Iraq and Gulf Analysis

Constitutional Disintegration (Part III): The IHEC Is Making Up the Law

Posted by Reidar Visser on Friday, 15 January 2010 13:34

One of the bewildering aspects of the recent decision to bar Salih al-Mutlak and some 500 other candidates from standing as candidates in the 7 March election is the apparent resolve of both the accountability and justice board as well as the Iraqi elections commission (IHEC) to enforce the ban also at the level of political entities, where some 15 parties are expected to be excluded. The rationale is the idea that an entire political entity should automatically meet the same fate as its political leader.

But where exactly is the legal basis for that approach? One would have thought that the source for such a momentous and far-reaching decision would be easily available. But it does not appear to be in the 2005 constitution. Nor is it included in what today remains of the 2005 elections law. It cannot be found in the series of amendments to that law that were adopted last autumn. Maybe it could be hidden in sections 6 and 7 of the provincial elections law from 2008, which were added to the parliamentary election law through a simple cross-reference in the amendments last autumn? No, it is not there either. Even a quick skimming of the various directives recently issued by the IHEC in relation to the upcoming elections fails to return an obvious reference of relevance.

The fact is that the legal basis does not appear to exist. Rather, it has apparently been made up. The reason we can make such a sweeping claim is that the IHEC itself revealed its uncertainty about the matter back in December last year, when it sent a query to the federal supreme court on the subject. Referring to article 7 of the constitution (which outlaws racist and terrorist parties etc., “and in particular the Baath party”), it asks precisely whether an entire political entity is automatically banned if its leader is affected by de-Baathification measures. The federal supreme court merely answers that this is outside its jurisdiction and is for the IHEC to decide.

So it appears that in this vacuum, the IHEC can make up the law as it pleases, and no force in the new Iraqi democracy feels any obligation to intervene. What is particularly remarkable in all of this is the timing. The request from the IHEC to the federal supreme court is dated 16 December 2009, just a little more than a week after the legal framework for the elections had been finalised in the Iraqi parliament after a second veto had been averted. On 7 January 2010, when the accountability and justice board announced its “bombshell” decision to bar certain candidates, it reproduced the exact language that had been used by the IHEC in its query to the federal supreme court, i.e. “14 entities would be excluded because their leaders were affected by de-Baathification measures”. Subsequent to this, many players on the Iraqi scene appears to have taken this charade at face value, including even some in the Iraqiyya coalition who a few days ago circumvented the IHEC logic rather than protesting it, saying that Iyad Allawi was the formal “leader” of Iraqiyya and therefore the bloc should not be affected as a whole even if Mutlak were banned.

To his credit, Rashid al-Azzawi of Tawafuq has reportedly resigned from the parliamentary committee for accountability and justice, citing precisely the absence of a firm legal basis for the decision to exclude entire political entities. Just to confuse matters somewhat, another Tawafuq representative, Taha al-Luhaybi, today also portrays the IHEC decision as merely reflecting the personal ideas of its chairman (Faraj al-Haydari), but Luhaybi claims to have the federal supreme court on his own side! Also an IHEC spokesperson has said that the final decision on 11 out of the 14 entities has been postponed until next week. But other than that, there appears to be little resistance among the parliamentary forces to the highhandedness of the IHEC, which, it has to be said, has manifested itself on earlier occasions as well. Even more worryingly, the chronology of all of this suggests that there may have been close dialogue on the subject between the IHEC and the accountability and justice board dating back at least to mid-December 2009, and that the decision by the IHEC to go ahead with the exclusions may have been more carefully orchestrated than previously thought.

The big question now is how the political allies of Mutlak and other candidates will react. Are they going to stand up and protest effectively against a malfunctioning and unpredictable system where a shadowy and anachronistic committee whose origins go back to Paul Bremer five years ago (and is supported by Iran today) is still allowed to arbitrarily impose its will? Or will they opt for what some see as the more convenient option of turning Mutlak and the other banned candidates into sacrificial lambs that will make its easier for themselves to gain power and influence? Hopefully, the rest of Iraqiyya will see the futility and hypocrisy of just continuing to accept the current system without any vocal protest. A “democracy” that can be dictated by a partisan character like Ali al-Lami (the head of the accountability and justice board, who, believe it or not, will run as a candidate for the Shiite-led “Watani” list of Hakim/Sadr/Chalabi!) is a system where participation in itself is of limited value.

22 Responses to “Constitutional Disintegration (Part III): The IHEC Is Making Up the Law”

  1. amagi said

    I’m trying very hard not to be alarmist about all of this… but isn’t this the exact path that leads to authoritarian consolidation of power, minority purges… and everything that goes with it? Where is the public outcry? Does this really represent the will of the Iraqi majority? I’m terribly concerned. How is it this is being allowed to happen?

  2. Reidar Visser said

    My take is that the narrative about Maliki’s emergence as a national leader capable of resisting Iranian dominance was always rather exaggerated and that there have been warning signs to this effect at least since April 2009:

    Those tendencies, in turn, were reinforced during the debate on the election law this autumn. I think that a failure to take note of these warning signs may make today’s developments all the more shocking.

