BEIRUT: The Egyptian government’s appeal in a case investigating the transfer of two islands to Saudi Arabia has given challengers an uphill battle despite their victory when a court ruled the handover illegitimate, a lawyer close to the issue told The Daily Star Thursday. However, he said, abounding with uncertainty and legal red tape, the case has given legitimate cover for demonstrations.
An administrative court Tuesday annulled an April agreement between Egypt and Saudi Arabia that would have seen the transfer of the Red Seas islands of Tiran and Sanafir to Saudi Arabia.
And Thursday an opposition figure who brought the case forward announced on Facebook that the court’s decision had been suspended, with a government appeal to be reviewed Sunday.
“The High Administrative Court will review the government’s request to suspend the implementation of the ruling that annuls the agreement to hand over the islands,” Khaled Ali wrote on Facebook.
Ali led the group of lawyers that brought the case against the deal, arguing that the islands are historically Egyptian and that the agreement is unconstitutional.
The accord, announced by Egyptian President Abdel-Fattah al-Sisi during a visit by Saudi King Salman, caused an outcry and widespread protests, leading to 200 arrests.
According to Mahmoud Belal, vice president of the Criminal Justice Unit at the Egyptian Center for Economic and Social Rights, the issue of whether to uphold the ruling or not “is a political matter and those responsible for the implementation might be prosecuted.”
Belal told The Daily Star that the High Administrative Court, which is the highest court within the system of administrative litigation in Egypt, is facing a tough task.
“If the court reverses the ruling it will be compelled to change past judicial precedents,” he said.
However, some argue that the High Administrative Court is unfit to deliberate on such an issue, with the State Lawsuits Authority saying that the agreement falls under “sovereign acts,” therefore falling outside the court’s jurisdiction.
The court responded that the government is not permitted to shield itself with the theory of “sovereign acts” in order to evade judicial review.
The ruling stated that the new Egyptian constitution, written in 2012 under Sisi, clearly stipulates in Article 151 that “no treaty may be concluded which is contrary to the provisions of the Constitution or which leads to concession of state territories.” It added that, based on several historical documents presented by the prosecutors, Tiran and Sanafir are Egyptian.
Belal said the government’s defense strategy consists of two plans.
The first plan is to stick to the argument that the agreement “falls within the sovereign decision and cannot be nullified.”
“Plan B,” Belal said, would be to argue that it consists of a parliamentary matter “under the pretext of presenting the agreement to the parliament for discussion, so, again, it cannot be nullified.”
The parliament is due to discuss the demarcation agreement in the coming weeks.
According to Belal, depending on the political climate, the government may wish a speedier or more strung-out court case. In that context Belal said it can’t be predicted how long the court will take to settle the appeal.
“It is possible that the final ruling might take years or even a month.”
When the court ruling was announced, a major and uncommon victory for Egyptian activists, the opposition to Sisi was jubilant.
“Politically, it gave new breath to the opposition and heightened the embarrassment of the executive authority,” Belal said. “And judicially, it gave a legitimate cover for the demonstrations against the selling of the islands and strengthened the position of those detained in relation to the matter.”
Even if the ruling were to be canceled, Mohamed Nour Farahat, prominent expert and professor of constitutional and international law, wrote on Facebook, its political effects will always resonate in the conscience of the people.
However, “like any other court in Egypt, the High Administrative Court might buckle under political pressure ... and overturn the ruling. Alternatively, it might actually adhere to the law and comply with it,” Belal said.
Whatever the outcome of the case, Belal highlighted, the ruling has done Sisi’s pressured regime no favors.
“In all cases, whatever the ruling will be, Sisi is currently in a precarious situation.”