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Housing | Al-Qursaya Island: State Court Advisory Commision Supports Rights of Residents to Lands

Report of the Board of State Commissioners Supports the Rights of al-Qursaya Residents to their Lands

On 21 August 2013, a report by the Board of State Commissioners was in favor of the people of al-Qursaya island against the military forces on their lands. The Board recommended that the ruling, in the session postponed to 8 October 2013, should “accept the claim, in form and in content, to cancel the impugned decision and its consequences, especially the commitment of the Ministry of Defence to evacuate all military personnel and divisions present on the island and the government to cover all expenses.”

The lawsuit was a result of government actions that showed clear bias in favor of the interests of powerful entities against citizens’ rights. On 21 June 2007, the Council of Ministers decided not to renew lease agreements for residents of Qursaya that year, although they were legally entitled to the island’s property. At the same time, the military forces took possession of a 5 feddan (21,000m2) piece of land on the island, which was seen as a prelude to its requisition for services and touristic investments. This was followed by attempts by authorities to use force, through army divisions, to evacuate the island, leading the residents to go to the courts. Indeed, the residents succeeded in overturning the ministerial decision at the Second District Administrative Court on 6 February 2008. This was followed by an appeal by the government to overrule that decision. The Supreme Administrative Court decided on 6 February 2010 to reject the government appeal and maintain the entitlement of the residents to the island’s property. “The state’s primary obligation is to keep peace and internal security and its decisions should take into consideration what protects citizens’ security, safety, and legitimate livelihoods,” the court announced.

However, the height of injustice against the island’s residents came in the early morning of Sunday 18 November 2012, when military forces attacked the island, using firearms and live ammunition to chase out the residents, leading to the death of the citizen Mohamed Abdul-Mawjood and injuring several others. This was in addition to the detention of 25 citizens, who are now facing military trial on several charges, mainly for their presence on military lands. Ever since that incident, armed forces were stationed on the island’s beaches in the east and west, terrorizing the population and laying siege on its main source of income. The military continues to prevent fishermen from using most of the coast of the island, in addition to denying the island’s residents from their right to live in peace, carrying on with their daily lives, or moving freely.

As a consequence, lawyers of the Qursaya island residents filed a lawsuit at the State Council (No.21604 of Year 67), in cooperation with several rights organizations, namely the Egyptian Center for Economic and Social Rights, the Egyptian Initiative for Personal Rights, the Nadim Center for the Rehabilitation of Victims of Torture, and al-Hilali Center for Rights. The suit named the President of the Republic, the Minister of Defense, and other authorities as defendants in the appeal against the transformation of some of the island’s property into a military zone.

Report:” allocation of the island territory to the Ministry of Defense, even if under the pretext of achieving public interest and national security, does not hold against the principle of the rule of law

The case was discussed in several sessions, until the latest decision by the Board of State Commissioners. The 25-page report ruled on the repeal of the decision to transform some of the island’s property into a strategic military zone and, consequently, obligate the defense ministry to withdraw military personnel and divisions present on the island.

The report refuted the appeal by the administrative entity due to lack of jurisdiction of the court to look into the dispute and consider the property of the state as private property, which can be handled like individuals handle their property, since this would remove the characteristic of public authority from the state and its apparatus. “This is refuted by the fact that this was true until the decision of the Council of Minister No.1969 of 1998, considering this island and other islands as natural reserves, which are areas where no form of activity shall be conducted in any manner except by a license in return for utilization issued by the department of the Egyptian Environmental Affairs Agency (EEAA). Therefore, from the date the decision came into force, all activities and actions on Qursaya island in all their details are under the public law and subject to its provisions until this moment. Thus, the presented dispute is an administrative dispute under the jurisdiction of the State Council. This court has the jurisdiction for qualitative consideration based on the ruling in the final article of Article 10 of the State Council Law No.47 of 1983. Therefore, the aforementioned appeal is not based on supported fact and does not fall under the law.

The report maintained that the appealed decision contains grave breaches. It allocated a part of the desert land for the use of the Ministry of Defense for training purposes and military operations, which does not apply in the case of Qursaya, an island formed from river sediments and considered by law as extensions of agricultural land. This definition was used by the Board’s report, considering the decision to be in violation of the law and an error in its application. The report also indicated that the residents of Qursaya “are practicing their original professions in farming the land, fishing, and small-scale trading within the overall framework which the associated description of the reserve, whereby the Prime Minister’s decision No.1969 of 1998 considered the island to be a nature reserve.”

