OUNTRY PROJECTS THE CAUSES OF BACKLOG AND DELAY
In order to
explore the most practicable means to prevent, streamline and to resolve(consensually prior to
judgment) a greater number of litigations in Egypt, in collaboration with Egyptian legal opinion
leaders the Institute, has endeavored to understand the specific roots of procedural inefficiency
the infrequency of consensual settlements. Interviews with legal opinion leaders in Egypt,
senior officials in the Ministry of Justice,(1)
point to a
complex interrelationship of the following factors that contribute to backlog and delay in the
A. Commercial Legislation
The Inconsistency of Substantive Law
Repeatedly, legal opinion leaders cited
inconsistencies, contradictions and ambiguities resulting from recent commercial legislation as a
major cause of delay and backlog in the courts. According to these leaders, legislation that
implements the current privatization policies of the Egyptian government is inconsistent with
laws, preexisting laws and regulations. Such inconsistencies and contradictions not only lead to
more disputes over what the law is, but also increase the complexity (and time) of reaching
and consistent judicial interpretations of the new laws, whether in the first instance courts orat the
appellate levels of review.
Privatization will lead to an
increase in domestic commercial actors, whose business relationships will naturally result in an
increasing number of legally cognizable disputes. Therefore, it is anticipated that privatization will
increase the caseload in the courts, particularly of more complex commercial
B. Demographics and Education
Population Growth and Urbanization
Several legal opinion leaders attributed the
backlog and delay problem to the dramatic increase in the number of disputes before the courts.
They cited the general growth of the population, particularly in urban areas,(2)
as a major cause of this increased caseload. Whereas
forms of binding and non-binding mediation have long been an integral part of dispute resolution
rural settings, with the notable exceptions of family and labor disputes, mediation is seldom
to resolve civil disputes in urban environments. Indeed, legal opinion leaders were pessimistic
the application of alternative dispute resolution techniques in urban civil disputes,
landlord-tenant cases. Legal opinion leaders share the perception that in urban settings, where the
social fabric is more loosely knit than in rural areas, the legal system is often used more as a
to vex and harass rather than to realize rights and enforce obligations.
Consequences of Poor Civic Education
Legal opinion leaders noted a relatively low
level of civic education among the general population, resulting in a general lack of legal literacy.
People who know less about their rights and obligations are more likely to abuse and be abused by
others operating within the system. Legal systems, like that of the U.S., which give the parties
their legal representatives) a large degree of control over certain phases of the litigation
process,e.g., fact-gathering, presume a sufficient level of education and competence
addition to financial resources) to carry out their respective responsibilities.(3)
Conversely, by placing the primary responsibility for
entire litigation process in the judiciary, Egypt presumes the absence of the conditions necessary
an allocation of such responsibilities to the parties and their attorneys.
and the presumptions upon which they are based give rise to different rules of procedure. For
example, in party-controlled fact-gathering processes, the parties themselves may stipulate to
undisputed facts. In Egypt, such stipulations of fact may not be admitted on their face, but must
satisfy the independent factual determinations of the judge. Therefore, the requirement of judicial
findings of fact, in part justified by a lack of trust in the parties to reach accurate assessments by
consensual agreement, adds to the workload of the judge and thus may be an additional factor
causing backlog and delay.
C. The Judiciary(4)
1. Lack of Judicial Control
In theory, Egyptian
according to the civil law tradition, are presumed to exercise control over the litigation process,
including the parties and their legal representatives. However, given the mounting caseloads of
Egyptian judges, they are not able in practice to exercise the power allocated to them in theory.
particular, judges are reluctant to require more timely submissions of evidence and legal argument
because they perceive themselves to lack the necessary time to review the submissions.(5)
This is a significant factor contributing to backlog and
delay in the courts.
