883.512 Motor Vehicles/24

The Egyptian Ministry for Foreign Affairs to the American Legation in Egypt 53

[Translation]
No. 54.5/7 (56)

Note

The Ministry for Foreign Affairs has the honor to refer to the Notes of the Legation of the United States of America dated March 31 and June 13, 1932, Nos. 236 and 268, on the subject of the Decision of the Council of Ministers published in Journal Officiel No. 17 of February 29, 1932, making the granting or renewal of authorizations and permits for autobuses, trucks, etc. … dependent upon [Page 649] the traffic requirements in each Moudirieh or Governorate according to the opinion of a special commission which has its seat at the Ministry of Communications.

Although the Decision above-cited incontestably derives from the powers of the Egyptian Government, and although it is occasioned by situations for which it alone assumes responsibility, this Government has no difficulty in furnishing clarifications or explanations designed to give the Legation of the United States of America every satisfaction.

As it was easy to foresee, the Decision in question gave rise to a certain emotion in both Egyptian and foreign circles interested in transportation by automobiles, in view of the repercussions which inevitably resulted therefrom.

But the situation is badly understood unless we return to its origins. In truth, the traffic problem has been preoccupying the Egyptian Government for several years. Commissions were successively formed to propose recommendations rendered necessary by the acuteness and complexity of the problem, as well as by the multiple interests involved therein. But no decision was taken before April 1, 1927, when, to prepare the ground for the granting of a concession for a public transportation service in the city of Cairo, the Council of Ministers authorized the Ministry of the Interior to publish a notice announcing that authorizations and permits for autobuses circulating in that city could no longer be granted, nor could they be renewed at their expiration for a period later than October 31, 1928. Various circumstances of a purely adminstrative nature, however, delayed the drafting of the Specifications of the eventual concession. It was not until February, 1931, as the result of an adjudication, that a foreign Company was authorized to exploit seven lines. The other lines were provisionally maintained under the system of annual authorizations and permits. Nevertheless, seven of them are about to be made the object of a concession.

The adoption of the concession system in Egypt for public transportation has thus been rather tardy. In other capitals and in many cities less important than Cairo, this system, or another more or less similar, has long been in use. But it is evident that this circumstance is without any influence on the rights of the State in this matter.

During several years, in Egypt, the competent administrative services, swept along by the torrent of demands which came to them from all sides, were unable to resist it. They therefore did not cease to distribute authorizations and permits, only concerning themselves with the conditions of strength and safety of the vehicles.

[Page 650]

The net result of this facility resulted in an unbearable encumberment of traffic, and the establishment of transport services under conditions deplorable from every point of view. The Administration was of the opinion that it must react and contemplate the substitution of the system of concessions for that of authorizations. This substitution, whose first landmark was the notice of April 1, 1927, was effected in Cairo almost without a jar, and it is in process of completion to the general satisfaction.

On that occasion, as now on the occasion of the Decision of the Council of Ministers published February 29, 1932, a so-called acquired right was invoked deriving from the Regulation of 1913. Thus, any person would have the right to cause an automobile to circulate upon payment of the fees of examination and control without the administrative authority being able to refuse to grant or renew the authorization or the permit if the car fulfils, on the one hand, the conditions of strength and safety required by Article 4 of the Regulation and, on the other hand, the special conditions provided for by Article 38.

Such a contention is evidently inadmissible. If the so-called acquired right of foreigners derives only from the Regulations of 1913, and not from a convention or treaty special to foreigners, the same right must apply to Egyptians, the Regulations being of general application.

However, the Egyptian Government has never considered that these Regulations could create, to the profit of anyone, Egyptians or foreigners, a right of this nature which would involve renunciation of one of the essential attributes of the sovereignty of the State over the public domain. It is in fact a matter of principle that in the matter of permits granted for the use of this domain, the discretionary power of the Administration is absolute. Many applications of this principle were admitted by the administrative jurisprudence in France.

The decree of 1913 being only a policy regulation, it can not be considered as prejudging the question and raising an obstacle to every Governmental act or act of sovereignty done either by the supreme organ of executive power, that is, the Council of Ministers, or by the legislative authority.

The fact that it was approved by the General Assembly of the Mixed Court of Appeal has no other significance than that it is not derogatory, in the eyes of the said Assembly, of any of the rules established by Article 2 of the Decree of January 31, 1889 and that the sanctions therein provided for are, consequently, applicable to foreigners.

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Basing itself on these principles, the Council of Ministers took the Decisions of 1927, 1928 and 1929 which prepared the way for the concession of public transportation service in Cairo and the last Decision, published February 29, 1932.

As far as the city of Cairo is concerned, where the question is almost entirely settled, the question has not been difficult to resolve. From the beginning, the organization of the service of public transportation on the concession basis imposed itself as being at the same time the most natural and the easiest.

The matter is a good deal more difficult when it is a question [of] remedying the present state of traffic congestion in the other cities and localities. In fact, the traffic problem has given considerable embarrassment up to the present time to those countries which have had to solve it. They have tried out the most varied means and measures to conciliate all the interests which it placed in conflict. It is not at all astonishing, then, that Egypt, where the problem is not less complex than elsewhere, is studying, for its part, the different means and measures with a view to finding the most appropriate solution.

