: An Overview of the Egyptian Legal System and Legal Research
By Dr. Mohamed S. Abdel Wahab
Dr. Mohamed S. E. Abdel Wahab, Licence en Droit (CAI), LL.M (CAI), Ph.D (MAN), MCI Arb. is an Assistant Professor at Faculty of Law, Cairo University, Egypt and Assistant Director of the Human Rights Centre at Cairo University. He has taught on the LL.M, LL.B, and BA programs at Manchester and Manchester Metropolitan Universities, England. Dr. Abdel Wahab is currently a Fellow of the Centre for Information Technology and Dispute Resolution at the University of Massachusetts, Amherst, USA. He was appointed vice-president of the Cairo branch of the Chartered Institute of Arbitrators in 2005. He also works as a Legal Advisor in the Cairo Regional Centre for International Commercial Arbitration, as a Counselor for International Legal Affairs to the Information Technology Industry Development Agency, as a legal counsel in a number of international commercial arbitration disputes, and acts as a sole arbitrator and co-arbitrator in a number of cases. He works with the United Nations Expert Group on Online Dispute Resolution, and is affiliated with the Computer Crime Research Centre, Ukraine.
Dr. Abdel Wahab holds over thirty five prizes for academic achievement, and has published several articles in learned international journals and is a regular speaker in national and international conferences on Globalization, International Commercial Arbitration, Private International Law, ADR and Online Dispute Resolution, E-commerce and IT Law. Dr. Abdel Wahab is also a member of several professional and legal organizations including the Chartered Institute of Arbitrators, Society of Legal Scholars, Socio-Legal Studies Association, Association of Internet Researchers, the Internet Society, the International Law Association, the British Institute of International and Comparative Law, and the Egyptian Anti-Cyber Crime Association. His expertise lies in the field of: Private International Law, International Commercial Arbitration (especially in information technology and construction disputes), Online Dispute Resolution, Data Protection, E-Commerce and IT Law.
Published October 2006
Table of Contents
The Arab Republic of Egypt (Egypt) lies in the northeastern part of Africa. Whilst most of the country lies in Africa, the eastern most part, the Sinai Peninsula, is considered part of Asia and is the only land bridge between the two continents. Egypt is divided into two unequal parts by the Nile River, and its terrain is mostly desert except for the Valley and Delta of the Nile, the most extensive oasis on earth and one of the main centers of habitation in Egypt. Whilst Cairo is the largest city and the capital of Egypt, Alexandria remains the principal port of Egypt on the Mediterranean and the second biggest city.
With an area of more than one million square kilometers (1001450 sq km), Egypt prides itself in having extensive borders: to the west is Libya, to the south is Sudan, to the northeast are Israel and the Gaza strip, to the north is Mediterranean Sea, and to the east is the Red Sea.
Egypt is the sixteenth most populous country in the world with a population of 78.8 million people (2006); not surprisingly most of the population is concentrated near the banks of the Nile River which amounts to about 40,000 sq km, leaving about 961450 sq km uninhabited. This is due to the fact that the land near the banks of the Nile is only arable agricultural land in Egypt. However, there are ongoing efforts of urban development and populating the desert in order to reduce the heavy concentration of the population along the Nile.
Egypt actually has been a coherent political entity since 3200 B.C. and one of the first civilizations to develop irrigated agriculture, urban life, and large scale political structures.
On the muddy banks of the Nile, the oldest political and administrative systems were established when Egypt’s first central state was established. These systems have gone a long way and are now used in the institutions and modern administrative systems as well as the formulas of constitution, parliament, responsible government and judicial authority since the 19th century. At the present time, Egypt is making history again by creating a new phase of economic development and reform, ascertaining political and democratic authority and practices, enhancing freedoms and adhering to the rule of law, and respecting human rights.
The Egyptian legal system is built on the combination of Islamic (Shariah) law and Napoleonic Code, which was first introduced during Napoleon Bonaparte’s occupation of Egypt and the subsequent education and training of Egyptian jurists in France.
The Egyptian legal system, being considered as a civil law system, is based upon a well-established system of codified laws. Egypt’s supreme law is its written constitution. With respect to transactions between natural persons or legal entities, the most important legislation is the Egyptian Civil Code of 1948 (the “ECC”) which remains the main source of legal rules applicable to contracts. Much of the ECC is based upon the French Civil Code and, to a lesser extent, upon various other European codes and upon Islamic (Shariah) law (especially in the context of personal status).
