Judicial panel overturns election ban: Will review ‘democratic credentials’ of candidates after the election: Update

Posted on | February 3, 2010

The Higher Judicial Council website carries news that a Special Chamber comprised of members of the Court of Cassation in Decision 108 of 2010 has decided to delay its examination of the candidates barred from participating in the election by IHEC on the recommendation of the Accountability and Justice Commission. After the election they will look only at those candidates who are successful. A translation of the decision in full is as follows:

Postponement of ruling in the appeals to the Cassation Chamber on the decision of the Commission for Accountability and Justice to end of legislative elections.

[The Special Chamber appointed by the Higher Judicial Council upon Parliament’s request rules in ‘final’ instance that candidates excluded from poll for ties with the former ruling party are entitled to run, but that conformity with the legal conditions for parliamentary membership will be re-examined after the elections on March 7.]

Number 108/Cassation Chamber/2010
Date: 3 February 2010

A special Cassation Chamber looking into the appeals against the decisions of the Commission for Accountability and Justice in the Federal Cassation Court met on 3 February 2010 and issued the following judgment:

Appellant: ‘Abd al-Amir Jasem Muhammad Asad Muhammad

The Appellant brought his complaint against the decision of the Commission for Accountability and Justice to prevent his candidacy to membership in the Iraqi Council of Representatives for the session that starts in 2010, and the complaint was put to deliberation.

Judgment:

The decision under appeal includes the appellant in the measures taken under Law No. 10 of 2008 of the Higher Commission for Accountability and Justice, and prevents his candidacy to the elections by Letter 232 of the Higher Commission for Accountability and Justice on 19 January 2010, addressed to IHEC.

Cassation appeals have since 20 January 2010 not ceased coming to the present Chamber, and the examination of these appeals requires first a look into the legality of the Commission that issued them, as well as the perusal of the evidence and documents on which this Commission has based its decision to include the above appellant and the rest of the appellants against the above measures, as well as the perusal of the appellants’ evidence as to the incorrect nature of what they are accused of. [All this] requires from the seven-member Chamber to have a time that is not available given the beginning of the election campaigning on 7 February 2010, especially since today (3 February 2010) is a Wednesday, and roads are likely to be cut tomorrow Thursday and maybe also Saturday because of the 40th [Arba’een] visits, with the end of the visits corresponding to the beginning of the campaign.

Therefore the Cassation Chambers sees [the need to] postpone the examination of the [current] appeal, together with the other appeals, and to allow the appellant to participate in the candidacy to the elections in order to exercise his constitutional right in the electoral session that starts in 2010, but in case of success under Amended Law 16 of 2005, such success does not allow him to take up his seat in the Council of Representative and does not give him the rights and privileges that the law grants to the members of the Council of Representatives, including parliamentary immunity and financial compensation and the like.

Therefore the Chamber decides unanimously to postpone the decision on the appeal on both procedure and substance until the end of the electoral exercise in accordance with the above.

Judgment taken unanimously on 18 Safar 1431 AH corresponding to 3 February 2010.

“The judicial panel decided to allow the banned candidates to participate in the next election and decided to postpone looking into the case until after the election,” said Hamdiya al-Husseini, a member of the Independent High Electoral Commission on 3 February 2010.

The Accountability and Justice Law No. 10 of 2008 does not specifically refer to candidates for election but provides a process by which senior Ba’th party members are to be identified and barred from public office. It is possible to appeal under Article 2(9) & (10) of that law to a Cassation Board of Accountability and Justice.

There is a separate appeal route under Article 8(3) and (4) of the Independent High Electoral Commission Law No. 11 of 2007 to an Electoral Judicial Panel (also drawn from members of the Court of Cassation) from a decision of the Independent High Electoral Commission to bar a candidate from office.

UPDATE: Following political protest and an extension of time to complete this task, the Court of Cassation Panel did in fact complete the appellate process see here.