2. Case and Docket Management
process is more discontinuous than its U.S. counterpart. Many legal opinion leaders estimate that
average civil litigation in Egypt requires thirty to forty appearances before the first instance court.
piece of evidence is accepted, an extension granted, an expert appointed, an argument heard,
evidence requested, a deadline set and extended again--this is the picture of the daily judicial
painted by legal opinion leaders in Egypt. Approximately only fifteen to twenty percent of the
heard by a first instance court in a given day are prepared with sufficient evidence and legal
argument for the judge to issue a decision.(6)
heavy caseload and the institutional pressures to address some aspect, no matter how limited, of
to two hundred cases in each court session, judges increasingly have strong institutional incentives
postpone not only a substantive consideration of critical issues but also deadlines for more
insignificant matters. Indeed, many judges perceive the enforcement of deadlines to be futile,
because even if deadlines could be enforced, the judges would not have sufficient time to respond
cases ready for adjudication. Ironically, however, the less significant matters appear to be a more
critical case of backlog and delay. One senior legal opinion leader has noted that "[t]he time
consumed by the preparation phase is two years whereas the adjudication phase does not exceed
Several judges informed
Delegation that approximately seventy-five percent of in-court time is dedicated to routine and
ministerial functions in the preparation stage of the case, such as recording the acceptance of
forms of submitted evidence. The delegation also learned that notaries, who are charged with
of these tasks, whose services incur high fees, but who did not have exclusive jurisdiction over
matters, are often circumvented by parties who ask the court for an official imprimatur on an
important document, e.g., a contract. To burden three-judge panels with matters
suitable for the exclusive attention of judicial administrators and clerks strains judicial resources,
and decreases the time afforded to substantive judicial decision making, thus increasing backlog
3. Judicial Stoicism
Another reason given for the failure to
in a form of case management (and other techniques that would tend to reduce backlog and delay)
derives from the judicial tradition of stoic impartiality. In theory, any decision reached by the
even if of a procedural nature, prior to the final verdict would be viewed as prejudicial to the
However, in practice, the Institute has learned that
several Egyptian judges are very effective case managers. In fact, based on the Institute's brief
observance of civil proceedings, the judges routinely request the parties to submit certain types of
evidence within a certain time period; yet, few, if any, observers would interpret such acts as
even the appearance of prejudice.
This cultural distancing of the judge from the litigants is also
seen as a major obstacle to encouraging settlement (in the form of a settlement conference) or
making decisions on non-meritorious legal claims, where there is no dispute of a material fact
summary judgment). In this latter instance, resolving some issues and not others is perceived
as"mutilating" a case; separating the claims would lead potentially to having some claims still in
trial while others are in appellate stages of review, even though interlocutory appeals are allowed
isolated instances, e.g., recusal requests. For similar reasons, dismissal standards for
lack of evidence appear to be high. In other words, judges are reluctant to rule on particular
before full evidentiary life of the entire case is exhausted.
4. Judicial Monopoly on
The central role (in theory) of the judge (and hence the state) in
litigation process and the pride of the judiciary in its own integrity and expertise serve to
the diversion of cases outside the judicial system to forms of alternative dispute resolution,
particularly those forms which would retain the services of a lawyer. One prominent legal opinion
leader expressed this discouragement best when he stated humorously: "If
the lawyer were any good, he would have been a judge." But again, there are notable exceptions
this distrust of alternative dispute resolution. Mediation is obligatory in labor and family disputes
and, along with arbitration, is the primary method of dispute resolution in rural areas. The
reluctance to expand obligatory mediation to other areas of the law and to develop urban
programs built on long-standing rural traditions is an obstacle to backlog and delay reduction
5. Judicial Assignment and Promotion
In Egypt, judges (i) rotate in three to five-year periods to
different regions of the country(9)
and (ii) within each
region sit on different panels, or shift between the judiciary and the prosecutors' branch, according
assignments made by the Ministry of Justice. The system of rotating judges through different
based on the rationale again of maintaining a distance between the judiciary on the one hand and
private bar and greater society on the other hand, compounds the backlog problem. This rotation
system allows a judicial panel to pass its caseload directly on to the next panel. Thus, there is
no institutional incentive to resolve cases, but rather a very strong incentive to procrastinate their
adjudication until the judge's term in the rotation is finished. Given the discontinuity of the
and the judicial rotation system, many cases require the attention of at least one additional judge
will need time to bring his preparation up to the level of the previous judge. This contributes
significantly to backlog and delay.
b. Promotion Criteria
Promotion criteria provide poor incentives for judges to make long-term
investments in individual cases by focusing on key issues and limiting the time within which
evidence is fathered, legal arguments are made and deliberations are concluded. Judges are
evaluated in part on the basis of the number of cases in which they issue written judgments.
