This article is written by Nikara Liesha Fernandez from Christ University, Bangalore. This article deals with an extensive analysis of the legal system of Egypt, the various courts established under its judicial system and the provisions to facilitate access to all of the justice system and legal aid.
Table of Contents
Introduction
Egypt is a country where access to the justice system and legal aid form an integral part of the fundamental rights of an individual. However, many individuals are deprived of these very rights due to lack of affordable legal representation. This issue is sought to be tackled by both governmental efforts as well as the cooperation of international organizations. An example of the same is the Principles and Guidelines on Access to Legal Aid in the Criminal Justice System as adopted by the United Nations General Assembly on the 20th of December, 2012. The 2030 agenda for sustainable development envisioned by the Ministry of Justice of Egypt aims to safeguard free and equal access to justice and the judicial system for all.
The Egyptian legal system we see today is an amalgamation of the Islamic (Shariah) law and Napoleon’s principles of civil law. Egypt is said to be a civil law country which thus closely resembles the legal system of France. The emphasis, however, is placed on Islamic law which can be seen through Article 2 of the Egyptian Constitution. The accessibility to justice is an indispensable part of the Egyptian legal system. To facilitate its impartial and smooth functioning, the judges enjoy immunity and cannot be dismissed through any executive action. The Egyptian legal system seeks to codify the law and the provision of a dissenting opinion is absent from the judgments as the system avoids recognising the potential for reasonable minds to differ on the interpretation of legal texts.
Evolution of the Egyptian Constitution : the supreme law of the land
After the Egypt Uprising January 2011, the Supreme Council of the Armed Forces (SCAF) was put in charge of running the state affairs until a new President could be elected. In exercising their powers, through their Declaration 1, they suspended the erstwhile Constitution of 1971.
This was followed by Declaration 2 by which they set up a temporary Constitution which included a provision in Article 60 therein to adopt a constituent assembly consisting of 100 members whose purpose would be to draft a new constitution within a maximum of six months after the date of composition of the Assembly.
Thereafter, Declaration 3 stated that if any hindrance was faced by the drafting committee for the purpose of drafting the Constitution, preventing them from exercising their functions, a new drafting committee would be appointed by the SCAF. The latter along with the President, Prime Minister, Supreme Council of Judicial Entities and one-fifth of the members of the drafting authority had the power to request that the committee reconsider any of the provisions of the draft constitution, which in their mind, were contrary to the principles of the revolution or of the former Egyptian Constitution.
Declaration 3 was, however, revoked by the President in 2012 through which the authority to appoint a new drafting committee was vested solely in him to draft a Constitution which, after gaining approval through a public referendum, was adopted for the whole country on the 25th of December, 2012. An amendment of the same Constitution was made by a ‘Committee of 50’ representing different spectra of the Egyptian community, which after a public referendum came into force in 2014. The latest amendments to the Egyptian Constitution were made in 2019.
Legal instruments governing the doctrine of access to the justice system and legal aid
The constitutional mandates
The Egyptian legal system is governed primarily by the Egyptian Constitution which is the supreme law of the land. Through its articles, it guarantees appropriate means of access to the justice system and legal aid. Article 97 of the Constitution provides for the right to counsel and the right to legal aid. Article 54 of the same provides for the latter particularly during both the trial and pre-trial phase. The Constitution also provides for individuals with special needs. Article 98 provides for the right to counsel and legal aid in civil matters in particular.
Code of Criminal Procedure
The Code of Criminal Procedure, Law No.150 of 1950, is a legislation that safeguards an individual’s right of defense and the access to legal aid. Article 124 of the same prevents the cross-examination and questioning of a suspect without the presence of a lawyer. It also mandates that every individual at the trial stage of any offence, has the constitutional right of appointing an attorney. This appointment is mandatory in cases where the penalty for the offence is mandatory imprisonment but is optional in all other cases. Legal aid is to be provided only by a court-appointed lawyer.
Another legislation governing crimes is the Egyptian Penal Code, No.58 of 1937. Article 9 of the same divides crimes into three categories according to their seriousness and dangerousness into a felony, misdemeanor and contravention.
