No substitute having been as yet named by the United States, it is
proposed, if this project is accepted, to give such substitute as shall
be regularly nominated by our government and accepted by the government
of the Khédive, at once, on such acceptance, the position of judge in
the court Première Instance (Court of First
Instance), the same as the other substitutes already chosen.
The ratio between the foreign and native judges is not to be changed; but
the Khédive is to be at liberty to appoint such person as he may choose
and think necessary to the parquet, without consulting the foreign
powers.
Whether the American substitute, when promoted to judge, would be
assigned to Ismaïlia, Cairo, or Alexandria, is left to be hereafter
determined.
After an examination of the facts I approve of the project, and recommend
its acceptance by the Government of the United States and the nomination
of a suitable person for substitute.
It is desired that an immediate answer be given to this proposition, so
that in case it is accepted the new tribunals may, at the end of their
vacation on the 15th of October, recommence their work with the proposed
increased number of judges.
The position of the appointee, when accepted by the Khédive, would be the
same as that now held by Judge Bacheller.
Russia is in the same condition as regards the new tribunals as America,
not having yet proposed a substitute; and the same proposition is made
to that government in relation to the appointment of a substitute as is
made to the Government of the United States.
If both Russia and the United States propose substitutes, it will give to
the Egyptian courts seven additional foreign judges and a proportionate
number of native.
[Inclosure.—Translation.]
Ministry of Foreign Affairs,
Cairo, August 3,
1876.
Mr. Agent and Consul-General: Thanks to the
firm and enlightened support which the Government of the United
States of America has given to judiciary reform, the new tribunals
were definitively established and began their functions on the 1st
February. Their inception, Mr. Agent and Consul-General, has been of
a nature to show in the most evident manner the importance of these
new tribunals, and to permit us to foresee the development they are
destined to attain.
It suffices, to reach this conviction, to consult the statistics of
the causes brought before the tribunal at Alexandria, during the
first five months of the term, and which now number 2,600, of which
1,026 have been decided.
Also, Mr. Agent and Consul-General, the vice-president of the court
of appeals, in a very detailed report, addressed, at the end of
April, to the ministry of justice, did not hesitate to declare that
the number of eight, five, and four European judges at the tribunals
of Alexandria, Cairo, and Ismailia would certainly be insufficient,
notwithstanding all the devotion displayed by each one of these
magistrates in the exercise of his functions. This statement is all
the more easily understood, when we consider that it is not only the
great number of causes to be decided, but also the variety of the
attributes and of the proceedings of the new tribunals. They are, in
fact, at the same
[Page 616]
time,
tribunals of summary justice, civil tribunals, “tribunals of
infractions” (o police regulations pertaining to the courts), and
even “correctional tribunals,” and “of penal instruction” in cases
of crimes and misdemeanors, although their competency is restricted
as regards this latter attribute. Evidently these numerous
attributes complicate and burden the operations of the tribunals as
much as the administration of the clerks.
It has already been found necessary to double the number of clerks,
sheriffs, and interpreters in order to meet the exigencies of the
service.
As regards the personnel of the magistracy,
the vice-president of the court of appeals calls attention in his
report to the fact that the tribunal at Alexandria is composed of
two chambers, which require three European judges in the formation
of each one of them, and which cannot meet the needs of the
situation without having three sittings each week, which necessitate
long deliberations and the drawing up of numerous decrees, thereby
absorbing all the time and all the energies of these magistrates. He
adds that the judge in charge of whom at first was placed the
department of summary justice found himself, notwithstanding his
experience and qualifications, incapable of sustaining alone the
burden of the numerous causes allotted to each sitting, and it was
quite necessary to detail another magistrate to assist him. In this
manner it will be seen that the needs of the two chambers and of the
department of summary justice of the tribunal at Alexandria require
already more labor than the European judges can perform.
And still this tribunal must furnish “judges of service” (judges for
chamber orders), “of reference” (for special term business), in
urgent matters, cases of bankruptcy, and of “contraventions” (violations of police regulations in the
administration of the tribunal), and, should the occasion offer, of
crimes and misdemeanors (meaning crimes and misdemeanors connected
with the administration of the courts). Besides; this tribunal must
furnish the necessary persons for the formation of the two special
chambers, whose duty it is to judge the pending claims.
As to the court of appeals, every one is aware that its share in the
common work is very large, and that, while meting out justice, it is
also charged with the general direction of the whole, the
supervision, the discipline, &c.
As regards the tribunals of Cairo and Ismailia, they are relatively
in the same situation as that of Alexandria.
In the tribunals of Cairo, which are composed of only five European
judges, the amount of business is so great that the number Of causes
amounts to more than two-thirds as many as those pending in the
tribunal of Alexandria, and rendered necessary, even from the
beginning, the creation of a second chamber.
The tribunal at Ismailia is composed of only four European
judges.
The delegation to Port Said, at stated periods, of one of the judges
of this tribunal, deprives it, besides, of the services of one of
its members.
The insufficiency of numbers makes itself felt throughout the personnel of the magistracy. Although the
code of procedure stipulates that it would be inconsistent to clothe
a single judge with several judicial functions, yet, on the other
hand, the present state of said personnel but
ill allows of the application of article 4 of the regulations of
organization, which state that, in cases of absence or of
hinderance, provision can be made for the vacancy by the delegation
of judges from one tribunal to another.
