Tiran and Sanafir: What is the deal's fate after latest Egypt's court ruling?

Menna Alaa El-Din , Mahmoud Aziz , Tuesday 17 Jan 2017

Tiran and Sanafir
An aerial view of the coast of the Red Sea and the two islands of Tiran and Sanafir (Photo: Reuters)

Egypt has been witnessing a heated political and legal debate over the future of the Cairo-Riyadh Red Sea island deal following the High Administrative Court ruling on Monday saying the islands are Egyptian, with many questioning the validity of having parliament debate the matter after the deal has been struck down by the courts.

The deal, which was first announced in April, would hand to Saudi Arabia the two Egyptian-controlled Red Sea islands of Tiran and Sanafir, which the government argues are rightfully Saudi.

On Tuesday, Egypt's Minister of Legal and Parliamentary Affairs Magdy El-Agati insisted that, despite the court ruling, parliament should discuss the deal in accordance with Article 151 of the constitution, which stipulates that the president shall represent the republic in its foreign relations and conclude treaties and ratify them after the approval of the House of Representatives.

However, Article 151 also states that “in all cases, no treaty may be concluded which is contrary to the provisions of the constitution or which results in ceding any part of state territories,” though the government has previously argued that the deal does not constitute a “ceding of state territories” as the islands were never Egyptian to begin with, but were merely being administrated by Egypt.

The statements by El-Agati came one day after mainstream media outlets and social media saw much debate among opponents and supporters of the deal. 

Last month, the deal was submitted to parliament for debate even though the case had not yet been ruled on by the High Administrative Court, which eventually gave its verdict on 16 January.

Hours after the court ruling, parliament speaker Ali Abdel-Aal told DMC TV channel that parliament has the right to vote on the agreement.

Abdel-Aal’s made the comments during his first-ever TV interview. 

However, parliament has been witnessing division over whether the House should debate the deal, which sparked widespread criticism and public outcry when it was first announced in April during a visit by Saudi King Salman to Cairo. 

The opposition 25/30 bloc said after the court ruling on Monday that parliament no longer has the right to discuss the deal, and called on state institutions to respect the court ruling.

However, the Support Egypt parliamentary bloc said in a statement that the court ruling does not change the fact that parliament has the right to vote on the deal.

The head of the Support Egypt bloc, Mohamed El-Sewedy, told reporters that “while there should be a separation among powers, parliament still has the absolute right to give final say on foreign agreements signed by the president of the republic.”

A debate has also been taking place between legal experts after the Monday court ruling.

Prominent constitutional law expert Nour Farahat told Ahram Online that parliament can neither review nor discuss the deal as the agreement “no longer exists.”

“The court cancelled the deal. You cannot review what has been annulled,” Farahat argued.

The government filed a case in front of the Supreme Constitutional Court in November arguing that the High Administrative Court has no jurisdiction in matters related to sovereignty. 

“The case in front of the Supreme Constitutional Court has nothing to do with the deal,” says Farahat.

“The challenge is related to a legal dispute especially after a previous ruling by the Supreme Constitutional Court that international accords are related to sovereignty and thus shall not be heard in court,” he added. 

Senior judge and the former head of Egypt's State Council Mohamed Hamed El-Gamal said the administrative court should not have been tasked with ruling on the matter in the first place according to the constitution, which stipulates that the signing of international agreements is considered a "sovereign act" made by the country's executive authority.

He also stressed that Egypt's lawsuit authority has put forward documents that prove Saudi Arabia’s right to the Islands.

Regarding the legal course to be taken to resolve this dilemma, El-Gamal said that the Supreme Constitutional Court is the authority to resolve disputes between legal authorities, though it has no jurisdiction to rule over whether the islands are rightfully Egyptian or Saudi.

"There is already a Court of Urgent Matters verdict last December [overturning a previous] administrative court ruling stipulating that the two Red Sea islands belong to Egypt," says El-Gamal.

El-Gamal says that parliament is the sole entity entitled with approving or rejecting the agreement.

El-Gamal added that if the parliament rejects the agreement, which he says is an unlikely scenario, Saudi Arabia could not resort to international arbitration without Egyptian approval.

According to El-Gamal, if parliament approves the agreement and it is ratified by the president, it would go into effect despite any court rulings. 

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