The Exit and Legacy of Ali Faysal al-Lami

Hopefully the Iraqi judicial authorities will not opt to wait for the All Clear from the politicians to certify the election results, since the weekend has been a pretty ordinary one with the usual wide-ranging array of predictions as to when the new Shiite alliance will become a kutla in its own right with a leader and a name – and a premier candidate. Estimates varied from “very soon” to “within 10 days”; in other words an echo of the situation in July 2009 and indicating that agreement is not even close. Unless Ayad Allawi of Iraqiyya and Nuri al-Maliki can agree to cut through the crap and meet in private, the intra-Shiite process can take many, many weeks, and that is before they even begin talking to the Kurds.

So in the meanwhile, here are a couple of reflections on the last grand stand of Ali al-Lami, the de-Baathification director who now seems to have been abandoned even by Ahmed Chalabi and his other list allies in INA as they instead focus on reaping the fruits of his efforts to repolarise Iraqi politics along sectarian lines. Recent evidence cited by  Al-Hayat but not really analysed in detail by the paper reveals many fascinating clues about the flawed jurisprudence that has guided the de-Baathification committee in its work to exclude selected political opponents and generally whip up an atmosphere of sectarianism and distrust prior to the 7 March elections.

Perhaps the most fascinating feature of the interview is that Lami repeats his intention to appeal the decision whereby 9 recently de-Baathified candidates were reinstated by the special appeals board for de-Baathification cases. This is remarkable not only for the fact that the two relevant pieces of legislation, i.e. the accountability and justice law of January 2008 as well as the IHEC regulations for certification of entities and candidates, both say the decisions on appeals in these matters cannot be appealed to any other authority. It is also what Lami said himself when he was successful with his previous batch of 52 post-election exclusions and there was talk about intervention by the presidency council: These decisions cannot be appealed, viz.

وأضاف اللامي أن  قرار الهيئة الانتخابية في المفوضية بإلغاء أصوات 52 مرشحا من المشمولين بإجراءات المساءلة والعدالة هو قرار نهائي ولا رجعة فيه”، مؤكدا أن “هذا القرار غير قابل للطعن لأنه صدر من هيئة تمييزية

Other interesting nuggets of information in the article include the justifications offered by the de-Baathification authorities in their attempts to exclude individuals. For the first time, the name of the State of Law candidate that was attacked by Lami in the last batch of exclusions is actually mentioned – Jabbar Abid al-Qurayshi who ended up as the second best SLA vote-getter in Wasit (and whose exclusion, if implemented along with that of Jamal al-Batikh of Iraqiyya, would have given the last seat in the governorate to INA instead of SLA). What’s more, the piece of evidence offered in support of his exclusion is simply that he received a medal from the Baath party in 1999 and held a job at the mudir or director level in 2000 – neither of which suffices for exclusion under the accountability and justice act.

Turning to the Iraqiyya candidates, the evidence used by the de-Baathification committee and obtained by Al-Hayat also contains documents showing that a female member of Iraqiyya in Anbar had been a member of the Baath at the ‘amil (active) level. But again, that is quite irrelevant with respect to the de-Baathification legislation, which does not pertain to this kind of junior membership. The same problem applies to the attempted exclusion of Labna Rahim, who had a membership at the firqa level. Again, the accountability and justice act expressly allows for the return to service of bureaucrats who held this rank of membership except for the presidency and certain sensitive branches of government. Aliya Nusayf was even sought excluded because she had been a trainee member of the Baath!

Finally, the evidence obtained by Al-Hayat reveals an attempt by the de-Baathification board to incriminate Iskandar Witwit in aiding counter-insurgency operations in 1991 (even though he at one point was accused by the Baathists for having sided with the rebels). Whatever the truth of the matter, the key point is that the Iraqi constitution of 2005 implicitly states that participation in counter-insurgency operations in 1991 does not in itself disqualify anyone from serving as a member of the Iraqi parliament. This is so because the requirements for membership of the presidency council make it clear that the president and his deputies must fulfil the requirements of a parliamentary deputy, “and, additionally, must not have participated in repressing the 1991 uprising”. The language of the constitution would in fact have been meaningless if a deputy could also be excluded solely on the basis of counter-insurgency activity in 1991.

Lami’s flawed arguments will likely meet with the ridicule they so abundantly deserve. More worrisome is the fact that he will also be construed as a loner, while the international community will rush to support the people that benefited from his actions and their attempts to form a “government of national unity” of ethno-sectarian leaders. The lasting legacy of Ali al-Lami is in fact a monumental one: Through de-Baathification, he created pressure on SLA and terrorised Iraqiyya supporters south of Baghdad and made a normal, issue-based coalition-forming process in Iraq next to impossible.