  3. Mosa Yasser said

    I agree with you that if there is no legal basis for banning an entire entity if its leader is banned, then this should be resolved either by parliament or the supreme court.

    However, I am always amazed by the continual failure of well informed Western experts to appreciate how much horror and fear the Ba’ath Party and its ideology have on Iraq. They were on par with the Nazis – and yet you would never hear of complaints of the Nazi Party being banned in all its forms in Europe.

    What is important for the development of Iraqi democracy is the rule of law. I do not care whether Al-Mutlaq is banned or not – I care that he has the right to appeal and a fair hearing in court.

  4. Reidar Visser said

    On the Baathist/Nazist comparison I would rather defer to those who specialise in the relevant areas and periods, it is not something I have done a lot of research on myself. Still, my sense is that there could be problems with respect to comparing the two since Baathist rule in many periods must be characterised as more authoritarian than totalitarian, i.e. more concerned with keeping strict order than in converting the citizens ideologically. I think that holds true at least for the 1970s, but maybe later intervals as well.

    More central to this debate, I think, is the question of what exactly Salih al-Mutlak has done that should disqualify him from taking part in Iraqi politics today. To the best of my knowledge, he worked in the agricultural sector of the former regime, cancelled his Baathist membership several decades ago, and has signalled commitment to working within the new system of government in Iraq that was devised after 2003. If he is to be banned, then tens of thousands of other professional Iraqis whose expertise Iraq desperately needs must also be excluded. Why cannot his critics at least come up with some kind of specific accusation?

  5. “Also an IHEC spokesperson has said that the final decision on 11 out of the 14 entities has been postponed until next week”

    Any insight about the identities of these entities?

    Mosa Yasser,
    My objection is in the selective application of the law, harsh with some, free with others. The right to appeal is wonderful if the judges are impartial, which they are not.

  6. Reidar Visser said

    Faisal, I assume those 14 are more or less the same as those listed in the first comment to this article:

    I have yet to see any specification of the 11 or so among them for which a “final decision” (at the entity level) has been promised for next week; the remainder are presumably already banned. But then again it is weekend in Iraq and the media there is operating at half speed.

  7. amagi said

    Apparently VP Adel Abdulmahdi was in Washington today meeting with Obama… there’s no indication that the White House is giving any attention to this issue whatsoever (which is not to say it would have any influence even if they were). Does anyone know any differently? Has there been anything close to an American reaction to this development? Again, I ask, where is the outcry?

  8. Reidar Visser said

    Brian Katulis c/o Marc Lynch has some details from a meeting with Abd al-Mahdi in DC, at

    Abd al-Mahdi will stop by in Iran on his way back to Iraq.

  9. bb said

    You say there is no legal basis. But you go on to refer to Article 7 of the constitution which specifically bars the Baath party.

    My question is: have ALL these candidates/parties been banned because they are alleged to have been Baathists? If not all, why have the others been banned?

    Also: is Chalabi running as part of the Hakim coalition?

  10. Reidar Visser said

    Obviously it is the link from branding an individual as a Baathist to excluding his entire political entity which is in dispute here. This is not readily covered by the constitution (if the link had been evident, the IHEC wouldn’t have bothered to ask the FSC). The details of the 500 cases have not been released, but the focus has certainly been on Baathism so far. And yes, Chalabi and Lami are both part of the Hakim coalition.

  11. Reidar,
    It is interesting how Katulis in the link above treats the barring casually with no mention of the substance of Abd Al-Mahdi’s talk in this regard.
    I think Iran is gently guiding the U.S. to a checkmate situation in Iraq, and the US is happily tiptoeing along through the tulips.

  12. Wladimir said

    That’s not true Reidar Visser, there are too much similarities between Baath and the Nazis.
    See for instance:

    Aflaq was also inspired by Nazism. “Michel ‘Aflaq (born 1912), one of the founders of the Baath-Party, had come into contact with Nazi ideas while studying at the Sorbonne between 1928 and 1932. Hitler’s political program combining Nationa- lism and Socialism fascinated the young ‘Aflaq; he bought Grosclaude’s translation of A. Rosenberg’s Mythos des Zwanzigsten Jahrhunderts.”

  13. Wladimir said

    After examining Denazification in Germany and de-Ba’athification in Iraq, this paper
    identifies four key lessons learned: 1) The mass purges of Denazification created significant
    amounts of resentment from the German populace and complicated efforts to effectively rebuild
    Germany; 2) while the general concept of de-Ba’athification may have been the right policy, it
    was poorly implemented; 3) there was insufficient planning for post-war de-Ba’athification; and
    4) the scope of the de-Ba’athification program seems to have gone too deeply and quickly into
    the party membership.

    Click to access GetTRDoc

    Point is to prevent resentment from Sunni population. Main members of the regime are in prison.

  14. Reidar Visser said

    Wladimir, still keeping in mind those caveats I mentioned above, I find it somewhat remarkable that you choose a couple of rather superficial hints about Aflaq’s “fascination” for Hitler in his younger days to pass judgment on a 35-years long regime in which he himself was not particularly influential at all, even if he was treated as some kind of guest of honour after his flight from Syria. By the way, does your logic also make Baathist Syria to a Nazi-like state?

