Al-Ahram: A Diwan of contemporary life (532)

The way to Montreux

It took long and arduous negotiations between Egypt and the capitulatory powers but on 28 June 1875 an agreement was struck establishing the mixed courts. Consisting of European and Egyptian judges, the new branch of the judiciary superseded the consular courts in which Europeans accused of crimes and felonies had formerly been tried. Although an improvement, Professor Yunan Labib Rizk* writes that the mixed courts were an aberration in the Egyptian judiciary system

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Prime Minister Ismail Sidqi British High Commissioner to Egypt Sir Percy Lorraine

Under the capitulations system, foreigners and others who enjoyed expatriate status were immune from prosecution in Egyptian courts, which meant that all litigation between them and Egyptians had to be brought before these courts. Curiously, however, this became one of the few areas where the views of Egyptian nationalists and the occupation authorities converged. Both wanted to abolish the mixed courts, Egyptians because the mixed courts embodied the foreign encroachment on their rights, all the more so given that these courts tended to rule in favour of the foreign litigants, the British because of the obstacle the capitulations system continued to present in their attempt to secure complete control over Egyptian affairs.

Eventually, the joint desire to abolish the mixed courts, which remained an abnormality even after the British occupation in Egypt, was translated into one of the articles of the Anglo- Egyptian Treaty of 1936. Article 13 of the treaty states: "His Majesty the King of Britain and the British Empire hold that the capitulations system in operation in Egypt is no longer commensurate to the spirit of the age or the present situation of Egypt. His Majesty the King of Egypt desires to abolish this system without delay." The annex pertaining to this article states its objectives: the rapid abolishment of the capitulations and the attendant restrictions hampering Egyptian sovereignty over the application of Egyptian legislation to foreigners. Although the article provided for an interim period during which the mixed courts would continue to perform their functions as well as assume the functions of the consular courts, it stipulated that that period could not be prolonged without adequate justification.

Within a few months after the signing of the Anglo-Egyptian Treaty the 12 capitulatory powers, foremost among which were France, Britain, Italy, Spain, Greece and the US, met in Montreux, the Swiss spa resort overlooking Lake Geneva, to deliberate how to put Article 13 into effect. Their meeting lasted less than a month, from 12 April to 8 May 1937. In her encyclopaedic The Egyptian Judicial System: 1875-1952, Latifa Mohamed Salem notes that the agreement the powers struck contained four sections covering the total abolishment of capitulations, the subjection of foreigners to Egyptian law in accordance with the conditions Egypt pledged to Britain, the interim period and the end of the interim period, 14 October 1949. With regard to the interim period, the Montreux agreement resolved to enhance the Egyptian element in the mixed courts. It stipulated that the rulings of these would be pronounced in two of the languages used in litigation, one of which would be Arabic, and that the text of the ruling would be translated into Arabic in its entirety if it was originally written in a foreign language. Apart from the chief magistrate of the Mixed Court of Appeals, there could be no discrimination on the basis of nationality in judicial appointments and the delineation of judicial districts. In the event of a vacancy in a judicial post occupied by a foreigner, whether through retirement, death, resignation or promotion, an Egyptian judge would be appointed to fill it. Finally, it was determined that by the end of the interim period no more than one-third of the judicial posts at the primary court level could be filled by foreigners, thereby effecting a gradual transition to an Egyptian majority from the two-thirds foreign majority that had prevailed in the mixed courts in 1936.

While all of the preceding is familiar to students of the history of the Egyptian court system, lesser known is the history of the struggle against the mixed courts. This struggle was spearheaded by Egyptian judges in those courts who had the strong backing of Egyptian public opinion, much of which was voiced in the national press, and in Al-Ahram above all.

