Catatan Kursus Khas Kehakiman(Markaz AlQaumi Lil Dirasat al-Qadhai Al-Abbasiyah-Cairo).
THE PROCEDURE FOR IMPLEMENTATION OF MAKTAB TASWIAH AL-MUNAZAAT AL-USRIAH (ADR/SULH) IN EGYPT.
THE PROCEDURE FOR IMPLEMENTATION OF MAKTAB TASWIAH AL-MUNAZAAT AL-USRIAH (ADR/SULH) IN EGYPT.
INTRODUCTION.
During the past five years, the United States Agency for International Development (USAID) has worked closely with the Government of Egypt and local partners in collaborative efforts to improve the quality of life for all Egyptians. Progress has been achieved through investments and technical assistance in the areas of education, economic growth, health, water management, agriculture, environment and natural resources, antiquities, and democracy and governance.
DEMOCRACY AND GOVERNANCE PROGRAM
USAID works with the Government of Egypt and Egyptian civil society on programs aimed at strengthening the administration of justice and improving access to justice for women and disadvantaged groups; promoting decentralization of fiscal, political and administrative governance; promoting more competitive and transparent electoral processes; and strengthening the organizational and advocacy capabilities of civil society organizations. USAID is proud to have helped the Government of Egypt achieve the following milestones inter alia:
· Reduced opportunities for corruption and increased transparency and operational efficiency in 13 of Egypt
· Providing legal and professional training to 3,000 judges and staff, including a comprehensive training program for the first female judges ever appointed to the Courts of First Instance;
· Improvement of mediation and counseling services through training for mediation staff and family court judges, and grants to local non-governmental organizations, collectively benefitting approximately 16,000 children and 8,700 families;
· Training 600 of the nation's 4,000 prosecutors on defendants' legal rights and developing a legal data base and a handbook on the right to counsel for use by prosecutors nationwide, helping to ensure that new legislation is meaningfully implemented[1]
MAKTAB TASWIAH AL-MUNAZAAT OR DEPARTMENT OF CONFLICT SOLVING(ADR)
On the basis of mutual agreement between the Ministry of Justice and UNDP the importance of judicial reform process in Egypt
- Activating the role of legal aid bureau to the citizen in the family courts.
- Development and support conflict solving offices in the solution of family dispute in Family courts
The Rule 5 of Family Court Laws, No.10, year of 2004 consists of procedure of Solving Conflict Department, which is established, in every branch. There is one or more of the Departments of Conflict Solving, which consist of the experts in Laws, Sociology and Psychology. Each department is led by a person who has an experience in laws or in family issues.
Sulh/ADR Council in Egypt is conducted by the Department of Solving Conflict or known as Maktab Taswiah al-Munazaat which is led by a chief or head which is known as Chief of Department Conflict Solving. This chief has to carry a responsibility on administration matters and to ensure the smoothness of the administration of the Department.
Among the responsibilities of the Chief of Maktab Al-Taswiyah al-Munazaat are as follow :-
1. The chief has to supervise and monitor all staff in this department.
2. The chief has to examine the application on solving conflicts applied to the department as well as to decide on the relevant conflict solution for each problem.
3. The chief has to form a committee board in the department referring to relevant and specific conflict.
4. The chief has to supervise and solve the problem occurs related to process of Sulh.
5. The chief has to receive any report of peace process which had been made by two parties involved in solving the conflicts and to combine with the record of meeting and discussion of the two parties.
6. The chief has to prepare monthly department report to be sent to the Public Department in the Institution of Conflict Solving latest by 5th of every month.
CONDITIONS FOR APPOINTING THE CHIEF OF CONFLICT SOLVING.
The appointment of the Chief of Conflict Solving Department has to meet up with the conditions which are as follow :-
1. The age of the chief must not be less than 40 years old.
2. A Married person.
3. A person who obtains qualification from any one of the universities or colleges in Syariah and Law, Psychology and Sociology disciplines.
