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.

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.

[Update 2, 8 February 11:45 CET: It is being reported that with the appeals court having resumed its work Maliki has told Samarraie there is no need for an emergency session of parliament today and this is likely to be called off]

[Update 7 February 14:15 CET: Iraqi state television reports that the emergency session of parliament has been postponed until tomorrow, Monday]

Those who had wanted a purely legal solution to Iraq’s de-Baathification crisis experienced a setback today. In a rather blunt attack on the principle of separation of powers, “the four presidencies”, i.e. the president proper (Talabani) plus the “presidents” of the cabinet (Maliki), the parliament (Samarraie) and the higher judicial council (Midhat al-Mahmud) had been summoned to a meeting that probably was aimed at pre-empting any independent decision by the federal supreme court on the query from the elections commission (IHEC) regarding the latest decision by the special appeals court for de-Baathification cases. In the event, Talabani absented himself but Maliki and Samarraie were joined by one of the deputy speakers of parliament (Khalid al-Atiyya) and one of the deputy prime ministers (Rawsch Shaways), ensuring a setting that was entirely dominated by politicians from the big parties.

Unsurprisingly, perhaps, this quartet apparently strong-armed Judge Midhat into accepting the procedure they had been advocating all along: That the appeals process must run its course in a normal way, with the added caveat that the work of the appeals court must now be completed before the start of the electoral campaign on 12 February. That probably means good bye to any idea of due process given the short period that remains, which had been a main argument in the decision to postpone the appeals (incidentally, it is also a violation of the 60-day period for consideration of appeals stipulated in the relevant legislation). Still, article 17 of the accountability and justice law does provide the appeals court with rather unambiguous powers to decisively reverse any decision by the accountability and justice board as far as the de-Baathification status of an individual is concerned. The court is also protected by the absence of any mechanism for its dismissal in the accountability and justice law. This latter point was apparently lost on members of the legal committee of parliament who earlier today called for a “withdrawal of confidence” in the court, thereby just confirming a growing tendency of Walt Disney-style behaviour that has also included calls for de-Baathification of figures like Vice President Tareq al-Hashemi and even General David Petraeus. Unfortunately, parliament is still scheduled to meet tomorrow to make “adequate decisions” in the matter, suggesting that there may be yet more theatre to come (maybe to provide some kind of formal cover for the procedure that was already reported from today’s meeting, whose prerogatives to actually “decide” on anything seem unclear).

It seems likely that the relatively strong character of the initial ruling by the appeals court (with a direct attempt at reinstating candidates) was an attempt at pre-empting moves by Ali al-Lami of the de-Baathification board to pressure the IHEC to ignore the court’s decisions on individual appeals (this had already been publicly hinted at by Lami prior to the release of the decision by the appeals court). The minimum the international community can now do is to send a clear signal that any attempt by the IHEC to override the decisions of the appeals court in individual cases next week will make it exceedingly difficult for the outside world to continue to classify Iraq as a “democracy” in any meaningful sense of the word, something which in turn will inevitably have a negative impact on foreign aid and investment.

Iraq’s higher judicial council has now published the ruling by the appeals court devoted to de-Baathification cases. The decision comes with the hallmarks of a judicial process that has run out of control, but it also includes some features that should make it relatively easy for the federal supreme council to make a final settlement on the question of who should take part in the 7 March parliamentary elections.

The ruling by the appeals board is straightforward at first. It enumerates the practical challenges involved in examining both the evidence used in the decision to exclude 500 plus candidates as well as the evidence submitted by those who appealed (interestingly, it also mentions the question of the legality of the board which issued the decision as a separate issue), before going on to refer to the short period of campaigning set aside ahead of the 7 March elections, including the fact that several days will lapse as a result of the Arbain holiday. Therefore, it says, the court “is of the opinion” or “thinks it proper” (using the verb “to see”) that the appeals be postponed and that the banned candidates be allowed to run for election provided that their seats in parliament will not be awarded until the appeals process has been completed. Accordingly, the court “decides” (and this is stronger than the above) to postpone the processing of the appeals.

What the justice and accountability board and the elections commission (IHEC) are reacting to when they condemn the decision is presumably the explicit reference to a reinstatement of the candidates to allow the to take part in the elections, which may be seen as an infringement on the prerogatives of the elections commission. However, it is also necessary to see this move as a response to a process which has long ago escalated beyond the judicial parameters to which it supposedly relates, with the main culprit in driving this process of escalation forward clearly being the accountability and justice board itself. The board still seems to live in the atmosphere of 2004, when it developed the idea that it had almost unrestricted rights to go after former Baathists and suspected current Baathists on whatever basis it thought plausible – in other words, the kind of totalitarian witch-hunt approach where a picture of Saddam Hussein in your wallet might incriminate you. Conversely, it continues to systematically violate the accountability and justice act of 2008, which was put in place to create some kinds of checks and balances in the de-Baathification process, and according to which the appeals board has been constituted.

Beyond the obvious example of arbitrarily reducing the period of appeal from 30 to 3 days (article 15), the accountability and justice board has banned several candidates not with reference to the accountability and justice act but to article 7 of the constitution, under which it has no specific mandate  (that article also includes racism and sectarianism and therefore involves a far wider range of potential cases for exclusion of candidates). And with respect to interference in the work of the IHEC (which is what the board is now accusing the appeals court of engaging in) it has already sinned repeatedly in this regard itself, for example in its letter number 189 dated 16 January 2010 to the IHEC where it talks not about de-Baathification according to the accountability and justice law as such (its proper remit) but about the right of candidates to take part in the elections.

Thankfully, the wording of the decision by the appeals court creates a possibility for the federal supreme court to intervene in a way that can take this process back to the realm of legalism. Press reports say that the IHEC has asked the supreme court whether the decision by the appeals board is binding. Arguably, the “decision” in this case is simply the final sentence of the ruling, in which the appeals process is postponed until after the elections, period. In isolation, that does not involve any kind of overreach by the appeals court, and the federal supreme court can simply say “yes, it is binding”, and refer to article 17 of the accountability and justice act which establishes that the decisions of the appeals court are “final” and “decisive” and hence cannot be appealed to any other court. It would then be impossible for the IHEC to deny the affected candidates the right to take part in the elections pending the settlement of their appeals.

That kind of approach would at the same time serve to restore both Iraqi imprimatur and a sense of judicial independence in a context where accusations of foreign interference and “politicised decisions” abound. Whatever parliament will try to do on Sunday, it will still be a game of politics that will threaten to further violate the principle of separation of powers. But whereas the appeals board itself has been subjected to politics (it was seated after a split vote in which Sadrists and other Shiite Islamists tried to dismiss three of its members as “Baathists”), the federal supreme court has often been seen as capable of rising above politics, both with respect to Iraqi players and in contexts where there are pressures from the outside. By simply approving of the postponement as “binding”, the federal supreme court should be able to de-escalate Iraq’s current crisis and create a better atmosphere for the upcoming elections campaign.