But while waiting, if it is not desired that the situation become aggravated to the point of rendering the eventual solution almost inadaptable, or that the prejudices which would undoubtedly result upon its adoption become much greater than it is possible for them to be at the present time, it is necessary to consider urgent measures designed to arrest the harm or at least to attenuate its effects.

Among these measures, none suggested itself more strongly than the institution of an organism which, by the importance and the representative character of its members, by the uniformity of its views and its spirit of consistency, by the authority of its decisions, could present the most ample guarantees of distributive justice commanding the respect of all.

Even though the Commission to which the Council of Ministers confided this task fully responds to this order of ideas, the Council was careful to trace its rules of conduct. It recommended to it to take into account, both in the granting and renewal of authorizations and permits, the exigencies of the traffic, a necessary criterion to safeguard both the public interest and that of the grantees themselves and without which the public streets would be exposed to ruin and the traffic to anarchy.

Some have sought to see in the Decision of February 29 an infringement either of the freedom of circulation or of the liberty of commerce or profession. This is to misappreciate the truth strangely. Transportation by automobiles can not be compared with other forms of [Page 652] commerce. For its essential and indispensable instrument it has the use of the public domain, streets or roads. Thus the Government can not disinterest itself in the manner in which this commerce may be exercised, nor deliver the road to the initiative or to the enterprise of whomsoever desires a remunerative business through its use.

Freedom of travel, the form and modality of individual liberty, has nothing to do with the question. It being a question of a commerce engaged in by means of the use of the public domain, to affirm the right of individuals to use it in all liberty is to affirm a new right, that of the freedom of causing to travel. Freedom of travel understood in this sense would be the abdication by the Government of its authority over the public domain.

To contemplate the Decision published February 29 only from the special point of view of the provisions of the Regulations of 1913, it would certainly be admitted that the powers conferred upon the Commission which sits at the Ministry of Communications are not different from those which accrue to the Moudirs and Governors by virtue of the said Regulations.

In concentrating the exercise of this power relating to the whole of the country in the hands of a single commission, the Council of Ministers had in view the advantages already mentioned and besides it was of the opinion that, in view of the ease with which automobiles can move this power would be exercised from the standpoint of distributive justice, in a more efficient manner and in a manner more beneficial to the interests of the grantees.

Up to the present the Commission has accomplished its task with as much vigilance as good will and despite the inevitable claims of discontented persons, many of whom have profited largely from the preceding state of laxity, there is every reason to believe that it will carry on its mission in the same spirit.

From what goes before, it is evident that the Government has acted within the scope of its powers in taking urgent restrictive measures pending the solution finally to be adopted, and that in supposing that the Regulations of 1913 do not authorize the Moudir or the Governor to refuse the granting or the renewal of the authorizations or permits, which can by no means be affirmed, these Regulations cannot be an obstacle to the exercise by the Council of Ministers of those powers which derive from the nature of things. By the Regulations of 1913, the only source claimed for the so-called acquired right of foreigners, the Minister of the Interior could not derogate the common law in respect of administrative authorizations, nor create new capitulatory privileges by delivering the public domain to the free enterprises of individuals.

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The Egyptian Government sincerely regrets that the Decision of February 29, which affects Egyptians much more than foreigners, can entail prejudice to persons interested in transportation by automobiles, but no Government, acting in the public interest, can prevent that from time to time the most salutary measures have prejudicial repercussions on certain situations.

In any case it is certain that the Government’s action, entirely justified, has been taken with the greatest prudence and circumspection and that it injures no acquired right. For the rest, the case of those who may have had to undergo a certain prejudice resulting from the execution of the Decision of February 29 cannot be invoked without recalling that most of them have for a long time benefited largely from the delay in the adoption of a definitive solution to the transport question.

It may be, likewise, that some of them have already paid customs duties on merchandise which, as the result of the Decision of February 29, runs the risk of not finding a buyer. But it is very difficult, in the stagnation of the transportation business, to distinguish between the part which is attributable to the action of the Government and the part which is attributable to the crisis or to the exaggerated extension which this commerce had taken. Furthermore, the Government intervened only when the necessities of intervention could no longer suffer any delay. It was thus impossible to provide for a fixed period or to postpone the measure to a later date.

The Egyptian Government is pleased to hope that the explanations and clarifications which precede will convince the Legation of the United States of America that the Decision of February 29 is unassailable from the point of view of both legality and expediency. It has the satisfaction to state that the opinions which the Commission is daily called upon to give are marked with the stamp of great good will. Thus, pending the early adoption of a definitive solution of the transportation question, the Government has every reason to hope that the action of the Commission will allow this stage to be passed in the most satisfactory manner and under the most satisfactory conditions.

The Ministry for Foreign Affairs, etc.

  1. Copy transmitted to the Department by the Minister in Egypt in his despatch No. 527, July 9; received July 26.