Despite the non-existence of an established system of legally (de jure) binding precedents, previous judicial decisions do have persuasive authority. Courts are morally and practically bound (de facto binding effect) by the principles and precedents of the Court of Cassation (for civil, commercial, and criminal matters) and the Supreme Administrative Court (for administrative and other public law matters).
It is worth noting that the classical dichotomy of public and private law has resulted in the crystallization of a separate set of legal rules applicable to transactions involving the State (or any of its institutions, subsidiaries, or state-owned enterprises) acting as a sovereign power. This entailed the establishment of the Egyptian Council of State (Conseil d'Etat), which are administrative courts vested with the power to decide over administrative disputes pertaining to administrative contracts and administrative decrees issued by government officials. These courts apply administrative legal rules, which are not entirely codified, and hence the scope of judicial discretion, in so far as no applicable legislative rule exists, is ample in light of the established precedents laid by the supreme courts.
The President of Egypt is the Head of the State, and he is also, under the Egyptian Constitution, the Supreme Commander of the Armed Forces and Head of the Executive Authority (the Egyptian Cabinet).
Requirements to Hold Office
Under the system created by the 1980 constitutional amendments, the President, being the head of the Executive Authority, names the Prime Minister, who chooses the Ministers and manages the day-to-day affairs including the economy.
As the chief executive body of Egypt, the Cabinet consists of the Prime Minister and the cabinet ministers. In addition to its management of the daily affairs and setting strategies for development and reform in all areas, it has a role in shaping the agenda of the houses of Parliament by proposing Laws to Parliament, as well as amendments during parliamentary meetings; it may also make use of procedures to speed up parliamentary deliberations.
Articles (135) and (156) of the Constitution clearly define the legal capacity of the Cabinet as follows:
Traditionally, the Cabinet comprises:
Ministry of JusticeMinistry of TourismMinistry of Health and
Population
The Parliament of Egypt is geographically located in Cairo. As the legislative authority, it has the power to enact laws, approve general policy of the State, the general plan for economic and social development and the general budget of the State, supervise the work of the government, ratify international conventions, and the power to vote to impeach the President of the Republic or replace the government and its Prime Minister in a vote of no-confidence.
The Parliament is a bicameral legislature which means it has two chambers or legislative houses. The present-day Constitution states the Parliaments two chambers be the following:
Every year, the Parliament meet for one nine-month session, but under special conditions the President may call another session. It is argued that the Parliament’s powers have increased since 1980’s Amendments of the Constitution.
The People’s Assembly under the new Constitution was founded in 1971 as a result of the adoption of the new Constitution. It is considered to be the lower house of the two, though it has a greater number of deputies, 454 deputies to be precise, 444 of them are directly elected, while the remaining ten are appointed by the President. Farmers and Workers make up half of the assembly since the Constitution invokes that there be many seats open for them, one per each two seat constituency. The Assembly sits for a five years term but can be dissolved earlier by the President.
Competences of the People’s Assembly are as follows:
Legislation
It is the main competence of the Assembly; it includes the right of the President or any Parliamentarian to propose draft laws which are then imputed to an ad hoc committee (an informal committee) of the Assembly to be examined and reported thereon.
The convocation, the formal gathering, of the People’s Assembly is valid only when majority of the members attend. Once the majority has been achieved, then the voting process begins on article by article of draft laws, and whatever the majority has voted on, then the decision is made.
The President’s power is demonstrated again, by his promulgate and/or objection to some laws. He can send back the draft law if he disagrees with it, even if it was approved by the People’s Assembly. He has a time period of thirty days to return the draft law after he informs the House.
In such a case in which the draft law is not returned in the assigned time, it is endorsed as a law and promulgated. But if it is returned within the time period, then the People’s Assembly may endorse it for the second time by a majority vote of two-thirds. In that case, it is also considered a law and promulgated.
In some exceptional cases the Constitution gives the President the right to issue decisions or decrees which have the force of law, but it also needs authorization from the People’s Assembly.
On a different note, legislations (statutes) constitute the main source of legal rules. Codified statutory rules rank below the Constitution and international conventions. However, they rank higher than executive regulations, decrees, internal regulations, custom, and general principles of law. According to the 1980 amendment of the Constitution, Islamic Law (Sharia) became the principal source of legislative rules.[1] Such wording simply implies that any new law that is being enacted or considered for enactment should not be in contravention of any prevailing principles of Islamic Law (Sharia). Nevertheless, whilst all statutes regulating personal status issues (such as inheritance, marriage, divorce, alimony etc…) are derived from Islamic norms, penal law rules as codified in the Penal Code are entirely western non-religious oriented rules. It is argued that the 1980 amendment operates with respect to post 1980 legislations and does not have a retroactive effect. Accordingly, any legal rules, which are inconsistent with general principles of Islamic Law (Sharia), that have been enacted prior to 1980 remain in full force and effect (such as penal law rules), unless abolished or replaced by new laws.
