Iraq and Gulf Analysis

Reinstated, for the Time Being

Posted by Reidar Visser on Wednesday, 3 February 2010 19:14

In an increasingly messy process, all the 500 plus politicians that initially had been banned from standing as candidates in the 7 March elections have reportedly today been given the green light to take part unless their names have already been changed unilaterally by the political entities affected by the ban.

The hard facts of this sudden reversal appear to be as follows. The seven-member appeals board that was abruptly appointed by parliament some weeks ago in an attempt at approximating the legal modalities set out in the January 2008 accountability and justice act has today issued a decision that all the appealed cases will be dealt with after the elections. It was the elections commission (IHEC) through two of its commissioners, Hamdiya al-Husayni and Amal al-Biraqdar, that transmitted this breaking news. The IHEC thereby seemed to imply its own approval, but at least in the statement by Biraqdar also seemed to ascribe responsibility for the decision to let the candidates take part to the appeals court (i.e. rather than to the IHEC itself; at least some sources talk of a straightforward “annulment” of the ban on participation by the appeals board.)

Of course it is good news that the elections will be more inclusive. It should however be stressed that several judicial aspects concerning the reinstatement process remain murky. Under the accountability and justice legislation, the appeals board has the final say with regard to the de-Baathification status of an individual. However, that piece of legislation was basically crafted to deal with de-Baathification in the state bureaucracy and has in principle nothing to do with the elections. The link to the elections is the election law, which in turn excludes candidates that are covered by the de-Baathification procedures. Accordingly, the ultimate decision on participation in this case probably rests with the IHEC and/or the federal supreme court. Although one would expect those institutions to mechanically follow the recommendation of the appeals board as regards the de-Baathification status of an individual (or muster exceedingly convincing arguments for overriding the board), it seems inappropriate for the latter to venture an opinion about participation in the elections as such. In this way, the rebuke by the appeals commission seems as legally ambiguous as the exclusions it was meant to deal with, at least if press reports out of Iraq today are anything to go by (it is Arbain holiday season so reporting may be substandard for that reason).

Predictably, the hardliner accountability and justice board has already made this point about the supposedly “independent” role of the IHEC in deciding on participation, and it also repeated that position just hours after the latest news on reinstatement of the banned candidates broke. The problem for the board is of course that it is itself so legally questionable both in its origins and its behaviour that it long ago lost the moral authority to employ such lofty concepts as “constitutionalism” and “legalism”. As for the IHEC, as late as yesterday it was busy implementing the orders of the accountability and justice board. More generally, in recent weeks it has increasingly appealed to CPA order 97 as a basis for virtually unlimited authority to restrict participation in the elections.

The apparent success of the appeals board in pushing through a move that in strict legal terms may be partially outside its jurisdiction suggests that the latest decision on reinstatement may have been taken elsewhere. Inevitably commentators will see certain parallels between today’s news and the initial American reaction when the ban was first announced some weeks ago. Back then, the idea in Washington was precisely to have the decision on de-Baathification postponed until after the elections. Accordingly, reactions by hardliner Shiite media such as Buratha news (which today described the latest development as a diktat by Joe Biden) should be unsurprising.

Nonetheless, Iraqi politics has for many months played out as an ugly wrestling match where no holds are barred and claims of “legality” and “constitutionality” are entirely fictional. Forces seen as supported by Iran launched its attack using the de-Baathification weapon; the hand of the United States is now seen by many in the recent move to reverse the exclusions. This could possibly reflect some continued American leverage in Kurdish circles and among some of the Shiite Islamists, but of course it also refers to the fact that the movers behind the exclusions have already achieved their main aim which was never exclusions per se but rather to have de-Baathification as a defining issue at the time of the elections.

At any rate, dirty tricks are being used on both sides. Still, in terms of the overall atmosphere of the elections this latest development will at least serve to create a greater sense of balance of power. The de-Baathification board tried to create an air of intimidation and the impression that they controlled the system; with the abrupt postponement of the de-Baathification process their opponents will now feel that the international community has intervened, albeit covertly and indirectly, and therefore somehow remains capable both of diagnosing systemic problems in Iraq and of responding to gross irregularities in the electoral process. Husam al-Azzawi of Iraqiyya today welcomed the latest development and went on to propose an even better solution: An emergency session of parliament that would simply get rid of the current de-Baathification board. That sort of catharsis is probably a too optimistic scenario, but today’s developments, despite their ambiguities in legal terms  – and maybe because of those ambiguities, which after all seem to reflect that the de-Baathification board still has some competition – may at least be a step in the right direction. Not least, they may go some way towards motivating Iraqis that are critical of the current system of government to at least try to change the system from within through taking part in the 7 March elections.