The Institute learned that this is one reason judges do not engage in conciliation discussions with
parties before the litigation proceeds, even though, in principle, nothing prevents them from doing
Moreover, the supervisory organ for judicial promotion reviews cases to see if the postponement
resulted from the judge's inattention to the case or the parties failure to respond to the judge's
In the former, the judge's review will be negative; if the latter, the judge suffers no injury to his
reputation. Therefore, the judges may have an institutional incentive not to press the
parties and their lawyers to be expeditious in their submissions.
a De Novo
Compared to the U.S., Egypt has very permissive rules of
appellate review, similar to those of the Continental European civil law systems. Generally, in
claims, losing parties may seek one appeal de novo(10)
and a second appeal on the law only. The underlying
rationale for permissive rules of appellate procedure is the need to ensure accuracy and
within a comparatively inexperienced judiciary; however, as an aspect of such on-the-job training,
de novo review does contribute to backlog and delay in the
Court of Cassation Review
The Court of Cassation, consisting of 300 sitting
judges, hears only legal (not factual,de novo) appeals of all civil claims of more than
5,000 L.E. (and all criminal misdemeanors and felonies).(11)
These appeals are as of right; therefore, the Court of
Cassation has no mechanism for exercising its discretion to let lower appellate court decisions
stand without review. Moreover, although the Court of Cassation may set aside lower
court judgments, in the case of lower court error, it may not issue a final judgment, but instead
remand the case for further proceedings consistent with its opinion.(12)
The inability of the Court of Cassation to reject
appeals of legally insignificant claims and to issue final opinions eliminating the necessity for
proceedings contribute to the problem of backlog and delay in the courts.
of Judicial Commercial Training
The judiciary has little extrajudicial commercial
training or experience. Judges are selected from law school by competitive examination.(13)
First, entrants to the judiciary become public
prosecutors before becoming judges.(14)
formative years of professional training are dedicated solely to the criminal process. The first
commercial case heard by a young judge is usually his first commercial experience of any kind,
for which he is generally unprepared. Legal opinion leaders cite the absence of
in the judiciary to prolong the
length of litigation in two ways. First, without prejudicial commercial experience, judges have
greater difficulty interpreting the commercial code and understanding the factual disputes in
commercial matters. Second, this lack of training and expertise requires the judges to refer many
cases to experts, who, as stated herein, have few incentives to issue expeditious opinions.
Finally, because privatization will necessitate a greater commercial law expertise than the judiciary
now possesses, the lack of commercial law training, if not addressed, will lead to further referrals
experts and resulting backlog and delay in commercial adjudications.
Nonjudicial Court Employees
1. The Use of Nonjudicial
The lack of commercial training necessitates the appointment of nonjudicial
experts. Many legal opinion leaders cited the use of court-appointed experts as a major source
of backlog and delay. In cases requiring special expertise, such as complex commercial or
disputes, the courts appoint experts. Ninety percent of the experts are governmental employees,
are paid a salary and appear to have few institutional incentives to perform their obligations
expeditiously. Ten percent of the experts are private citizens, whose expertise cannot be found
among the ranks of governmental employees. These experts are paid in advance of their work,
again may reduce the incentives for expeditious rendering of recommendations to the court. In
addition to court-appointed experts, the courts allow parties to appoint experts at their own
The systems of both court-appointed and party-appointed experts may be duplicative in many
if so, this may be another factor to consider in addressing the backlog and delay
2. Administrative and Other Institutional
Administrative and other institutional support for the judiciary is lacking.
Judges suffer from inadequate human resources (e.g., clerks and secretaries) and
facilities (e.g.,libraries, offices and computers).(16)
Also, the absence of a computerized docketing
and calendar system leads to other inefficiencies. For example, it allows lawyers without
bring simultaneous claims in several different courts and prevents the judge from enforcing any
procedural deadlines imposed on the attorneys or their clients.
3. Servers of
Delays are also attributable to unreliable service of process.(17)
Those responsible for service of process are poorly
paid government employees, whose payment is not based on performance and whose job is made
extremely difficult by a confusing and inconsistent registry of addresses, itself also a consequence
dramatic increases in the urban populations.