The common court structure which is elaborated upon in detail later in this article is the authority that deals with criminal cases. In dealing with the same, it takes the form of three types of courts-
- Summary Courts/Misdemeanor Courts-
These courts deal with misdemeanors and petty offences. They consist of a single judge attached to the Court of First Instance associated with that district.
- Criminal Courts-
These Courts deal with felonies. They are also known as the Circuit Courts of Appeal as the cases are heard by a panel of three judges as in the Court of Appeal.
- Court of Cassation-
This will be discussed in depth further on in this article.
Child Law
Child law, established through Law No.12 of 1996, affirms the right of every delinquent child to access free legal representation before the juvenile court under Article 125. Juvenile defendants are not required to pay any sort of judicial fees and expenses for the judicial procedures. The child victims as well as witnesses of crimes are provided with the right to social and legal assistance. This is in accordance with the United Nations Guidelines for Child Victims and Witnesses of crimes. The composition of the panel governing child law must consist of at least two judges who have been ranked as Chief Justices. It must also include two sociologists, at least one of whom must be a woman according to Article 121.
Family Law
Family law, established through Law No.1 of 2000, regulates the litigation procedures with respect to personal status affairs. The court to carry out the proceedings of the same have been established through Law No.10 of 2004 and are known as Family Courts. These courts primarily aim at facilitating access to court systems for women and children litigants who have family disputes. They aim to make the whole judicial process more user-friendly and simple for individuals to follow. An example of the latter is that legal complaints can be filed before the family courts even without a lawyer. The process is economical as well as all claims for alimony and support are exempted from the payment of a legal fee. People suffering from a minimum of two sensory disabilities or any form of severe physical disability are also entitled to a free legal assistant which is appointed by the court.
Human Trafficking Law
Referred to as the Law regarding Combating Human Trafficking, Law No.64 of 2010 criminalized the process of human trafficking and dedicated a special chapter in the legislation to the protection of child victims. Chapter Five of the law mandates the right of the victims of human trafficking to be well-informed and aware of the relevant legal and judicial procedures. This law also ensures that appropriate measures are taken to protect both the victims as well as the witnesses of human trafficking by providing them with free legal assistance and the right to counsel in the trial and pre-trial phase. There are also measures taken to protect the victims and witnesses after trial as well as the rehabilitation of victims which includes providing them with financial and psychological assistance.
Advocacy Law
Established through Articles 93 and 94 of Law No.17 of 1983, this law is known as the Advocacy law which requires the Egyptian Bar Association branches all over Egypt to form legal aid committees which are to provide pro bono legal assistance and representation to those individuals who cannot afford the same. Article 64 of this law requires lawyers to serve even those individuals (who cannot afford them) with the same care and diligence as they would to a more affluent client. The lawyers cannot deny cases nor can they hand them over to another lawyer without the prior permission of the Court.
Egyptian Civil Code, 1948
This Code deals with civil matters such as contract law, obligations, personal rights and the law of torts. The precedents in such civil cases do not have any binding effect however the judicial decisions have persuasive authority. Civil litigation in Egypt has two levels.
- The first level consists of two trials of facts.
- The second level serves as an appellate level.
Cases of small claims are tried before a single judge.
Case Law: Access to the Court System and Legal Aid
A recent case incorporating the views of the various legal authorities in Egypt concerned the interpretation of Article 98 of the Egyptian Constitution. This article requires that there be a provision of legal aid to indigent individuals as it recognizes that they are the most in need of free legal aid due to their economic constraints. However, the Judicial Administrative Court, in this case, held that a claimant is not entitled to compensation for counsel fees and litigation expenses incurred in defending his case before the court, as long as he did not request from the trial court an exemption from litigation fees or a free, court-appointed lawyer.’
- The view of the Court of Cassation
This Court (in the case- Court of Cassation, Criminal Chamber, petition no. 25770/83, session of 9 Nov. 2015) held that Article 124 of the Code of Criminal Procedure mandated the appointment of an attorney for the accused in the pretrial stage in the instance where a lawyer is not already present. On interpreting the same, the Court went on to state that a prosecutor has the discretion to determine whether the accused was caught in flagrante delicto or whether there was any ‘fear of losing existing evidence’. Either of these cases would support waiving the right of the accused to have an attorney present during the interrogation process and thus the same can be carried out in the absence of a lawyer. The discretion regarding this, however, lies with the trial court.
