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February 09, 2010

An Update on the De-Ba'athification Crisis
Posted by Michael Wahid Hanna

My post from last week on the Iraqi de-Ba’athification crisis (“An End to the De-Ba’athification Circus?) was titled with a question mark, meant to express a bit of hesitation in asserting that the pre-election vetting circus had truly come to an end. While there were at that time emerging indications that the electoral commission was unsure of the binding nature of the decision, it appeared that there were limited options in challenging the decision. This initial uncertainty was later amplified by a host of Shi’a politicians who were more forceful and explicit in their denunciations of the ruling (and U.S. interference), fueling a direct political intervention in the appeals process.

I had hoped that Iraqi politicians would use the court decision as a face-saving way to exit the country’s political crisis, particularly because those who orchestrated the electoral disqualifications had already managed to achieve many of their central aims: politicizing the environment on the basis of exaggerated fears of a Ba’athist re-emergence; creating a distinctly sectarian electoral narrative capitalizing on the understandable fears of their core constituency who suffered grievously under the Ba’athist regime; and limiting the acceptable room for operation of their Shi’a rivals who fear appearing to be weak on an issue that is central to post-war Shi’a identity.

But the Shi’a political class has rebelled against the appellate panel’s ruling. Instead of challenging the legality of the initial ruling through judicial channels, namely the Federal Supreme Court, these political actors have come to rely on ad hoc and non-transparent deals, which have now come to define the de-Ba’athification process. By thoroughly politicizing the current legal proceedings, these actions will have implications beyond the course of the campaign and will hamper the possibility of cross-sectarian government formation and inclusive governance. 

A brief update: following the announcement of the appellate decision delaying full adjudication of the disqualifications until after completion of the electoral process, various prominent Shi’a politicians, including the prime minister, attacked the propriety and legality of the decision and condemned interference by the United States, with pointed attacks on Vice President Biden and Ambassador Christopher Hill. This was accompanied by increasingly shrill rhetoric about Ba’athist penetration of the Iraqi state.

Al-Maliki had initially called for an emergency session of parliament to deal with the decision, with others suggesting that the meeting might result in a no-confidence motion against the seven-judge appellate panel. Calls for the emergency session were later dropped after a highly unusual meeting convened by Maliki with other key leaders and the head of the Higher Judicial Council, Medhat al-Mahmoud. Following the meeting, the appellate panel was directed to immediately recommence its review of all case files with decisions having to be announced prior to the start of the official electoral campaign period on February 12. It appears, based on the public statements of al-Maliki and others, that the impending decisions of the panel on the de-Ba’athification status of these individuals will bring this entire affair to a close.

Al-Mahmoud is a competent and respected jurist, but his decision to attend this overtly political meeting created a clear impression of political interference in judicial affairs and the instructions to the appellate panel to complete the review process prior to the start of the electoral campaign were based on unclear legal grounds. If in fact there was a serious complaint about the legality or the constitutionality of its decision, such determinations would have been properly made through formal petition of the Federal Supreme Court as opposed to ad hoc meetings with political leaders with no regard for transparency.

As an aside, al-Mahmoud is also the chief of the Federal Supreme Court, which raises serious conflict of interest questions since he has the right to nominate judges for appointment whose decisions could then be subject to review by the Federal Supreme Court. This structural flaw has long predated the current dispute since al-Mahmoud has proven to be the ultimate political survivor, managing to hold both roles from very early on following the U.S. invasion.    

Needless to say, these rather convoluted developments have done little to instill confidence in the ability of the system to render impartial justice.