1. Legal Education
The faculties of law (eleven in
number) in Egyptian universities graduate enormous numbers of students, thus contributing to the
underemployment problem noted above.(18)
The size of the student classes (often two to three
thousand students in one class) have forced the faculties of law to teach in the form of lectures
test on the basis of rote memorization, rather than the oral examinations of the past. Moreover,
legal profession does not hold the prestige it once did, and the faculties of law do not attract the
best students who in large numbers show preference for medicine and the sciences. Clinical
education is nearly nonexistent.(19)
Syndicate, which is responsible for training young lawyers for two years after graduation, is not
known to have sufficient resources to conduct rigorous clinical education programs. Therefore,
many young lawyers enter the profession ill-equipped to conduct themselves competently, and this
contributing cause of inefficiency in the legal system.(20)
Abuse of Procedural Rights
Given the practical inability of judges to fulfill their
expeditiously, lawyers are able to prolong the litigation process by abusing the procedural tools at
their disposal, earning additional fees with each substantial procedural turn of the case. The
Delegation collected anecdotal evidence of lawyers who prolong the litigation process with
the consent of the other party's attorney. The inability of the judiciary to keep track of these
adds considerably to backlog and delay. Moreover, procedural rights that ensure fairness are
to abuse by attorneys and those litigants (usually defendants) who are interested in delaying the
adjudication of a dispute as long as possible. Two prominent examples were frequently cited by
legal opinion leaders.
routinely granted by judges who wish to ensure the parties have sufficient time to gather evidence
add significantly to backlog and delay. Most judges are reluctant to impose waivers and sanctions
the parties for their lawyers' failure to meet deadlines, and have limited sanction power against the
attorneys of a maximum fine of twenty Egyptian pounds (the equivalent of approximately U.S.
b. Recusal Requests
Second, requests that a judge
recuse himself based on bias or conflict of interest are often made only to protract the litigation.
Even where not even the appearance of impropriety exists, judges often grant the recusal requests
fear of being accused (even if falsely) of impropriety. The reluctance to deny summarily many of
these requests, which denials are subject to appellate review, adds to the problem of
3. Incentives to Litigate
a. Overabundance of
Many legal opinion leaders, particularly in the judiciary, complained
that there were too many lawyers in Egypt. Given the resulting underemployment, many lawyers
have strong financial incentives to initiate even non-meritorious proceedings. The
relatively inexpensive rates for legal services provide wide access to the courts; however, it
also reduced incentives to settle disputes out of court without need of a lawyer because the cost
filing a case is extremely low. the low cost of legal services thus adds to the number of disputes
brought to the attention of the courts in Egypt.
Fee-shifting, in which the prevailing party is awarded reimbursement of its
fees, does not provide a strong disincentive to litigate because assessments of fees for the
party are based on minimal rates determined by the Lawyers' Syndicate(e.g.,as low as
ten Egyptian pounds or U.S. $3.35), not on the actual fees incurred in the case. The Lawyers'
Syndicate maintains an unrealistically low fee schedule in order to reduce the disincentive that
fee-shifting is intended to impose on litigants considering non-meritorious
In addition, as part of a
judgment, the losing party in a civil case must pay judicial fees(court costs) to the court.(21)
However, the judgment cannot be enforced before
court costs are paid. As a result, the prevailing party usually pays the judicial fees and then seeks
reimbursement for that amount from the losing party. Refusal of the unavailing party to pay may
lead to another legal proceeding and may undermine the incentive structure embodied in the
1 The Ministry of
Justice initiates the consideration of new legislation, especially that directly related to
the administration of justice. The Ministry of Justice is responsible for the administration of
the regular civil and criminal courts. The judiciary is composed of two branches: courts and
prosecution (orniyabh). Of the 5,000 members of the judiciary, 2,400 sit as judges.
Members of the judiciary are appointed and promoted by Presidential decree; however, these
decisions are made first by the High Judicial Council within the Ministry and then submitted in the
form of a decree to the President for his signature. The High Judicial Council consists of the
Justice of the Court of Cassation, the two most senior deputies to the Chief Justice, the three
senior presidents of the courts of appeal and the prosecutor general. In addition to the High
Judicial Council, the Inspection Department is responsible for internal monitoring and quality
of the judiciary.
2 The Egyptian population
currently numbers 58 million, of which 12-16 million people live in Cairo alone.
