The Minister in Egypt (Gunther) to the Secretary of State

No. 89

Sir: I have the honor to refer to my despatches Nos. 69 of November 3rd, and 83 of November 22nd, 1928, on the subject of the Egyptian Government’s proposals of December 25th, 1927, for the extension of the penal jurisdiction of the Mixed Tribunals and for certain modifications of the Organic Law (Règlement d’Organisation Judiciaire) of those courts. In these despatches I submitted the various views of such of my colleagues with respect to this important matter as I had been able to ascertain.

I now have the honor to submit the text, with translation of the reply made by my French Colleague under date of November 22nd, 1928,21 to the Egyptian Government’s Notes of December 25th, 1927, and October 31st, 1928. This text, while couched in terms of sympathetic interest confines its examination to the question of the proposed extension of mixed criminal jurisdiction. The dominant idea underlying this reply is that certain postulates should be clearly defined before the powers can be expected to assent, other than in principle, to the Egyptian proposals. These postulates are “the creation or the extension of new organs (Parquet, Judicial Police and penitentiary system) and the putting into definite shape of codes of substantive and adjective criminal law.”

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It is clear that the French Government attaches particular importance to an increase in the personnel, both judicial and administrative, of the courts. Reading between the lines of its reply and in the light of my earlier comment, it is obvious that an increase in the number of French judges is a sine qua non to French acceptance. And it would seem that representation on the Parquet and in the contemplated mixed Judicial Police likewise enters into the general policy underlying the French reply. This desire of the French Government to be assured that France shall receive an adequate number of such new appointments, particularly judgeships, is readily understood. As the Department is already aware, France, crystalizing Latin thought, feels that the Mixed Court of Appeal has ceased to be truly “mixed” and has become in fact Anglo-Egyptian. For on each of the three benches of five judges which constitutes a chamber of that body Great Britain now has one representative and Egypt two. As this Anglo-Egyptian color was given to the Mixed Court of Appeals during the period of the British Protectorate, when Great Britain, through the Judicial Adviser, exercised a direct control over the judicial machinery of Egypt, France, I am led to believe from various sources, confined herself to a pro forma protest against this departure from the spirit underlying the creation of the Egyptian Mixed Courts. Now, on this first appropriate occasion since the abolition of the Protectorate, France voices her feeling. By its instructions No. 271 of June 8th, 1926, and No. 306 of January 22nd, 1927,22 the Department, when discussing the desirability of a return to the principle of equality of representation amongst the principal capitulatory powers on the mixed judiciary appears to a certain extent to have associated itself with this attitude.

I shall take occasion in an early despatch or telegram to submit a comparative analysis of the views of my various Colleagues, together with such recommendations as I may, in the light of the situation then existing, feel justified in proposing.

At the present writing, however, I am not as yet prepared to agree with the view expressed in the French Note that an international conference with respect to this question is impractical. On the contrary I concur in the position taken by Lord Lloyd (see my despatch No. 83 of November 22nd, 1928) that, providing the necessary preliminaries are disposed of by direct correspondence with the Egyptian Government, a conference has more chance of eventual success than the “direct conversations” advocated by the French Government. By this comment I do not mean to imply, as does the French Note, that at such a conference questions placed on its agenda should “be solved by majority vote.” I do feel, however, that the proposed international [Page 772] conference, attended as it would be by competent technical advisers and offering an opportunity for a free exchange of views, would afford the best means of reaching an eventual solution of this perplexing problem.

I have [etc.]

Franklin Mott Gunther