Crazy Mid-Summer Night Dreams, For An Egyptian Court On Tiran and Sanafir

This is hard to believe. An Egyptian administrative Court, within the Council of State, sitting in Cairo. Ruling on June 21, 2016 that an agreement between Egypt and Saudi Arabia, signed in Cairo in April, was null and void. Under that agreement, Egypt is to return those Red Sea islands of Tiran and Sanafir to Saudi Arabia.

That judgment is riven by so many legal errors that it resembles mid-summer night dreams. These include:

• It regards the entire Egyptian population as "the plaintiff;"
• The presumed defendants are Egypt's President, its Prime Minister, and its Ministers for Defense, Foreign Affairs, and Interior;
• Its jurisdiction cannot be established except by destruction of the separation of powers;
• Its evidence is based on hearsay produced by publicity and educational material;
• It defaults the defendant for not producing material withheld because of the Court's over-reach beyond justiciable limits;
• It appoints itself as the voice and conscience of nearly 100 million Egyptians, none of whom has ever been consulted about the appointment of those judges.

If legal writing is an art which I teach at times in American law schools, this Court, by its writing, seems to be begging for some basic training. Aside from the offending shortcomings summed up supra, the Court is bereft of linking between the issue and the law. In legal briefs, we call it the rule, the analysis, and the conclusion. For short, we call it the IRAC method (Issue, Rule, Analysis, and Conclusion).

Thus my heaviest task in preparing this writing was not what I want to say or how I would say it. It was reading through 15 printed pages sent to me online courtesy of a friend who differs with me in this matter. That is because as I plowed through the Court's judgment in this case (consolidated from two cases), my task of making sense of the Court's words was made more exacting by the absence of legal common sense in that text.

From the text below, the reader may find why the Court's reasoning is circular. Meaning to say this matter is such and such because it is such and such.

In other words, the Court begged the central issue in dispute (who is sovereign over Tiran and Sanafir), by failure to provide proof. That is even if we overlook that the issue in this case cannot be justiciable. Because it is an issue of sovereignty interlaced with politics. Thus unfit for Court adjudication.

Now here is a summary of the documented facts:

• In consequence of Israel's expansion southward in the Negev, the port Umm Rashrash was occupied and renamed Eilat. Opposite the Jordanian port of Aqaba;
• With Israel now with an Aqaba Gulf seaport, Saudi Arabia feared for the security of two of its islands (Tiran and Sanafir). They are a part of several Saudi islands lying immediately south of the Saudi mainland, but had no military protection;
• So following a visit to Cairo by the Kingdom's founder, King Abdel-Aziz Al-Saud to Egypt in 1949, a Saudi request was addressed to Egypt in 1950 to provide protection for these outposts at the southern entrance of the Gulf of Aqaba;
• Egypt's positive response was immediate. Its Prime Minister Nasha Pasha directed his Defense Minister, Haidar Pasha, to comply with that Saudi request.
• An agreement was signed by the two Arab sister States in 1950. Designating Egypt as the administrator of that sovereign territory until further notice. In that agreement, Cairo was fully cognizant of its own defense needs in the Gulf, opposite eastward of its Ras Nusrani, north east of Sharm El-Sheikh;
• Notwithstanding Israeli protestations against "Egyptian occupation" of those Saudi Islands, Egypt repeatedly declared at the UN that its presence on these two islands was by written agreement with the Saudi sovereign. I was a witness to the last such assertion by Ambassador Muhammad Awad Al-Koni in May 1967. I was near where he sat in the UN Security Council chamber as he invoked that 1950 agreement;
• Now with Egypt and Israel beholden to the 1979 Peace Treaty, and with Egypt and Saudi Arabia in military partnership fighting terrorism, and with Saudi military power in the 21st century vastly augmented, Riyadh called on Egypt to end its administration over the islands. Hence the agreement signed in Cairo in April 2016. It also included the construction of a land link (King Salman bridge) between the two countries, over the Gulf waters.
• From the attached international Swiss map, you could see the boundary in the Gulf between Egypt and Saudi Arabia, with its eastern side enclosing Tiran and Sanafir, as Saudi territory, and its western side tracking the shape of Sinai as Egyptian territory.

