Law in the American and Iraqi Paradigms: Myths and Realities
Iraqi law has been taken a bit of a beating in the press these past few days, being described in fashions ("pliable" says Anthony Shadid, "untested" said someone in the Washington Post, "politicized" I heard on CNN) in a manner that most Iraqi lawyers would find rather horrifying. It's about time for a little perspective.
The recent Western media assault on Iraqi law has to do with the de-Baathification law, and its resulting ouster of Sunni hardlner candidate Saleh al-Mutlaq from the upcoming election. Essentially, the feeling, by people some of whom don't know Arabic (though Shadid clearly does) is that the law is vague and can be used by anyone to argue anything. This apparently is supposed to be in contradistinction to American law, which is clear and certain in its results and thoroughly "tested", whatever that means. (Seriously, what does that mean? That there is extensive commentary and case law about it? And there isn't on Iraqi law? And this by people who wouldn't know an Iraqi lawyer if they ran straight into them on a Baghdad street?)
Anyway, if we look at Section 4, Article 6 of Iraq's de-Baathification law (techincally, for those who want to look it up and can read Arabic it is The Accountability and Justice Law, No. 10 of 2008), where the disqualifications are held, the vagueness is far more limited than anyone wants to admit. Broadly speaking, for over 90% of government positions, it's rather clear. First three levels of Ba'ath party membership (udhu Shu'ba, or Branch Leader and up) removes you under Article 6(1), and first four levels (meaning Udhu Firqa, or Unit Leader, and up andyes the whole damn thing sounds like the Boy Scouts) removes you for certain higher positions, of special rank Article 6(2). The fedayeen and the agencies that engaged in torture and persecution and the like are out, period. That's Articles 6(3) and 6(4). Article 6(5) makes clear that former Unit Leader membership is okay for non-special rank positions. That's the first five parts, and they are pretty clear. That's also more permissive than the original CPA Order which I think covered the top six levels.
After that, the exceptions start coming in, but they are limited to particular issues. So Article 6(6) eliminates Unit Leaders from really high positions like Ministers, and from work in the MInistries of security and defense and the like, and Article 6(7) takes away pensions from people who stayed in the party after the fall of the regime and have political asylum elsewhere. Broader is Article 6(8) which takes away the right to be in a position of special rank if one was a member and gained wealth off of the public funds. I could go on, but the point is the limitations are primarily (i) working in security and defense, and the extent to which the provisions encompass some mid to high level ex-members, and (ii) who is eliminated for positions of special rank, and also for really high positions, like Ministers, or members of the High Judicial Council, etc. Of the vast public sector, 90-95% is resolved with about 90% of the remaning bit having to do with security and defense for mid level members (Unit Leaders). The really high positions are important and not clear at all but by sheer numbers not nearly as relevant and so weren't the focus of the disputes concerning tens of thousands of people who had been expelled from their jobs. That was the problem when this was passed, and it largely fixes it. it works as a piece of legislation at least.
Still, since the world is focussing on the problems in the law and Iraqi law generally, why are those remaining provisions vague and/or contested? Three points to note, which I hope will show Iraqi law isn't nearly as hopeless as those decrying it suggest, or perhaps better stated is no less hopeless than law anywhere else in the world.(Oh, and let's note as a preliminary matter while we're at it, before we get to the three points, the fact that the problem was CREATED by Paul Bremer and SOLVED by this law. So if the law is imperfect, perhaps the fault should lie not with the entity seeking to fix it, the Iraqi parliament, but with the folks who screwed it up in the first place, the US occupation authority which issued the initial ban).
The first thing to note is the provisions aren't as vague as they are made out to be. It is near impossible to read Article 6(6) to ban all former Ba'ath party members from the security and defense agencies, but newspapers did report disputes where some hardline Shi'a argued this. Media hemmed and hawed I remember back in early 2008 about whether or not all of the Awakening people in the Sunni heartland would be banned, despite the evident relaxation of the requirements from the earlier CPA order.
Problem was they didn't read the law, they just listened to politicians with constituencies to please.
