1 1Commissioner Counsellor, The Supreme Constitutional Court of Egypt; Visiting Professor, Faculty of Law, McGill University (1998-99). The author would like to acknowledge Professor William Tetley of the Faculty of Law, McGill University, for his critical and enormously helpful comments on the final draft of this article.
Some parts of this article are drawn from the author's previously published work on "The origins and developments of the Egyptian judicial system" in Kevin Boyle and Adel Omar Sherif (eds.), ), HumanRightsandDemocracy:TheRoleof theSupremeConstitutionalCourtof Egypt, London, Kluwer Law International, 1996, Chapter 2.
2 The distinction between formal and substantive criteria in defining legal acts has been one of the main characteristics of the civil law system. In France, and also in Egypt, it is very common for distinctions within legal acts to be based on either formal or substantive views.
During the early stages of history, including the Roman law period, family was not based upon marriage, but upon power. Those who formed the family were all subject to the rights or power of the same family head. See Andrew Stephenson, AHistoryof RomanLaw, Boston, Little, Brown, 1912, p. 26. The emperor, or ruler, under Roman law possessed in full that power over the community which belonged to the father in his household. He sat in judgment over all private and criminal processes. Some of his functions, including the judicial function, were delegated to subordinates, but in the last analysis these functions were controlled by him. Stephenson, RomanLaw, p. 26. 5 Mahmmoud Salam Zanaty, MogazTarekhElQannonElMasry [A Brief on the History of Egyptian Law] (Cairo, 1986), p. 75. 6 However, it has been historically proven that the pharaoh occasionally delegated his judicial power to either civil or religious judges. Mahmmoud El-Sakka, TarekbElQannonElMasry [The History of Egyptian Law] Cairo, Dar El Nahda El Arabia, p. 60. For more details on the successive historical periods of Roman law, see Stephenson, RomanLaw.
Calob Berry Patterson, TheAdministrationofJusticeinGreatBritain, Austin, University of Texas, p. 1. Also, see Edward Jenks, TheBookof EnBlishLaw, Boston and New York, Houghton Mifrlin, 1929, pp. 12 and 28.
10 For more details, see Omar Sherif, NozomElbokmWaElEdaraFeElIslam [The Systems of Government and Administration in Islam], Cairo, Islamic Studies Institute, 1989. 11 Abd El Hameed Mctwaly, MabadeeNezamElbokmFeElIslam [Principles of Government Systems in Islam], Cairo, Dar El Mareef, 1966, p. 633.
12 The Constitution of Egypt, for instance, provides in Art. 3 that the people are the source of the state's powers.
13 3 Fathy El Marsafawy, TarekhEl QannonEl Masry [The History of Egyptian Law], Cairo, Dar El Fekr El Araby, p. 161. 14 Ibrahim Awad,AlQaddaFeEllslam [The Judiciary in Islam: Its History and Organization], Cairo, Islamic Research Institute Publications, 1975, p. 101. ls Adel Omar Sherif, ElQadda El DostoryFeMesr [Constitutional Adjudication in Egypt] Cairo, Dar EI Shaab, 1988, p. 52. 16 Omar Sherif, NozomElhokmWaElEdara FeElIslam, p. 124.
17 Awad, Al Qadda FeElIslam, p. 184. 18 Omar Sherif, ElQaddaElDostoryFeMesr, p. 52.
19 Omar Sherif, NozomElhokmWaElEdaraFeElIslam, p. 130. 20 Aziz Khanky, "El Mohamaa" [The Legal Profession], in TheGoldenBookof theNationalCourts, 2nd edn., Cairo, 1990, p. 386. xl Fathy Wally,QannonElQadda ElMadany [The Civil Judiciary Law], Cairo, Dar El Nahda El Arabia, 1980, p. 220.
22 Mohammed Hamed Fahmy, El Morafaat El MadaniaWa El Togaria [Civil and Commercial Procedures], Cairo, Maktabet El Nasr, 1938, pp. 44, 224. 23 Omar Sherif, ElQaddaElDostoryFeMesr, p. 67. 24Ibid., p. 68. 25 Wally, Qannon El Qadda El Madany, p. 222. 26 Omar Sherif, ElQaddaElDostoryFe Mesr, p. 68.
27 According to Art. 68 of the 1971 Constitution, the term "natural judge" means the competent judge over the subject matter of the dispute. The said article states, "The right to litigation is inalienable for all, and every citizen has the right to be referred to his or her natural judge".
28 Dr Awad Mohammed El-Morr, "Human Rights and the Constitutional Systems of Islamic Countries", CairoUniversityLawReview, Cairo, 1988, p. 7.
z9 "The Court of Cassation", in AnOutlineofthe JudicialSystem, Cairo, 1972.
30 The rule of the Mohammed Ali family ceased to exist in 1953, upon proclaiming the republic system in the country, which was one of the most significant changes that followed the outbreak of the Egyptian revolution in 1952. 31 The topic of the Egyptian Bar - its history, functioning and independence - was addressed in the author's previously published work on TheOriginsandDevelopmentsof theEgyptianJudicialSystem, Chapter 2. It should be mentioned however, that the Bar has faced several internal problems in the recent years, either between the Bar and the government or among members of the Bar themselves. Because of these problems the Bar was placed under court supervision in 1996. Furthermore, the increasing role of the syndicates and public associations, including the Bar, in both political and public life in Egypt has led the government to pass several pieces of legislation during the 1990s to reorganize the conditions of membership in these syndicates and consequently limit their political role in the society. The new promulgated legislation in this matter is viewed by human rights advocates as dramatically reducing the autonomy of syndicate elections, and allowing the government to control the elected councils.