3 The greater role of the judge in the U.S. fact-finding
process(e.g., case management) is largely a response to abuses of these
4 For a list of constitutional
provisions related to the judiciary,see "Judicial Extracts from the Constitution of the
Arab Republic of Egypt" (Cairo 1971).
Dr. M. Fathi Naguib, Assistant Minister of Justice for Litigations' Affairs has written that "[t]he
most prominent problem that hinders the ability of the Egyptian judge, with regard to handling a
large number of litigations reported to him, is the integration of the preparation and trial phases in
which the judge himself assumes the tasks of both phases together." See "The Role
Civil Prosecution in Simple Litigations," by Dr.M. Fathi Naguib.
7 See Id.
8 The tension between a concern with delay and the fear of prejudicing
the parties by appearing partial is reflected in a lecture given in 1991 by the esteemed Dr. Ahmed
Rifaat Khafagy, former President of the Court of Ethics and Vice President of the Court of
After stating that "[a]ll persons may have their cases heard without delay," he admonished: "Do
make any remarks to be misinterpreted. The judge must observe that; otherwise, he shall be
by the parties for lack of confidence. He must treat the two parties equally in order to realize
between them." See "Lecture Given by Dr. Ahmed Rifaat Khafagy," November 13,
9 Judicial rotations to rural areas usually
three years; in Cairo and Alexandria the period is five years. Judges may not serve in the rural
in which they grew up, if applicable, until they have served in the judiciary for twenty years.
10 De novo review, on both facts and law,
implications in Egypt than it would in the U.S., where it would imply an entirely new evidentiary
presentation to the court. In Egypt de novo review means that the reviewing court
receives the evidentiary file, or dossier, which then may be reviewed in full, considering questions
both fact and law. The reviewing court need not conduct any investigation or replicate the
lower court proceedings; however, if deemed necessary, it has the power to do so.
"An Outline of the Egyptian Judicial System," by Dr. Ahmed Rifaat Khafagy, Vice President of
Court of Cassation;see also "The Judicial Authority," by Nadia A. Rizk (1991).
11 These judges are supported by ninety assistant
judges, often the most talented members of the judiciary, who have not yet reached the seniority
of a Court of Cassation judge. These assistant judges prepare case files, conduct legal research,
evaluate which appeals are not properly before the Court(e.g., those which
present merely questions of fact), and prepare opinions for review and eventual signature by the
Court of Cassation judges.
12 The term
"cassation" derives from the French verb,"casser," which means merely to break.
France, itself, has expanded the power of its Court of Cassation to include the ability to overturn a
lower court decision and issue a final judgment, disposing of the matter once and for all.
13 Egyptian law stipulates that 25% of judges should be
selected from the ranks of experienced private lawyers; however, no private attorney has been
appointed to the judiciary since 1958. The rationale given for the lack of enforcement is that no
successful private lawyer wishes to become a judge, given the comparative low salary earned by
judges in Egypt.
14 Students interested in
the judiciary are selected from an evaluation process consisting of competitive examinations,
scholastic performance, moral character and family background. The candidate, once selected,
works as a "minor" assistant district attorney, and until roughly an age of thirty is promoted
through the prosecutorial ranks to assistant district attorney and then to district attorney. At age
thirty, the district attorney is eligible for promotion to the bench. Throughout his career, he may
back and forth between the judiciary and the prosecutorial branch of the Ministry of Justice.
(Although there is no de jurediscrimination against women, no woman has ever been
selected for the judiciary.)
"The Role of the Civil Prosecution in Simple Litigations," by Dr. M. Fathi Naguib.
16 Judges draft their opinions in long hand in
17 One senior judge estimated that eighty
percent of assertions of completed service were fraudulent.
18 The Faculty of Law at Cairo University currently
enrolls approximately 13,000 undergraduate students and 3,000 graduate students. The Ein
campus of Cairo University enrolls over 10,000 students. The four-year undergraduate
offers no electives nor clinical education, with some very limited exceptions.
19 ISDLS was informed that Cairo University Faculty
of Law has a clinical training program, access to which is limited to a very small number of
20 Many judges informed the
that they are reluctant to enforce procedural deadlines to the prejudice of the parties even when
perceive that the lawyers are abusing the legal process.
21 Court costs are calculated at five percent of the total
22 Judicial fees may be waived by the
court for indigent parties.