To me the fact that yo yos from any faction run off and make spurious claims about pending or recently passed legislation isn't really all that important, and isn't a demonstration of what the legislation is ultimately going to do. The idea that the legislation bans ALL former members of the party from working anywhere in security and defense is silly, as silly as Sarah Palin's death panels. It proves nothing about Iraqi law as a social reality, it only proves something I long knew, far too many politicians are idiotic blowhards in every jurisdiction and among every political persuasion, liberal to conservative.
Second point is that, yes, clearly some of the confusion arises from the fact that the parties couldn't agree on particular bans and so papered them over with vague terms and moved it through. This is the more common criticism--tut, tut, you silly Iraqis, stop papering over your disputes and solve them instead. While I tend to think that criticsm is valid for any number of laws (or the Constitution actually), it's completely misguided here. As noted, about 95% of the problem was solved by this legislation, why in the world would you hold that up to solve every last detail? Is that what media outlets think the Congress does? If so, do you read? Just about every law contains gray areas where the legislature has no idea what to do and puts something in there and hopes the judiciary will figure it out. This is one of the primary criticisms of Scalian textualism, okay Scalia you say follow the text when clear, but what about the fact that so often the legislature is deliberately unclear and has asked you to do its job essentially? What then? I'm not entering that dispute, only pointing out something obvious to anyone who pays attention--the Congress is often unclear, and often intentionally, because it cannot solve a problem well enough. That's not a disaster, if other things are solved in the legislation, as they were here. Such an approach won't work all the time, it won't work for slavery in this country, it isn't going to work for Kirkuk in Iraq, but some issues can be deferred as others are solved. So THIS criticism, in this context, is hardly a sensible criticism of Iraqi law.
Finally, how would you go about drafting a clear ban for Ba'ath party members for really high positions? I don't think it's that easy. You could say no bans at all, but I have to say, that's a pretty American imperialist position to assume. Europe bans Nazis, Canada and Europe ban hate speech, Israel bans far right Jewish groups, the notion that you cannot put some limitations on the political process by parties that are not just illiberal, but positively totalitarian, on whom the blood of hundreds of thousands of innocent victims lie, seems impossible to demand. I favor America's marketplace of ideas, but I don't think you'd get most Iraqis to agree with me, in fact I think more than 60% support the ban completely.
So if you posit a ban, and you start thinking of high positions, all of a sudden a variety of factors come into play. When were they last a member? Are they supporting the party now? What connections have they maintained to banned members? And the like. It's not easy and a clear brightline rule hard to come by. Take Mutlaq, the banned member who is at the source of this. He left the party formally in 1977, most would agree that on its own hardly seems enough. He has been widely quoted as urging Sunnis to vote for him and his party because that will return 40 Ba'athis to parliament. He opposed the constitution because of the Ba'ath party ban. Originally he said that the party was larger than Saddam, so the ban was made the "Saddam Ba'ath" party. He opposed that too. What of this counts? What crosses the line? Is there something else we haven't seen? (that's one criticism of the process, the opacity, that is well placed actually but isn't a flaw in this law per se) I don't think clarity is possible, even if transparency is. And if that is not a characteristic of US law in certain important contexts, then someone please stop by my office and explain to me when it is exactly that a defendant from one state may be haled into the courts of another. No points for saying when there are "minimum contacts", that doesn't mean anything except what you want it to.
And of course once vague then of course it will be politicized. Challenges will be made to candidates as they are in the US, they will seem untimely as they can be in the US (if to someone's advantage to make it so), each side will accuse the other of using the law as a political football, there and here. And both will be to some extent right, there and here. Again, nothing I've described is unique to Iraq.
What is unique really, the only unique thing is that in our broader American culture, "law" is supposed to be pristine, clear, politically untainted, certain, and the source of justice. When it plainly is not, in our context, we tend to ignore it in media accounts or dismiss it as an anomaly. When we see the precisely same phenomenon elsewhere, we find it to be a flaw in the other party's legal system, it is "politicized", "pliable", "ambiguous", words I could use to describe any number of US laws. That's not to say there are no differences in US and Iraqi law (that would have to be for another time, but it's after the lawmaking process and at the itme of adjudication and enforcement where most differences lie), but only that looking at it from the lens of the de-Baathification laws, Iraqi law really doesn't seem all that different to me.
