There was jubilation over Egypt’s Supreme Administrative Court’s (SAC) January 16 ruling not to transfer sovereignty over Tiran and Sanafir islands to Saudi Arabia.
Khaled Ali, one of the lawyers that filed the initial lawsuit asserting that Prime Minister Sherif Ismail did not have authority to sign the agreement, was carried on the shoulders of those gathered outside the court. In his ruling against the Egyptian State Lawsuits Authority’s appeal of the June 21 ruling, State Council Vice President Ahmed al-Shazly announced, “the Egyptian military was not an occupying force, and the sovereignty of Egypt over Tiran and Sanafir is irrevocable,” a blow to the state’s attempt to circumvent the constitutional mechanisms governing the concession of territory.
However, two weeks after the elation, the legal contest is about to resurface, with the Supreme Constitutional Court scheduled to hold a hearing on February 12 on a state lawsuit contesting the State Council’s original jurisdiction. Questions remain as to the finality of the SAC’s ruling and what role Parliament — to whom the government submitted the proposed deal on December 29, despite ongoing legal proceedings — will play as the case proceeds.
Before the SAC issued its decision on January 16, there were already contradicting opinions as to its significance. In comments to the media, Rafik Sharaf, the lawyer representing the state in proceedings, seemed to downplay the judiciary’s role and already be searching for avenues of contestation in the event that things did not go his way.
“Whatever the SAC’s ruling, it won’t affect Parliament’s role in discussing the treaty and declaring its position on the issue, because the Constitution gives Parliament alone the power to approve or reject international treaties,” Sharaf said.
Inside the courtroom, however, Shazly defended the authority of the State Council. Before issuing the decision, he stated that there is no relationship between the appeal before the SAC and the pending lawsuit filed with the Supreme Court, adding that the SCC would not move against the State Council’s decision to uphold the suspension of the Tiran and Sanafir deal.
A SCC deputy justice spoke to Mada Masr on condition of anonymity, however, stating that the Supreme Court’s commissioners authority is currently preparing a report on the state’s lawsuit and will speak with Ali and the other lawyers who challenged the deal before submitting it to the SCC for a final decision.
This may not be a uniform position held by the justices of the SCC, as former Deputy Justice Ali Awad calls further discussion of the implementation of the demarcation agreement futile, due to the fact that the SAC’s decision is final and there is no grounds for appeal within the State Council.
But the state may try to leverage opinion in the proceedings by pointing to the fact that two courts have issued contradictory rulings on the Court of Administrative Justice’s June decision, according to a source at the Egyptian State Lawsuits Authority.
Parallel to the legal proceedings unfolding in the State Council, 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. After the court ruled in favor of Abdel Fattah on September 29, Ali and the other lawyers filed an appeal against the decision, but the appeal was denied on December 31.
Afify Kamel, a member of Parliament’s constitutional and legislative affairs committee and a professor of constitutional law at the University of Alexandria, contends that the Egyptian State Lawsuit Authority’s reliance on the Cairo Court of Urgent Matter’s ruling is “a lazy argument.” The government committed a grave constitutional error, he adds, when its lawyers resorted to a court of urgent matters to suspend the CAJ’s ruling. Nonetheless, Kamel says the September ruling is irrelevant now.
“It is natural that the [Cairo] Court of Urgent Matters’ ruling would be considered a procedural measure that is to be upheld only until a final ruling is issued,” Kamel says. “The Egyptian State Lawsuit Authority is only trying to save face.”
Minutes after the SAC’s ruling, MP Nabil al-Gamal, a member of the constitutional and legislative affairs committee, said that the Tiran and Sanafir agreement had yet to be presented to the committee, but that, when it was, parliamentarians would discuss its constitutionality.
The Alliance to Support Egypt, the majority bloc in Parliament, expressed a similar sentiment in a press statement. “The ruling of the Supreme Administrative Court does not change the fact that Parliament holds constitutional jurisdiction over the ratification of treaties and in deciding whether a treaty is constitutional, or whether to concede Egyptian territory, according to Parliament’s procedural rules,” the statement asserted. “The members of Parliament, who are the representatives of the people, have the authority to make the final decision in this matter.”
The 25-30 Alliance, however, declared its opposition to any action by Parliament in a press release. “The historic decision terminated this agreement, rendering it nonexistent. We demand that all state institutions respect this ruling and the principles of the separation of powers and the rule of law.”