It is worth noting that Egypt has enacted a number of new statutes to respond to contemporary standards of global economic and business reform including: Investment Law, Anti-Money Laundering Law, Intellectual Property Rights Law, Competition Law, Consumer Protection Law, Electronic Signatures Law, Banking Law, Taxation Law etc.[2]
Approval of Plan and Budget
The People’s Assembly has one of the most important capacities in the State, which is to approve of the General State budget, as the Constitution specifically states that the general plan of economic and social development should be approved by the People’s Assembly, moreover, the law specifies that it also plans the drafting and presentation of the General State Budget.
Drafting the Budget is a serious matter and must be presented to the Assembly at least two months prior to the beginning of the fiscal year and voted upon. The process of voting on the budget is taken on bracket by bracket, and once it gets majority approval, it becomes official.
The approval of the People’s Assembly is crucial before any monetary transaction may occur.
The final account of the State Budget should be presented to the People’s Assembly to be voted on chapter by chapter, then issued by law.
On a different note, with respect to taxation, the Constitution states taxes or duties may not be levied, charged, amended or abrogated except by virtue of a statute. Accordingly, individuals or legal entities are not obliged to pay any taxes or duties except those provided under the law.
Monitoring
The Constitution upholds the concept of separation of powers; hence balances the powers of the three main authorities (Executive, Parliament, and the Judiciary). Within this scheme, the Parliament monitors the actions of Executive Authority through many mechanisms and instruments, and in order to fulfill such monitoring role, members of the People’s Assembly enjoy parliamentary immunity.
The President of the Republic is vulnerable to criminal accusation and by the People’s Assembly upon proposition by at least one third of Assembly members. The same percentage may issue the indictment bill.
Moreover, each and every member of the People’s Assembly have the right to question and cross-examine the Prime Minister or one of his Deputies in any matter within their competence (this right is enshrined in the Constitution), and they must answer the questions of the members.
The Constitution also stresses that ministers shall be accountable before the People’s Assembly for the State Policy. Just like any ordinary person, each minister shall be held accountable for his actions that are stated in his portfolio. Thus, ministers could be subject to a vote of confidence, which could result in their dismissal or disqualification.
Though the People’s Assembly cannot disqualify the Prime Minister, they can dismiss or disqualify a deputy of the Prime Minister, a Minister, or a Deputy Minister. However, this motion cannot be presented expect after a cross-examination and upon recommendation of at least ten Assembly members.
It is necessary for the People’s Assembly to have specialized factions studying and drawing up issues looked into by the Assembly or the issues related to the Assembly. These factions are seven in number and are as follows:
There are 18 specialized committees of the People’s Assembly helping exercise its legislative and monitoring duties:
The Arabic word ‘shura' means consultation; in English it is roughly translated as "The Consultative Council". Other than being a Consultative Council, it is also the Upper house of Egyptian Parliament and is composed of 264 members, 174 of which are directly elected and 88 appointed by the President of Republic and maybe replaced at his discretion. The Shura's legislative power is fairly limited in comparison to the People’s Assembly, and usually in debates on certain matters the People’s Assembly has the upper hand and the prevailing view.
In accordance with the Law, any candidate wishing to be elected to the Shura Council should meet the following conditions:
The Shura Council member is elected by the absolute majority of valid votes cast in the elections.
The term membership of the Shura Council is six years. However, renewed election and appointment of 50% of the total number of members is required every three years, and it is always possible to re-elect or re-appoint those members whose membership has expired.
The Constitution has provided many guarantees whereby the Council is able to carry out its tasks and activities.
The most prominent are:
As previously stated, pursuant to Article (1) of Law No.120 of the Year 1980 as amended by Laws No.10 of the Year 1989 and 8 of the Year 1995, the Shura Council must be made up of 264 members, two thirds of the council is elected by a direct ballot, and half of the Council must be farmers or workers, the remaining third (88) is appointed by the President of the Republic.
As explained earlier, the powers of the Shura Council are not as extensive or effective as the People’s Assembly, its jurisdiction as provided by Articles (194) and (195) of the Constitution covers the studying and proposing of what is deemed necessary to preserve the principles of the July 23rd, 1952 revolution and the May 15th, 1971 Corrective Revolution. These principles are to consolidate national unity and social peace, to protect the Alliance of the people’s working force and socialist gains as well as the basic constituents of the society, its supreme values, its rights, public freedoms and duties, and strengthening the scope of the democratic system.