HAH
The recent Western media assault on Iraqi law has to do with the de-Baathification law, and its resulting ouster of Sunni hardlner candidate Saleh al-Mutlaq from the upcoming election. Essentially, the feeling, by people some of whom don't know Arabic (though Shadid clearly does) is that the law is vague and can be used by anyone to argue anything. This apparently is supposed to be in contradistinction to American law, which is clear and certain in its results and thoroughly "tested", whatever that means. (Seriously, what does that mean? That there is extensive commentary and case law about it? And there isn't on Iraqi law? And this by people who wouldn't know an Iraqi lawyer if they ran straight into them on a Baghdad street?)
Anyway, if we look at Section 4, Article 6 of Iraq's de-Baathification law (techincally, for those who want to look it up and can read Arabic it is The Accountability and Justice Law, No. 10 of 2008), where the disqualifications are held, the vagueness is far more limited than anyone wants to admit. Broadly speaking, for over 90% of government positions, it's rather clear. First three levels of Ba'ath party membership (udhu Shu'ba, or Branch Leader and up) removes you under Article 6(1), and first four levels (meaning Udhu Firqa, or Unit Leader, and up andyes the whole damn thing sounds like the Boy Scouts) removes you for certain higher positions, of special rank Article 6(2). The fedayeen and the agencies that engaged in torture and persecution and the like are out, period. That's Articles 6(3) and 6(4). Article 6(5) makes clear that former Unit Leader membership is okay for non-special rank positions. That's the first five parts, and they are pretty clear. That's also more permissive than the original CPA Order which I think covered the top six levels.
After that, the exceptions start coming in, but they are limited to particular issues. So Article 6(6) eliminates Unit Leaders from really high positions like Ministers, and from work in the MInistries of security and defense and the like, and Article 6(7) takes away pensions from people who stayed in the party after the fall of the regime and have political asylum elsewhere. Broader is Article 6(8) which takes away the right to be in a position of special rank if one was a member and gained wealth off of the public funds. I could go on, but the point is the limitations are primarily (i) working in security and defense, and the extent to which the provisions encompass some mid to high level ex-members, and (ii) who is eliminated for positions of special rank, and also for really high positions, like Ministers, or members of the High Judicial Council, etc. Of the vast public sector, 90-95% is resolved with about 90% of the remaning bit having to do with security and defense for mid level members (Unit Leaders). The really high positions are important and not clear at all but by sheer numbers not nearly as relevant and so weren't the focus of the disputes concerning tens of thousands of people who had been expelled from their jobs. That was the problem when this was passed, and it largely fixes it. it works as a piece of legislation at least.
Still, since the world is focussing on the problems in the law and Iraqi law generally, why are those remaining provisions vague and/or contested? Three points to note, which I hope will show Iraqi law isn't nearly as hopeless as those decrying it suggest, or perhaps better stated is no less hopeless than law anywhere else in the world.(Oh, and let's note as a preliminary matter while we're at it, before we get to the three points, the fact that the problem was CREATED by Paul Bremer and SOLVED by this law. So if the law is imperfect, perhaps the fault should lie not with the entity seeking to fix it, the Iraqi parliament, but with the folks who screwed it up in the first place, the US occupation authority which issued the initial ban).
The first thing to note is the provisions aren't as vague as they are made out to be. It is near impossible to read Article 6(6) to ban all former Ba'ath party members from the security and defense agencies, but newspapers did report disputes where some hardline Shi'a argued this. Media hemmed and hawed I remember back in early 2008 about whether or not all of the Awakening people in the Sunni heartland would be banned, despite the evident relaxation of the requirements from the earlier CPA order.
Problem was they didn't read the law, they just listened to politicians with constituencies to please.