In another paragraph, the report debunked the legal error of the appealed decision. “The administrative body’s appraisal of these actions on the island, claiming the best interest of the state, is in total opposition to the law of nature preserves and related executive decisions, which regard the primary objective of the legislation was to protect the natural state of the reserve at the time of issuing the decision to classify it as such. The legitimacy of any interference, activity, establishment of projects, or buildings in any reserve is contingent on the approval of the administrative side and that this approval does not change the fixed and existing natural and environmental state of the reserve. If so, then the decision of the President of the Republic No.152 of 2001 – to allocate parts of the property in Qursaya island belonging to the Giza governorate to the Ministry of Defense, in contravention of the law of nature reserves No.102 of 1983 and the executive decisions of the Council of Ministers as indicated – suffers from the defect of illegitimacy, for its violation of the principle of specificity of objectives, as indicated. This is in addition to the defect of lack of jurisdiction as the jurisdiction to issue licenses to utilize the lands of nature preserve, whether for activity, certain experiments, construction, or other uses, is legally proscribed to be the authority of the EEAA, as indicated previously. And since the issuing of the decision on the appeal should be through the legally responsible administrative body, it thus suffers from the defect of illegality for its violation of the principle of specification of objectives and its deviation from taking into account the commitment to the specific aim set by aforementioned Law 102 of 1983 on the owner of the license to utilize nature reserve properties, which puts it in violation of the aforementioned law and its implementing decisions from all aspects, and thereby is worthy of repeal.”

Report denies allegations of military of trespassing and illegal seizing, confirms that existence of inhabitants since a very long time, with no contest from state over this period

The report indicated that “the allocation of the island territory to the Ministry of Defense, even if under the pretext of achieving public interest and national security, does not hold against the principle of the rule of law, which is the basis of governance in the state, obliging the state in taking decisions and actions, to take into account the security and safety of citizens, as well as the sanctity of their homes and their legitimate sources of livelihood.”

The report continued saying, “The presence of a residential area on the island territory in its current state did not arise suddenly, by accident, or without the knowledge of the administration and its bodies. However, it is a residential gathering that was established over a long period of time, did not occur in secret, and whereby the administration participated in its establishment by not prohibiting the fact at the time. Therefore, since it made this the rule and was not active in pursuing it at the time, its destruction and removal now, through its allocation to the Ministry of Defense after the fact, is not merely something that the administration must not do, but it is a breach of its responsibility to maintain the peace and security of citizens, protect social peace, and forbid private ownership that leads to the displacement and destruction of the lives of thousands of citizens, without warrant, and their displacement without consideration of their affairs, meeting their needs, or maintaining peace and security among them. Such results is the most pressing and serious national interest, which in this phase warrants more consideration than others. This would also be pursuant to the rules of Islamic sharia, the main source of legislation, which prescribes that preventing harm overrules benefits that might be incurred. Moreover, protecting the interests of private individuals in the framework of public interests is the highest form of protecting national security, where the primary feature of the public interest of national security is more worthy of protection and bias, making the contested decision worthy of cancellation from this additional perspective.”

The report concluded by maintaining that “the final conclusion does not confirm what the plaintiffs indicated in their suit that the Ministry of Defense intended to aggress and eliminate the residents of the contested island and aimed to expel them from the island by force. However, the conclusion is to apply the text of the law and realize the rules of justice, fairness, and protection of legitimacy, which means that ruler and ruled are subject to the law in the broad sense, which is the basis of governance in the state. As for the second consideration, while the aim was to bolster and protect national security, the primary duty of the state is to protect peace and internal security, taking into account in its decisions and actions preserving the security and safety of citizens and protecting their legitimate sources of livelihood. All these issues are a confirmation of the power of the state and its ability to regulate the general public sentiment of citizens, expressing to the highest extent the protection of the prestige of the state and its stewardship of realizing the public interest of the people, primarily the social classes that took up farming as a traditional profession and settled in a manner intimately linked to their profession and which does not cancel out finding a residence or other amenities. Additionally, the protection of individual interests in the framework of public interest is the highest form of preserving national security and is a genuine expression of the state’s ability to instill the concept of citizenship. This makes the first outcome more relevant for the respect of the principle of the rule of law, legitimacy, and the protection of public interest.”

The defense committee for the people of Qursaya island call on the esteemed court to rule in favor of the residents pursuant to the demands of their claim and based on the report provided by the Board of State Commissioners.

The revolution came about to support the rights of people against those who control power. Supporting the people of Qursaya is supporting the owners of such rights.