Iraq and Gulf Analysis

Back to Work for the Appeals Court

Posted by Reidar Visser on Saturday, 6 February 2010 19:24

[Update 2, 8 February 11:45 CET: It is being reported that with the appeals court having resumed its work Maliki has told Samarraie there is no need for an emergency session of parliament today and this is likely to be called off]

[Update 7 February 14:15 CET: Iraqi state television reports that the emergency session of parliament has been postponed until tomorrow, Monday]

Those who had wanted a purely legal solution to Iraq’s de-Baathification crisis experienced a setback today. In a rather blunt attack on the principle of separation of powers, “the four presidencies”, i.e. the president proper (Talabani) plus the “presidents” of the cabinet (Maliki), the parliament (Samarraie) and the higher judicial council (Midhat al-Mahmud) had been summoned to a meeting that probably was aimed at pre-empting any independent decision by the federal supreme court on the query from the elections commission (IHEC) regarding the latest decision by the special appeals court for de-Baathification cases. In the event, Talabani absented himself but Maliki and Samarraie were joined by one of the deputy speakers of parliament (Khalid al-Atiyya) and one of the deputy prime ministers (Rawsch Shaways), ensuring a setting that was entirely dominated by politicians from the big parties.

Unsurprisingly, perhaps, this quartet apparently strong-armed Judge Midhat into accepting the procedure they had been advocating all along: That the appeals process must run its course in a normal way, with the added caveat that the work of the appeals court must now be completed before the start of the electoral campaign on 12 February. That probably means good bye to any idea of due process given the short period that remains, which had been a main argument in the decision to postpone the appeals (incidentally, it is also a violation of the 60-day period for consideration of appeals stipulated in the relevant legislation). Still, article 17 of the accountability and justice law does provide the appeals court with rather unambiguous powers to decisively reverse any decision by the accountability and justice board as far as the de-Baathification status of an individual is concerned. The court is also protected by the absence of any mechanism for its dismissal in the accountability and justice law. This latter point was apparently lost on members of the legal committee of parliament who earlier today called for a “withdrawal of confidence” in the court, thereby just confirming a growing tendency of Walt Disney-style behaviour that has also included calls for de-Baathification of figures like Vice President Tareq al-Hashemi and even General David Petraeus. Unfortunately, parliament is still scheduled to meet tomorrow to make “adequate decisions” in the matter, suggesting that there may be yet more theatre to come (maybe to provide some kind of formal cover for the procedure that was already reported from today’s meeting, whose prerogatives to actually “decide” on anything seem unclear).

It seems likely that the relatively strong character of the initial ruling by the appeals court (with a direct attempt at reinstating candidates) was an attempt at pre-empting moves by Ali al-Lami of the de-Baathification board to pressure the IHEC to ignore the court’s decisions on individual appeals (this had already been publicly hinted at by Lami prior to the release of the decision by the appeals court). The minimum the international community can now do is to send a clear signal that any attempt by the IHEC to override the decisions of the appeals court in individual cases next week will make it exceedingly difficult for the outside world to continue to classify Iraq as a “democracy” in any meaningful sense of the word, something which in turn will inevitably have a negative impact on foreign aid and investment.

5 Responses to “Back to Work for the Appeals Court”

  1. Salah said

    There is wide spared in Iraqi news outlets condemnations of the higher judicial council order.

    Surprisingly more attack on US also US ambassador and the US embassy of interfering in Iraqi internal affairs!! .

    These came from Maliki, and his party also for other groups and parties.

    At this stage looking the politic environment made to be more credible that banning those 511 and parties, with the elections commission (IHEC) spokeswomen Hamdiya al-Husayni (very very pro-Iranians as reports saying) saying that these 511 and their parties they allowed to go through the election process but the case not close yet right now?

    This rises many questions here what she meant, are their more comeback scenario after election when Maliki and his group make their win which looks more acceptable if he do it with complete 511 banning?

    Anyway looks there is “A Watershed Election” in the way and there are more signs that Maliki and his group going to rig the next election, exactly like Afghans style but in the end whatever who win that not very concerns to US as such as US likes to see a guys control Iraqi government are very friendly to US but they don’t care how they do inside Iraq and what going on there.

