Iraqiyya, putting the two on an equal footing or even making State of Law the biggest bloc in parliament.
The Sumaria television station is chasing these developments and keeps churning out useful information in its interviews with key players. Among them are Khalid al-Asadi of the Daawa, who has said that the rationale for seeking the cancellation of votes is that the 52 cases of post-election de-Baathification led to disqualifications as well as annulment of votes (as suspected earlier, this now seems confirmed and likely includes such prominent cases as Ibrahim al-Mutlak and probably Raad al-Bayati). In Asadi’s view, it is impossible to differentiate between the de-Baathifications and other cases of post-election exclusions, such as those now attempted with regard to the three seat winners. Abdallah al-Jibburi is sought excluded on the basis of a past conviction; Najm al-Harbi on the basis of an arrest warrant but not a conviction (which seems dubious and is protested by Iraqiyya since the constitution is unequivocal in its requirement of a sentence having actually been passed – mahkuman ‘alayhi); Furat al-Sharaa of INA has apparently been given the all clear from IHEC since he has produced evidence that he left the army before the relevant date.
That part of Asadi’s argument, seen in isolation, is comprehensible in so far as the election law in its paragraph 6 on candidate requirements puts all these criteria – including de-Baathification, membership in the armed forces and legal conviction – on exactly the same footing. In other words, slashing the votes of the de-Baathified ones without doing the same for other post-election exclusions would seem contradictive, and the trouble is that IHEC has already accepted the exclusion of Harbi and Jibburi in principle (but without taking away their votes). But that is where the logic of Asadi’s arguments stops. He goes on to say, “the election law decrees that the votes of excluded candidates that don’t meet the requirements for candidacy be slashed”.
ويطالب الأسدي بـ”تطبيق القانون بحسب ما جاء في قانون الانتخابات، والذي يقضي بحذف أصوات المستبعدين غير المؤهلين للترشح
But where exactly in the law is that? Or is it hidden in an IHEC regulation? All the election law appears to say is in article 14 (2005), that if a member of parliament loses his seat “for whatever reason” then he should be replaced by the next person on that list, which seems to explicitly acknowledge the idea of keeping the seat distribution between lists unaffected and hence not annul any votes at all. IHEC has already applied this to the case of the recently murdered Iraqiyya candidate in Nineveh, indicating it should apply generally also to the transitional period between the election date and the first meeting of parliament (since the term “for whatever reason” would otherwise be meaningless). Rather, the idea of “cancelling” votes – shatb and hadhf are the Arabic terms that are being used interchangeably – seems to originate with the de-Baathification committee, which included this demand when it started its post-election attack back in March.
What this all goes back to is the failure of IHEC and the international community to stand up decisively against the theft of votes implied in post-election disqualifications – and a concomitant domino effect of ever bolder attacks on political enemies. Before the elections IHEC and the international community failed to stem the wave of politically motivated de-Baathification. After the elections, the first batch of 52 exclusions looked innocuous perhaps since the seat allocation was not affected, and IHEC danced along with the demand from the accountability and justice board that these votes be annulled. The 9 extra de-Baathifications caused concern even at the presidential level, but instead of uprooting the problem of politically motivated attacks, the stop-gap measure of a reinstatement by the special appeals board for de-Baathification was used. All this established dangerous precedents and legal contradictions, and it is in this legal haze that the SLA is now operating. An additional problem is that it is hard to see where this will end, since acceptance of the idea of post-election disqualification in theory opens up for a plethora of future attempts to use the court system to produce convictions of political enemies. What if a member of parliament of, say, an influential Islamist party, gets convicted in 2011 for a murder that took place in 2005? Should the seat distribution of parliament then be recalculated even in the middle of a parliamentary term?
Meanwhile, there are worrisome signs that the international community is not paying sufficient attention. A sometimes-erratic webcast from USIP yesterday seemed to convey a message from Ad Melkert of UNAMI (the UN agency in Baghdad) that “the good news is that everything is being done according to the books”! Which books, one wonders? Rhapsodies on Islamic Democracy by A. Chalabi, A. Lami et al.? One Thousand and One Nights? For the relationship between the certification process of the Iraqi elections and the relevant constitutional and legal frameworks is in fact now looking increasingly fictional and only a decisive message from the international community against post-election disqualifications can save the situation. IHEC still has some leverage because the courts do not have the competence to recalculate the seats as per the SLA demand, and UNAMI and the international community have the opportunity to bring closure to this divisive issue by focusing on the idea of restoring votes to the relevant lists. Doing so for the 52 excluded cases would not change the seat distribution but would bring an end to the continuous wave of politically motivated attacks. As such it would be a far healthier solution than relying on the Iraqi courts, which risk becoming increasingly politicised over the coming week unless something is done to end this theatre. But at USIP yesterday, no one even mentioned the cases of Jibburi and Harbi even though they contain far more political dynamite than the previous 61 cases of post-election exclusion.