UNDP United Nations Development Programme ������ ����� ������� ��������
Programme on Governance in the Arab Region ������ ����� ����� �� ����� ������� POGAR
Publications: Judiciary
- Introduction
- Sources On Arab Judiciaries
- Algeria
- Egypt
- Jordan
- Kuwait
- Lebanon
- Morocco
- Palestine/PNA
- Saudi Arabia
- Sudan
- Syria
- Tunisia
- United Arab Emirates
- Yemen
- Summary Tables
- Constitutional Provisions On The Judiciary
- Structure Of Court System
- Personal Status Issues
- Prosecution System
- Appointing/ Assigning/ Evaluation Of Judges
- Administration And Relationship With The Ministry Of Justice
- Specialized Courts And Their Jurisdictions
- Judicial Education

Arab Judicial Structures
A Study Presented To The United Nations Development Program
by Nathan J. Brown
Egypt

Egypt has one of the most highly developed and influential judicial structures in the Arab world. Because modern judicial reform began in Egypt much earlier than other countries, and because of the early development of legal education in Egypt, many Arab countries have drawn on Egyptian models, Egyptian experts, and often Egyptian personnel when embarking on their own programs of judicial reform.

  1. Constitutional provisions for the judiciary

    Egypt has one of the oldest constitutional traditions in the Arab world. Its 1971 constitution contains provisions for the judiciary that reflect this heritage. There is strong language guaranteeing the right to litigation, the presumption of innocence and to resort to one�s �natural judge.� There are also some influences from Egypt�s socialist period, with provisions for popular participation in justice and for a �Socialist Public Prosecutor.� In recent years, the more liberal provisions of the Egyptian constitution have come to the fore, especially under the watchful eye of the country�s Supreme Constitutional Court. Other elements�such as the Socialist Public Prosecutor�have not been repealed but they have diminished in importance.

    Article 165 The judicial authority shall be independent. It shall be exercised by courts of justice of different sorts and competences. They shall issue their judgments in accordance with the law.
    Article 166 Judges shall be independent, subject to no other authority but the law.
    No authority may intervene in judiciary cases or in the affairs of justice.
    Article 167 The law shall determine judicial organization and competences and shall organize the way of their formation and prescribe the conditions and measures for the appointment and transfer of their members.
    Article 168 The status of judges shall be irrevocable. The law shall regulate the disciplinary actions with regard to them.
    Article 169 The sessions of courts shall be public, unless a court decides to hold them in camera for considerations of public order or morality. In all cases, judgments shall be pronounced in public sessions.
    Article 170 The people shall contribute to maintaining justice in accordance with the manner and within the limits prescribed by law.
    Article 171 The law shall regulate the organization of the State Security Courts and shall prescribe their competences and the conditions to be fulfilled by those who occupy the office of judge in them.
    Article 172 The State Council shall be an independent judiciary organization competent to take decisions in administrative disputes and disciplinary cases. The law shall determine its other competences.
    Article 173 A Supreme Council, presided over by the president of the republic shall supervise the affairs of the judicial organizations. The law shall prescribe its formation, it competences, and its rules of action. It shall be consulted with regard to the draft laws organizing the affairs of the judiciary organizations.
    Article 174 The Supreme Constitutional Court shall be an independent judicial body in the Arab Republic of Egypt, having its seat in Cairo.
    Article 175 The Supreme Constitutional Court alone shall undertake the judicial control in respect of the constitutionality of the laws and regulations and shall undertake the interpretation of the legislative texts in the manner prescribed by law. The law shall prescribe the other competences of the court, and regulate the procedures to be followed before it.
    Article 176 The law shall organize the way of formation of the Supreme Constitutional Court, and prescribe the conditions to be fulfilled by its members, their rights and immunities.
    Article 177 The status of the members of the Supreme Constitutional Court shall be irrevocable. The Court shall call to account its members, in the manner prescribed by law.
    Article 178 The judgments issued by the Supreme Constitutional Court in constitutional cases, and its decisions concerning the interpretation of legislative texts shall be published in the Official Gazette. The law shall organize the effects subsequent to a decision concerning the unconstitutionality of a legislative text.

  2. Structure of court system

    The Egyptian court system dates back over a century and has grown fairly complex. However, the courts of general jurisdiction are similar to their counterparts in other Arab countries; indeed, they have served as a model for much of the Arab world. There are three levels� the summary (juz�i) and primary (ibtida�iyya), appeals (isti�naf), and cassation (naqd). Sections exist for civil, criminal, commercial, personal status, and labor cases.

    Yet the Egyptian court structure is complicated by an unusually developed system of other, specialized courts. Some of these (such as the administrative court system and the Supreme Constitutional Court) have become vital parts of the Egyptian judicial order, although both were controversial when founded. Other special courts�such as those for state security or ethics�continue to provoke controversy.