Facts are facts. There is no Egyptian territorial sell-out to Riyadh; no conspiracies engaged in by President El-Sisi and his government which symbolizes the re-establishment of "The Strong State;" no surprises on the Egyptian public in the process of concluding international agreements with all comers as normal business to help in the ongoing task of reconstruction; and following upon an Arab summit decision to create a "unified Arab military force" to keep the Arab homeland safe from terrorism.

Examining the Court judgment of June 21, 2016, in the light of the foregoing facts, it is astounding to find so many legal faults in the Court's ruling.

• The Court asserting its jurisdiction in a matter in which the April 2016 agreement belongs to another branch, called "Parliament;"
• The submission by plaintiffs whose standing before any Court anywhere must be predicated upon each one of them being personally injured by that agreement. Not one of them could make that assertion, and the Court did not call for the necessity of that element required for case filing;
• The mixing by the Court between the notion of occupation by agreement for defense and administrative reasons, and of the notion of sovereignty.
• That confusion led the Court to take the introduction to the two islands of customs, police, defense support, quarantine, mail service... etc as indicators of sovereignty;
• That the refusal of the purported defendant to submit to a Court lacking subject matter jurisdiction as indication of culpability is simply a gross legal error. The burden is on the plaintiff to prove its case; the defendant is never called upon to assist the plaintiff's allegations. 
• It is laughable to read in the Court's decision: "The defendant government has hidden behind silence to buttress its opposition to these hearings by the Court;"
• The faulty interpretation by Court of the law of treaties, of the Law of the Sea, and of the exclusive jurisdiction of the Executive in foreign affairs, is truly alarming.

Going beyond these litigation procedural points, we cross over to some general statements made by the Court in support of its arrogated jurisdiction:

• The call by the Court for a national plebiscite on the April 2016 agreement. Under what authority did that Court base that call?
• Invoking Article 51 of the 2014 Constitution which provides for "respect of human dignity." Where is the violation of "human dignity" in that agreement?
• The Court's ridiculous interpretation of "sovereignty" as "flexible" whereby "its scope gets narrower in democracies and broader in dictatorships." The Court should have known that sovereignty is non-changeable as it is inheres perpetually in the people. "Governments" change; "people" are permanent. Ironically the Court contradicts itself as it states correctly this principle in a different part of its judgment.
• The clear implication of that "flexible definition" of sovereignty by the Court is to characterize El-Sisi regime as less than democratic. An indication of the politicization of the Court's decision. The role of the judiciary in civil law countries like Egypt is to apply the law, not to create judge-made law, as in countries adhering to English common law principles.
• The Court characterizes the issue of "Tiran and Sanafir" as "a national dispute." It sees in the opposition to Saudi sovereignty on Tiran and Sanafir a matter of near civil war dispute, requiring the intervention of a low ranking administrative Court!!
• It cites Article 151 of the 2014 Constitution. The article provides for the roles of the executive and the legislature in the making of international treaties. I fail to see how does this article help this Court in asserting its jurisdiction. Those provisions are silent on any judicial role in the process;
• The Court, as if absent-mindedly, also cites article 190 of the Constitution, stating that: "The legality of this treaty (of April, 2016) is within the jurisdiction of this Court." Sadly for the Court, the Article provides for issues within the competence of the Council of State, within whose structure this Court lies. But the wording of that Article relates only to administrative disputes. It has nothing to do with the issue at hand which the Court in its own judgment characterized it as "an international treaty."

What a wonderful mid-summer night dream for an administrative Court which, in this matter, has lost its way!! Only to wake up to the nightmare of reality of proper adjudication, anchored in a proper jurisdiction, invoked by an injured plaintiff, using probative evidence.

