A nest of contradictions: exclusion and immunity in the Iraqi elections

The fudged compromise on Iraqi election candidates previously excluded from running raises more questions than it answers.
Mohammed Hussainy
22 February 2010

With campaigning in the Iraqi election officially launched, the decision to ban a number of candidates from standing still overshadows the electoral process.  The main parties are still preoccupied with the exclusionist war; each presents its arguments and evidence to corroborate the ensuing decisions to ban other parties or criticize the ban thereof.  Amid the tension, it is obvious that the decisions to ban candidates are political and that there are doubts cast upon the independence of the relevent commissions.

Right from the beginning, the decisions the Accountability and Justice Commission (AJC) put its legitimacy into question.  Moreover, the legitimacy of the AJC was undermined by the fact that it was not established via the legislation of the elected Iraqi Council of Representatives (CoR) or condoned by referendum.  The Commission exercised its powers under a law issued by the Government of Iraq (GoI) to serve as an extension of the De-Baathification Commission that had been formed by virtue of an order by the Coalition Provisional Authority (CPA), prior to the election of the CoR.    

An appellate commission was later formed to review the challenges lodged by banned candidates; it decided to allow them to run and postpone the adjudication until after the elections. The matter is hardly settled, for candidates theoretically have the chance to win their bid for office and acquire, thus, parliamentary immunity.  How can they be banned again should the appellate commission approve and endorse the AJC's earlier decision?  I find myself here to be in agreement with Prime Minister Maliki, who said during an interview with Alarabiya Sattellite Channel that "delaying the legal action in the electoral challenges until after the elections would have created many crises and undermine the legitimacy and credibility of the process."  He also emphasized the fact that decisions the AJC and the appellate commission issue are independent.   

However, Maliki's words in this regard reveal a contradiction.  If the decisions the appellate commission makes are independent, how can we interpret or explain the direct intervention by the GoI to prompt it to delay the adjudication? Rightly or wrongly, GoI made great efforts to pressure the commission to change its decision. It makes one question the commission's independence, particularly as the original decision was no less independent of government pressure.  The CoR meanwhile was conspicuous by its absence from the debate – though it is the only entity that has the right to approach the commission.    

Maliki’s statement leaves unclear the degree of immunity awarded to members of parliament.  If it’s a deterrent to enforcing the AJC and Appellate Commission’s verdicts after the elections, how can it not now deter them with reference to those who are serving members of the Parliament?  Maliki has mentioned that one of the candidates – referring to Saleh al-Mutlaq, was banned for his activities in promoting the Baath Party within the CoR, a clear case of disregard for parliamentary immunity. Iraqi CoR Speaker, Iyyad as-Samerrai, has resolved that "although I personally believe they were wrong in their comments, I think that article 63 of the Iraqi Constitution has granted the right to the Member of Parliament (MP) to enjoy parliamentary immunity with regards to what he/she says and the view they express." The Speaker added that "within the constitutional framework, those MPs who were banned from running for the elections are now in a status where they are in a situation that resembles those whose parliamentary immunity has been automatically suspended and put to trial on discretionary bases rather than on legal provisional ones."  When it comes to suspending or removing immunity, due process entails that it should take place by virtue of a decision by the CoR – something that did not take place.   

In principle, it does not matter whether Saleh al-Mutlaq or Zafer al-Aani will be running for the upcoming elections or not.  Iraq's fate will not be hindered by individuals – regardless of their identities, particularly if they were found to be guilty of committing crimes against the people of Iraq who are right to reject the involvement of all those who were guilty of committing crimes during the Baath Party reign.  What matters more, however, is that decisions to this effect should be based on sound, legal and constitutional foundations that are free of any suspected exclusionist interventions, particularly when prompted from abroad.  Any such decisions will do more harm and have greater impact than their consequences for the individuals concerned; they are liable to undermine the entire national political process. 

The coming few days will reveal a lot, particularly as the "Iraqia List", led by former Prime Minister Iyyad Allawi, will be announcing suspension of its electoral campaign and call for an official session of the CoR to review the banning decisions and the legitimacy of AJC.  Yet the door remains wide open to all manner of scenarios in what can be described as a tense launch of the campaigning period, to say the least.  


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