For the next few weeks, I am planning to be writing on the Egyptian Constitution. Today, I begin with the starting words of the Preamble.
The Egyptian Preamble starts the same way as the American one: We the People. In the United States, there is overwhelming consensus among legal scholars over the fact that this phrase is a grant of sovereignty to the people as opposed to the government. In the Egyptian case, this is even clearer. Later in the Egyptian Preamble, it is stated that:
The people are the source of all authorities. Authorities are instituted by and derive their legitimacy from the people, and are subject to the people’s will.
The question of what exactly this sovereignty consists of is difficult to answer. Sovereignty, in political philosophy, is one of the vaguest terms, which ranges probably just as much as terms such as “justice” and “good.” One way of understanding the boundaries of sovereignty is to study Sovereign Immunity as one of the most important applications of that abstract notion. Sovereign immunity is in short a judicial doctrine that immunes the government and its political subdivisions from being sued by ordinary citizens for money damages in case they are not paid voluntarily be the governmental department.
In the United States, in the debate concerning Sovereign Immunity in Chisholm v. Georgia, the vagueness of “We the People” proved controversial. Before Chisholm, many thought of sovereignty as a binary concept. You are either the sovereign or not. However, the Eleventh Amendment, together with the Court’s later jurisprudence, changed that approach completely. Even though the term Sovereign Immunity does not appear in the amendment, its history implies some legitimization for the fact that Sovereign Immunity is not completely foreign to this nation. Indeed, the Supreme Court jurisprudence emphasizes this by granting Sovereign Immunity to both Federal and State governments.
The statement “people are the source of all authority,” in the Egyptian Preamble, is going to be crucial in deciding Sovereign Immunity cases. The term “all” is absolutist and sweeping. It suggests that all sovereignty is vested in the people. However, I am doubtful as to whether the framers of the Egyptian Constitution had the problem of Sovereign Immunity in mind when they were using the term “all.” I imagine that all framers would be startled if citizen started suing the Egyptian government for money damages that they experienced since the ratification of the Constitution.
Another reason to doubt that the term “all” addresses Sovereign Immunity is the fact that suing, in the American sense, is not even a part of the Egyptian tort. You cannot even sue another citizen for minimal and indirect damages that they might have caused you. Whether this is good or bad does not concern me here. What does concern me is the fact that no ordinary citizen who voted for this Constitution has read the term “all” to be as sweeping as it would have been in an American context. If people’s vote is the source of the Constitution’s legitimacy, I hold that Sovereign Immunity is not a subset of the term “all” legitimized by the Egyptian people.
I agree that my reading is counterintuitive. I am in effect arguing that “all” does not really mean “all,” or at least it is not completely sweeping. I also think, however, that this reading is aligned with the general costumes of the Egyptian society, which should be taken into account in interpreting terms such as “all” that at times tend to be slogans rather than words that must be subject to strict linguistic scrutiny.
One might think that this problem is addressed in Sec. I of the Egyptian Preamble, which reads:
The responsibilities and competencies of authorities are a duty to bear, not a privilege or a source of immunity.
This, however, is not a statement concerning Sovereign Immunity. The type of immunity that is used in this statement is personal, and not institutional. The concept of Sovereign Immunity protects branches: the Executive and Legislative. It does not protect the individuals in those branches. Section. I therefore simply clarifies that everyone is equal before the law. As an example, the fact that Morsi is the President does not immune him from legal reaction addressing his ordinary misconduct
I therefore believe that the problem of Sovereign Immunity is solved neither by “We the People” nor by the later clarifications of the Preamble. In my next article, I provide some pragmatic arguments for why this potential controversy is not addressed.