Article 368 in the Draft Procedural Law: ‘Good Faith’ A Legislative Farce

In the realm of law, few things are more dangerous than vague provisions that open the floodgates of interpretation, casting rights into uncertainty. Among the worst afflictions of modern legislation in Egypt are those phrases that seek superficial approval, appearing elegant on the surface while concealing a fundamental assault on the rule of law. Prominent among these is the term “good faith” in Article 368 of the Draft Criminal Procedure Code, standing as a glaring example of legislative confusion and the absence of conceptual precision.

Article 368, which authorizes the freezing of the absentee convict’s assets and nullifies their transactions, makes a feeble attempt to safeguard third parties with a hollow phrase: “The rights of third parties acting in good faith shall be observed.” It is as though the legislator has thrown a legal grenade, leaving its fragments to be sorted out later by the judiciary—who gets harmed and who escapes! Are legal positions of citizens and investors to be left hostage to a flexible standard that shifts with judges and circumstances?

Good Faith… A Legal Principle or a Tool for Rights Disruption?

In legal doctrine, “good faith” is a noble principle meant to protect those who act without knowledge of a defect or illegality in a transaction. However, when this concept is injected into a provision that mandates blanket nullification of all transactions by a person convicted in absentia, it ceases to serve justice and instead becomes a mechanism to distort it. How can we reconcile the nullity of the act with the protection of those who dealt in good faith? What defines such good faith? And who can convince investors that their dealings are secure if they hinge on intentions that can only be proven after a fierce legal battle?

The Judiciary Caught Between Ambiguity and Reality

This provision forces judges into a dangerous grey area: how are they to determine the good faith of a party? Must they delve into the depths of conscience, or rely on documents that appear valid?

This legislative disorder leads to three dire consequences:

• Legal Instability: No one can be certain if their transactions are protected.
• Inconsistent Rulings: Different judges will rule differently in similar cases.
• Legal Terror in the Financial Community: Everyone fears their rights might be overturned because they weren’t “good faith” enough!

Investment in Uncertainty

Any rational investor will ask: if I transact with someone later found to be convicted in absentia, are my dealings safe or void? And if told: “it depends on whether you acted in good faith,” they will withdraw immediately.

An investment environment cannot be built on guesswork or judicial discretion, but on clear, precise laws that guarantee and protect rights—not on vague moral standards that leave assets and contracts at the mercy of circumstance.

Justice Is Not About Intentions

Worse still, this provision makes intentions a measure of justice, stripping the law of its firmness and plunging it into the endless abyss of subjective proof. Is the law now to judge minds rather than acts? Is it conceivable that a legal transaction, valid on its face, should be voided, with the burden placed on the party to prove they were unaware, that they meant no harm, that their heart was pure?

Conclusion: A Call to Repeal or Redraft the Provision

If the legislator is serious about respecting the basic principles of justice, the first step is to abolish or rewrite this provision with strict legal standards governing the protection of third-party rights—not leaving it to the mercy of judges or the fog of legislative ambiguity. Article 368 threatens not only the absentee debtor but anyone who deals with them in good faith or poor judgment. Any law that makes intentions the foundation of rights is one that sows fear in people’s hearts rather than protecting them.

“Good faith” is nothing more than a false mask for passing a weak law, a crack in the wall of legal certainty that must be sealed.

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