Perhaps the most surprising aspect about yesterday’s developments in Iraq was that the whole thing was allowed to proceed quite far before a reaction materialised. However, when it came – towards the end of the evening, when many Western newspapers were already in print – it was just as ferocious as one would expect.
Part of this confusion may have to do with the fragmented character of the communications from the Iraqi elections commission (IHEC) on the issue. For once, we heard a lot from Amal al-Biraqdar, who is thought to be the only commissioner with ties to Iraqiyya. She said the appeals court had “cancelled” the decision by the accountability and justice board to exclude more than 500 candidates. Hamdiya al-Husayni, who is considered to be close to Nuri al-Maliki, also conveyed the decision of the appeals board mostly as a fait accompli, although she did present it as a postponement rather than as an outright annulment. The head of the commission, Faraj al-Haydari who has a past in the KDP, went further then Biraqdar and Husayni in expressing doubt about the decision; none of the commissioners with ties to the Shiite-led alliance known as the Iraqi National Alliance – including Qasim al-Abbudi, who is the most prominent of them – made any public comment at all.
Since the IHEC on many occasions has followed the diktats of the accountability and justice board rather robotically, its apparent recognition of the reinstatements for some hours yesterday could conceivably have been interpreted as a signal from powerful figures in the Iraqi government (Kurds? Pro-American Daawa figures??) that enough was enough and that there had to be limits to a de-Baathification process that has been spinning out of control. And for a while, the Daawa was silent whereas the Iraqi National Alliance including Chalabi, Lami and their partners in ISCI and the Sadrists took the lead in condemning the decision and branding it “unconstitutional”. However, towards the end of the evening, Maliki, too, joined this chorus, and even some of his more pro-American advisers like Sadiq al-Rikabi went on record with criticism of the decision to reinstate candidates. It was, in other words, becoming clear that the Shiite Islamists were singing from the same sheet, probably to the satisfaction of the forces behind the de-Baathification drive.
Symptomatically, not one but two possible ways forwards have been sketched out today. Maliki has called for an extraordinary session of parliament (which had adjourned for the last time after passing the budget), to take place on Sunday. That means that even more politics will be injected into this affair, and it cannot escape notice that Maliki was already working on a rapprochement with some of the Shiites in the “other” alliance that would involve either a presidential veto of the budget or precisely an extraordinary session of parliament to put in place the special committee that will confirm some 115,000 positions in the state bureaucracy which Maliki had hoped would be taken care of prior to the elections (but which the other Shiites have continued to deny him as “penalty” for not joining their alliance).
Additionally, the IHEC says it will seek the opinion of the federal supreme court on the legal implications of the decision by the appeals court. Crucially, according to a statement by Faraj al-Haydari, it will only ask whether the decision is “binding” or not (figures in the accountability and justice board like Ali al-Lami and Khalid al-Shami have already expressed the view that it is not). Since the wording of the decision by the appeals board is not in the public domain, it is a little difficult to predict how the supreme court will react to this kind of query. However, if it is indeed correct that the board has tried to rule on the right of the banned candidates to take part in the elections (i.e. by stipulating a procedure for postponement until after the elections instead of simply ruling on their de-Baathification status) there is a danger that this may be seen as overreach with respect to the prerogatives defined in articles 15 to 17 of the accountability and justice act of January 2008. On the one hand, there is no doubt that the appeals court has the right to reverse decisions by the accountability and justice board, and that its decisions are “final”. It can clearly trump the accountability and justice board and the IHEC on the question of whether someone is subject to de-Baathification (in Arabic mashmul versus ghayr al-mashmul), and it would be scandalous if either of them tried to overturn the decision of the appeals court in this respect. But if the court has gone further than that in its decision by prescribing modalities for participation in the elections and for a post-election reassessment of the cases (as reported by Husayni), then things become more complicated and the decision may be more vulnerable to an attack on purely procedural grounds. It has to be remembered that whereas the federal supreme court is often referred to with optimism by secular Iraqis, it did produce a rather weak ruling last December when it had the opportunity to strike harder against the accountability and justice board and the IHEC. That said, it would be throroughly shameful if the court simply opted to describe the latest ruling as “non-binding” on procedural grounds while turning the blind eye to the many procedural infractions by the accountability and justice board itself, including most flagrantly the abrupt and unexplained reduction of the appeals period stipulated in the accountability and justice law from 30 to 3 days.
Meanwhile, the IHEC has announced that the start of campaigning, previously scheduled for 7 February, has been postponed until 12 February.