In another case (Court of Cassation, Criminal Chamber, petition no. 44160/85, session of 9 May 2015) applying Article 124 itself, the Court of Cassation held that in the instance where the accused refuses the presence of a lawyer who is already present during the interrogation process and continues to refuse to provide the name of any alternate lawyer to accompany him/her, the prosecutor is not obligated to appoint a lawyer for the accused. However, the Court added that in any case, a violation of Article 124 does not render the interrogation process void. Conversely, at the trial stage, the Court of Cassation has consistently been protecting the defendant’s right to have a substantive and effective defense in comparison to a superficial and procedural one. According to it, a defendant accused of a felony has to be represented by a lawyer whether the latter is retained or court-appointed.
Further, in 2015, the same Court in the above case ruled that the trial court’s felony conviction regarding a defendant who was neither represented by a lawyer nor had one appointed to him was a violation of the right to a defense and therefore the whole trial proceedings were rendered null and void.
- View under family law
The Court of Cassation (Court of Cassation, Civil Chamber, Family Affairs Circuit, petition no. 372 /59, session of 7 Apr. 2008), in affirming the rights of children to appear before family courts have understood the meaning of Article 2 of the Law regulating litigation procedures in personal status affairs to mean that any child who reaches the age of fifteen with full mental capacity was entitled to the right of self-representation in family courts. This right was valid for disputes concerning his/her personal status, and the right to pursue litigation and appeals in such affairs. Naturally, children over the age of fifteen years can represent themselves before the family court and can avail, by virtue of their rights, free legal representation by a court-appointed attorney whenever necessary.
- View under child law
The Court of Cassation with respect to Child Law affirmed the right to full legal assistance and legal representation of all juvenile defendants before child courts. The court has, consistently over time, ruled that any judgment is rendered null and void if it is so rendered without a written report which has been drafted by two specialists who are required to be present on the panel while discussing the child’s circumstances and background. Further, this rule does not apply in cases where the juvenile defendant is tried before any adult criminal court, in case of being an adult’s accomplice in a felony. Therefore, to ensure a high-quality level of justice for all juveniles, the Court has established a procedural provision that mandates a special panel composition in child courts. This panel should consist of four judges, two of whom are Chief Justices.
Supreme Courts of Egypt
Supreme Constitutional Court
The current Supreme Constitutional Court of 1970 replaced the erstwhile Supreme Court of 1960. It is the highest judicial authority and one of the most powerful and autonomous organs of governance, located in Maadi, Cairo. It is autonomous in the sense that the Court itself selects its own Chief Justice and Deputy Chief Justice. The Supreme Constitutional Court exercises the exclusive jurisdiction to decide questions relating to the constitutionality of laws and regulations in addition to the negative and positive conflicts of jurisdiction. It decides jurisdiction disputes which arise between judicial bodies or authorities of judicial competence, disputes which take place as a result of enforcing final contradictory rules which have been issued by two different judicial entities – interpretation of laws issued by the Legislative Authority and by the Head of State in case of any divergence with respect to its implementation.
The Court also settles disputes arising between principles of Islamic and Civil law. The jurisdiction of the Court is explicitly mentioned in Article 192 of the 2014 Constitution. The advisory body or advisory staff to the Court which conducts preliminary review and preparation of advisory reports submitted to courts to aid in the review by the Justice’s and their decision consists of a Body of Commissioners.
The Supreme Constitutional Court consists of a President (known as the Chief Justice) and ten Vice-Presidents (known as Deputy Chief Justices) who are selected by the General Assembly of the Court (known as the collective body of sitting justices).
Judicial/Supreme Administrative Court
The Supreme Administrative Court deals with administrative and other public law matters. This Court sits at the apex of cases having an administrative nature that fall within its jurisdiction. There exist departments for opinions and legislations which advise the public entities on diverse aspects of public law ranging from administrative contracts, tenders, ministerial decrees, etc. This Court is also commonly referred to as the State Council.
