Sovereign Immunity, Islamic Law and Morsi’s Decrees
Does Islamic law have a conception of sovereign immunity? Yes, and it is derived from the notion of the public official as a public agent. This relationship defines both why it is obligatory to obey lawful acts of a public agent.– because one is always bound by the lawful acts taken by one’s own agent — and why one is not bound by the ruler’s unlawful acts — because an agent’s unlawful acts are beyond the scope of his agency and are thus that of a private person and not of an agent.
In Sunni political theory, as documented across the body of fiqh, public officials have authority to act only to the extent they have a valid delegation of power, and that power is exercised in a lawful fashion. No one has absolute power. Muslim jurists actually did have a theory of the immunity of public officials from suit, which roughly was along the following lines: where a public official commits an injury, but does so in a good faith attempt to follow the law, then the community bears the loss, i.e., bay al-mal is responsible to pay the damages, but if he did not have a good faith basis for believing he was acting in conformity with the law, then he was personally responsible. Why? Because in the latter circumstance his action was as a private person, and not as a public official. In the case of Morsi, for example, suppose he is walking down the street, and punches someone randomly. Such an act could not, in any way, be deemed to be afforded “immunity,” because it is not undertaken in a public capacity.
So any grant of immunity must necessarily be limited by the notion that only those decisions that are taken validly for the public interest are the actions of a “public” official and hence qualify for immunity. Thus, Kasani tells us that the caliph, because he is the “messenger” of the community, cannot be held liable for his actions so long as he is acting on their behalf, just like any other agent is not liable for the actions he undertakes faithfully on behalf of his principal and at his direction, unless, in both cases, he knows that the principal’s directions are illegal. The same criteria applies to prospective actions taken by a public official: if they are not rationally related to the public interest, they are, in the view of fiqh, simply laghw, or batil, and have no legal effect, e.g., A, a public official, grants B, a piece of public land at below market price because B is his childhood friend.
Such a transaction is invalid and cannot be upheld according to the fuqaha because A’s actions are only valid when he is acting for the good of the community, per the legal principle, tasarruf al-imam manut bi-l-maslaha. So, in this case, if Morsi were to use these powers in a manner to enrich himself, for example, any Egyptian court, in my opinion, would be able to stop him, consistently with the decree, because this kind of illegal conduct does not qualify as a public act which is entitled to deference.
The question here is whether it is OK to insulate his good faith decisions taken for the public good from the review of the courts of the old regime, and I think it is, especially as it is only for a limited period of time. At the same time, however, because of the importance of having a means to test the exercise of such powers, there should be a revolutionary court established that can be resorted to in real time to test the legitimacy of such actions, but only on the grounds suggested above: that they are good faith attempts to realize the public interest in completing successfully a democratic transition.