The Justice and Accountability Commission (JAC), formerly the De-Bathification Commission, has confirmed recent rumours that it would void the votes of 52 candidates in the recent parliamentary elections in Iraq.
The Commission headed by Ali Al-Lami and Ahmad Al-Chalabi, both candidates themselves, had been making noises since a few days after the elections about taking such a measure. And while the ridiculous notion of giving one candidate the absolute power to bar other competing candidates, without the right to appeal, is obvious to almost everyone, I will not discuss the merits of the decision to bar the initial 499 candidates nor the subsequent decision to bar 52 of the replacement candidates. However, I will address the legal and technical faults of the decision.
It has emerged that only one candidate has actually won a seat amongst the newly barred candidates, and reports suggest that is the brother of Salih Al-Mutlaq, Ibrahim, who filled in his place after the former was removed initially. 22 of the 52 belong to the Iraqiya coalition and the rest are scattered between other lists. The head of the Independent Higher Electoral Commission (IHEC), Faraj Al-Haideri, has said that the votes removed will not have an effect on the distribution of seats since most candidates, including the winning one, did not garner many votes, it is still important to discuss the implications of the decision nonetheless.
Firstly, The issue of lack of structure in the decision-making process is shocking from a legal point of view. The process of barring the initial group was clear as the names were not approved by IHEC until they received the go-ahead from JAC, one wonders why JAC or IHEC did not follow the same steps in the barring the latest 52 candidates and why were they allowed to contest the elections.
The second issue seems to be a matter of timing, if these candidates were allowed to contest the elections and they had won seats in parliament, and the results had been approved by the Supreme Federal Court by the end of March as they ought to have been. The process of removal would be done through parliament and the list under which the MP ran nominates another member and there have been many precedents for that. Another scenario would be if new evidence surfaces which implicates other members in the newly elected parliament, then the same process would be followed again. There would not be a question of removing the votes and recounting the seats every time a Member of Parliament is debathified throughout the assembly’s four-year lifespan. So the only reason that has allowed the Electoral Judicial Committee to remove these votes is the delay in the approval of the election results, and that is not a sound legal or electoral process.
The final issue I raise is that the barred candidates and their lists whose votes will be eliminated are not the only victims of these legally unsound measures, it is also the Iraqi citizens who cast their votes without knowing that there’s a possibility that these votes for the candidates could be voided, especially when you consider that the vote for the candidate was optional anyway.
For these reasons, it seems to me that the most acceptable solution for the Judicial Committee is to bar the candidates with legal recourse in the form of an appeal, while allowing for the votes to count towards the lists, as that would remove the unsoundness of the process and its dependence on timing while also preserving the integrity of the right to vote.