The Supreme Judicial Council is the governing authority responsible for all affairs of the ordinary judiciary. This Council consists of seven members:
- The President of the Court of Cassation (acts as President of the Council).
- Two of the most senior Vice Presidents of the Court of Cassation.
- The President of the Court of Appeal of Cairo, Alexandria, Tantia and the Prosecutor General).
The State Council, also known as the Egyptian Council of State or the Administrative Court system deals with a separate set of legal rules dealing with cases involving the State as a sovereign power. These consist of Administrative courts which deal exclusively with administrative contracts and decrees applying administrative rules which are not entirely codified and as such the judges of the same exercise more discretionary power than the Supreme Constitutional Courts. This Court adjudicates upon disputes involving government actions/inactions and personnel and disciplinary actions involving government employees. They can issue legal opinions on issues that involve government bodies and propose legislation and contracts to which the state or a public entity is a party. The cases are governed by a panel of five judges. Article 190 of the Constitution provides a description of the State Council.
The State Cases Authority represents the State in civil litigation where the State is a party. The administrative prosecution investigates all financial and administrative irregularities which involve government entities and personnel.
The structure of the administrative court system consists of the Supreme Administrative Court, the Court of Administrative Justice, the Administrative Courts and Disciplinary Courts.
Court of Cassation
The Court of Cassation, as can be understood from the discussions above deals with civil, commercial and criminal matters. It sits at the apex of the non-administrative Courts of Egypt and is also based in Cairo. This Court provides an exclusive and uniform interpretation and application of the law. It is the highest or most supreme court of Egypt’s common court system.
Its jurisdiction allows it to hear all challenges brought before it either by an adversary or a public prosecution which includes an examination of lawsuits that arise from a judge’s actions (in such cases they act more as a court of merit than as a court of law).
This Court is empowered to make rulings in case of reparations for violated verdicts. According to Article 107 of the Constitution, this Court is entrusted with deciding matters concerning the validity of membership of delegates of the House of Representatives. It also issues annual collections on approved judicial principles which are known as the ‘Rulings and Principles of the Court of Cassation.’
All appeals from the Court of Appeals are brought here however they are limited only to legal issues which are deliberated upon by a panel of five judges. The composition of the Court of Cassation consists of the President and 450 Vice Presidents.
Other Courts and means of solving legal disputes
The different types of courts in addition to the above include penal courts, civil and criminal courts, personal status and family courts, national security court, labour court, military courts and the other specialised courts and circuits which will be discussed later.
The structure of courts under the tier system of the Egyptian Court System (common/general court system) consists of the Court of First Instance, Court of Appeal and the Court of Cassation (discussed above).
Court of First Instance
These are the first-degree courts which consist of the first level of litigation in civil cases and non-felony criminal cases. The judgments of this Court are subject to appeal and they can only consider those lawsuits which fall under their jurisdiction. They are further divided into primary courts and district courts. Cases are divided among these two courts on the basis of monetary value.
- The minor cases (cases involving a monetary sum of less than 40,000 EGP) are taken up by the District Courts.
- The appeals from the District Court are brought before the Primary Court which serves as an appellate body on the same footing as the Court of Appeal.
The Right to de novo appeal in small claim cases which have been decided by a single judge is brought before a three-judge panel of this Court. The cases involving larger claims originate in this court itself.
Court of Appeal
There exist around eight Courts of Appeal which are present in all the major cities of Egypt. These are second-degree courts that review the decisions of the Court of First Instance for matters involving questions regarding both facts as well as law. The appeals have to be made within a specific time frame and this is to be followed in a strict sense. The judgments of the Court are final and are open to being challenged only in the Court of Cassation on points of law or any lack/inconsistency of reasoning. The Right to de novo appeal in larger claim cases that have already been decided by the Court of First Instance is brought before a three-judge panel of this Court. They hear civil appeals and conduct felony trials.
Arbitration
An arbitral award, by virtue of the Arbitral Law, established under Law No.27 of 1944 is not reviewed on merit. The large commercial cases are usually resolved by arbitration due to the lengthy court litigation delays caused due to the already huge backlog of civil cases which pile up at the regular courts in addition to a weak mechanism for enforcing court judgments.