25 Responses to “Reinstated, for the Time Being”

  1. zaid said

    Reidar, any idea what happened to Talabani’s initiative to refer the matter to the federal supreme court. i remember reading somewhere that he had asked the FSC to look into the question of the accountability commission’s legal standing.

  2. Reidar Visser said

    I am not sure if that ever materialised. I will check more when I have time, but as I recall it, he aired that idea just ahead of the Biden visit but when Biden left Talabani joined Maliki and Samarraie and said the appeals process must run its course.

  3. Reidar,
    I am not the worrying type but I am more worried than before. To me this development signals an intra Shia struggle which could turn ugly. My focus is on probable vote rigging and falsifying the will of the Shia in the elections.

  4. bb said

    So in the end the Appeals board made the decision. What was the Appeals Board to the Committeee of Public Safety called again?

  5. Reidar Visser said

    Faisal,to me intra-Shiite struggles are usually a good sign because they tend to mean that the Shiites disagree about relations with Iran and some of them are more interested in being Iraqis.

    Bb, I think you miss the bigger point; whereas the jury may still be out on whether two wrongs make a right in this case, you certainly don’t promote legalism by letting two institutions compete in distorting the legal framework. Again, strictly speaking the appeals board is supposed to deal with de-Baathification status only; not to opine on participation in the elections. Ali al-Lami et al. are pushing this point aggressively today. Of course, as we have already seen, the de-Baathification board itself is so fraught with legal inconsistencies that it is not really in a position to speak with any moral or legal authority on these matters at all.

  6. Reidar,
    I don’t think intra Shia struggle is a good sign when one side is armed to the teeth and the other has nowhere to go. This struggle needs clean ballot boxes, this is why we need UNCEI.

  7. Reidar Visser said

    Wire reports say the Watani alliance (Hakim/Jaafari/Chalabi/Sadr) tonight have branded the reinstatement as “illegal” whereas Maliki has called for an emergency session of parliament. Mahmud Uthman (Kurdistani list) first criticised the legal basis of the decision but went on to describe it as sensible and pragmatic.

  8. bb said

    It has been obvious almost from the beginning that this was a political stunt for the election from ISCI and the Sadrists aimed at Maliki’s state of law, and had very little, if anything, to do with so-called “baathists”. They were just the means.

    In political terms it was an ambush, not unlike the July 22 movement’s ambush in which the Sadrists were lined up with those very same so-called “baathists”, to the cheers from the Sadrist (then) fans in the west.

    But it seems the Iraqis do have a process, even if it does not reach the perfections we enjoy in the west? Or are we so perfect?

  9. Reidar Visser said

    Bb, you are comparing apples and oranges. The 22 July movement brought together those parties that had been systematically excluded from the corridors of power and the state apparatus, and represented a remarkable effort by the marginalised forces of the country to bring back nationalism and centralism on the political agenda. Conversely, the de-Baathification hardliners already control the justice and accountability board, much of the IHEC plus significant sectors of the state bureaucracy more generally. They are making use of these institutions in an effort to restore a more sectarian climate in Iraq.

    As for Maliki being the victim, this morning he is replicating the ISCI/Chalabi/Sadr line that the decision by the appeals board is “not well considered” and even “illegal”. I suspect this apparent convergence of views among the Shiite parties has been a main aim of Chalabi and his friends all along. Of course, this tendency has been gradually evolving ever since ISCI began attacking Maliki for his dialogue with Salih al-Mutlak back in April last year.

    And no, Iraqis emphatically do not have a process for this. Rather, they are making up the process as they move along. Maybe the next step is an emergency session of parliament, who knows? Unpredictability is a positive indicator of democratic development as far as elections results are concerned, but it is not something you want to have when it comes to the basic framework of the political process itself.

  10. Joel Wing said

    Faisal said:

    “To me this development signals an intra Shia struggle which could turn ugly.”

    I see the opposite. I think Maliki and the National Alliance have joined in the same sectarian/Baathist game. Remember that the PM had a large role in turning the public’s focus to Baathists when he started blaming all of the big bombings in Baghdad on Syrian Baathists, trotted out the usual confessions, withdrew the Iraqi ambassador to Damascus, demanded a U.N. investigation, etc. He’s stood by the bannings as well. Plus the Supreme Council and State of Law still make occasional statements about joining together sometime in the future. They still make snipes at each other at the same time like recent statements by the Sadrists against Maliki, but the two sides seem to be coming together more than splitting apart right now.

  11. Rali said

    Reidar, do Maliki and the other alliances against this decision have any powers, legal or otherwise to overturn it, some sort of appeal maybe? and if not what can they do in response? Remarkable stuff.

  12. Reidar Visser said

    Rali, legally speaking, no. The only logical step right now would be to consult the federal supreme court. But you bet they have other plans. More soon.

  13. Joel,
    The intra Shia struggle is between pro-Iranian and Iraqi nationalistic sides, both factions you spoke about are pro Iranian.

  14. sahar said

    “This could possibly reflect some continued American leverage in Kurdish circles and among some of the Shiite Islamists”


    Who are the Shiite Islamists that the Americans have leverage in, as far as I can see all of them are now united that the reinstatement is illegal and have attacked it.

    Do you have any idea what is the predictied US strategy in Iraq on the light of what is happening on the ground?

  15. Reidar Visser said

    Sahar, there is more on this in today’s post. Basically, I was a little surprised that Hamdiyya al-Husayni, who as far as I know is pro-Maliki, seemed to to accept the decision at face value for a while. Maybe it was all just a case of confusion in the Daawa camp in the middle of Arbain.

  16. Rachel said

    Thank you so much for your analysis. It is indeed murky, and rather than resolving the challenges posed by the AJC, it appears the can has been kicked down the road. The government formation process, which would take months in any case, will likely become even more complex and time-consuming now that De-Baathification will take place after the elections. What effect will an INA win have on this process? Or an Iraqiyya win? Or in the more likely event of no clear majority by any party?

  17. Reidar Visser said

    Rachel, my sense is that INA is the original de-Baathification list (much like 169 was the de-Baathification list in 2005) and that they put pressure on Maliki to follow their lead. It is an issue that seems to bring the Shiite Islamists closer together. Conversely, I think it is interesting that the Kurdish parties have been markedly more reasonable on this issue, so maybe some avenues for dialogue with Iraqiyya might open up as a result?

  18. Joel Wing said

    “The intra Shia struggle is between pro-Iranian and Iraqi nationalistic sides, both factions you spoke about are pro Iranian.”

    Faisal so you’re talking about State of Law/National Alliance vs Allawi?

    I guess it’s just me but when I think about Allawi I neither think of his list as being Shiite or that he’s a big player. What’s the most he’s ever gotten in an election? 14% in Jan. 05? In Jan. 09 he only got 6%.

    I know there’s a lot of people talking about him this year, but I think the nationalist vote will be divided between Maliki, Allwai and Bolani.

  19. Salah said

    The intra Shia struggle is between pro-Iranian and Iraqi nationalistic sides

    Faisal, as you know you living in US, or any other friends who living in western world, this matter does not exists like what in Iraq.

    Let say, all the US citizens wherever they came to us and settled there, working and caring about US security and the country as all and their people. There are few those are brought to justice or they are on the most wanted list.

    We never seen people in US or ales where in western world when Khomeini came to power 1979 after one month he stated he would export his revelation outside Iran “neighbouring countries”. We never see any Iranians or pro Iranian in US or any western country come forward and demonstrated and obey Khomeini call. Some acted in criminal manner against the state they living in for so long.

    But what wee seen in Iraq is deferent we had Iranians-Iraqis, souls and hearts loving Iranians, they living in Iraq but they working against the state of Iraq and its citizens.

    This is the difference; this is the main struggle we had in Iraq for long time. Now you see it clear and bold on the ground.

    Faisal, excuse me to correct your statement as:

    The intra Shia struggle is between Iranians Iraqi Shia and Iraqi nationalistic (all Iraqi in all ethnics and sects) sides

  20. bb said

    Joel makes a very good point.

    Fact is the nationalist vote is divided between three parties which means that under proportinal representation the effect of the nationalist vote will be diluted.

    Another fact is, that these three parties will be largely competing for the votes in the 9 huge-majority shia provinces where their main competitor will be ISCI/Sadrists.

