The legal contest over the maritime border demarcation agreement that would transfer Egypt’s sovereignty over Tiran and Sanafir islands to Saudi Arabia has opened onto several fronts since it was initiated, winding through the country’s judicial halls before being thrown in Parliament, an act which may be the catalyst for a constitutional crisis. In the process, the legal proceedings have traced the faint outline of a long history of struggle between the state and the court that is being projected anew through the prism of the 2014 Constitution.
On January 16, the State Council’s Supreme Administrative Court is expected to issue a decision in the case, a ruling that is laden with import for the fate of the two islands as much as for how power will be brokered in the Egyptian state henceforth. In advance of this decision, the following timeline is an attempt to delineate the developments in the legal proceedings, which only address part of this politically charged case.
April 2016: Beginnings
The legal contest was born when a group lawyers including Khaled Ali, Malek Adly, Ziad al-Eleimy and Tarek al-Awady, filed a lawsuit in April 2016 with the Court of Administrative Justice (CAJ) – the court through which the State Council adjudicates administrative justice in cases of first instance – to challenge the agreement signed by Egyptian Prime Minister Sherif Ismail and Saudi Arabian Deputy Crown Prince and Defense Minister Mohamed bin Salman during King Salman bin Abdel Aziz’s April 2016 visit to Cairo.
In the ensuing court case, the government claimed that the uninhabited islands historically fall within Saudi Arabian sovereign territory but have been governed by Egypt since the 1950s. Critics have impugned the validity of this argument and cited the Egyptian government and the Gulf monarchy’s close relationship, which has been stitched together by grants amounting to billions of petrodollars over the last three and a half years.
In the April lawsuit, the legal team appealed to myriad sources to substantiate their challenge, citing the 2014 Constitution as well as maps published by the Defense Ministry’s Survey Authority.
Of these sources, Article 151 of the Constitution became the crux of the legal case, as it delineates the mechanisms by which the state may ratify international agreements and cede territory:
“The President of the Republic represents the state in foreign relations and concludes treaties and ratifies them after the approval of the House of Representatives. They shall acquire the force of law upon promulgation in accordance with the provisions of the Constitution.
With regards to any treaty of peace and alliance, and treaties related to the right of sovereignty, voters must be summoned for a referendum, and they are not to be ratified before the announcement of their approval in the referendum.
In all cases, no treaty may be concluded which is contrary to the provisions of the Constitution or which leads to concession of state territories.”
June, July, August: The vanishing mark of the sovereign
The state was issued a blow on June 21, when CAJ Judge Yehia Dakroury ruled that Prime Minister Sherif Ismail violated the Constitution by signing the agreement and nullified his signature. The court could not rule on the legitimacy of the agreement itself, as international agreements fall outside of its jurisdiction.
Dakroury was thus marked as a figure willing to deviate from the state’s discourse, a significant fact as he is in position to become the head of the State Council at the end of June 2017 and would thus preside over the Supreme Administrative Court, which handles appeals emanating from the Court of Administrative Justice and sits at the top of the administrative judicial structure. The government has subsequently put its weight behind a draft law that would marshal amendments granting Egypt’s president greater power in deciding who will lead Egypt’s judicial bodies.
The court’s decision made it impossible for the government to refer the transfer agreement to Parliament for debate and approval. Faced with this reality, the executive branch’s top priority became how to suspend implementation of the CAJ decision, even if only temporarily, to create a window of time to allow Parliament to ratify the agreement, as the deal would become domestic law once approved by Parliament and therefore fall outside of the jurisdiction of the State Council and be exclusively subject to Supreme Constitutional Court scrutiny.
Therefore, the Egyptian State Lawsuits Authority moved to contest the decision along several fronts. First, it appealed the CAJ decision before the Supreme Administrative Court (SAC) in June.
The second development emerged when Khairy Abdel Fattah, a private citizen, filed a motion before the Cairo Court of Urgent Matters to suspend the CAJ’s June decision on the grounds that the State Council has no jurisdiction over acts of sovereignty.
The Court of Urgent Matters is part of the civil courts system, which is separate from administrative and constitutional courts, and issues rulings on motions for temporary injunctions to prevent irreparable or irreversible damages. However, it is unclear how the Court of Urgent Matters can claim jurisdiction in the contestation of the Sanafir and Tiran agreement, as no damage could result from a delay in the transfer of lands and the Constitution clearly stipulates that the State Council has exclusive jurisdiction over appeals filed against its own decisions.
In response, Khaled Ali and the group of lawyers filed a request for injunction in August before the CAJ to force the state to implement the court’s June decision, with state filing a counter suit to suspend the implementation of the decision, pending appeal before the SAC.
Finally, the Egyptian State Lawsuits Authority filed a separate appeal in August before the Supreme Constitutional Court (SCC), on the grounds that the State Council has no jurisdiction over acts of sovereignty, including as they pertain international agreements. The case remains pending, as it has been adjourned to February 12 2017.
September, October, November: Conflicting decisions
On September 29, the Cairo Court of Urgent Matters ruled in favor of Abdel Fattah, thereby granting the motion to suspend implementation of the CAJ June decision. However, the State Council proceeded, as if the September ruling never happened.
On November 8, the CAJ approved Khaled Ali’s request for injunction to force the state to implement the annulment of Ismail’s signature and denied the state’s counter motion. The Egyptian State Lawsuits Authority appealed this decision before the SAC, which will rule on the procedural motion as well as the state’s original appeal of the June ruling on January 16.
December: Constitutional crisis?
In a move without preamble, the Cabinet suddenly met on December 29 and decided to refer the agreement to Parliament for approval, despite the fact that it effectively did not bear the signature of Prime Minister Sherif Ismail.
Khaled Ali and several external observers criticized the decision as a transparent attempt to create a constitutional conflict between the legislature and the judiciary by attempting to prompt Parliament to approve the agreement despite it having been nullified by the State Council. However, Parliament refrained from scheduling any hearings on the matter.
Khaled Ali and the other lawyers filed a lawsuit before the CAJ on December 31 to nullify the Cabinet’s decision to refer the agreement to Parliament. The first hearing to address the latest lawsuit is scheduled for February 7, 2017.