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.