Congrès Mondial des Études sur le Moyen-Orient et l'Afrique du Nord

Barcelone du 19 au 24 Juillet 2010

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Contemporary Legal Discussions (277) - Panel
 

· Langue: English

· Description: Chair:
Ninette Fahmy (American University in Cairo)

Paper presenter: Paolo Greco (Professor, LUM Bari, Italy), “Alternative Dispute Resolutions in Mediterranean Countries; Between Tradition, Rule of Law and New Approaches of Civil Justice”
In the diversified field of civil justice, has been identified a topic common to developed and developing countries alike: i.e., the difficulty of managing and definitively concluding trials in civil courts. To date, the continuously increasing volume and backlog of legal proceedings in the public courts has been addressed either through increased investments in staff or judicial infrastructure and/or through reforms of legal rules and procedures. However, the results of these efforts have often fallen below expectations, and have sometimes contributed to popular disenchantment with the perceived quality and responsiveness of the legal system in certain countries. ADR is by now widely used around the world and is supported by the Ministries of Justice of virtually all nations. Mediterranean Countries are also included in this phenomena. The purpose of my intervention is to describe new forms of civil justice in Mediterranean countries, with particular reference to Alternative Dispute Resolutions or ADR’ which typically refers to a system of settling disputes privately, by recourse to expert arbitrators, conciliators and/or mediators selected by the parties. The attention of the intervention will be focused particularly on 'South Mediterranean Area' such as Libya, Tunisia, Egypt, Morocco and Algeria which are interested by a development of their economy linked with foreign and international investments and which have started a process of privatization of their national economy. This process should be supported increasing the 'market share' of private sector dispute resolution in order to lighten the burden placed on the public courts in order to lead an overly 'statist' approach to justice that may prevent parties from efficiently delegating the resolution of civil disputes to a private forum, considering that the relevant local legal system permits this option.

Paper presenter: Ninette Fahmy (Associate Professor, American University in Cairo, Egypt), “The Judicialisation of Politics or the De-politisation of the Judiciary: the Role of the Judiciary in the Egyptian Politics”
Specialists in Middle East Politics have been praising the role of the Egyptian judiciary in providing an avenue for participation to numerous civil society actors including opposition parties, human rights organizations and other types of NGO's. They depict the existence of an alliance between the judiciary, especially, the Supreme Constitutional Court and the Supreme Administrative court, and certain forces within the Egyptian society. This alliance entails the reciprocated favours between the Judiciary and civil society whereby the Judiciary would augment civil society's organisations and protect their rights while the latter would protect the judiciary against the encroachment on its rights and autonomy by the executives. This alliance has been positively viewed by various pundits since it introduced elements of political openness within the political system. The Judiciary-Civil society alliance was viewed as the cornerstone for creating the transition stage so longed for in authoritarian regimes. This point of view was accentuated by the short lived opposition role that the Judge's Club had played in protecting the autonomy of the judiciary and in its quest for certain political demands. This paper aims to refute the previous assumptions. Instead it argues that the alleged Judiciary-Civil society alliance was a forged one intended to provide the regime with a semblance of political opening and pretence of an existing independent judiciary which would have lessened international pressure on the Egyptian regime. Through an analysis of the rulings of the Supreme Constitutional court and the Supreme Administrative court, this paper also argues that the real alliance was established between the Judiciary and the State whereby the judiciary agreed to refrain from attacking the State's core political and economic interests in return for avoiding the executive wrath and its retaliatory policies against the Judiciary. By ruling against the economic interests of the poorer segments in society and deferring its rule on sensitive political issues, the Judiciary has lost its credibility with Civil society. This loss of credibility was exacerbated by the weakness of the Judges Club and its inability to unite the Judiciary in order to take a common stand against the state especially with regards to high profile political demands. The result of such weakness is the continuous assaults on behalf of the executives on the Judiciary Club and the loss of some political rights previously granted to the Judiciary. Thus instead of acting as agents for transforming the state, the Egyptian Judiciary has preserved the static nature of the Egyptian political system.

Paper presenter: Hans-Georg Ebert (Professor - Dr., Oriental Institute, University of Leipzig, Germany), “Innovations in Arab Personal Laws”
The paper aims to demonstrate that Islamic norms have been adapted to new political, cultural, religious and social circumstances since about 25 years. On the one hand, a harmonization process between shari'a (Islamic Law) and positive law has been based on the sources of the shari'a, on the other hand more and more Western legal principles and rules have been introduced to the Codes. Through various legal-technical measures and modes of procedure many Arab States have changed their Personal Status Laws in accordance with new challenges. In some countries (e.g. Bahrain) a codification process was started which has a beneficial affect on the certainty of the law. Of course, there are further legal changes to be realized in future in order to improve the legal situation of women. But theses legal changes should be embedded in a wider process of reforms to strengthen the acceptance of the norms. The paper will focus on some examples of those innovations in the Arab world.