I tackled last week the fallout from the Brexit referendum which I described as ‘disastrous’. I wrote that: “referendums, even as they serve as democratic tools to gauge the will of the people, are in fact double-edged swords since they put before the public multi-faceted issues that are too complex to be judged by non-experts.
In such cases, the result is more often than not that the public tends to endorse stances that express simplistic, emotional, protest-oriented decisions the dire long- term fallout of which is beyond public awareness.” The Brexit issue brought to my mind the case of the islands of Tiran and Sanafir, which has raised tempestuous controversy in Egypt. Last April, during a visit by King Salman to Cairo, Egypt said it was handing the islands over to Saudi Arabia.
The political leadership explained that the islands originally belong to Saudi Arabia and were put under Egyptian control and administration by the Saudi Kingdom in 1951, and that Egypt was hence handing them over to their original owners.
The move brought on heated public debate over the issue of who owns the islands; some claimed the islands were indeed Saudi, whereas others insisted they were Egyptian soil which Egypt’s political leadership was ‘selling’ to Saudi Arabia in return for a generous economic bribe. Cries from self-appointed patriots hastened to absolutely reject the ‘sale of Egyptian soil’ but, sadly, the documents and expert opinions that alone should have had the final say on the matter were all but waived aside. After failing to supply documented historic evidence that the islands were Egyptian, the alleged patriots demanded that a public referendum on returning the islands to Saudi Arabia should be held. They claimed that this would be the sure democratic path to follow.
I fear that a referendum on the islands issue in Egypt would reproduce the disastrous effect of last month’s Brexit referendum. It would be an immature, impulsive move that takes the case out of the hands of the experts and places it into those of an ill-informed public. How can many ordinary Egyptians who fell prey to shrieks that warn against ‘selling off Egyptian soil’ be expected to objectively decide on a matter of intricate historical dimensions? They would undoubtedly tend to follow superficial, emotional, rebellious trends, unaware of the dire consequences.
A historical precedent exists in the case of Taba, the strip of beach on the Red Sea near Eilat, which was once claimed by both Egypt and Israel. In October 1973 the Egyptian army crossed the Suez Canal into the Sinai Peninsula which had been in Israeli hands since the 1967 Six-Day War.
The crossing led to peace talks that ended in 1979 with Egypt regaining Sinai. But there was a dispute over Taba which each country claimed as its own. The matter was not resolved through public referendum, neither in Egypt nor in Israel. It took a relentless battle between the experts on both sides, as well a final international arbitration, for the matter to be decided basing on solid historical evidence. A team of leading Egyptian experts masterfully steered the negotiations over Taba; they were in no way less patriotic than the ardent Egyptian public, but were definitely more knowledgeable.
Their hard work won Taba back to Egypt in 1989. The case of Tiran and Sanafir is neither a public opinion case, nor is it a predicament that can be resolved through public referendum.
Yet it appears entangled in a tug of war that threatens confrontation between State authorities in a country whose Constitution confirms the principle of separation between State authorities.
The Administrative Court has ruled that the demarcation agreement signed by Egypt and Saudi Arabia, according to which the two islands moved under Saudi sovereignty, is void. The ‘defending the soil of the nation’ camp was quick to applaud the court ruling, without even attempting to look at the legal reasoning.
In fact the ruling had nothing to do with the core issue of the dependence of the two islands; it inspected no document and discounted no expert effort on that front. The ruling came only to refute the State Lawsuits Authority’s (SLA) allegation that Egyptian judiciary is not entitled to look into the demarcation agreement, since that agreement is among the acts of sovereignty defined by Article 151 of the Constitution. Article 151 allows the President of the Republic to represent the State in signing agreements and treaties with foreign countries, which should then be ratified by the House of Representatives.
The SLA argued that the demarcation agreement, an act of sovereignty, is not governed by judicial competence but was the responsibility of the House of Representatives. Here we were placed before a weird yet serious glitch.
What if the court ruling had not been appealed with the Supreme Administrative Court, and the House of Representatives all the same ratified the demarcation agreement? Would not this have meant that the judicial and legislative authorities were in conflict, potentially leading to a highly sensitive confrontation between them? I am not commenting here on the court ruling; I am only citing the opinion of constitutional law experts on the matter.
We appear to have discounted the historical and geographical aspect of the issue, only to find ourselves in the midst of a clash between authorities.
I hope this procedural glitch would be solved, in order for the authorities concerned to look into documents and international law, and give every country its right.
Egypt in all her glory would definitely give what she was entrusted with back to its rightful owners, and turn her back on any ranting or ‘disastrous referendum’.
17 July 2016