Acts of Sovereignty Theory - Administrative Law
The right to litigation and the use of appeal procedures, as part of the constitutional principle, is protected by law. No one may be deprived of this right. Therefore, courts established under the Law of Judicial Authority, as well as courts defined in the Council of State Law, are competent to hear all disputes that may arise between individuals, or between individuals and administrative authorities, according to the rules of jurisdictional distribution between the two judicial systems. The Council of State, as an administrative judiciary body, has jurisdiction over all administrative disputes stipulated in the Council of State Law, while ordinary courts have jurisdiction over all other disputes regardless of their designation.
In addition, the executive authority in the state is not limited to exercising traditional administrative activity; it sometimes extends to political activity and actions related to the supreme interests of the state. These are referred to as “acts of sovereignty.” Although the doctrine of sovereign acts constitutes a real exception to the principle of administrative legality and a departure from its scope of application, it is difficult to consider it merely a restriction on the principle.
First Chapter: Historical Origin of the Doctrine of Sovereign Acts and Its Concept
First Section: The emergence of the doctrine of sovereign acts and its historical origin
When the French Revolution took place, its leaders attempted to prevent the judiciary from interfering in administrative work. The principle of separation of powers was interpreted in a rigid and strict manner, in a way that did not allow courts to intervene in administrative actions or decisions. This period was known as the “administration judging itself” phase, during which the administration itself resolved disputes arising between it and individuals. Therefore, the doctrine of sovereign acts did not appear in this stage due to the absence of administrative accountability before the judiciary.
In a later stage, Napoleon Bonaparte established the French Council of State, which was granted the power to decide on appeals and grievances against administrative decisions. However, after the fall of the First Empire and the restoration of the monarchy in France in 1814, the Council of State was viewed with suspicion as an extension of Napoleon’s rule. Attempts were made to eliminate it or at least reduce its supervisory role over administrative acts. Judges of the Council of State became aware of this and worked to avoid confrontation with the ruling regime in order to preserve the existence of the Council. They therefore created the doctrine of sovereign acts, under which many important political administrative acts were excluded from judicial review.
One of the first cases in which the French Council of State recognized the doctrine of sovereign acts concerned Napoleon Bonaparte’s own family. The ruling regime at the time refused to deliver funds donated to this family. When the matter was brought before the Council of State, it ruled that it lacked jurisdiction because the matter was political in nature and not subject to judicial review.
Second Section: The concept of sovereign acts
The concept of sovereign acts is a matter of disagreement in legal thought. It is narrowly interpreted in countries with well-established democratic systems where the principle of rule of law is entrenched, while in other countries it is broadly interpreted to the point of encompassing many administrative actions.
This issue creates a conflict between state authorities, which always seek to keep their actions beyond judicial oversight, and judges, who aim to extend their jurisdiction over all administrative acts on the basis that the rights of the state are not superior to the rights of individuals, and that both derive from the law. The doctrine of sovereign acts cannot be used to exclude the application of the law, because in a state governed by law, no one is above the law.
In Islamic law as well, both individuals and the state derive rights from God, and the state’s rights are not superior to those of individuals. State intervention in individual freedoms and rights is limited to necessity and public interest, such as protecting society from exploitation and corruption.
Islamic law, like positive law, recognizes the superiority of state actions over individual actions when the state acts to preserve the existence of the nation, people, or state, or to protect supreme interests even at the expense of individuals, since public interest prevails over private interest.
Legal scholars therefore distinguish between government acts as an executive authority managing public utilities, and government acts as a political authority exercising broader discretion to protect the homeland, independence, and state structure. In the first case, government acts are subject to law and judicial review in terms of legality and abuse of power. In the second case, they are not subject to judicial review and are considered sovereign acts.
Dr. Mahmoud Hafez defined sovereign acts as “a category of executive authority acts that enjoy immunity from all forms of judicial review, whether annulment, compensation, or legality review.”
Dr. Suleiman Al-Tamawi defined sovereign acts as “acts issued by the executive authority surrounded by special considerations related to the safety of the state internally or externally, and which fall outside judicial oversight when the judiciary recognizes them as such.” He considers them a serious breach of the principle of legality.
The Syrian Supreme Administrative Court stated that sovereign acts are “acts and measures issued by the higher authorities of the state which the administrative judiciary itself deems should remain beyond judicial control due to lack of appropriateness or higher state interest.” It also noted that the scope of sovereign acts is continuously narrowing and is limited to major political acts such as war, foreign relations, and certain constitutional functions of the head of state.
The Egyptian Supreme Constitutional Court held that sovereign acts are excluded from judicial jurisdiction because they relate to state sovereignty internally and externally and involve political considerations requiring broad executive discretion.
Criteria for identifying sovereign acts:
- Political motive criterion: If the act is driven by a political motive, it is considered sovereign; otherwise, it is administrative and subject to judicial review.
- Nature of the act criterion: The nature of the act itself determines its classification, regardless of motive.
- Legal texts criterion: Acts based on constitutional powers are sovereign, while those based on statutory law are administrative.
- Judicial precedent criterion: Classification depends on court rulings, which has been criticized as subjective.
Second Chapter: Legal nature of sovereign acts and judicial applications
First Section: Legal nature of sovereign acts
Legal opinions differ regarding the legal characterization of sovereign acts. The prevailing view is that they fall within the concept of public interest prevailing over private interest, meaning that protecting collective interests outweighs individual interests.
Thus, determining whether an act is sovereign is a matter of legal qualification carried out by the court, subject to higher judicial review. There is no official list of sovereign acts, and the executive’s classification is not binding.
The Egyptian Constitutional Court has stated that although it is difficult to provide a precise definition of sovereign acts, their most important characteristic is their clear political nature.
The Court of Cassation in Egypt has also affirmed that courts are competent to determine whether an act constitutes a sovereign act, and that judicial characterization is subject to review by higher courts.
Some scholars argue that there is no distinction between administrative and political authority, and therefore all government acts should be subject to judicial review. Others believe that sovereign acts are increasingly limited to war, foreign relations, and certain constitutional powers.
Political acts of the executive authority are therefore limited to:
- Acts regulating relations between the executive and legislative branches.
- Acts related to international relations.
Second Section: Sovereign acts in judicial practice
Although legislation does not precisely define sovereign acts, courts have identified certain categories through jurisprudence:
- Relations between executive and legislative branches: such as calling elections, convening parliament, and proposing laws.
- Judicial acts: acts of the judiciary and prosecution are generally considered sovereign, although modern doctrine in some countries recognizes state liability in certain cases based on justice considerations.
- International treaties: concluding treaties is considered a sovereign act, though not all treaties are political in nature.
- Declaration of emergency: declaring a state of emergency is a sovereign act, but implementing measures under it is administrative and subject to judicial review.
The Egyptian Constitutional Court has held that not all international agreements are political in nature.
The Sudanese Administrative Court has held that any decision issued by an executive authority while performing its function is an administrative decision subject to annulment.
The Syrian Administrative Court has held that emergency orders are administrative decisions like any other administrative act.
- Security measures: some courts consider security measures taken to protect the state as sovereign acts, granting them immunity from judicial review.