    My whole point was to avoid generalisations of this kind.

  15. bb said

    Am wondering if it would help Dr Mutlak’s cause if he were to denounce the crimes against Iraqi humanity perpetrated by the Baath regime between 1980 and 2003 and apologise for the tens of thousands of shia murdered by the Baath led insurgency from 03 to 2007?

    Of course one now understands from Reidar’s authority that it was in reality shia tribes and Kurdish factions who perpetrated these crimes, however perceptions are all in politics and it appears that the democratically elected majority shia and kurds have a different view?

    So I am thinking realpolitick here and therefore what might be in Dr Mutlak’s interests going forward?

  16. Reidar Visser said

    Bb, the whole point is that the post-2003 dominant parties wanted to avoid that kind of ”truth commission” approach of dialogue and apologies, firstly because this would reveal inconvenient truths about Shiite and Kurdish collusion with the regime (you forgot to mention the thousands of Sunnis killed by the regime by the way), secondly because it would inevitably bring up the fact that SCIRI and the Kurdish parties for a long period fought on the Iranian side in the war in the 1980s, and have Iraqi blood on their hands for that reason. Instead they chose the much less public route of a de-Baathification commission which basically criminalises everyone in the Baath party at a certain level of membership and/or rank in the pre-2003 bureaucracy (with stricter criteria for “sensitive” ministries) and then goes on to selectively and silently clear those individuals it likes. This approach enables them to perpetuate the discourse of “Sunni Baathism” to which you refer.

    At any rate, why should only Mutlak made an apology? He supposedly left the party decades ago!

  17. Reidar Visser said

    In contrast to the five other major coalitions contending Iraq’s parliamentary elections, the secular Iraqiyya never had a formal launch following its coming into existence as a formal coalition when coalition lists were submitted in late 2009. Today, the list was finally presented to voters in Baghdad in a formal way. It has received the entity number 333 in the IHEC lottery.

    Iraqiyya candidates that are threatened with expulsion from the political process such as Salih al-Mutlak and Zafir al-Ani took part in the event. This seems to signify a degree of solidarity with them from the rest of the coalition and an indication that these candidates do not have the intention of going quietly and without a fight.

  18. Reidar,
    Iraqiyya’s formal launching could be understood as nobody is indespensible or a strong determination to run the elections no matter who gets expelled due to de-baathification. Expulsion could lead to increased popularity of the expelled, it is like free publicity for those who defy the ban. In the end no expulsion, assasination or propaganda will work, election fraud is the trump card and all the maneuvering will not substitute for it.
    The escalation continues and I hope the US, Allawi and others are seriously considering the scenario of UN run census and elections.

  19. sahar said


    Could you tell me what the growing threat the al-Iraqqiya bloc presenst to al-Maliki’s State of Law bloc and the INA in more detail? Why are they so keen to target it?

  20. Salah said

    The matter isn’t Dr Mutlak’s to denounce the crimes against Iraqi humanity perpetrated by the Ba’ath regime between 1980 and 2003 and apologise for the tens of thousands of Shiites murdered by the Ba’ath led insurgency from 03 to 2007.

    This not his personal; problem as such and you can not hold him accountable to all the crimes of a savage gangs lead by Saddam and his close relatives circles who killed Iraqis without any care of their ethnicity or religion or sectarian background.

    You should ask US or UK how many real criminals settling on their land or near their bases in UAE or near their very massive embassy in Jordan with millions or billions of dollars as merchants.

    This subject far from few or hundreds or thousands of Iraq were Baathist.

    There are millions of Iraqi Baathist from all places and ethnics, but the problem with Dr Mutlak raises many questions about those who involved during Baathist time and after 2003 in torturing, killing, and ethnic cleansing of Iraqis.

    Till today no a single one brought to justice or accused for the crimes of ethnic cleansing in Iraq all we hearing Baathist and Al-Qaeda in Iraq did and doing that, even in Mussel northern Iraq still the killing of Iraqi Christians with other ethnics continue till now with government keep silent about it.

  21. Salah said

    More what’s going on in Mosul of ethnic cleansing and killing which unnoticed:

    Iraqis on Iraq – Basra and Mosul

  22. Reidar Visser said

    Sahar, I think both the Watani alliance and State of Law fear Iraqiyya because they know that the votes in the centre are crucial to success. In the last local elections (Jan 2009) Maliki was successful in picking up some of that centrist vote, at least in Basra and Baghdad; conversely ISCI lost big time.

    With respect to the upcoming elections, the new Watani alliance (in which ISCI is a major player) has opted for a different strategy than that pursued by Maliki one year ago. They have made only superficial changes to their political programme, relying instead on the de-Baathification committee to attack their political contenders and simultaneously reviving de-Baathification as a major issue. They have also succesfully lured Maliki into abandoning his erstwhile centrist credentials and instead jumping onto the anti-Baathist bandwagon.

    With its nationalist, anti-sectarian discourse, Iraqiyya remains a formidable challenge to both Maliki and Hakim.

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