A Court Case in Egypt Worth Watching

An unfolding legal drama over the disputed Red Sea islands unravels a number of political issues.

A fascinating little drama taking place in Egypt now is worth watching for what it might reveal about the popularity of Egyptian President Abdel Fattah El-Sisi—but also about how modern, military-anchored autocratic power structures and regimes across much of the Arab World have taken control of every branch of government.

The issue that has suddenly become a drama is the fate of two Egyptian-controlled Red Sea islands that El-Sisi “gave” or “returned” to Saudi Arabia in April, during a visit to Egypt by the Saudi Arabian king. A judge in an Egyptian administrative court, the State Council, ruled that El-Sisi’s move was unconstitutional and annulled the El-Sisi-supported maritime borders agreement between the two countries.

The two islands of Tiran and Sanafir are strategically located at the mouth of the Gulf of Aqaba that is used by Egypt, Saudi Arabia, Jordan, and Israel. Egyptian troops have been on the islands since the 1950s, at Saudi Arabia’s request. El-Sisi said he was only making formal the long-standing reality that Saudi Arabia was the sovereign authority on the islands. Egyptians across the land protested the decision in April and May; hundreds were jailed, most were released, but some remain in prison.

Other Egyptians subsequently challenged the islands transfer move in the courts, claiming it was unconstitutional, and the State Council has now accepted this argument. The decision will be reviewed by a higher court, and most likely it will be reversed, and El-Sisi’s move will be validated. Yet this situation is fascinating and perhaps significant for several reasons, all related to how power is exercised in modern Arab autocratic states that are usually ruled by individuals and families supported by military and security services, with the backing also of foreign powers.

The first issue is the independence, authority, and role of the judiciary in Egypt and other Arab states. Historically, even under the army-linked rulers of Egypt since the 1950s, many Egyptian courts have always enjoyed credibility because they often exercised independent judgment from the policies of the executive and legislative branches of government. The High Administrative Court (HAC) and the High Constitutional Court (HCC) especially have often ruled against the government, including during and after the 2011 revolution. The judiciary in Egypt historically has fought hard to safeguard its autonomy from executive control, and has succeeded more than has been the case in most other Arab countries.

Only in recent years has citizen respect for and trust in the judiciary dropped significantly. Transparency International polls in 2013 indicate high levels of citizen perceptions of corruption in government institutions; 70 percent or more feel that political parties and parliament are corrupt or extremely corrupt; 65 percent of citizens view the judiciary this way.

So it is striking for a court now to rule against a very high profile move by the Egyptian president within a context in which Egypt expects to keep receiving tens of billions of dollars a year in aid and investment from Saudi-led Gulf states. In question here is whether the judiciary in Egypt will be able to play any meaningful role in the checks and balances system that has always put some limits on the total power of the executive branch.

This is significant because ordinary Egyptians and the political class alike have usually looked to the court system as a means of last resort in citizen political or legal arguments with the state. The decision on the two islands is a test of whether the court system can retain enough of its independence and autonomy to be seen by citizens as the guardian of the rule of law.

The second related issue is about how Egyptians today can make use of the courts and the law to oppose or challenge the policies of the all-powerful central government, in an atmosphere of mass emotionalism tinged by some fear and hysteria that have given President El-Sisi and other power centers in Egypt two years of almost absolute power. The government and assorted security agencies, sometimes with the cooperation of embarrassingly heavy-handed and often comic judges, have almost totally closed channels for open political contestation by political parties and civil society. Tens of thousands of Egyptians are in jail, often mainly for their political views that support Islamists or secular democrats. Most activists have been jailed, exiled, or numbed into submission, and a few have disappeared into the country’s dark detention system.

If you wish to oppose or challenge the Egyptian government today, there are few credible opportunities to do so. The courts in this case indicate that perhaps legal action could be a credible, non-violent way to politically challenge the state’s policies. Even if this decision is overturned, as expected, the process of challenging the state in the courts will probably continue to be used by Egyptians who oppose President El-Sisi’s policies but cannot do so safely through traditional public political means.

Rami G. Khouri is published twice weekly in the Daily Star. He was founding director and now senior policy fellow of the Issam Fares Institute for Public Policy and International Affairs at the American University of Beirut. On Twitter: @ramikhouri.

Copyright ©2016 Rami G. Khouri — distributed by Agence Global