    ISCI and Sadrists performed very poorly in the provincial elections against Maliki. Which is why they have created this “baathism issue”, which resonates strongly in the shia population. Chalabi who is the conductor of this manoevre is a very smart political operator and knows where the votes are.

    However, Joel, you forgot to factor in the the votes Hiwar can pull out of the Sunni provinces which will give their coalition with Allawi a larger slice of the cake. This could be quite significasnt, given that the old UIA shia alliance has split for this election.

  21. Reidar Visser said

    For some time the overall structure of the game has suggested there will be six competitive entities and therefore that post-election coalition forming will be the ultimate key in deciding the shape of the next government. Last autumn there were surprising tendencies of rapprochement between the Kurds and Maliki; more recently the de-Baathification process has apparently brought together the Shiite Islamists once more. One interesting potential trend was the dialogue between Unity of Iraq and Iraqiyya a couple of days ago when they discussed a “boycott front” to put pressure on the government to change the de-Baathification process. That would mean an unprecedented degree of consolidation on the secularist/nationalist side.

  22. Salah,
    I am aware of Iraqi divisions more than you describe. We can’t go back to Saddam’s time of expelling Iraqis of Iranian origin, all Iraqis should vote, including those who sympathize with Iran. I see the Iranian influence as mainly a Shia issue. Iraqi Sunnis should protect themselves but not attack, they should support but not lead the fight against Iranian influence. You seem too eager to attack. The problem is not with the Iranian people but with a Persian Chauvinistic minority who believe in expanding empires, those Iraqis with Iranian sympathies are deluded victims.

    I was speaking about the votes lost to ISCI/Sadrist and went to Maliki during the provincial elections, I don’t think Maliki will keep them. These Southern votes belong to Shia who don’t belong to militias and once showed their support for Maliki’s independent stand, which is now tarred.

  23. Salah said

    Faisal, with due respect of your view I disagree what you stated in regards of the Iranian influence as mainly a Shia issue.

    This what Iran’s lover trying to make you belive.

    May I pick your attentions to the fighting in Karbala, Njaf, Kute and Basra which mainly oppose Iranian mangling with their lover inside Iraq.

    these fights between the two sides of Iranian/Iraqi and Iraqi south have nothing to do with sectarian issue here.

    I did not asked to go back to Saddam time which I was very against it.

    The issue here or my point is if they living in Iraq they are most welcome to serve the state where living and the nation, but raising their arms pushing their will on the nations and fighting against the wish of Iraqi nationals is the big problem and I believe any country in the world include US will treat these group as terrorists. Let takes Iran today and see how they treated the minorities across Iran opposing mullah government example the Kurds in Iran.

  24. Salah,
    So I am an Iran lover..amusing.
    The intra Shia struggle in Southern Iraq is exactly what I am most concerned about, like you said this is not sectarian struggle but how should Iraq resolve it? This is the policy question. You are suggesting to stand up and fight the Iraqis who are pro-Iranian, this is an atitude not a policy. I am interested in how.

  25. Salah said

    First I hope Reidar excuse me to replay to your comments as this may be far from Reidar’s topic main lines.

    Faisal, looks you misunderstand my point! I didn’t meant what you stated about yourself, please reread my comment again?

    What I meant by “Iranians lover” are as same as you stated exactly right “Persian Chauvinistic minority”. These guys have nothing to do with the intra Shia struggle in Southern Iraq with sectarian matters, its not sectarians at all it’s more an identity/ national struggle in Southern Iraq.

    those as you stated “minority” using the ppower vacume that US did after 2003 by trying to impose Iran style and well on all Iraqis not just in Southern Iraq but over all.
    You asked Iraqi Sunnis should protect themselves but not attack and what about Shia in Southern Iraq, what they have to do, should protect themselves also?

    So whatever means that need to protect all Iraqis from those you labelled them, it’s a matter of concerns of all Iraqis whatever sect/ ethnic/ religions related to.

    Faisal, your comment smear fishy, taking part my words related to my “attitude” is far from real dialogue and discussion, this not the first time.

    What you call policy then US Iran relations “this is an attitude not a policy” of US administrations?isn’t?

    Or US Iraq pre 2003 also was “an attitude not a policy”?

    Faisal, hope you understand what I meant as you an Iraqi he loves his land and his nation

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