Beginning in the early 1930s, the movement picked up steam with the collapse of the government of Ismail Sidqi in 1934. In March of that year, the judge responsible for reviewing pension cases involving foreign civil servants in the Egyptian government, stepped down. He was replaced by a foreigner in spite of the fact that an Egyptian, Judge Zaki Ghali, had seniority in that district. Also at about that time, in the general assembly of mixed court judges, the Egyptian members demanded the equal right to preside in mixed court hearings, a demand that was naturally turned down by the assembly in which Egyptians constituted the minority.

Given the double blow delivered to Egyptian judges, it is not surprising that the issue became front page news. In Al- Ahram's lead article of 10 March, Abdallah Hussein, a lawyer, deplored the peculiar position of Egyptian judges in the mixed courts and exhorted Minister of Justice Ahmed Ali, "in his capacity as the highest administrative authority in his ministry, to remedy this matter, which is inconsistent with the principles of law and justice, to restore Egypt's injured dignity and to put a halt to the perpetual slight against Egyptian judges". Towards this end, the general assembly of the Mixed Court of Appeals had to declare, in the name of the Egyptian government, that it "subscribes to the application of law and to the equality between Egyptian and foreign judges, at the very least".

Ahmed Ali responded to the appeal. Several days later, he stood before parliament and announced that under mixed courts law there was nothing to stipulate that a chief magistrate had to be a foreigner. The only exception was in non-criminal cases when the individual to be tried or investigated was an Egyptian. "Thus, Egyptian nationals are not prohibited from presiding over hearings. Nor apart from that single instance is there any explicit stipulation to the contrary in the agreement between Egypt and the capitulatory powers."

In light of this statement, Abdallah Hussein offered a number of concrete suggestions. He urged the minister of justice to discuss the issue with the head of the Mixed Court of Appeals and with Mr Holmes, the mixed court public prosecutor, in order to have them persuade their colleagues of the Egyptian point of view. Similarly, lawyer Hussein proposed that the foreign minister do the same with the British high commissioner and the heads of the embassies of the other capitulatory powers. Thirdly, the minister of justice should decree that all newly appointed foreign judges know Arabic. In the event that all these efforts failed, "the government and the minister of justice in particular should declare their intention to abolish the mixed courts and issue a royal decree to that effect within a year."

Apparently, Egyptian judges were not entirely convinced by the minister of justice's statement and they convened in Alexandria in order to discuss the promotion of equality between them and foreign judges. "Such is the current situation that it is imperative to resolve this problem, with regard to which silence is no longer a viable alternative," they stated in an open letter that also intimated the possibility of a strike. Although the letter prompted urgent discussion between the chief magistrates of the Mixed Primary Court and the Mixed Court of Appeals in Cairo, the overall reaction of the foreign judges was not favourable. In a general assembly of Mixed Court of Appeals judges, participants decided that the issue must be resolved through negotiations between the Egyptian government and the capitulatory powers. Perceiving the decision as an attempt to politicise the issue, Egyptian nationalists responded, "It had been hoped that the European counsellors would have averted acrimony between them and their Egyptian colleagues over this issue and kept it an internal matter to be dealt with amicably, as is only appropriate when the members of a single family discuss issues that concern only themselves."

In a lengthy commentary in Al-Ahram, renowned writer Ahmed Zaki predicted a stand-off between foreign and Egyptian judges that would only heighten tension. If foreign judges remain adamant in their position, he wrote, it would not be long before Egyptian judges would be brought before a disciplinary board. "But this board must have an Egyptian component. And as long as all Egyptian judges remain in solidarity, it is possible that even one of the Egyptian members of that board be subjected to disciplinary action, at which point the rest will follow." In short, the disciplinary board would cease to function. Moreover, since there was no other body to arbitrate between foreign and Egyptian judges, the mixed courts themselves would grind to a halt, which Zaki would regard as a blessing. "If that is the result, it will be Egypt's duty to express its gratitude to the foreign element in the mixed courts. That element will have created the circumstances for bringing an end to the surplus of courts and the mixed courts will have given the Egyptian government the opportunity to inform the capitulatory powers that Egypt has no desire to renew that despicable and offensive treaty." Perhaps Zaki felt that he had let his imagination run too far, for he concludes, "But then, where is the government that will fulfil the trust vested in it and do its utmost to preserve the dignity of Egypt?"

