One of the many remarkable aspects of the continuing de-Baathification saga has been the apparent willingness of the Iraqi elections commission (IHEC) to more or less mechanically follow the recommendations of the accountability and justice board and its two leading figures, Ahmad Chalabi and Ali Faysal al-Lami. Nonetheless, until now the IHEC has at least maintained a semblance of formal independence in its decision-making by providing its own “independent” consideration of the advice from the justice and accountability board before implementing it. This was the procedure that was followed for example in the recent exclusion of 511 candidates for the 7 March parliamentary elections.
However, with the release of the minutes from one of the latest meetings of the IHEC, both its independence and the distinction between the elections commission and the accountability and justice board are thrown into question in a serious way. Recently, on top of the ban of 500 plus candidates, the IHEC also moved to cancel the approval of nine political entities. The logic that was followed was apparently that when an entity leader was subject to de-Baathification the entire list should have its approval annulled; however the sole legal justification offered was a reference to an order issued by Paul Bremer in 2004 (CPA order 97) which gave the predecessor of the IHEC the right to basically cancel any political entity it wished to cancel – probably reflecting the absence of more plausible, precise and up-to-date legal justifications for establishing links between entity heads and their electoral lists in terms of de-Baathification. Importantly, when the IHEC first issued its decision, one did get the sense that the elections commission had come up with the idea itself, which would have been the most natural procedure since the CPA order relates to the election law that was in use in 2004 and 2005 and since it is the commission itself that is empowered by the CPA reference. But the newly released minutes reveal that the specific idea of reverting to a sweeping CPA edict in order to ban unwanted political entities came not from the IHEC but directly from the accountability and justice board!
In other words, the accountability and justice board is not merely influencing the IHEC. Rather, at times the board is capable of acting as the guardian of the “independent” commission, thinking on its behalf and supplying the very arguments that are being marshalled to defend its supposedly autonomous position. In this case, the brief summary of the relevant meeting on 18 January reveals in an unambiguous way the origin of the idea to use CPA order 97: “The assembly [of the IHEC] discussed letter 231 from the accountability and justice board dated 18 January, entitled ‘ban on participation’ and referring to section five of law number 97 on elections and political parties from 2004, and accordingly decided…” When this was later issued as a decision it looked like something that had been agreed by the IHEC. In reality, it was an accountability and justice board decision in everything but the name.
The shocking part of this is not that the IHEC is politicised; that is an open secret recognised by most Iraqis. The new element is that one particular political bloc – the Iraqi National Alliance – seems capable of pushing through its own view at the expense of others, thereby crushing any idea of a neutralising balance of power in this important body that is incidentally also charged with counting the votes after the 7 March elections. The exact timing of the response to the decision by the appellate court last week is particularly interesting in this respect. Around 5 PM local time on Wedsnesday, the IHEC through its spokesman Khalid al-Shami had essentially set out its argument about the appeals court interfering in the prerogatives of the IHEC. Still at 7:30 PM, Hamdiyya al-Husayni of the IHEC (who is close to the Daawa), seemed to signal acceptance of the decision. But at 9:45 the Iraqi National Alliance issued its condemnation, which was followed later in the evening by a statement by one of its allies in the IHEC, Qasim al-Abbudi, to the effect that the commission had not even received the decision by the appeals court and that the apparent approval by Husayni merely reflected her “personal opinion”. Soon thereafter, the Daawa followed suit with its own condemnation, thereby once more effectively succumbing to the Iraqi National Alliance and its goal of having de-Baathification at the top of the political agenda ahead of the elections. The next day, the IHEC asked the supreme federal court for a clarification but this was superseded by a meeting of the “four presidencies”.
The discussion about the “independence” of the IHEC is of crucial importance to the next stage in the de-Baathification process for a number of reasons. Firstly, it has to be remembered that the rationale for the protest by the accountability and justice board and the Shiite Islamist parties against the appeals court was that the latter had supposedly “infringed” on the prerogatives of the IHEC by going as far as “permitting” participation instead of dealing with de-Baathification status only. It should now be perfectly clear that the accountability and justice board itself is guilty in this respect, not only of carrying out such infringement but moreover of doing it in a way that clearly serves the political ends of its leaders, who are affiliated with the main Shiite alliance. Secondly, this point will assume renewed importance when the appeals court issues its final decision over the coming two days – this time probably limited to the question of whether individual candidates are subject to de-Baathification or not. Already, there is divergence of opinion as to the consequences of a ruling by the appeals court. On the one hand, Ali al-Lami and others in the accountability and justice board have repeated their view that it is the job of the IHEC to make the final decision, and that the commission does not necessarily need to follow the appeals court ruling to the letter. Expressing the opposite point of view, Iraqiyya representatives say the ruling is binding upon the elections commission.
In view of what has now emerged with respect to the ability of the accountability and justice board to dictate the decisions of the IHEC on some occasions, it becomes more important than ever that the IHEC should follow the recommendation of the appeals court one hundred per cent. If not then the whole Iraqi process would become utterly farcical: What is the point of an appeals institution if the court that was overturned has the power to reinstate its original decision in the end by using its “independent” proxies? Under that kind of scenario, the new democracy in Iraq would become about as interesting and competitive as parliamentary elections are in Syria and Egypt.