Article (195) of the Constitution provides for the Council to be consulted on the following:
As the third and independent authority of the State, the Egyptian Judiciary is comprised of secular and religious courts, administrative, non-administrative courts and a Supreme Constitutional Court, and penal courts, civil and commercial courts, personal status and family courts, national security courts, labour courts, military courts, as well as other specialized courts or circuits.
The Egyptian Court system is composed of a number of tiers: Courts of First Instance, Court of Appeal, and the Court of Cassation at the apex of the judiciary. The classical dichotomy of public and private law has resulted in the establishment of the Council of State (Conseil d'Etat), which are administrative courts vested with the power to decide over administrative disputes pertaining to administrative contracts and administrative decrees issued by government officials and ministries. The Supreme Constitutional Court was established in 1969 and has exclusive jurisdiction to decide questions regarding the constitutionality of laws and regulations as well as negative and positive conflict of jurisdiction.
Generally, the Egyptian judicial system is based on French legal concepts and methods. Judges are familiar with civil law systems’ concepts, and despite the huge case backlog and time-consuming proceedings, the principles of the due process and judicial review are inherently cherished and respected. Accessibility to justice is an indispensable principle of the Egyptian legal system. Judges are generally independent from the State and enjoy judicial immunity; hence they cannot be dismissed or sacked by the Executive Authority. However, due to the huge amount of cases before the courts, there exists a heavy case backlog, which adversely affects the efficiency of the court system and the judiciary as a whole. Apart from the heavy case backlog which might cause some delay and inconvenience, judges are competent, able, and impartial, which ensures equality of the parties and justice. Furthermore, fees to administer judicial proceedings are not very high, and judicial aid through appointing lawyers as representatives for those who are unable to appoint a lawyer is generally available.
The Supreme Constitutional Court is an independent body in the Arab Republic of Egypt. It is currently located in the Cairo suburb of Maadi.
The Court is undeniably the highest judicial power in Egypt. By virtue Article (25) of the Supreme Constitutional Court’s Law No.48 of the Year 1979, this Court is empowered to:
· Determine the constitutionality of the laws and regulations.
· Decide on jurisdiction disputes between judicial bodies or authorities of judicial competence.
· Decide on the disputes that might take place as a result of enforcing two final contradictory rulings issued by two different judicial entities.
· Interpret the laws issued by the Legislative Authority and the decrees issued by the Head of the State in case of any divergence with respect to their implementation.
In 1931, the Court of Cassation was established to create a central tool to provide exclusive and uniform interpretation and application of the law. The court of Cassation is at the apex of the judicial hierarchy in Egypt and is based in Cairo.
The Court of Cassation’s jurisdiction simply includes consideration of challenges brought to it by either adversary or by public prosecution; it also includes the examination of lawsuits that arose from a judge’s action. When such a dilemma occurs, the courts assume the role as a court of merit rather a court of law.
Another function of the court is to give rulings on requests of reparations for all violated verdicts. The Court issues annual collections on approved judicial principles in the title “Rulings and Principles of the Court of Cassation”.
There exist around seven Courts of Appeal in Egypt in major cities. These are second degree courts that review the awards of the courts of first instance. Their review covers questions of fact as well as questions of law. Judges of sufficient experience and seniority sit as judges in the Courts of Appeal.
Appeals from rulings rendered by the Courts of First Instance should be made within specific time frames, otherwise an appeal will be rejected, as such time-limits are mandatory.
Judgments rendered by a Court of Appeal are only open to challenge before the Court of Cassation, and usually on points of law or lack or inconsistency of reasoning.
The Courts of First Instance are first degree courts, which have the ability to consider lawsuits filed before them only if they fall under their jurisdiction and their rulings are, generally, subject to appeal.
Judges sitting in Courts of First Instance are relatively young and rank below the judges of the Courts of Appeal and the Court of Cassation in terms of experience and seniority.
This court was founded in 2004 to provide a specialized judicial tool for family disputes. This court aims at providing psychological peace and comfort for the children caught in the middle of disputes relating to tutelage, divorce, alimony and custody. Such court also aims at sustaining an amicable settlement for family problems through specialized and professional guidance agencies.
The Egyptian State Lawsuits Authority is an Egyptian judicial institution that was established in 1874, nine years before the Egyptian national courts were established in 1883.
Despite being legally stigmatized as an independent judicial institution, the Authority does not perform a truly judicial function; its role is confined to representing the State before national and international courts and arbitral tribunals.
