27 March 2004

Exceptional Ahmad

Chapter 7 of the Iraqi interim constitution needs to be read in the light of a couple of recent news reports.


Article 48

(A) The statute establishing the Iraqi Special Tribunal issued on 10 December 2003 is confirmed. That statute exclusively defines its jurisdiction and procedures, notwithstanding the provisions of this Law.

(B) No other court shall have jurisdiction to examine cases within the competence of the Iraqi Special Tribunal, except to the extent provided by its founding statute.

(C) The judges of the Iraqi Special Tribunal shall be appointed in accordance with the provisions of its founding statute.

Article 49

(A) The establishment of national commissions such as the Commission on Public Integrity, the Iraqi Property Claims Commission, and the Higher National De-Ba'athification Commission is confirmed, as is the establishment of commissions formed after this Law has gone into effect. The members of these national commissions shall continue to serve after this Law has gone into effect, taking into account the contents of Article 51, below.

(B) The method of appointment to the national commissions shall be in accordance with law.

Article 50

The Iraqi Transitional Government shall establish a National Commission for Human Rights for the purpose of executing the commitments relative to the rights set forth in this Law and to examine complaints pertaining to violations of human rights. The Commission shall be established in accordance with the Paris Principles issued by the United Nations on the responsibilities of national institutions. This Commission shall include an Office of the Ombudsman to inquire into complaints. This office shall have the power to investigate, on its own initiative or on the basis of a complaint submitted to it, any allegation that the conduct of the governmental authorities is arbitrary or contrary to law.

Article 51

No member of the Iraqi Special Tribunal or of any commission established by the federal government may be employed in any other capacity in or out of government. This prohibition is valid without limitation, whether it be within the executive, legislative, or judicial authority of the Iraqi Transitional Government. Members of the Special Tribunal may, however, suspend their employment in other agencies while they serve on the aforementioned Tribunal.

The powers of these commissions are defined by CPA orders and cannot be amended, not can their members be removed, without a decision of the National Assembly and a unanimous decision of the State Presidency. That would be bad, but the frequent repetition of ethics clauses in the constitution (Articles 31(B)(1) through (8), and 36(B) implies that the commissions can debar candidates. Whoever controls the debaathification commission controls candidacy to the National Assembly. Whoever controls the still to be formed integrity commission can initiate dismissal of members of the State Presidency.

The debaathification commission effectively has the vast resources of the Baath party to dispense in the form of patronage.

So the Iraqi Transitional Government's sovereignty is to be subject to Article 59 which gives the US control of Iraq's military, Article 48 which continues the power of independent commissions, and any appointments or legislative instruments issued by the CPA from the time of its formation until the alleged transition. Who, I wonder, might take advantage of the independent agencies to erect a parallel government?

In MSNBC - The Master Operator Newsweek reports, that despite being the least popular and least trusted IGC member:

Chalabi's other major source of strength is the De-Baathification Commission, which he heads. Its mandate - to work against former members of Saddam's regime and his Baath Party - is so wide-ranging that even one of Chalabi's aides calls it 'a government within the government.' It's empowered to oversee educational reform, track down Saddam's funds, purge senior Baathists from government jobs and occasionally reinstate those who can convince the commission they weren't complicit in Saddam's crimes. The backbone of the operation is a vast collection of secret documents seized from Saddam's files. To process them, according to one Chalabi aide, the De-Baathification Commission has 50 document scanners. There are only 20 other scanners in all the rest of the government.

That control can be maintained, despite Article 51, by the use of nephews and proxies as Chlabi is already doing with the Iraqi Special Tribunal. Note, BTW, that the TAL bill of rights does not apply to the tribunal under Article 48(A).

Lastly, from yesterdays' Guardian, we learn:

The United States will transfer power in Iraq to a hand-picked prime minister, abandoning plans for an expansion of the current 25-member governing council, according to coalition officials in Baghdad.

With fewer than 100 days before the US occupation authorities are due to transfer sovereignty, fear of wrangling among Iraqi politicians has forced Washington to make its third switch of strategy in six months.

The search is now on for an Iraqi to serve as chief executive. He will almost certainly be from the Shia Muslim majority, and probably a secular technocrat.

"There will be no [Paul] Bremer and there will be a prime minister," a coalition official told the Guardian yesterday. "That will be the biggest change with the transfer of sovereignty."

Mr Bremer is the US head of the coalition's provisional authority whose term expires on June 30 when the occupation formally ends.

Let's leave aside the fact that the TAL itself requires extensive deliberations and consultations, a process apparently being ignored. I wonder who that handpicked Shia technocrat might prove to be?

No comments: