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Supreme Constitutional Court validates Tiran and Sanafir treaty, overturns previous rulings
 
 

The current legal contest over the maritime border demarcation agreement transferring sovereignty of Tiran and Sanafir islands to Saudi Arabia was brought to a close on Saturday, when the Supreme Constitutional Court (SCC) issued two verdicts that effectively overturned previous rulings, favoring cession of the islands.

This decision has ended the protracted judicial dispute over the deal that kicked off in 2016 and opened onto several fronts, according to lawyer Tarek Negeida. He says that the next stage in legally contesting the agreement is likely to begin and could take years to resolve.

The first of the SCC’s Saturday verdicts rejected two lawsuits filed by the Egyptian State Lawsuits Authority (SLA), the body which represents the government in judicial proceedings. The suits contested the State Council’s jurisdiction over the case, pertaining to two previous rulings issued by administrative courts on the basis that the deal can be categorized as a “sovereign action.”

The first State Council ruling was issued by the Court of Administrative Justice (CAJ) in June 2016, invalidating the prime ministers’ signature on the agreement. The second came in January 2017 when the appellate circuit of the Supreme Administrative Court (SAC) upheld the June decision and ruled that the executive branch of the government does not have the administrative authority to cede territory to Saudi Arabia.  

Shortly after invalidating the lawsuits, however, the SCC ruled that oversight of decisions made by the executive authority in matters related to agreements and political acts is the prerogative of the legislature, represented by Parliament. The court annulled the above rulings, alongside court of urgent matters rulings in favor of the treaty.

Negeida, who was among the lawyers who filed the initial case against the agreement before the State Council, says that, in overturning all previous rulings on the case, the SCC addressed the formal procedures relating to the courts’ jurisdiction to rule on what it called “political acts.” However, he adds that it did not refer to any of the historical evidence presented by the administrative courts in their rulings.

As the agreement has been passed, ratified and published in the Official Gazette, it has become law, and its constitutionality can be contested. According to Negeida, a lawsuit may be filed before the SCC, marking the next stage in challenging the cession of the two Red Sea islands to Saudi Arabia.

Mada Masr obtained a summary of the constitutional court’s ruling against the SLA’s lawsuits, which states that the previous SCC rulings presented by the authority as precedents were not relevant to the State Council rulings on the border agreement.

The constitutional court said the administrative courts did not argue that acts of sovereignty and signing international treaties fall within the purview of the State Council but that administrative courts have jurisdiction over what they considered was an administrative act. Thus, according to the SCC summary, the CAJ and SAC rulings against the deal do not contradict the previous SCC rulings presented as precedents, and the judiciary has no jurisdiction over sovereign acts.

The decision to overturn all rulings contesting or upholding the Tiran and Sanafir deal was made because the SCC considers Prime Minister Sherif Ismail’s signing of the maritime border agreement an act of sovereignty, which falls under the joint purview the the executive and the legislature. According to the constitutional court’s Saturday verdict, the SAC ruling upholding the CAJ’s annulment of the signature encroaches on the competence of the legislature.

In its ruling, the court asserted that Article 151 of the Constitution grants Parliament oversight of treaties conducted by the executive authority, as well as the authority to approve or reject them. The SCC also highlighted that the article allows Parliament to call for a referendum or refuse to ratify a treaty if it leads to the cession of state territory or is unconstitutional.

According to the article: “The President of the republic shall represent the state in its foreign relations and conclude treaties and ratify them after the approval of Parliament. Such treaties shall acquire the force of law following their publication in accordance with the provisions of the Constitution. Voters must be called for referendum on the treaties related to making peace and alliance, and those related to the rights of sovereignty. Such treaties shall only be ratified after 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 results in ceding any part of state territories.”

The constitutional court’s verdict summary stated that “Parliament’s authority in this is exclusive,” adding that once Parliament approves an agreement, the issue is transferred to the president, who may ratify or reject it according to his or her evaluation of what is in the country’s best interest.

Parliament passed the Tiran and Sanafir agreement with a majority on June 14, 2017, and it was ratified on June 24.

The constitutional court stipulated that no judicial body should interfere in the procedures for the conclusion of treaties. Once a treaty is issued and has passed into law, judicial oversight then falls under the purview of the SCC, according to the summary.

Although the SCC verdict stated that administrative courts are not competent to rule on the procedures for signing treaties, a State Council deputy, speaking on condition of anonymity, says that the summary did not outline in which article of the Constitution this is stipulated.

The deputy adds that bringing oversight of international agreement procedures after they have passed into law under the SCC’s purview contravenes Law 48/1979, which established and organizes the constitutional court. The law prohibits the filing of lawsuits directly before the SCC, according to the deputy, who says that suits contesting the constitutionality of laws must first be filed before other courts.

A source from the SAC, speaking on condition of anonymity, argues that the State Council is the only judicial body competent to determine what counts as an act of sovereignty and what is an administrative act, stating that the recent SCC ruling has encroached on the authority of the administrative court system.

The source criticizes the contradiction in the SCC’s verdict that the court of urgent matters’ rulings on the Tiran and Sanafir deal infringe on the jurisdiction of State Council courts, asking “How can the administrative courts have no jurisdiction over the matter and, at the same time, the court of urgent matters’ encroach upon its State Council’s jurisdiction?”

The constitutional court “gave itself jurisdiction which it does not constitutionally have,” according to the SAC source, who adds that the Saturday rulings are flawed and should be rejected.

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