To me the fact that yo yos from any faction run off and make spurious claims about pending or recently passed legislation isn't really all that important, and isn't a demonstration of what the legislation is ultimately going to do. The idea that the legislation bans ALL former members of the party from working anywhere in security and defense is silly, as silly as Sarah Palin's death panels. It proves nothing about Iraqi law as a social reality, it only proves something I long knew, far too many politicians are idiotic blowhards in every jurisdiction and among every political persuasion, liberal to conservative.
Second point is that, yes, clearly some of the confusion arises from the fact that the parties couldn't agree on particular bans and so papered them over with vague terms and moved it through. This is the more common criticism--tut, tut, you silly Iraqis, stop papering over your disputes and solve them instead. While I tend to think that criticsm is valid for any number of laws (or the Constitution actually), it's completely misguided here. As noted, about 95% of the problem was solved by this legislation, why in the world would you hold that up to solve every last detail? Is that what media outlets think the Congress does? If so, do you read? Just about every law contains gray areas where the legislature has no idea what to do and puts something in there and hopes the judiciary will figure it out. This is one of the primary criticisms of Scalian textualism, okay Scalia you say follow the text when clear, but what about the fact that so often the legislature is deliberately unclear and has asked you to do its job essentially? What then? I'm not entering that dispute, only pointing out something obvious to anyone who pays attention--the Congress is often unclear, and often intentionally, because it cannot solve a problem well enough. That's not a disaster, if other things are solved in the legislation, as they were here. Such an approach won't work all the time, it won't work for slavery in this country, it isn't going to work for Kirkuk in Iraq, but some issues can be deferred as others are solved. So THIS criticism, in this context, is hardly a sensible criticism of Iraqi law.
Finally, how would you go about drafting a clear ban for Ba'ath party members for really high positions? I don't think it's that easy. You could say no bans at all, but I have to say, that's a pretty American imperialist position to assume. Europe bans Nazis, Canada and Europe ban hate speech, Israel bans far right Jewish groups, the notion that you cannot put some limitations on the political process by parties that are not just illiberal, but positively totalitarian, on whom the blood of hundreds of thousands of innocent victims lie, seems impossible to demand. I favor America's marketplace of ideas, but I don't think you'd get most Iraqis to agree with me, in fact I think more than 60% support the ban completely.
So if you posit a ban, and you start thinking of high positions, all of a sudden a variety of factors come into play. When were they last a member? Are they supporting the party now? What connections have they maintained to banned members? And the like. It's not easy and a clear brightline rule hard to come by. Take Mutlaq, the banned member who is at the source of this. He left the party formally in 1977, most would agree that on its own hardly seems enough. He has been widely quoted as urging Sunnis to vote for him and his party because that will return 40 Ba'athis to parliament. He opposed the constitution because of the Ba'ath party ban. Originally he said that the party was larger than Saddam, so the ban was made the "Saddam Ba'ath" party. He opposed that too. What of this counts? What crosses the line? Is there something else we haven't seen? (that's one criticism of the process, the opacity, that is well placed actually but isn't a flaw in this law per se) I don't think clarity is possible, even if transparency is. And if that is not a characteristic of US law in certain important contexts, then someone please stop by my office and explain to me when it is exactly that a defendant from one state may be haled into the courts of another. No points for saying when there are "minimum contacts", that doesn't mean anything except what you want it to.
And of course once vague then of course it will be politicized. Challenges will be made to candidates as they are in the US, they will seem untimely as they can be in the US (if to someone's advantage to make it so), each side will accuse the other of using the law as a political football, there and here. And both will be to some extent right, there and here. Again, nothing I've described is unique to Iraq.
What is unique really, the only unique thing is that in our broader American culture, "law" is supposed to be pristine, clear, politically untainted, certain, and the source of justice. When it plainly is not, in our context, we tend to ignore it in media accounts or dismiss it as an anomaly. When we see the precisely same phenomenon elsewhere, we find it to be a flaw in the other party's legal system, it is "politicized", "pliable", "ambiguous", words I could use to describe any number of US laws. That's not to say there are no differences in US and Iraqi law (that would have to be for another time, but it's after the lawmaking process and at the itme of adjudication and enforcement where most differences lie), but only that looking at it from the lens of the de-Baathification laws, Iraqi law really doesn't seem all that different to me.
HAH
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