Amr Kamal Hamouda* examines the latest chapter in the saga of gas exports to Israel For the second time the Administrative Judiciary Court at the Council of State reaffirmed on 6 January its decision to halt natural gas exports to Israel, and to annul Minister of Petroleum Sameh Fahmi's ministerial decision number 100/2004 to export natural gas to Israel. The court also upheld its 18 November ruling ordering a freeze on Egyptian gas exports to Israel. But once again the Egyptian government has appealed this latest ruling. The court's most recent decision came in reaction to a case which was originally filed by Ambassador Ibrahim Yosri, former head of legal affairs and treaties at the Egyptian Foreign Ministry, along with civil society activists a few months ago. The court underlined that the government must implement the court decision immediately upon the closing of the court session and without notice, so as not to delay execution until the defendants received written notice. Moreover, the government is to bear the fees of the case. Failure to execute the ruling immediately, or impeding its execution in any way would be considered a constitutional breach as per the rulings of the Higher Constitutional Court and the Higher Administrative Court. The judgement cannot be appealed in any non-competent court. When the initial judgement was passed to stop the export of gas to Israel on 18 November last year, the decision stated that the main reasons for this was the ambiguity of the agreement, the low price and the unusual length of the agreement. The agreement, signed in 2005, stipulates that Egypt export 1.7 billion cubic metres of gas a year over 20 years. Immediately the government and the Ministry of Petroleum appealed. The appeal was based on the premise that it is a "commercial" agreement and is a sovereign act, and that no party has the right to object to it, especially as it is an agreement between the Ministry of Petroleum and a private company, namely EMG. However, the judge based his ruling on Ambassador Yosri's argument that the minister of petroleum's decision 100/2004 in favour of EMG stipulated that the Ministry of Petroleum is obliged to deliver the quantities covered by the contract to Israel. Moreover, the Israeli minister of infrastructure and the Egyptian minister of petroleum signed a memorandum of understanding (MoU) on 19 June 2005, whereby the Egyptian Ministry of Petroleum guarantees the implementation of the contract between EMG and the Israeli Electricity company. Yosri referred to the Vienna Convention, which recognises MoUs as having the same force as treaties. Thus, the MoU between Egypt and Israel had to be submitted to the Egyptian parliament for ratification but it was not. This court ruling has put the Egyptian government in a very awkward situation because on the one hand, if it fails to implement the court decision it will appear as a government that does not respect the rulings of the judiciary, acting in breach of the constitution. On the other hand, the implementation of the ruling will complicate political and economic relations between Egypt and Israel. Egyptian gas has been reaching Israeli electricity power plants since May 2008 and an infrastructure of pipelines and a pumping station has been established by the Ministry of Petroleum at its own expense to carry gas from Sinai to Egyptian Rafah in implementation of the contract. Moreover, the US will not stand by without reacting to this situation. The US worked towards prompting both Egypt and Israel to establish this project as a cornerstone of normalisation between both countries. Notwithstanding, the court ruling has the force of the law and must be executed. If the government fails to do so, the court may issue a decision to isolate the minister of petroleum or any other employees who refuse to comply with the court's decision. There is evident popular pressure to implement the court decision. Yosri and a group of leading lawyers have begun drawing up a legal study designed to prompt the government and the Ministry of Petroleum to comply with the decision. There was also a proposal to form a National Popular Body through powers of attorney that would include the parties who filed the lawsuit. These were the No to the Gas Setback Campaign, civil society elements such as Kifaya, the 9 March Movement, human rights organisations, political parties which issued statements against the export of gas to Israel as well as parliamentarians, media personnel, trade union members and members of the public. This body would then be authorised to present the government, the Ministry of Petroleum, parliament and President Hosni Mubarak with the court's decision in order that it be implemented. On another note, Wafd Party MP Mohamed Dawoud presented an interpellation on 8 January to Prime Minister Ahmed Nazif, demanding that he and other cabinet members be brought to trial for their failure to implement the court decision. No doubt that the situation represents a major crisis, putting both the government and the Ministry of Petroleum on the spot to say the least. Failing to implement the ruling will cause considerable damage, while implementing it spells trouble for the government too. Anything is possible until 2 February, the date set for the Higher Administrative Court to deliver its final ruling. * The writer is a researcher in oil and gas affairs.