How is this insufficiency to be remedied in the interest of the good
administration of justice? That is a serious question, which has
occupied the serious attention of the government of the Khédive from
the day On which this insufficiency made itself apparent, and was
further demonstrated by the court of appeals, which is the medium of
interpretation of the convictions of the entire magistracy, and
supported by said article 4 of the regulations of judicial
organization, which stipulates that the number of judges of appeal
or of first instance may be increased, if the court makes known the
necessity of such a measure, for the needs of the service, without
modifying the ratio at present existing between the number of native
and European judges.
After having maturely considered the situation, and after having
obtained positive information from the most reliable sources, the
government of the Khédive has thought, Mr. Agent and Cousul-General,
that the easiest and at the same time the most speedy remedy would
be to seek among the persons now performing duty at the new
tribunals, outside of the judges properly speaking, the elements
requisite for the attainment of the object which is now so
important.
In this order of ideas, his attention has been particularly drawn by
the court to the personnel of the parquet
(procurator-general and five substitutes).
The European substitutes are already familiar with the working of the
tribunals and with the affairs of the country; that is a most
important advantage. They have, moreover, had experience, and this
experience and the information they have acquired, united, qualifies
them for apt and capable judges.
Besides, the attributes (duties) of the parquet are naturally
prescribed within the limits laid down by the reform, and within
those limits the “ministère public” has not to the present time been
permitted to intervene in civil matters, except in questions
[Page 617]
of the statut personnel (nationality and identity of the person),
questions delicate and of frequent occurrence, and which, moreover,
open the widest field for its action. Nor in penal matters could it
use its influence, except in special cases.
From this it would seem that a smaller number of substitutes could,
at least in the actual state of affairs, meet the requirements of
the situation and the aim of article 27 of the regulations of
organization, which provides for a number of substitutes sufficient
for the service of the sittings and of the police
administration.
In this connection the court observes that, in the few months just
elapsed, the functions of the “ministère public” have ordinarily
been vested by the attorney-general in the native substitutes, as
well, before the tribunal of appeals, up to the recent arrival of
Mr. Vacher, as before the civil and commercial tribunals of Cairo;
while the European substitutes have been more especially intrusted
with the administration of summary proceedings.
The court is also pleased to believe as entirely justified the
confidence which Mr. Vacher has reposed in these native substitutes,
who needed to be initiated, as soon as possible, into the manner of
transacting the business, and in whose intelligent and devoted
services the parquet found a most reliable element for the
attainment of the object in view. It is known, moreover, that the
nomination of the present number of substitutes was less the result
of the actual exigencies of the service than the application of a
measure adapted to meet any emergency that might arise, and as a
mark of deference to the great powers toward which the Khédive
wished to observe a principle of strict equality and identical
guarantees. In this latter conviction, if it is admitted that the
co-operation of the body of substitutes, officials who are liable
to, removal, is an additional guarantee of the rigid observance of
good law, it would evidently seem that, as judges clothed with the
character of unremovability, they would strengthen all the more that
guarantee, and add to the satisfaction of the powers concerned.
Such are the considerations, Mr. Agent and Consul-General, which have
caused the government, inspired by the court of appeals, to seek in
the parquet itself those auxiliaries which have been indispensable
to the tribunals.
I am, therefore, authorized by the Khe”dive to make the proposition
that the substitutes named, on presentation by the governments
concerned, shall be attached, as judges, to the tribunals of first
instance, in which tribunals they have, up to the present time, been
employed.
The Government of the United States of America, Mr. Agent and
Consul-General, has not yet presented the name of any one for
nomination as substitute by the Egyptian Government.
The Khédive is perfectly willing to consider any step taken in this
connection by the Government of the United States of America, and to
apply to the American substitute, who shall be regularly nominated,
the proposition relative to the other substitutes.
In transmitting this proposition to you, Mr. Agent and
Consul-General, I am confident that, having a full knowledge of the
state of affairs, and of the importance of the considerations to
which the Government of the Khédive must submit, in the interest of
justice, you will not hesitate to recommend it to the Government of
the United States of America for its consideration. If it is
accepted, as the Government of the Khédive hopes it will be, the
American substitute who shall have been regularly presented and
nominated will be, from the date of said acceptance, promoted to the
functions of a judge, under the same conditions as the judges of
first instance.
Moreover, from the flay of said acceptance, the Government of the
Khedive will be able to exercise freely the right mentioned in
article 4 of the regulations of judicial organization looking to the
continuance of the fixed proportion between the native and foreign
judges; and it will retain the full faculty of providing for
everything which concerns the personnel of
the parquet without having to consult the foreign governments,
which, under the circumstances, will find themselves entirely
disinterested from the fact of the promotion of the substitutes to
judges.
I am allowed also to add, Mr. Agent and Consul-General, that the
court is heartily desirous that a decision may be arrived at on this
subject before the 15th of October next, in order that, from that
date, the tribunals may be enabled to continue their operations with
a full personnel, and for that reason be
better able to fulfill their mission, so important and so
difficult.
I shall, in consequence, be much indebted to you if you would
communicate to me the answer of the Government of the United States
of America as soon as it shall have reached you, and I take this
occasion, Mr. Agent and Consul-General, of renewing to you the
expression of my high esteem.