At the beginning of April attempts on the part of officials to diffuse the situation seemed to make it only worse. Al- Ahram reported a flurry of meetings between the head of the Mixed Court of Appeals and the British adviser to the Ministry of Justice, and between the high commissioner and the minister of justice, but the outcome of these meetings was only to confirm that a foreign judge had to replace another foreigner. In a memorandum to the minister of justice, the head of the Mixed Court of Appeals stressed that no-one could deny the competence and dedication of Egyptian judges. "However, on the issue of the presiding judge, the general assembly did no more than interpret the law of the mixed courts..." He added that the demands of Egyptian judges should not be pursued by stirring up trouble in parliament or in the press but by reasoned discussion in an atmosphere of calm. If anything, the letter produced the opposite effect of its intent. Al-Ahram comments, "The above-mentioned contains a number of harshly worded remarks that are most inappropriate in a memorandum from a chief magistrate to the minister of justice."

Al-Ahram was not alone to take exception. Raising the subject in parliament, MP Mohamed Saleh fired a series of questions at the government. "Is it proper for a government employee to make insinuations against parliament in his official correspondence by hinting at a fabricated row in support of Egyptian judges? Is it proper for a chief justice to address the minister of justice in such offensive language? Does the government intend to take a firm stance against this insult? Should not the government conform to the general consensus in the country and avail itself of its right to abolish the mixed courts, the continued existence of which the people rightfully believe demeans our national pride?"

On 4 April, the cabinet met to discuss the question of Egyptian judges in the mixed courts, as well as the rumour that the minister of justice intended to resign in response to the memorandum from the chief justice of the Mixed Court of Appeals. Reporting on this meeting, Al-Ahram relates that the minister of justice had shown the document to Prime Minister Abdel-Fattah Yehia and demanded that the government take a clear stance in his defence. Either it should ask the chief justice of the Mixed Court of Appeals to withdraw his memorandum "as though it never existed" or to write another "explaining the remarks in the first in a manner that diminishes their severity".

At this juncture, British High Commissioner Miles Lampson decided to intervene in order to keep the crisis from escalating further. Eventually, he was able to reach a compromise solution that pleased all parties. It was decided that a decision on the case that had originally sparked the controversy would be deferred until passions quieted down and that Egyptian judges could continue to boycott mixed court general assembly sessions until the question of the presidency was resolved. Egyptian judges were satisfied because the solution acknowledged the validity of their demand, the government was satisfied because it could continue to pursue the diplomatic route to ending the capitulations system, and the chief justice of the Mixed Court of Appeals was relieved that the crisis that had put him in the spotlight was over. Because of the understanding and goodwill that was demonstrated all around, the compromise proved an important step towards Montreux.

Hardly had the high commissioner succeeded in smoothing over tension in the mixed courts than another fight erupted. "A new crisis in the mixed courts: a judge writes rulings in Arabic!" blazoned an Al- Ahram headline on 18 April 1934. The man in question was Abdel- Salam Zohni of the Mixed Court of Appeals. The judge had submitted his verdict on a case to be ratified by his superior, the chief justice of his district. The latter, judge Hourier, a Belgian, refused to sign and allow the verdict to be pronounced in court. According to the Al-Ahram account, the dialogue that transpired between the two went as follows:

Zohni: "Arabic is one of the official languages of the mixed courts."

Hourier: "But I don't understand Arabic."

Zohni: "But you accept rulings written by Italian judges in their language, although neither you nor I understand Italian."

Hourier: "That's because French and Italian are very similar and have many terms in common."