4. A person who has an experience in Family matters not less than 10 years.
5. A person who does not involve in lawyer profession.
6. Does not involve in any crime case or in misleading acts.
7. A person who is willingly to lead one of the Departments of Conflict Solving.
8. A person who gets approval from Minister of Judiciary.
In Egypt, an officer who is supervising ADR/Sulh Council is known as Munazaat al-Usriah. Makatib Taswiah consists of 3 experts in laws, sociology and psychology who are appointed based on decision of Justice Minister after having discussion with other ministers. The appointment of these officers has to meet up with the conditions which are provided in the Result of Justice Minister No 2724 year of 2004 (Procedure for Laws, Psychology and Sociology Officers).
Among the Conditions for the Appointment of Makatib Taswiah are :
1. A married person.
2. A person who obtains qualification from one of the universities and college in law, psychology, Syariah and sociology.
3. A person who has working experience not less than 5 years.
4. A person who does not involve in any crime case of misconduct of behavior.
5. A person who is willingly to be appointed as well as it is approved by the Department of Conflict Solving and gets the approval from Minister of Justice.
The three Makatib Taswiah officers are elected among those who possess an experience and expertise in own discipline. They will conduct the Sulh Council together. The position of chairperson will be given to the expert in law. The role-play and responsibility carried by Makatib Taswiah are different based on their own expertise.
Among their responsibilities are as follow :
i.Legal Officer
*A legal officer has to chair Majlis Taswiah
*A legal officer has to advise the parties involved from legal point of view; civil and syariah
*A legal officer has to prepare and provide an agreement of concession after the acceptance of the parties involved on the Sulh
*A legal officer has to provide a report to Court for the un-successful Sulh
ii.The Social Expert
*It is not necessary for the person to obtain a degree in this discipline. A person who has an experience in community such as NGO, association and others could be appointed.
*The Social Expert or officer is a person who has to identify a problem encountered by the parties involved externally from the beginning of the present of the parties involved at Majlis Taswiah
*He or she has to provide a report or proposal for a successful Sulh to the chairperson
*He or she has to provide a report for an un-successful Sulh to be submitted to the legal officer
iii.Pschology Expert
*A psychology expert or officer is a person who has to see the internal problem faced by parties involved
*He or she has to approach the parties involved from psychological point of view.
For an example : A psychology officer would find out the factors of problems if there is no communication among the parties involved
*He or she has to put an effort in changing the perception of the parties involved
*He or she has to prepare a report or proposal for a successful Sulh to be submitted to the chairperson
*He or she has to provide a report for un-successful Sulh and to be submitted to the legal officer
THE LEGAL PROVISIONS.
There are several legal provisions as follow :
*Law of Family Court No.10 Year of 2004
*Decision of Minister of Justice No.3325, Year of 2004 (Rule of Makatib Taswiah al-Munazaat al-Usriah)
*Decision of Minister of Justice No.2723, Year of 2004 (Idarah al-ammah li Makatib Taswiah al-Munazaat)
*Decision of Minister of Justice No.2724, Year of 2004 (Procedure for the officers of legal, psychology and sociology
Claim or Application through ADR/Sulh Process.
Among cases which are applicable to be claimed in Makatib taswiah al-Munazaat are cases of al-ahwal al-syakhsiah such as `nafkah’ for children, eddah, mutaah and right for children custody. However, marriage and `nasab’ are the cases which could not be claimed in Maktab Taswiah.
The Rule of Law 6 (Qanun) of Family Court explains the procedure for conflict solving. In this matter, for a claim of `al-ahwal al-syakhsiyah’ which there is no room for peace, important and urgent claim (accusation) and non-permanent matters have to be submitted as a claim of conflict solving to the chosen Department of Family Conflict Solving by a person who intends to claim for any matter related to `akhwal syakhsiah’.
The committee members of the department have to bring the two parties involved to the round table for a discussion. After listening to their opinion, the committee members will assist in various aspects and helping them in understanding the implication of their conflicts. The committee member will be giving an advice and guidance in solving the conflict as a family member in ensuring the harmonious of the family.
The Present of the Parties Involved.
