Tiran and Sanafir in Egypt’s Courts: A Messy Web of Jurisdiction

Mai El-Sadany, Nonresident Fellow

April 5, 2017

The island of Tiran (via Wikimedia Commons)

In the latest from the legal saga around the contentious Egyptian agreement transferring the Tiran and Sanafir islands to Saudi Arabia, on Sunday Egypt’s Court for Urgent Matters annulled what was supposed to be a final verdict by the Supreme Administrative Court on the matter. With multiple cases ongoing before multiple court circuits and court systems, the land agreement has opened a window into the complicated, convoluted, and increasingly politicized Egyptian judiciary.

The Tiran and Sanafir Agreement was first challenged by a group of lawyers in court in April 2016, among them renowned attorneys Khaled Ali and Malek Adly. On June 21, 2016, the Court of Administrative Justice ruled on the case, nullifying the prime minister’s signature on the Tiran and Sanafir Agreement in light of a finding that he had violated the Constitution. Article 151 of the Constitution states that voters must be called for a referendum when it comes to all treaties “of peace and alliance, and treaties related to the rights of sovereignty;” the provision additionally states that “no treaty may be concluded…which leads to concession of state territories.”

The June 21 verdict nullifying the Tiran and Sanafir Agreement was then challenged by the Court for Urgent Matters, which ruled in opposition on September 28, 2016, arguing that the Court of Administrative Justice had no jurisdiction on acts of sovereignty. On January 16, 2017, the Supreme Administrative Court, which presumably ignored this Court for Urgent Matters decision, upheld the original Court of Administrative Justice verdict in a final determination that the executive branch did not have authority to cede territory to Saudi Arabia and thus, that the Tiran and Sanafir Agreement was null. It is unclear whether the most recent decision by the Court for Urgent Matters will be ignored much like the first. By most interpretations, the Court for Urgent Matters should not have jurisdiction in this case at all; even in the miniscule chance that it does, its rulings would be nowhere near final.*

Simultaneously ongoing are at least two challenges before the Supreme Constitutional Court on the issue of whether the administrative court system should enjoy jurisdiction in this case at all. An additional, separate case on whether the Tiran and Sanafir Agreement should be subjected to a national referendum has also been filed. Yet another challenge before the administrative court system to appeal the decision by the government to refer the Tiran and Sanafir Agreement to parliament will next be before the court on May 23, 2017.

Throughout this legal back-and-forth, seemingly technical issues of which court has which say on which elements of the Tiran and Sanafir Agreement have created an immense web of confusion, leaving observers wondering which judicial entity, if any, will have the final say, and whether the country’s legislature will additionally step in to voice its opinions now that the Agreement is reportedly before the House of Representatives. Although it may be impossible to predict how the next chapter of the Tiran and Sanafir fiasco will unfold, what is clear is that it will continue to shed light on some very interesting behind-the-scenes dynamics in the miniature power struggles both between and within Egypt’s judicial and legal arms.

* As I wrote for TIMEP in July 2014:
Set up to litigate ‘urgent’ civil matters that must be addressed immediately, the Court for Urgent Matters settles disputes that are no longer timely if litigated through the regular court system. According to most judicial scholars and interpretations of Egypt’s civil procedure laws, the Court for Urgent Matters has jurisdiction when (1) the case is urgent and there is a fear that procedures may take too long in the court that would regularly have jurisdiction, thus making the matter moot and (2) that an injunction issued in the case would serve as a temporary measure, rather than a ruling on the substance of the case or right involved.

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