The IHEC had promised a list of the candidates disqualified by the accountability and justice board; it then changed its mind and will now simply publish the candidate lists (i.e. those who qualified), fearing perhaps that the other approach would make the excluded candidates into martyrs. And so while parliament today has been told about the 511 persons that are barred from standing in the 7 March elections, the detailed information is still not in the public domain (as of Tuesday evening) and will probably filter through only gradually or in a media leak.
Meanwhile, while developments over the past weeks have amply demonstrated both the politicised nature of the de-Baathification bureaucracy as well as the legal impressionism of some of its decisions, it may be worthwhile to have another look at the general legal basis for its decision to exclude individual Iraqis from taking part in the next elections. What we do know from the parliamentary proceedings today is that altogether 511 candidates have been disqualified. 182 of them belonged to the secret and special security agencies of the old regime, 216 were members of the Baath, 105 were recipients of various medals of honour (including the “Mesopotamia” order), 5 had participated in repressing the 1991 intifada, while 3 were “propagandists” in favour of the Baath.
The obvious question here is whether the de-Baathification body is operating beyond its remit in its eagerness to cleanse the Iraqi public sphere of any trace of Baathism. There is much to suggest that that is exactly what is going on. A key concept here is to be “subject to the de-Baathification rulings”, which according to the 2005 constitution would bar Iraqis from various kinds of high office, including running for parliament. But what does it mean to be “subject to the de-Baathification rulings”? Clearly, this is not the same as being a member of the Baath party. In that case, the following clause of the constitution (135/5) would be meaningless: “Merely being a member of the Baath party is not sufficient basis for transfer to the courts, and the Baath party member enjoys equality before the law and judicial protection, unless he is subject to the de-Baathification rulings (emphasis added)”. In other words, the constitution clearly differentiates between the two.
A more reasonable place to start would be the procedures of the accountability and justice act of January 2008, which “de-Baathifies” the Iraqi bureaucracy by focusing on certain ranks of membership (“regional”, “branch” or “section”) or seniority in the bureaucracy (director-generals) – as well as on careers in the “repressive” components of the security forces (i.e. secret services and special forces). In this context – i.e. leaving for a moment aside the deeper questions about the legitimacy of the accountability and justice board – one cannot help wondering whether its leaders may have gone too far even in terms of the strictly legal criteria that are available. For example, apparently the board has this time disqualified people from running for office simply because of Baath membership, regardless of rank. Not only that, what about those who were recipients of medals? The fact that these are listed separately would seem to suggest that they were not party members at all, and after all some of these orders (the Rafidayn medal, for example) have apparently been issued since the days of the monarchy!
The separate group of those who participated in suppressing in the 1991 rebellion is particularly interesting, even if it is small. This probably relates to tribal leaders who were neither party members nor officers, but who opted to join the regime at the time of the 1991 uprising. As a matter of fact, by implication the 2005 constitution actually allows such participants to become deputies, because it is a special criterion for becoming member of the presidency council of Iraq that one should satisfy “the same conditions as those required for becoming a deputy, and also not have participated in repressing the 1991 uprising (emphasis added)”. In other words, the constitution specifically envisages the possibility that a person may lawfully become a parliamentary deputy even if he took part in anti-insurgency activities in 1991. (The same logic applies to Baathist membership, by the way: a presidency council member also must not have been a Baathist member “for the last ten years prior to its fall”– meaning, of course, that a Baathist member who quit after 1993 may well become a parliamentary deputy, as long as he does not try to become a member of the presidency council.) And finally, there is the attempt to exclude “Baathist propagandists”. This is apparently an attempt by the accountability and justice board to evoke article 7 of the constitution, which outlaws Baathist revival attempts. The only problem is that according to the new accountability and justice legislation of 2008, this is not the business of the committee to deal with. There is no specific reference to article 7 of the constitution in that law, other than a brief mention of it in the glossary of terms. All in all, then, even if these latter points affect just a handful of people, they serve to highlight the brazenness and totally arbitrary ways of a commission that does not even bother to create a semblance of legality for its decisions.
The apparent excesses of the de-Baathification committee are however unsurprising, since this whole process long ago abandoned any pretence of legalism. It may be useful therefore to add one more curiosity to the picture: The recently-formed three-man parliamentary sub-committee within the accountability and justice committee in parliament, apparently with authority to intervene in the work of the de-Baathification board. For a while, it actually seemed as if Washington was hoping this might constitute a possible alternate court of appeal; it now appears that the commitee has in fact approved the final report of the de-Baathification board (the committee report was read to the Iraqi parliament today; as has become usual lately, there was no quorum, but Abbas al-Bayati, a Maliki ally, lauded the committee’s work nonetheless). In this context, however, it is the arbitrary procedure by which the three-man board came into existence that is interesting. The constitution, in its standard ambiguous way, says the de-Baathification committee should be “connected with (murtabita bi) the parliament”. This is apparently the basis for the formation of the committee, but, again, no role for it has been defined in the relevant legislation that was passed in early 2008. It was filled on the usual muhasasa basis, with a (Shiite) Sadrist, a (Kurdish) PUK member and a (Sunni) representative of Tawafuq, except that the latter withdrew in protest just days after the committee had been invented last week!
The idea of postponing further de-Baathification until after the elections has been criticised for having no legal basis. But those Iraqis who advocate a “legalistic” and strictly “constitutional” approach in this matter should perhaps start by examining the judicial basis of their own position in a very critical way.