In ensuring the smoothness of Sulh Council process, each of the parties has to attend without being accompanied by the Syariah lawyer. This situation is similar with Sulh Council practiced by Syariah Court Malaysia
ADR/Sulh Process in Egypt.
Generally, a legal process in Family Court in Egypt Institute of Conflict Solving
A date will be given for Taswiah Council after a case has been filed. Notice of attendance for sulh will be sent to parties involved. Sulh Council will be held within 15 days from the chosen date. The parties involved could extend the date for 30 days. This matter is mentioned in (Article) 8 Family Law Court No.10 Year of 2004.
CONSENSUS BETWEEN TWO PARTIES INVOLVED.
With the consent of the parties involved in Taswiah Council, legal officer as a Chairperson will prepare an Agreement of consensus based on a report from the legal officer, psychology and social officer. The two parties involved have to sign up an agreement and it will be endorsed before the chief of Maktab Taswiah which is considered as same as the order from the court. The case then will be referred to Usrah Court
UNSUCCESSFUL CASE – WITHOUT CONSENSUS.
If there is no consensus among the parties involved, a report of the result of discussion will be submitted by social and psychology officers to the legal officer. As a chairperson, legal officer will provide the report to the court. The report must be sent from Makatib Taswiah to the court within 7 days from the date of completed case for the next proceeding process. The Sulh Council is considered as a failure if the parties involved or one of them does not present during the session.
The Process in Malaysia
Generally, the registered cases will be distributed to Sulh Council. The Practice Direction No. 3, year of 2002 stated that Sulh Council would be operated within 21 days from the registered date. Failing in attending the session will lead to the charge of humiliating the Court. Sulh Council will held within three months starting from the registered date.
The Differences of Sulh Council in Malaysia and Egypt
SULH COUNCIL IN MALAYSIA | MAKTAB TASWIAH IN EGYPT | |
1 | REGISTRATUION OF THE CASE - is registered with the same case number as what is in the Court | - The number of cases which are registered in Maktab Taswiah are different from the cases in the Court |
2 | NUMBER OF OFFICER -There is only one Sulh Officer to handle the Sulh Council | - consists of 3 officers ie. Legal Officer, Psychology Officer and Social and Community Officer |
3 | A REPORT FOR UN-SUCCEEDED SULH -there is no time line -AA No. 3 Year, 2002 stated that : A date for Court Trial session must be given for un-succeeded Sulh case after all the prosiding steps are fulfilled and completed. | -The report from Makatib Taswiah have to be submitted to Court within 7 days starting from the case had been completed in this council for the next proceeding. |
4 | REGISTRATION OF CASES IN COURT - The parties involved do not have to register the case in Court after the Sulh process. The report will be submitted to Court by the Sulh Officer and the addressed memo will be distributed to the parties involved. | -For an un-succeeded case in Maktab Taswiah, the case must be filed in Court by the party involved. |
5 | THE POWER FOR ENDOREMENT -The Agreement will be endorsed in Court as the Court Order | -Chief of Maktab Taswiah has an authority to endorse any of Sulh case without doing the endorsement in the Court if there is an agreement between the parties involved. |
6 | TIME LINE FOR SULH PROCESS STARTING FROM THE REGISTRATION DATE -Within 21 days starting from the registered date | -Maktab Taswiah is held within 15 days starting from the registered date |
7 | THE EXTENSION OF THE DAY FOR HEARING THE SULH CASES -Within 3 months starting from the registered date | -The parties involved could extent the day or date within 30 days |
.CONCLUSION
The implementation of the Sulh proceeding process in Egypt is more flexible where Makatib Taswiah is given right to call the parties involved who do not present in the session. The discussion could be done on phone in front of the person who presents in the session. [2]
The Egypt Ministry Of Justice provides genuine support for the development of ADR by providing sufficient members of competent and professional officer in every ADR Council to promote legal solution out of court.
[1] http://egypt.usaid.gov/Default.aspx?pageid=573
[2] Interview with Mr. Atiyyah Abu Usamah, Senior Judge of Syubra Family Court at 7 November 2008.
