Scholarly record

CONCILIATION IS MODERN NECESSITY FOR DEVELOPING EGYPTIAN LEGAL SYSTEM

M. A. E. Ghanem

Abstract

Judiciary represents the only way for settling all kinds of disputes in a modern state. The ability of judiciary to settle disputes in a reasonable and acceptable time has become endangered owing to the complication in ways of life and the increasing and overlapped disputes. Consequently, the problem of slow pace of litigation and that of inefficiency of judgments have arisen. These two phenomena are too dangerous and threaten justice. Further; they strip the right of litigation guaranteed by constitution of its value. The phenomenon of slow pace of litigation is considered one of the most important topics which researchers should care. This research has affirm belief that the right of litigants and enabling individuals to practice it and facilitating it is considered the first step of the way of social and economic establishment of all individuals in Egypt.[5] The first supposition of justice necessitates and guarantees the right of citizens to resort to their usual judge to prevent the aggression on their rights, freedom and what can lead to getting their judicial equity within a reasonable period without unreasonable delay. It is not enough to mere state whether in constitution or law, the right of persons to resort to his judge in his suitable time. It is a must that the litigants should feel that justice is within reach and this cannot be attained except one can get his right in the least time and in the least expenses. Justice is not only conveying the right to its owner but also conveying it on two conditions: (1) in the nearest chance. (2) in the best way, namely, this must be done easily and without difficulties along with a period of time enough for preparing means of defense.[3],[7] The delay of litigation procedures for feeble reasons leads to losing the right of citizens and making those whose rights have been devoured resort to violence instead of using legal ways which can last for years. The delay of justice is not only a kind of aggression which can be more difficult and painful than losing the dispute or depriving the right of litigation but also denying it. So, it is said that: “Justice delayed, justice denied.”[4],[9] In fact, the right of litigation loses every value and effect with the increase of the phenomenon of slow pace of litigation. It is a nonsense to state the right of litigation and meanwhile complicate the procedures followed by the litigant to reach his right in a way that prevent the individual to resort to his judge, according to what is stated in the explanatory note for the Egyptian Civil and Commercial Procedural Law No. 13 of 1968 and, thereby, gets lost in procedural mazes and superficial aspects. As a result his dispute lags in courts of jurisdiction and makes him divert from his lawsuit for being unable to exert more physical and psychological effort after going to the court again and again for reasonable or unreasonable delay and facing necessary or useless procedures and administrative complications which he cannot solve or find no outlet for them. So, he prefers safety and returns from the march of judiciary with a broken heart leaving behind his right to be devoured by procedures or for the interest of his opponent. It is truly said that “ it is not by anyway a just affair that comes too late and if it happened, it is, then, nearer to aggression. Also, it is not a just case which puts burdens on the shoulders of that taking refuge to it or looking forward to it.” It has been taken for granted that getting the judicial protection in the courts of justice regulated by the state takes a long time, suffering and perseverance which surpass all endurance. That is because disputes before the courts of state are characterized by slow pace of litigation, complication, evasion and delay rather than being an effective way of getting rights. That is because of the malpractice of the texts of law that guarantee the rights of the defense for the parties of litigation. It has become good for that who procrastinates to let his litigant resort to judiciary. It has been deeply stated in the minds of people that the best way to end one's right is to resort to the court. From this point, Alternative Dispute Resolution have become of great importance as they are characterized by the simplicity of procedures decreasing the pressure thrown on courts, lessening the burdens on judges and settling the disputes as quick as possible without any precautions as they depend on compromise. Further, these ways can be adapted to suit our judicial reality. Owing to these meanings and saving both the time and effort of the parties of administrative, commercial and civil disputes arising between the ministries and public judicial persons and between the employees of these ministries and the other legal personalities and what may result in lessening the burden thrown on the judges owing to the decreasing number of disputes heard in courts, the project of law prepared the entity which originates a new mechanism to conciliate between the disputed parties represented in committees headed by one of the present or previous judges or judicial panels. So, the legislator has taken the lead and originated alternative mechanisms other than judiciary which can give judgments in the disputes that may arise between the administration bodies including its officials and the other individuals and the judicial persons to conciliate between the two disputed parties before resorting to judiciary to make things easy for those having rights and to lessen the pressure on courts to make courts ready for big cases to avoid the slow pace of litigation and achieving a just and quick justice.[1],[2] As a result, the legislator originated a new mechanism to settle the disputes in which the ministries and the legal persons are a party of them via committees whose task is to conciliate between the two parties of the dispute which is a matter which achieve the interests of the citizens and contributes to decreasing the number of cases and disputes presented before judiciary bodies.

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DOI resolver: doi.org/10.5593/sgemsocial2018/1.2/S02.060

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