Following this exchange, Al- Ahram continues, the Belgian judge stormed out of chambers and headed directly to his superior, Mixed Court of Appeals chief justice Mr Fox, who later related that Hourier had asked Zohni to rewrite the verdict in French but that Zohni refused. The report went on to explain that Zohni was the most recent Egyptian appointee to the Mixed Court of Appeals, having assumed his post only two months earlier. "Until now he has prepared all verdicts on the cases under his review in French. But evidently he decided recently that there was no justification for excluding Arabic -- the language of the country and an official language of the mixed courts -- in the formulation of rulings as long as those written in French, Italian or English are acceptable. This incident is the first of its kind. Since the inception of the mixed courts no Egyptian judge has submitted a written verdict in Arabic."

Judge Zohni became a national hero overnight. Al-Ahram offices were inundated with letters, from his colleagues in the legal profession in particular, lauding his courage, and the newspaper itself declared its position by publishing a good many of them. Some of the writers went so far as to pay tribute to Zohni in verse, such as the following by Mohamed El-Asmar:

"Glory to you Abdel-Salam, a noble spirit in the land,

You have raised Egypt's head and led the country forward."

Even the minister of justice was this time outspoken in his support of Zohni. The chief justice of the Mixed Court of Appeals and other foreign judges had no grounds to object that recording of rulings in Arabic would cause confusion. The courts already had a staff of qualified translators and could easily hire more.

Eventually, the chief justice agreed that Arabic rulings could be translated into French but he still insisted that court clerks pronounce all rulings and sentences in French. Zohni refused to accept this condition, which meant that the ruling he had issued could not be delivered because a ruling required the approval of all judges involved in a case for it to be deemed valid.

At this juncture, another famed author Mae Ziyada voiced the sentiments of a broad segment of public opinion. Under law, Arabic should be the first official language to be used in the mixed courts, she wrote. Nevertheless, for more than half a century the courts used the three other languages and even though they issued rulings in languages that the presiding judge did not understand, no-one objected. "Arabic has been excluded because it is Arabic. The exclusion of Arabic alone has no justification, whether in the text of law or in the law of morals which exhorts us to act accordingly even if it is not laid down in a text of law."

The foreign judges must have realised that their position on this issue was weak. Even the prime minister, favoured both by the king and the British high commissioner, was forced to concede, "If the question of Egyptian judges presiding in session is open to debate, the use of Arabic in the mixed courts is not. It is an established right under the law under which these courts operate."

The prime minister's view was echoed by the government mouthpiece Al-Shaab. "In this country the foreign population does not exceed 250,000. Of this, half know Arabic and of this half, three-fourths know another language. Is it for the sake of 100,000 foreigners that we must prejudice the rights of the remainder of the 15 million people in our country?" Indeed, in the House of Commons, British Foreign Office Secretary Sir John Simon voiced the same opinion. The ideal would be for British judges in those courts to learn all four official languages, he stated.

It was not long before another Egyptian judge in the mixed courts took the cue. Mohamed Shukri of the Mixed Court of Appeals in Alexandria issued not one but seven rulings in Arabic, earning him Al-Ahram's praise as "a unique figure in the Egyptian judiciary and a champion of the rights of Egyptian judges in the mixed courts".

Again, the enthusiasm expressed by Al-Ahram was widespread. Of particular note, a group of national court judges rejoiced at what they perceived to be the defeat of "the theory of the advantages of the mixed courts" to which foreign judges subscribed. According to this theory, "many cases involving Egyptian litigants and purely Egyptian interests are brought before these courts on the pretext that the case touches on a foreign interest, even if that interest has no bearing on the case at all."

In all events, the conflict between the Egyptian and foreign judges would continue for several more years. However, as Latifa Mohamed Salem again pointed out in The Egyptian Judicial System, the crises of the presiding judge and the use of Arabic constituted major landmarks on the road to Montreux.

* The author is a professor of history and head of Al-Ahram History Studies Centre.