Institute for the Study and Development of
LegalSystems


OUNTRY PROJECTS

EGYPT

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 and the infrequency of consensual settlements. Interviews with legal opinion leaders in Egypt, including 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 Egyptian courts.

A. Commercial Legislation

1. 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 many 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 correct and consistent judicial interpretations of the new laws, whether in the first instance courts orat the appellate levels of review.

2. Privatization

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 matters.

B. Demographics and Education

1. 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 in rural settings, with the notable exceptions of family and labor disputes, mediation is seldom utilized to resolve civil disputes in urban environments. Indeed, legal opinion leaders were pessimistic about the application of alternative dispute resolution techniques in urban civil disputes, e.g., 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 means to vex and harass rather than to realize rights and enforce obligations.

2. Legal 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 (and 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 (in addition to financial resources) to carry out their respective responsibilities.(3)

Conversely, by placing the primary responsibility for the entire litigation process in the judiciary, Egypt presumes the absence of the conditions necessary for an allocation of such responsibilities to the parties and their attorneys.

These differing allocations 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 certain 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 judges, 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. In 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

The Egyptian civil process is more discontinuous than its U.S. counterpart. Many legal opinion leaders estimate that an average civil litigation in Egypt requires thirty to forty appearances before the first instance court. A piece of evidence is accepted, an extension granted, an expert appointed, an argument heard, more evidence requested, a deadline set and extended again--this is the picture of the daily judicial process painted by legal opinion leaders in Egypt. Approximately only fifteen to twenty percent of the cases 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)

Given the heavy caseload and the institutional pressures to address some aspect, no matter how limited, of one to two hundred cases in each court session, judges increasingly have strong institutional incentives to 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 to 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 two months."(7)

Several judges informed the 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 various forms of submitted evidence. The delegation also learned that notaries, who are charged with some of these tasks, whose services incur high fees, but who did not have exclusive jurisdiction over some 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 more 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 and delay.

3. Judicial Stoicism

Another reason given for the failure to engage 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 judge, even if of a procedural nature, prior to the final verdict would be viewed as prejudicial to the parties.(8)

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 having 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 (e.g., 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 in 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 claims before full evidentiary life of the entire case is exhausted.

4. Judicial Monopoly on Dispute Resolution

The central role (in theory) of the judge (and hence the state) in the litigation process and the pride of the judiciary in its own integrity and expertise serve to discourage 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 to 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 mediation programs built on long-standing rural traditions is an obstacle to backlog and delay reduction efforts.

5. Judicial Assignment and Promotion

a. The Rotation System

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 to assignments made by the Ministry of Justice. The system of rotating judges through different courts, based on the rationale again of maintaining a distance between the judiciary on the one hand and the 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 process and the judicial rotation system, many cases require the attention of at least one additional judge who 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 the parties before the litigation proceeds, even though, in principle, nothing prevents them from doing so. 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 orders. 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.

6. Appellate Review

a De Novo Review

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 civil 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 consistency 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 courts.

b. 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 must 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 further proceedings contribute to the problem of backlog and delay in the courts.

7. The Lack 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)

Therefore, the 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 commercial expertise(15)

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 complex 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 to experts and resulting backlog and delay in commercial adjudications.

D. Nonjudicial Court Employees

1. The Use of Nonjudicial Experts

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 technical disputes, the courts appoint experts. Ninety percent of the experts are governmental employees, who 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, which 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 expense. The systems of both court-appointed and party-appointed experts may be duplicative in many cases; if so, this may be another factor to consider in addressing the backlog and delay problem.

2. Administrative and Other Institutional Support

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 detection to 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 Process

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 of dramatic increases in the urban populations.

E. The Lawyers

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 and to test on the basis of rote memorization, rather than the oral examinations of the past. Moreover, the legal profession does not hold the prestige it once did, and the faculties of law do not attract the very best students who in large numbers show preference for medicine and the sciences. Clinical education is nearly nonexistent.(19)

The Lawyer's 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 is contributing cause of inefficiency in the legal system.(20)

2. Lawyers' Abuse of Procedural Rights

Given the practical inability of judges to fulfill their duties 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 abuses adds considerably to backlog and delay. Moreover, procedural rights that ensure fairness are subject 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.

a. Extensions

First, extensions 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 on 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. $6.70).

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 for 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 backlog.

3. Incentives to Litigate

a. Overabundance of Lawyers

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 of 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.

b. Fee-Shifting

Fee-shifting, in which the prevailing party is awarded reimbursement of its legal fees, does not provide a strong disincentive to litigate because assessments of fees for the prevailing 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 litigation.

c. Cost-Shifting

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 the 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 cost-shifting rule.(22)

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 Chief Justice of the Court of Cassation, the two most senior deputies to the Chief Justice, the three most 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 control 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 responsibilities.

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).

5 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 of the Civil Prosecution in Simple Litigations," by Dr.M. Fathi Naguib.

6 Id.

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 Cassation. After stating that "[a]ll persons may have their cases heard without delay," he admonished: "Do not make any remarks to be misinterpreted. The judge must observe that; otherwise, he shall be blamed by the parties for lack of confidence. He must treat the two parties equally in order to realize justice between them." See "Lecture Given by Dr. Ahmed Rifaat Khafagy," November 13, 1991.

9 Judicial rotations to rural areas usually last three years; in Cairo and Alexandria the period is five years. Judges may not serve in the rural areas 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, has different 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 of 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. See "An Outline of the Egyptian Judicial System," by Dr. Ahmed Rifaat Khafagy, Vice President of the 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 level 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 entering the judiciary are selected from an evaluation process consisting of competitive examinations, scholastic performance, moral character and family background. The candidate, once selected, first 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 shift 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.)

15 See "The Role of the Civil Prosecution in Simple Litigations," by Dr. M. Fathi Naguib.

16 Judges draft their opinions in long hand in pencil.

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 Shams campus of Cairo University enrolls over 10,000 students. The four-year undergraduate curriculum 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 students.

20 Many judges informed the Delegation that they are reluctant to enforce procedural deadlines to the prejudice of the parties even when they perceive that the lawyers are abusing the legal process.

21 Court costs are calculated at five percent of the total judgment.

22 Judicial fees may be waived by the court for indigent parties.