The law states that the Egyptian Lawsuits Authority has the power to plead on behalf of the State. When it comes to the organizational structure of the Egyptian Lawsuits Authority it is divided into seven parts each capable to represent the state in the areas of its jurisdiction. Each department is headed by a vice president and only the Department of Foreign Disputes is headed by the President.
The Public Prosecution has two major functions, which are: (a) to file criminal actions when acting as public prosecutors before a criminal court; and (b) the right to initiate actions even if the plaintiff has relinquished his right to do so.
Public prosecutors investigate crimes, visit crimes’ scenes, question the accused, issue search warrants, order the imprisonment of the accused on the account of a crime for a period of fifteen days prior to trial or prosecution.
Moreover, joining the public prosecution is the path to becoming a judge in the Court of First Instance, the Court of Appeal, and the Court of Cassation. Nevertheless, some members of the Public Prosecution remain within the latter and get promoted to District Attorneys, Attorney Generals, and potentially qualify for the post of the Head of the Public Prosecution.
As previously mentioned, any administrative disputes in which any administrative body is party is a matter handled by the Administrative Courts and falls under its jurisdiction.
Administrative Courts do have a separate structure, where the Supreme Administrative Court sits at the apex of such structure. There are also departments for opinions and legislation which advises public entities on diverse aspects of public law such as administrative contracts, tenders, ministerial decrees etc.
In any governmental authority or agency there exists an in-house member of the State Council (in addition to a department for legal affairs) whose opinion should be sought with respect to any administrative law matter.
With respect to jurisdiction, it is necessary to distinguish between national jurisdiction in pure domestic cases and international jurisdiction regarding disputes involving a foreign element. A brief overview of both seems to be in order.
National or domestic jurisdiction is shared between two main judicial bodies:
(a) General courts; and (b) Administrative courts (State Council).
Whilst courts of general jurisdiction are concerned with the settlement of civil, criminal, commercial and personal status matters, administrative courts are concerned with the settlement of administrative or public law matters governed by the jus imperii.
The criteria for establishing general jurisdiction could be based on the value of the dispute, nature of the dispute, or territorial jurisdiction of the court.
With respect to the value of the dispute, general jurisdiction is divided between:
(1) Trial courts: dealing with disputes of not more than L.E. 10,000 (ten thousand Egyptian pounds).
(2) Higher courts (such as the Court of First Instance): dealing with disputes of not less than L.E. 10,000 (ten thousand Egyptian pounds).
With respect to territorial competence, courts of general jurisdiction are divided according to cities and suburbs. For example, there are Giza courts, Cairo courts, Alexandria courts, Mansoura courts, etc… within each city there might be a number of courts such as North Giza Court of First Instance and South Giza Court of First Instance.
As for the Court of Appeals, there is one in Cairo, one in Alexandria, one in Tanta, one in Ismaileya, one in Suez, one in Mansoura, and one in Kena.
As for the Court of Cassation there is only one in whole country and it is located in Cairo.
With respect to international jurisdiction, Egyptian courts assume jurisdiction regarding international commercial disputes involving a foreign element on the basis of any of the following criteria:
(a) Cases in which the defendant is Egyptian unless the dispute pertains to immovables located in a foreign State; (b) Cases in which the defendant, despite being a foreign national, is either domiciled or resident in Egypt unless the dispute pertains to immovables located in a foreign State; (c) Cases involving property (movables or immovables) located in Egypt even though the defendant is a foreign national who is not domiciled or resident in Egypt; (d) Cases pertaining to an obligation created, performed, or should have been performed in Egypt; (e) Cases pertinent to a bankruptcy or insolvency declared in Egypt; (f) Cases in which the defendant voluntarily submits to the jurisdiction of Egyptian courts (full effect to the principle of party autonomy); (g) Claims, counterclaims, defences, incidental questions, other issues which are closely connected to cases filed before Egyptian courts; (h) Cases involving interim and provisional measures to be executed in Egypt.
The above-mentioned principles represent the diverse criteria for establishing jurisdiction of Egyptian courts both on national and international levels.
With respect to the effect of choice of law and exclusive jurisdiction clauses in international contracts, it should be noted that Egyptian law, like most legal systems, upholds the principle of party autonomy to maximum possible extent. Thus, parties to a contract are free to agree on an applicable law and exclusive jurisdiction and their agreement will be upheld by courts in so far as their agreement does not violate public policy considerations or fundamental mandatory norms.
Parallel to court litigation, arbitration has established itself as a prominent method for resolving business, commercial, and investment disputes. A new Arbitration Law No.27 o