Facilitating access to justice and identifying legal aid venues in the court system
The easy access to justice has been facilitated by the establishment of a number of specialized courts to address disputes pertaining to a specific area of law. These courts help in identifying legal aid venues within the court system itself.
Family courts
Family courts are the official courts that administer family law and act as a specialized tool to settle family disputes. These courts aim at providing a standard of social peace and comfort especially to children who are caught in the middle of disputes relating to tutelage, divorce, custody and alimony. They also aim at sustaining amicable settlements for family problems by means of specialized and professional guidance agencies. A major step taken by these courts to aid women and children litigants, in particular, was to reduce the age of an individual’s legal capacity from 21 years to 15 years. Additionally, two venues were established within the family courts to provide free legal assistance to the litigants.
These venues are known as:
- Dispute Settlement Offices (DSOs)
- Legal Aid Offices (LAOs)
- Dispute Settlement Offices (DSOs)
In the case of DSOs, the process of mediation prior to initiating any litigation process is a mandatory step in all disputes. If mediation successfully solves the disputes, then the decision has the same effect as a court decision. However, if the dispute continues to remain unresolved even after the mediation process, it is brought before the Family Court. The DSOs consist of three members- a legal specialist, a psychologist and a social worker.
- Legal Aid Offices (LAOs)
LAOs were established as a collaborative effort between the Ministry of Justice and the UNDP. It was aimed at helping women and disadvantaged persons who wish to avoid long drawn out and expensive litigation procedures. These cases are of a complex and sensitive nature. LAOs provide free legal aid and assist the litigants not just in filing their complaints but also in educating them about their rights, helping them compile the required legal documents and providing them with legal advice. These offices ensure that cases are disposed of in a timely manner and through their meticulous procedure, prevent the dismissal of cases on grounds of insufficient evidence. The Ministry of Justice has envisioned a plan to expand the LAOs to cover all Courts of First Instance, including measures such as periodic training to enhance the capacities of judges of the LAOs and DSOs, raising the legal awareness of the litigants in family courts, providing adequate renovating facilities and providing IT equipment.
Child courts
Child courts are autonomous bodies with a specialized jurisdiction established in 1996. It is governed by an autonomous prosecution that has the sole jurisdiction in dealing with family disputes due to the complexity and sensitivity of cases. In 1997, the Ministry of Justice established the General Administration for the Legal Protection of Children and the Subcommittee on Child Judicial Protection to support the juvenile justice system by developing plans and implementing policies to enhance the capacities of the leaders of the juvenile justice system.
These Courts sit with the Department of Women and Child Affairs of the Ministry of Justice under the supervision of the Assistant Minister who is the chief judge. The Ministry of Justice, in 2015 announced the start of an EU-funded project in order to keep the juvenile justice system in tune with the international standards, known as the Support for the Modernization of Administration of Justice (SMAJ). This project led to the birth of four child-friendly and fully equipped pilot courts. This was coupled with the adequate training of judicial professionals, court staff and other law enforcement personnel working in the juvenile justice system. The program also pays special attention to children suffering from social and psychological problems.
Support offices for women in Courts of First Instance
These offices are headed by the Ministry of Justice which has held the empowerment of women as its top priority. These offices fight against the violence against women and remedy this by facilitating their access to the legal system, in addition to providing them with free legal assistance and representation. In a cooperative effort with the British Council, the Ministry of Justice established a project known as the ‘My Right’ project.
Through this project, four pilot offices have been created in four Courts of First Instance to provide legal advice and aid to women and girls who are victims of violence. This action is coupled with raising the awareness of women who are victims of violence, informing them about their legal rights and assisting them in filing police reports and gathering evidence in the trial and pretrial phases. This program also established a 24-hour clinic for females and extends its support to child victims of sexual and physical abuse and includes potential victims of trafficking.
