Dr. Bahaa Helmy Writes: Customary Councils… A Challenge to the Rule of Law and the Authority of the State

There is no doubt that the rule of law and the commitment to applying it is not merely a constitutional principle, but a yardstick for measuring how advanced nations are and how successful they are in confronting corruption in all its forms. It also indicates the extent to which the state respects and upholds human rights standards towards its citizens, its ability to implement the policies needed to achieve economic and human development with justice and equality, and its ability to regulate performance within the framework of judicial independence and the rules of transparent dealings among state institutions.

Despite the official state's tacit acceptance of customary councils and their working mechanisms, and its attempt to lend them a degree of legitimacy through the Prime Minister's decree adding to the responsibilities of village mayors (omdas), village sheikhs and security directors the convening of customary councils to reconcile disputing parties, in utter disregard of the constitutional principles, values and rights that guarantee a fair trial for all, this is a matter that violates the Constitution, squanders rights and creates an environment conducive to rising tension among citizens, particularly in sectarian incidents in Upper Egypt and elsewhere. Add to this that customary councils obstruct the initiation of criminal proceedings, in violation of the provisions of the law.

There is a confusion between, on the one hand, the role of customary councils in removing grudges and trying to reconcile the parties to blood-feud incidents in order to stop the bloodshed between them, whether they have been sentenced by the bench of a just judiciary or are awaiting judgments against them, without any interference in or influence on the hearing of those cases, and, on the other hand, treating customary councils as a customary judiciary that replaces the judiciary, the Constitution and the law, and indeed the state as a whole.

Customary councils in Egypt are a stain on the brow of the rule of law and a gateway for escaping the courts. Moreover, they do not resolve problems; rather, they deal with their surface while their roots grow worse in a way that threatens security and stability in society, for numerous reasons. The first is that customary justice relies on its own rules, which differ from the laws and legislation of the state. It relies on customs, traditions and the social dimension, which are unwritten customary rules that vary from one place to another within the country and are handed down through the generations. Unfortunately, sectarian cases are among the most prominent cases heard under custom, even though they are cases that affect national security and impact the fabric and unity of the nation.

On another note, the customary judge may be a tribal chief or a sheikh who has a balanced personality and is distinguished by wisdom and by being a role model among the people of a particular community, regardless of whether his educational or cultural level qualifies him to act as a judge or not. Consequently, most rulings issued by these councils in sectarian cases come with measures that contradict the Constitution, the law and international conventions, whether in terms of the penalties, such as expulsion from one's place of residence, deprivation of freedom of movement, barring a person from managing his property or forcing him to sell his possessions against his will, or in terms of the application of the rules of justice. They are therefore arbitrary measures that deviate from the path of the Constitution and the law.

Customary councils affect the image and role of the state in the eyes of its citizens. Furthermore, the failure to uphold the rule of law and the reliance on these councils reveal the level of awareness among a broad segment of society, and entrench a state of inequality and discrimination among citizens without genuine, decisive intervention by the state.

Customary councils are a challenge to the law and to the authority of the state, and whoever thinks that these councils have settled any problem is mistaken. Over the past decades, the state has relied on them to resolve sectarian problems, yet we cannot be certain that a single problem has been solved, as sectarian tensions still persist in Upper Egypt. Even if their intensity has subsided, they remain a dormant fire that is rekindled from time to time. Moreover, the security agencies' monopoly over handling this file does not lead to remedies and fair solutions for the parties to these problems.

The time has come to generalize and entrench the principle of the rule of law and to achieve equality and justice among citizens without discrimination, dealing with citizens regardless of religion, sex or any other reason, for they enjoy all rights and bear all duties in the state, since progress cannot be achieved by nations without a commitment to the rule of law.