  3. Personal status issues

    Personal status issues are dealt with by the courts of general jurisdiction. There is no special personal status or shari�a judiciary, though the regular courts do have designated sections for personal status cases. Personal status law has been codified for Muslims and Coptic Christians. In other cases, the judiciary works to apply sectarian law.

  4. Prosecution system Egypt pioneered in its adoption of a �niyaba� system in which the investigation and prosecution of crime is a judicial function. Members of the niyaba are part of the Egyptian judicial corps, and many (though hardly all) judges begin their careers as members of the niyaba. The niyaba is headed by the Attorney-General (al-na�ib al-�amm).

    The members of the niyaba are treated similarly to judges in all respects and thus have a large degree of independence.

  5. Appointing/assigning/evaluation of judges

    The Egyptian constitution of 1971 provides for a �Supreme Council of Judicial Organizations.� The creation of this body occasioned considerable controversy, because it included executive branch appointments and seemed to remove some of the Egyptian judiciary�s hard-won autonomy. Accordingly, in 1984, most of the appointment and assignment of judges was returned to the �Supreme Judicial Council� which consists entirely of judges (most of whom serve by virtue of their office) or judicial personnel. This makes the Egyptian judiciary one of the most independent in the Arab world.

    While the Supreme Judicial Council is thus an important bulwark of Egyptian judicial independence, its authority over some matters involves consultation or approval rather than initiation of action. This is especially the case with some very senior judicial appointments (such as the Attorney-General).

    Other judicial bodies (such as the Council of State and the Supreme Constitutional Court) have separate procedures. Many (but not all) of these contain their own guarantees of independence even if they lay outside of the Supreme Judicial Council.

    Judicial inspection and discipline are carried out by judicial personnel seconded to the Ministry of Justice; their recommendations are submitted to the Supreme Judicial Council.

  6. Administration and relationship with Ministry of Justice

    The Egyptian judiciary has not yet achieved as much budgetary and administrative autonomy from the Ministry of Justice as it would like, though it has greater autonomy than many of its Arab counterparts. In recent years, there has been a dedicated effort to maintain judicial salaries (though the government has not been able to be as generous with support personnel for the courts). Some courts complain that they suffer from under-budgeting, forcing them to make periodic requests for supplementary funds from the Ministry.

    Over time, the judiciary has successfully obtained a considerable degree of autonomy from the Ministry of Justice. There have been some reversals in this process, most notably in the 1960s and 1970s. However, since 1984 there can be no doubt that the basic framework for Egyptian judicial independence has been laid. In the years immediately following the 1984 reform, there were occasional clashes between the judiciary and the Ministry on the application of the law, but those have been largely resolved.

  7. Specialized courts

    Egypt has several systems of specialized and exceptional courts. The regular court system has specialized courts for some matters (such as taxation and customs).

    There is also a dual system of security courts. Permanent state security courts have two levels and draw their judges from the regular court system. In addition, a �State Security Court�Emergency Section� exists with much more direct executive involvement in its composition and jurisdiction. The permanent state security courts allow some basis for appeal; the Emergency Section allows no judicial appeal, but the military governor (under a state of emergency) is allowed to affirm the verdict or order a retrial. Military courts exist generally to try those cases involving the armed forces, but during a state of emergency the president is authorized by the law of the military courts to transfer crimes to them.

    A Court of Ethics was created to try cases of corruption and illicit economic gain. The Socialist Public Prosecutor is the only body authorized to bring cases to this court. While most of its members are professional judges, respected public personalities are added to the bench as well. The Court of Ethics has two levels.

    When Egypt�s constitution was amended to allow a multi-party system, a new body was created to determine the legality of new parties and their eligibility to contest elections. While generally referred to as the �Parties Court,� this body is as much a political as a judicial body.

    There is an extensive administrative court system, attached to the State Council (Majlis al-Dawla). Established in 1946, the Egyptian administrative courts are among the most developed in the region. They have jurisdiction over any case in which the state is a party.

    Finally, the Supreme Constitutional Court is an independent judicial body that has jurisdiction over matters of constitutional interpretation. The Court receives cases referred to it by other courts when there is a question regarding the constitutionality of a law, regulation, or administrative decision. Its decisions are final and binding on all official bodies. The Court also may offer constitutional interpretations when requested by certain official actors and it also plays a role in cases when there is a clash of jurisdiction among judicial bodies.

  8. Judicial education

    Egyptian judges generally begin their careers when they graduate from law school and are selected on a competitive basis.

    Cairo�s National Center for Judicial Studies, one of the leading judicial training bodies in the region, has been called upon to play an increasing role in preparing judges for their work. The Center is constructing a full two-year program for new members of the judicial corps. The Center has also stepped up some efforts to provide continuing education for judges. Some other Arab countries send judges for training to the Center as well.

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