Legal assistance offices in labour courts
The LAOs of labour courts safeguard the rights of workers in all fields of employment. It involves assistance in labour contracts, wage-related issues, enforcement of the rights and obligations of workers, providing remedies in case of work injuries and awarding compensation. This is in accordance with the Ministry of Justice’s policy of supporting legal aid and was enacted through the Ministerial Decree No.1367 of 2009. The labour cases which are filed by workers are exempt from legal fees and charges. The Ministry, through its 2015 strategic plan, envisioned the expansion and improvement of LAOs in labour courts, as well as the enhancement of the capacities of the judges working in these courts through cooperative efforts with the International Labour Organization.
Law clinics for clinical legal education
These law clinics are established within legal academic institutions themselves. For example, the Protection Project partnered with the Alexandria University Law School in order to establish the first legal clinic in Egypt in 2010. This clinic provides legal and assistance with the aid of pro bono lawyers who help child victims, victims of human trafficking and victims of domestic violence. In June 2017, another environmental law clinic and consumer protection law clinic was opened at Helwan University through cooperation with the American Bar Association Rule of Law Initiative (ABA ROLI).
Challenges to the legal aid framework
In order to provide a solution to the legal aid framework, the legal system or judiciary itself has to correct its inequities. A major challenge posed to the judiciary is that of being dragged into the field of politics as in the face of partisan tendencies; the politicians misuse the courtrooms as their grounds for attacking the opposition and spreading the dangerous notion that the judges themselves are in favour of one political party over another. This erodes the neutral and credible nature of the institution of the judiciary and loses the people’s confidence in the principle of justice itself, thus discouraging them from availing of the legal aid options offered to them.
The other challenge faced with regard to the legal aid framework is with respect to women’s justice. These challenges find themselves among women at various levels.
- At the individual level, due to limited legal knowledge and a lack of awareness due to various factors, mainly poverty, women are unaware of the remedies available to protect them in the event of a violation of their rights.
- At a community level, due to the strong force of customary laws and social norms, women live in fear of availing legal aid at the risk of becoming an outlaw to society. Women live in the fear of shame (or haram) which is rampant among them in the largely patriarchal society of Egypt. The men of society themselves restrict and discourage the women from seeking justice.
- At the institutional level, the problem of gender bias forces the individuals in power, who are mostly men, to turn a blind eye to the pleas of women and rather deem them as being insignificant in nature.
Recommendations to improve the legal aid framework
The most important remedy the Egyptian legal aid system needs to provide at the moment is the inclusion of women both in the administration of legal aid as well as in actually facilitating the distribution of the same. This step needs to first be taken by the national government to remove all forms of discrimination among women at all levels of justice.
The Egyptian judiciary needs to put women’s rights on the same platform as human rights and implement international treaties such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) to protect the women of the country. Including women in the law-making process is another advisable step in the right direction as women themselves would be best suited to making laws to govern their welfare and protect their rights. Legal literacy programs should be adopted to heighten the knowledge of the general public including the authorities such as the police to bring all individuals out of a state of ignorance such that justice for all can actually become a reality.
Conclusion
Concluding with a quote by Nathan Brown, written in a chapter of his book published in 2008 (Reining in the Executive, 135-36, 148), “Egyptian administrative courts and the Supreme Constitutional Court have become sites for individual and organized efforts to breathe life into Egypt’s formal democratic practices and institutions. Political parties seeking to gain recognition, individuals seeking political rights, NGOs challenging restrictions, and activists seeking to eliminate unfair electoral procedures all have found the courts far friendlier places than other institutions of the Egyptian state.” He also observed, “It is clear that the judiciary is generally a respected institution with a strong inclination toward supporting the rule of law.” The above discussion justifies the same as it is evident that though the judicial system of Egypt is fairly new and still developing, the efforts made so far have borne fruit and progress is continually being made in the right direction.
References
- https://www.nyulawglobal.org/globalex/Egypt1.html
- https://egyptjustice.com/egypt-law-an-overview
- https://iedja.org/wp-content/uploads/2018/02/egypt-access-to-justice-system-1my.pdf
- https://www.mondaq.com/crime/981296/trial-proceedings-in-criminal-cases-before-egyptian-courts
- https://www.mei.edu/publications/challenges-facing-egypts-judiciary
- https://oxfamilibrary.openrepository.com/bitstream/handle/10546/606565/rr-women%27s-access-justice-middle-east-010813-en.pdf?sequence=1&isAllowed=y
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