Ten years have passed since the introduction of the de-Baathification law in Iraq, but it still poses an obstacle to Iraqi reconciliation and the resolution of the problem of those who were removed from public sector jobs.
On May 16, 2003, Administrator of the Coalition Provisional Authority Paul Bremer issued order No. 5, which launched the operation known as “the de-Baathification of Iraq.” The order comprised several provisions, first and foremost among them to disband the Baath party and remove its major members from their positions, including those who were part of a squad, division, branch or leadership. Some exceptions can be made upon studying each individual case.
When the Law of Administration of the State of Iraq was issued in 2004, de-Baathification was included as provision (49), and later amended to become article (135) in the permanent Iraqi constitution. This article states that “the Higher National Commission, must proceed with the de-Baathification process in its capacity as an independent body, in coordination with the judiciary and executive systems within the framework of laws that govern its work.” Under the headline of “National Reconciliation,” the 10th law of the Justice and Accountability National Commission was issued in 2008. It nullified order No. 5 and replaced it with a new commission to examine the files of people involved in the de-Baathification process. The commission is also charged with expelling people mentioned in the provisions of the law. Expelled individuals have the right to appeal before the court of cassation comprised of seven judges who look into these appeals regarding the revocation of their right to participate in elections and political work, in accordance with Clause 9, Article 2, Chapter 2 of the aforementioned law.
After the enormous crises caused by de-Baathification — which nearly led to the collapse of the political process as evidenced by the expulsion of prominent leaders on the Iraqi National List just before the 2010 elections — demands to annul the “Justice and Accountability Law” have resurfaced. Sunnis have been protesting for weeks to realize this demand in the face of staunch Shiite-Kurdish objection.
It would appear that the Iraqi National List, which has laid out 13 demands on behalf of protesters in the provinces of Anbar, Saladin and Kirkuk, including the end of de-Baathification, is trying to increase its demands in order to make as many gains as possible during negotiations. The List understands the need for a constitutional amendment, which is presently impossible for several reasons. For one, the amendment referendum requires the two-thirds approval from the three provinces. This means that refusing to do away with de-Baathification is easy for Shiites and Kurds. Additionally, the amending this article would re-open the “unsettled” constitution conundrum — a file which has been closed since the past legislative session.
Iraqi List MP Haydar al-Mulla confirmed that amending — and not annulling — would be satisfactory at this point in time, as would completely implementing the law without exceptions or double-standards.
During a press conference, Mulla said: “The Iraqi List believes that the justice and accountability file or de-Baathification process was brought about for purposes of transition. It is not reasonable for this to remain in effect after 10 years and for us to remain stuck in this cycle of dismissals and eradications.”
On the other hand, Shiite parties believe that the annulment of this law would surely indicate political decline and loss for the Shiite constituency, which still fears the return of the Baath party under different names. The State of Law Coalition MP Sadeq al-Laban reiterated: “There will be firm objection to the proposed annulment of the laws of justice and accountability and anti-terrorism, especially from the National Coalition in general, and the State of Law Coalition in particular.” Mulla added that the annulment of these two laws “would undermine bringing justice to the martyrs who sacrificed their lives in order to reach this phase of the political process.”
The Justice and Accountability Law is made up of seven sections. Its main articles state that “all employees who were members of a division should be dismissed and referred to retirement as per the Retirement and Employment Law, and all employees who occupy any of the special ranks (equivalent to or higher than General Director) and who were group members in the Baath party should be referred to retirement as per the Retirement and Employment Law.”
Moreover, any person who was a member or held a higher rank in Baath party and became rich through the exploitation of public money is not entitled to occupy special rank jobs, equivalent to or higher than general director and manager of administrative units.
“The cabinet has the right to look into individual exceptions under this law to resume their positions in accordance with the requirements of public interest and by ministerial decree. In coordination with the commission, decisions are only made effective upon approval from the parliament.”