In his characteristic way, Ali al-Lami of the de-Baathification board late Thursday night, at the beginning of the Iraqi weekend, informed a small number of news agencies that two of the top Iraqiyya candidates, Salih al-Mutlak and Zafir al-Ani, have been barred from standing as candidates in the 7 March election after their appeals were rejected by the special appeals court for de-Baathification cases.
Few new details are known, but enough information about these cases is already in the public domain to label this act as a straightforward miscarriage of justice:
-The whole key to understanding what is going on is the realisation that there is not a single law that governs the de-Baathification process. Instead, the framework that is being applied combines several elements, only some of which are regular laws adopted by the Iraqi parliament, and almost all of which contradict each other or are incongruous.
-The Iraqi constitution outlaws glorification of the “Saddamist Baath” party in article 7, but this clause also stipulates a ban on racism and sectarian cleansing, all of which is to be combined in a special law. Such a law has never been issued by the Iraqi parliament, and it is fairly obvious that without it no “de-Baathification” can be carried out under this heading since one would then also need to investigate many other political parties who may be plausibly accused of racism or sectarian cleansing.
-The only relevant piece of de-Baathification legislation is the accountability and justice law of January 2008. Although this law makes brief references to several constitutional clauses (including article 7) it is clear that the only specific mandate created by it are those actions outlined in article 6, which stipulates that certain ranks and positions in the former regime are subject to de-Baathification. Ali al-Lami has publicly admitted that the case of Salih al-Mutlak does not fall under this category, and the same probably holds true for Zafir al-Ani.
-The appeals procedure in the accountability and justice act is stipulated in articles 15 to 17 and explicitly applies only to those subject to de-Baathification under article 6 of the AJ law. This shows beyond doubt that the law was never intended to specifically implement article 7 of the constitution. It also means that this particular appeals procedure in fact does not apply to the case of Salih al-Mutlak and that Mutlak (and probably also Ani) should have the right to appeal to the federal supreme court and/or the court of cassation instead since their cases supposedly involve glorification of the Baath.
-The appeals procedure in article 15 to 17 involves an appeals deadline of 30 days and 60 days for considering the appeal, both of which have been violated in this case. The apparent explanation for this relates to the bastard character of the “legal” framework that is being applied: Here the accountability and justice act of January 2008 has been welded together with an IHEC regulation (Arabic, PDF) on “registration and approval of entities” that was never passed by parliament but simply enacted by the commission in 2009. That regulation has a three-days appeals procedure that was enforced in this case.
-The ambiguous and hybrid nature of this arrangement is further highlighted because the second appeals procedure (i.e. that of the regulation) says nothing about the special appeals court for de-Baathification cases at all, but instead refers to the “elections court”اﻟﮭﯿﺌﺔ اﻟﻘﻀﺎﺋﯿﺔ ﻟﻼﻧﺘﺨﺎﺑﺎت , which may never have come into existence in the real world. In another regulation this court is defined as a court composed of three judges appointed by the ordinary federal court of cassation (not the special appeals court for de-Baathification). But instead of following the regulation, the IHEC has brought in the special appeals court for de-Baathification cases that was hastily created by the Iraqi parliament in January in an attempt at improving the legal façade of the de-Baathification process – this was seen as especially important since the current accountability and justice board (which has been driving the whole process forward) was never selected according to the procedures stipulated in the accountability and justice act… In other words, the IHEC in this case is neither faithful to the accountability and justice act nor in compliance with its own regulations.
-If Mutlak’s case had been properly considered by the elections court then that court would have had the power to either reinstate him or postpone his case and reinstate him temporarily for the elections, in contrast to the special appeals court for de-Baathification cases which only has more limited powers related to the question of de-Baathification status. As said, it is unclear whether this court has ever been seated – if not, then the ordinary court of cassation would have been the more appropriate alternative for the cases of Mutlak and Ani. At any rate, what is clear is that by cutting and pasting from the accountability and justice act and the regulations for approval of entities, the IHEC has created a legal hybrid that is grossly incoherent and with an appeals process that is arbitrary in the extreme and subject to political machinations.
-Mutlak has moreover had his whole list banned with reference to another document that was undemocratically adopted, CPA order 97 of 2004, which basically gives the IHEC unrestricted right to ban any party it does not like. The recourse to this edict by Paul Bremer once more shows how the de-Baathification board has major problems with producing plausible pretexts for its actions.
-This disintegration of the legal framework has set the stage for similar processes at the local level across Iraq, where vigilante de-Baathification is being reported in several governorates, often abetted by local leaders of State of Law and Iraqi National Alliance who apparently compete in being toughest on de-Baathification. Legal justifications are being made up entirely, including a suggestion that “the constitution bars previous Baathists from having high positions in the state” (in Amara; in fact the constitution only stipulates a special de-Baathification requirement for certain jobs including the presidency council), and the idea that a member at the lowest level of the Baath party should be disqualified from the local administration (today in Babel; with the exception of the security sector, according to the law only members higher than the firqa level are to be de-Baathified.)
This all raises the question of whether yesterday’s release of 6,172 candidate names was indeed intended as the final list. Other wire reports today say only 28 appeals were accepted, and a few reinstatements were in fact noted in the list that was published yesterday. In other words, we have seen an almost total reversal of the position of the special appeals court within less than one week, suggesting that considerable political pressure has been brought to bear on its members as they tried to navigate the utter legal chaos that is the Iraqi de-Baathification process.