President Abdel Fattah al-Sisi will move to ratify the Tiran and Sanafir islands agreement in a matter of days, according to an official source who spoke to Mada Masr on condition of anonymity.
Such a move by the president would no longer contravene other executive authorities, after the Supreme Constitutional Court’s Wednesday decision to temporarily freeze two contradicting court rulings on the legality of the agreement, according to the source.
The first court ruling emanates from Egypt’s administrative court system. The State Council’s Court of Administrative Justice (CAJ) moved in June 2016 to annul the maritime border agreement signed by Prime Minister Sherif Ismail in April of the same year that was to cede sovereignty over Tiran and Sanafir islands to Saudi Arabia. This was followed by two rulings by the Court of Urgent matters on September 29 and December 31 to overturn the CAJ’s ruling. However, on January 16, the State Council’s Supreme Administrative Court upheld the June ruling, stating that the deal was a concession of territory, an act that is prohibited per Article 151 of the Constitution. On April 2, the Court of Urgent Matters overturned the SAJ’s decision.
With this legal cycle temporarily suspended, the necessary procedures for presidential ratification are now taking place, according to the source.
In the weeks leading up to the Parliamentary vote, the state arranged high-level meetings to ensure that the agreement would pass Parliament with an agreeable majority. The meetings also aimed to close the door on political escalation, stemming the possibility of parliamentary resignations in protest of the agreement or other political maneuvers, as well as foreclosing on popular political action taken on the ground once Parliament would pass the agreement.
When Parliament approved the Tiran and Sanafir agreement on June 14, the Cabinet contacted Parliamentary Speaker Ali Abdel Aal to urge him to expedite the transfer of the legislature’s formal approval, so that the Cabinet could pass it along to the president’s office.
The 119 MPs who voted against the agreement sent a letter to the president on Sunday, asking him to postpone ratification of the deal until the Supreme Constitutional Court rules on the case and thus settles the conflicting court rulings.
The Supreme Constitutional Court’s Commissioners Authority submitted a report to the court after Parliament’s vote, in which the advisory body stated that the authority to rule on the Tiran and Sanafir agreement may not fall within the jurisdiction of either the Court of Urgent Matters or the State Council. The report specifically referred to Article 151 of the Constitution, which specifies the authorities with jurisdiction over international agreements.
Article 151 has been the crux of legal contestations and stipulates:
“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.”
No party petitioned the Supreme Constitutional Court to freeze the State Council and Court of Urgent Matters rulings. The Egyptian State Lawsuits Authority’s lawsuit aims to have the Court of Urgent Matters’ ruling enforced, lawyer Khaled Al tells Mada Masr. The court’s Wednesday ruling fortifies Parliament’s vote and paves the way for the presidency to ratify the agreement, effectively creating a new reality, Ali says.
Ali, who was one of the lawyers party to the original SCC case, attempted to view the Commissioners Authority’s report on which Wednesday’s ruling was predicated and meeting with the head of the court, but was denied, as the authority’s employees said they had no information on the report and did not know when it was issued or when it was presented to the court’s head.
“The lawsuit on the conflicting court rulings filed by the Egyptian State Lawsuits Authority was accepted on June 1, and then we received a notification about it from the SCC on June 11, which requested that we present our documents within 15 days, so that the Commissioners Authority would have enough time to look through them and prepare a report on the issue,” says Ali. “However, before the end of the 15 days period and despite not calling us to attend any hearings, or giving us any chance to present our defense and documents, the SCC chief made his decision to our surprise,”
The SCC is expected to specify a date for the first session in the case during which it will hear both parties in the conflict, former SCC deputy chief Mohamed al-Menshawy tells Mada Masr.
The Commissioners Authority report recommends that the SCC should annul the conflicting verdicts, as the maritime border demarcation agreement falls outside the State Council’s jurisdiction, as the act of signing an international treaty is a sovereign act unregulated by domestic judiciary, while the ruling by the Court of Urgent Matters to overturn a ruling by an administrative court flies in the face of Article 190 in the Constitution.
“The court’s decision validates the stance Parliament has taken on the agreement from the first day it was signed,” said Ahmed al-Sherif, the deputy head of Parliament’s Constitutional and Legislative Affairs Committee. “We said from day one that Parliament is the only entity authorized to either approve or reject the treaty. Any judicial rulings are meaningless, and here is the constitutional court validating our procedures.”