To defend these latest developments, the critics of the appellate panel decision have resorted to increasingly tenuous arguments. On Sunday afternoon I did a broadcast discussion (sorry, no link is available) with Khalid al-Attiyah, the deputy speaker of parliament and an ally of Prime Minister Nouri al-Maliki, and his justifications were difficult to follow. First off, he contended that the appellate panel should be understood as an administrative body subject only to parliamentary oversight. But this position is not sustainable. The seven-judge panel is explicitly structured as an independent judicial body that is part of Iraq’s Cassation Court. As such, Iraqi parliamentary oversight is limited to the procedures and actions of the AJC itself and not the appellate panel. While the law allows for confirmation of judges to the panel after their nomination by the Higher Judicial Council, it does not contain any provisions detailing the ability of the parliament to interfere in what is a judicial proceeding. This is further reinforced by the Iraqi constitution (Art. 19), which enshrines the fundamental principle of judicial independence and grants individuals the right to be “treated with justice in judicial and administrative proceedings.”  

Al-‘Attiyah also argued that the initial decision by the appellate panel was not only unconstitutional but that it was flawed because of inadequate and faulty information. He went on to state that the panel had received updated and more accurate information upon which it could now proceed to make informed decisions on the files still before it. Needless to say, if one had due process concerns about the nature of appellate review in a politicized climate with absurd time constraints, the process described by the deputy prime minister, if it is at all accurate, does not inspire confidence.

During my discussion with al-‘Attiyah I felt compelled to state on numerous occasions that individuals who have been properly proven to be affiliated with the crimes of the former regime in accordance with the strictures of de-Ba’athification should be excluded from participating in Iraq’s political life. But I emphasized that his country’s constitution was clear in defending the rights of those who stand to be deprived of their liberty.

Nibras Kazimi, a knowledgeable and biting Iraqi commentator who has downplayed the significance of the current crisis, has argued that the legal ambiguities in the original AJC law render the appellate panel’s decision inoperative because 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.” He went on to argue that 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…..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.” He concluded by arguing that because of this legislative gap that the disqualified candidates were not covered by the express provisions of the law, but that the parliamentary oversight committee is the only competently-organized body that could make such a determination.

This overall point is well taken, although I believe that the Federal Supreme Court would have the ultimate authority to weigh in on this matter because the actions of the AJC implicate fundamental political rights. But this threshold argument has been superseded by the most recent developments. It is certainly true that the AJC law was largely crafted to deal with vetting individuals within the public sector, but the elections law does make specific reference to the exclusion of those who are subject to the provisions of de-Ba’athification. Furthermore, the AJC law also describes aims beyond the mere dismissal or reinstatement of public sector employees, including pursuing criminal accountability, assisting victims’ reparations efforts, and preserving historical memory. As such, the AJC can engage in investigatory work beyond the narrow scope of public-sector vetting but has no basis for using that information for the purposes of electoral vetting. In practice, however, the authority of the appellate panel is not now in question as the major players, including the prime minister, the head of the higher judicial council, and those affected by the panel’s decisions, have all recognized its jurisdiction in this matter. While in keeping with the spirit of the law to provide appellate review, this process is technically outside the bounds of narrow statutory construction (as were the original disqualifications by the AJC). Obviously, a clearer legislative basis for the panel’s actions would have been preferable as would a greater degree of legal clarity and transparency for the entire process.

This public spectacle begs the question of ultimate ends—are those denouncing the decision committed to disqualifying candidates based upon secret evidence or are they engaged in electoral theater and reckless public posturing? The real concern now is that even if these are primarily political gestures, they will reinforce polarization and undercut public faith in Iraqi institutions no matter the final dispensation of individual cases. This makes the prospect of government formation much more difficult, particularly the possibility of cross-sectarian alliance building. Perhaps the parties will overcome the poisonous rhetorical environment when lured by the prospects of inclusion in government and access to patronage networks, but that task is certainly made more difficult by the current divisiveness. Of course, from the perspective of the Ahmed Chalabis and ‘Ali Faysal al-Lamis of the world, that was one of their main aims all along.

Iraqi institution-building is understandably incomplete and the interstices inherent in the ongoing process of state formation in a scarred society offer endless opportunities for demagoguery, but recklessly pushing such a fragile system to its limits for political gain is not exactly a preferred method for developing institutional resiliency.

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