  2. Reidar,
    IMHO the legal aspect of the latest Iraqi theatrics is not as important as the psychological one: The intent on running partial and undemocratic elections. This, coupled with recent fraudulent elections in neighboring Iran and in Afghanistan lead me to stipulate that it is recklessly negligent for all parties concerned to assume that the elections will be clean and to be unprepared for the consequences. One consequence is that the US will have to negotiate with a regime with doubtful legitimacy regarding serious matters such as SOFA, another will be the combination of porous borders and friendly regime vis a vis Tehran whith the existence or threat of international sanctions. The most serious consequence in my opinion is the attitude of the Iraqi voter who will lose faith in democracy when he/she sees the incapacity of the political system to bring improvement and peaceful alternation of power. The banning of opposition candidates is serious but not as serious as the probable election fraud. The chances are there will be an election on March 7th and there probably will be brave and honest Iraqi citezens who will risk their lives in reporting irregularities, but more will succomb to intimidation and refrain from voting. Once again I call upon Pres. Obama to send a message to his constituency, the world and to the Iraqi voter: If convincing human rights violations or massive fraud are found then all options will be considered including UN run census and elections, and a UN rapporteur on human rights will be sent to Iraq before the elections in order to show the serious concern of the international community. As the saying goes, prevention is better than cure, the stakes in the Iraqi elections are higher than those of Iran or Afghanistan and an ounce of caution is less costly than a quasi legitimate unpopular regime.

  3. Salah said

    brave and honest Iraqi citezens who will risk their lives in reporting irregularities,

    Wonder they will turned down just like very recent journalists assassination and attacked on the street of Baghdad. No one calming who doen it and arrested brought to justice and hanged in Al-Tahrir square??

  4. John said


    I first have to admit that your lucid articles are a great source of information on and insight into the Iraqi politics.

    Even though they are not directly related to the posting, I have a couple of questions to ask of you. Article 76 of the Iraqi Constitution stipulates as follows:

    First: The President of the Republic shall charge the nominee of the largest Council of Representatives bloc with the formation of the Council of Ministers within fifteen days from the date of the election of the President of the Republic.

    Second: The Prime Minister-designate shall undertake the naming of the members of his Council of Ministers within a period not to exceed thirty days from the date of his designation.

    Third: If the Prime Minister-designate fails to form the Council of Ministers during the period specified in clause “Second,” the President of the Republic shall charge a new nominee for the post of Prime Minister within fifteen days.

    Fourth: The Prime Minister-designate shall present the names of his members of the Council of Ministers and the ministerial program to the Council of Representatives. He is deemed to have gained its confidence upon the approval, by an absolute majority of the Council of Representatives, of the individual Ministers and the ministerial program.

    Fifth: The President of the Republic shall charge another nominee to form the Council of Ministers within fifteen days in case the Council of Ministers did not win the vote of confidence.

    1. Since it is the largest bloc, which I think was formed before the election, that initially exercises the right to nominate the would-be Prime Minister, is there no possiblity that the second largest bloc, in cooperation with any other blocs that will ensure the absolute majority, could come up with its own candidate?

    2. In the case that the first nominee fails to win the approval of the CoR, does the largest bloc still have the right to nominate another person or does the right go to the second largest bloc? The wording of the Clause 3 “a new nominee” does not seem to be clear enough.

    Thanks for your crystal-clear explanation in advance.

  5. Reidar Visser said

    John, many thanks for that. I’ll be very brief since this is a separate subject, as you say, and there is more de-Baathification business going on today. But the first scenario you refer to certainly exists. The reason is that the president will owe his election to political support from a certain combination of parties, and therefore he is likely to follow the preferences of those parties with regard to the somewhat semantic question of what constitutes the biggest bloc or “kutla”. The key here is that the elections do not seem to form any cut-off point with regard to the definition of a “bloc”; rather these tend to change all the time, also after parliament has been seated. Just to take an example, whereas the UIA was once reckoned as a singe “kutla” those of its constituent parts that have since broken off (i.e. the Sadrists) are now reckoned as a separate bloc in the official parliamentary records. Same thing with Tawafuq and even the small parties that left Iraqiyya. The new president will be in a fairly strong position to take the initiative in the debate about what defines the biggest kutla and set the parameters for that discussion.

    To your second point, I agree, the text is not very clear, it just says “a new candidate” (murashah jadid). A liberal interpretation would be that it could be any new candidate from any bloc regardless of size, i.e. anything from another candidate within the same bloc to a member of the smallest entitiy in the council of representatives. Note that sub-clause 3 relates to failure in putting the cabinet together (i.e. getting the right people to agree to take part), but sub-clause 5 repeats more or less the same procedure in the case of a failure to win parliamentary approval for a successfully assembled team.

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