Iraq’s higher judicial council has now published the ruling by the appeals court devoted to de-Baathification cases. The decision comes with the hallmarks of a judicial process that has run out of control, but it also includes some features that should make it relatively easy for the federal supreme council to make a final settlement on the question of who should take part in the 7 March parliamentary elections.
The ruling by the appeals board is straightforward at first. It enumerates the practical challenges involved in examining both the evidence used in the decision to exclude 500 plus candidates as well as the evidence submitted by those who appealed (interestingly, it also mentions the question of the legality of the board which issued the decision as a separate issue), before going on to refer to the short period of campaigning set aside ahead of the 7 March elections, including the fact that several days will lapse as a result of the Arbain holiday. Therefore, it says, the court “is of the opinion” or “thinks it proper” (using the verb “to see”) that the appeals be postponed and that the banned candidates be allowed to run for election provided that their seats in parliament will not be awarded until the appeals process has been completed. Accordingly, the court “decides” (and this is stronger than the above) to postpone the processing of the appeals.
What the justice and accountability board and the elections commission (IHEC) are reacting to when they condemn the decision is presumably the explicit reference to a reinstatement of the candidates to allow the to take part in the elections, which may be seen as an infringement on the prerogatives of the elections commission. However, it is also necessary to see this move as a response to a process which has long ago escalated beyond the judicial parameters to which it supposedly relates, with the main culprit in driving this process of escalation forward clearly being the accountability and justice board itself. The board still seems to live in the atmosphere of 2004, when it developed the idea that it had almost unrestricted rights to go after former Baathists and suspected current Baathists on whatever basis it thought plausible – in other words, the kind of totalitarian witch-hunt approach where a picture of Saddam Hussein in your wallet might incriminate you. Conversely, it continues to systematically violate the accountability and justice act of 2008, which was put in place to create some kinds of checks and balances in the de-Baathification process, and according to which the appeals board has been constituted.
Beyond the obvious example of arbitrarily reducing the period of appeal from 30 to 3 days (article 15), the accountability and justice board has banned several candidates not with reference to the accountability and justice act but to article 7 of the constitution, under which it has no specific mandate (that article also includes racism and sectarianism and therefore involves a far wider range of potential cases for exclusion of candidates). And with respect to interference in the work of the IHEC (which is what the board is now accusing the appeals court of engaging in) it has already sinned repeatedly in this regard itself, for example in its letter number 189 dated 16 January 2010 to the IHEC where it talks not about de-Baathification according to the accountability and justice law as such (its proper remit) but about the right of candidates to take part in the elections.
Thankfully, the wording of the decision by the appeals court creates a possibility for the federal supreme court to intervene in a way that can take this process back to the realm of legalism. Press reports say that the IHEC has asked the supreme court whether the decision by the appeals board is binding. Arguably, the “decision” in this case is simply the final sentence of the ruling, in which the appeals process is postponed until after the elections, period. In isolation, that does not involve any kind of overreach by the appeals court, and the federal supreme court can simply say “yes, it is binding”, and refer to article 17 of the accountability and justice act which establishes that the decisions of the appeals court are “final” and “decisive” and hence cannot be appealed to any other court. It would then be impossible for the IHEC to deny the affected candidates the right to take part in the elections pending the settlement of their appeals.
That kind of approach would at the same time serve to restore both Iraqi imprimatur and a sense of judicial independence in a context where accusations of foreign interference and “politicised decisions” abound. Whatever parliament will try to do on Sunday, it will still be a game of politics that will threaten to further violate the principle of separation of powers. But whereas the appeals board itself has been subjected to politics (it was seated after a split vote in which Sadrists and other Shiite Islamists tried to dismiss three of its members as “Baathists”), the federal supreme court has often been seen as capable of rising above politics, both with respect to Iraqi players and in contexts where there are pressures from the outside. By simply approving of the postponement as “binding”, the federal supreme court should be able to de-escalate Iraq’s current crisis and create a better atmosphere for the upcoming elections campaign.