For those who claim those islands for Egypt should attempt to respond to the following questions:

• Would Egypt sign an agreement in 1950 with Saudi Arabia on administering Egyptian islands?
• Would President El-Sisi, a former Minister of Defense, and now Commander in Chief, conspire with Saudi Arabia to cede Egyptian territory regardless of his oath of office?
• Hasn't Egypt administered Gaza on behalf of a future Palestine from 1949 to 1967 to protect it from absorption by Israel -a situation parallel in purpose to the administration of Tiran and Sanafir?
• Weren't your voices muted when Morsi, during his disastrous one-year rule as President, gave the nod to Hamas to emigrate into Sinai, and to Sudan to claim the Egyptian triangle of Halayeb and Shalatin on the Red Sea?
• In your zeal for respect for the 2014 Constitution, is it legal to resort to an Egyptian Court in order to nullify the agreement on Tiran and Sanafir, a matter which qualifies for review by parliament?
• Have the plaintiffs in this case which is wrongly decided by that administrative Court, substituted for the entire Egyptian population in a bogus claim of injury to their dignity by the agreement of April 2016?
• Would those so-called plaintiffs have dared to launch any such challenge during the military dictatorships stretching from 1952 to 2011? Or is the new "freedom of expression" an abused license enabling you to dump daily on the presently constitutional and secular government?

You can scratch your head for convincing answers to these questions. Because you should know that for winning a legal argument, you should have the law and the facts on your side. Your deep throated screams aimed at proving treachery by El-Sisi and his government are nothing but whistling in the wind!!

Before that Egyptian Administrative Court, your cause of action should have been inadmissible. It lacked every element qualifying it for filing. It suffered from being framed as a conspiracy against Egypt's territorial integrity. Against the very regime whose leader, El-Sisi, has saved Egypt from civil war.

It is with some humor that I take note of the Court resorting to primary school textbooks and related atlases which refer to Egyptian sovereignty over Tiran and Sanafir. If that is part of the evidence, the defendant should have no worry about the final outcome!!

• An opinion writer by the name of Abdel-Nasser Salameh advances in the newspaper "Al-Masri Al-Yom" of June 30, an interesting theory. He claims, against any sane logic, that: "There is a fact which we should admit, and of which we should be ashamed. We have, for the first time in human history, a precedent. A State goes to the judiciary to assert that its land (Tiran and Sanafir) is not Egyptian territory."
• How idiotic!! That writer seeks not only to assert the truth of his conviction without advancing any evidence. He also goes to the incredible limit of denying the defendant, the Government, the right to rebut the accusations levelled against it by those who went to the judiciary to raise false claims.
• Calling that sort of articles "public information" serves as indicating the depth of ignorance of the primary principle of litigation: An adversarial claim brought before a competent Court by a proper plaintiff against a proper defendant regarding a proper cause of action.
• All these elements are totally absent in this case. Thus one wonders whether this controversy stems from pure ignorance of the facts, or from a structural ideological bias against whatever El-Sisi presidency might do or not do. This wonderment arises from the stupid accusation by some Egyptian journalists against the Government being complicit with Parliament in perpetuating poverty!! (Ashraf El-Barbari in Al-Shorooq of June 30). How further insane can you get?!

The Egyptian public has paid scant attention to this contrived dispute. Its attention was on Eid Al-Fitr and the results of graduation from high school. With the Eid Al-Fitr now over, public attention shall quickly pivot to the urgent task of institution-building. Rebuilding a broken educational system, a dysfunctional public information system, and a national commitment to win the twin wars against terrorism and poverty.

Faulting the judgment in the islands case is not to disparage the great Egyptian judiciary. One faulty judgment is not an adequate measure by which we measure that third co-equal branch of the Egyptian government. We find fault with that judgment and with those who support it, because we, as Arab students of the law, are the legal inheritors of the principle: "The burden of proof is on the plaintiff." [Al-Bayennato Aala Mun Idaa] A principle passed on by Ali Ibn Abi Taleb, 1400 years ago, to Caliph Omar Ibn Al-Khattab. The second successor of the Prophet Muhammad. Omar wisely integrated it in his famous judicial declaration.

Ruling Should Have Been For the Presumed Defendant - The Government of Egypt. Through the Court's Refusal to Consider That Case For Being Nothing More Than Vexatious Litigation.