Unconventional thinking about the Middle East.

Friday, February 05, 2010

It’s Not Over

As many of you may have heard, the Appeals Committee of the Accountability and Justice Commission (AJC) has deferred looking into the cases of the barred candidates until after the election. This decision has no legal standing, even though it is being celebrated by some DC analysts and, of course, the would-be beneficiaries of the decision. In the interest of not having you all scratching your heads as this decision gets overturned by the Higher Federal Court and the parliament (gathering for an emergency session on Sunday) in the next few days, let me explain the legality of what is happening:

-Article 49/3 of the Constitution says that the requirements for candidacy to the parliament shall be legislated by a law, and that law was the Elections Law of November 2005 (amended in late 2009). Article 6/2 of the old and amended Election Law states that a candidate for parliament cannot run if he or she is barred according to the legal frameworks of De-Ba’athification.

-The AJC law does not cover, in any of the language, the procedures for vetting candidates for parliament. Article 6 is tailored to address the Ba’athist and security backgrounds of state employees, and nowhere does it address candidates for public office.

-The Appeals Committee is part of the AJC law, and it can only adjudicate on the cases of state employees barred according to Article 6. It gives 30 days for the employee to file a case against dismissal procedures or the such, and must respond in 60 days. This is where the decision to postpone barring the candidates until after elections comes from, but it has no legal standing: the Appeals Committee cannot look into the cases of candidates for parliament since that is not in the wording of the law, even though it may be in the spirit of the law.

-The Constitution trumps all other legal considerations, and it is very clear that it was meant to deny Ba’athists a return to public life. Since the AJC law does not give barred candidates any legal recourse, their only option is Article 165/6 of the Constitution that calls for forming a parliamentary committee to oversee and regulate the decisions of the De-Ba’athification Commission (and hence the AJC that replaced it on paper). This committee de-facto exists, and it is the De-Ba’athification Committee of the parliament that is headed by the hard line Sadrist, Falah Shanshal. By law, this is the only avenue available for appeals or to redress the decisions of the AJC as relates to candidates for parliament. The decisions of the committee can only be formalized by a simple majority vote in parliament.

-Saleh al-Mutlag is clearly in violation of Article 7/1 of the Constitution for glorifying, propagating and generally being an apologist for the Ba’ath Party (defined by the AJC law as the one that took power in 1968, but in the Constitution as the one that ruled during the “Saddamist” era beginning in 1979 to 2003). However, Article 7/1 stipulates that this ban should be legislated by a distinct law, and such a law was never written, discussed and/or passed by parliament. So technically, Mutlag has not violated a law, even though he has violated the spirit of the Constitution. Article 8 of the AJC law addresses those who propagate for the Ba’ath but punishes only those (state employees) who were beneficiaries of the AJC law, and this again does not include al-Mutlag. So, he’s in the clear. But the only body, by law, that can judge that he hasn’t violated any laws is the parliamentary committee that I mentioned above, not the Appeals Committee.

I’m in Baghdad, which is nice and empty since millions seem to have strolled down to Karbala for the 40th Day Commemoration of Ashura. No traffic jams, no undue waits at checkpoints. Will try to write more about what I’m hearing.


Anonymous amagi said...


Please do! I'm particularly curious as to whether there is any truth to the claims that this move has truly resulted in -- as widely reported in the media, but backed up with scant evidence (in my opinion) -- a polarized sectarian atmosphere closer to that the 2005 election than to the provincial elections last year. I find it hard to believe that such an obvious political ploy would not garner an enormous amount of skepticism and cynicism from the voting public. You know, a general outcry of 'what kind of fools do they take us for?'

Do you think, even if the ban is ultimately upheld, it is going to make a significant difference in the voting patterns? For that matter, do you think these elections will be 'transparent' (a term I'm getting sick of) enough to be legit? If the ISCI et al lose a good deal of influence, do you think they will go quietly?

Your predictions have been spot on thus far...

Thanks, as always!

1:12 PM, February 05, 2010

Blogger Sandybelle said...

have a nice and a SAFE staying in Baghdad!

2:00 AM, February 08, 2010

Anonymous Statesman said...

Here's an excellent article by Robert Drefuss about De Bathification, Chalabi,and Iran.


I hope your work with Chalabi is going well and that he arrived safely from Tehran 2 days ago; he was seen on the evening flight from Tehran to Baghdad, along with Hadi al-Ameri (IISC), Khayrallah Basri (Dawa), and Mowaffaq Rubaie (a lost cause).

Its a shame to see all Shia Iraqi politicians, Chalabi and others, have to receive their instructions prior to elections from Tehran and that they are nothing more than an extension of Iran's policy in the region.

I hope you keep safe and that you don't get caught near a bomb - I know you said they are a 'nuisance' but we don't wish to see you in pieces because of this nuisance.

3:03 AM, February 10, 2010

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