In my last article, I concluded that the Egyptian Preamble does not address the problem of sovereign immunity. I did not explain, however, why that problem is interesting in the first place. One could argue that Egypt today struggles with problems much greater than some abstract legal doctrine. So what if people cannot sue the government without its consent? Here, I try to explain that the doctrine is not that abstract, for it can have some serious implication in the reconstruction of Egypt and its economy.
Ever since 1991, there have been great attempts for making Egypt’s economy a market-oriented one that welcomes domestic and foreign investment. Among these measures are cutting taxes, reducing subsidies, relaxing price control measures, etc. As a result of these, Egypt’s economy has been seeing better days than ever before in its GDP growth.
Since 1991, there have also been extensive amendments to the Egyptian Civil Code that ensure a greater deal of tort liabilities. As Professor Stovall explains, the expansion of the product liability limits could be used as an example of ensuring further guarantees in commercial activities while giving enough room for freedom of contract between buyers and sellers. However, much of the language used in the amendments welcomes questions concerning sovereign immunity.
Consider, for example, Article 163 of the Egyptian Civil Code:
A person committing any fault, or causing harm to another, is obliged to compensate for the damages suffered.
The key here is the word “person.” During the Mubarak era, it was quite clear that Mubarak himself was not a person in this sense. In other words, no one could sue Mubarak for committing some fault in any court for recovering money damages. Note, however, that a fault committed by Mubarak could at least be of two sorts:
1. Faults committed under his personal command (or will) and regardless of the laws,
2. Faults committed as a result of him executing the laws (when laws are faulty themselves)
The first type of faults are addressed by the Section I of the preamble which reads:
The responsibilities and competencies of authorities are a duty to bear, not a privilege or a source of immunity.
Hence, one could easily conclude that, for example, Morsi today would not be able to go out and cause money damages to businesses without statutory support and expect to be immune from lawsuits in the same way that Mubarak was. This therefore means that the term “person” of Art. 163 does refer to type-1 faults when committed by the officials.
The question of sovereign immunity, however, addresses mostly, if not entirely, the second class of faults: namely those which are done lawfully at a particular point in time. Let’s see what such faults could be. The Egyptian Constitution states that the freedom of speech shall not be violated. Now, suppose that the Egyptian Parliament decided to ban commercial speech of any kind. It is clear that this ban is unconstitutional. However, it is easy to imagine that before the statute is struck down as unconstitutional, the advertisement agencies would suffer serious money damages. Who then is responsible for paying back these damages? Clearly the parliament. But how? Through a lawsuit. But is that possible? Can we recover money damages from the parliament if it doesn’t want to pay us?
My last article argued that the answer to this question does not lie in the Constitution. This therefore creates ambiguities in the Egyptian tort system. Does the word “person” of Art. 163 refer to Morsi when he is executing laws? There are policy arguments for and against, but that is the subject of another article. For now, I hope that I have managed to convince you that my points in the last article weren’t too abstract after all.