1916 TO 1925.
In t ro du ct io n .
The years 1916 to 1925 were very much a time of change in Egypt.
Hussein Kamel reigned until 1917,when Fuad I became Sultan and later King.Great Britain made a declaration of intent at the end of February 1922 concerning the future of Egypt,to meet Egyptian aspirations for a more independent position,and
unilaterally declaring the Protectorate at an end.In Apr il 1923 Fuad promulgated a new Egyptian Constitution based on the Belgian Constitution,and Article 30 of this expressly allowed different jurisdictions to c o nt in u e ,thus preserving the status of the Mixed C o u r t s .
Although negotiations began between Egypt and Great Britain in order to seek a base for future c ooperation,nationalist feeling i n c r ea s e d ,often v i o l e n tl y ,and Sir Lee Stack,Sirdar of the Egypt
ian Army and Governor-General of Sudan,was murdered in Cairo in November 1924.In 1921 the Milner Commission had reported"*" on the changing s i tu at i on ,and had advised a different approach to
dealings with Egypt.In 1923,on July 5th.' Martial'Law was abolished and on July 18th. an exchange of notes took place between Great Britain and Egypt concerning the terms of service of foreign officials in the Egyptian administration and services.
Thus this chapter discusses The Mixed C ou r ts ,Martial Law and the W a r ,followed by The Mixed Courts and F o re ig ne r s.The topic of
immunity is further cons id er ed ,in The Mixed Courts and Government I m m u ni t y ,which looks at both foreign and Egyptian Government
immunity,as well as a new direction in litigation in suits
against the Egyptian Government for public order responsibility.
General Jurisprudence c o v e r s ,amongst others,cases on natural law and e q u it y ,c o mp an ie s,sale of g o o d s ,hire- p ur ch as e,and disputes on the value of 1 f r a n c s ’.Finally,the innovation of Plenary decisions of the Mixed Courts,a brief description of Structural Develop
ment,and A View from Other C o u r t s ,conclude the chapter.
The Mixed C o u r t s ,Martial Lav and the War.
The immediate effect of the 1st.World War was that the German and Austrian judges were given extended leave of absence over the summer of 1914#and then until the end of their agreed tenure,when they were not reappointed.
The British Consular court was given jurisdiction in cases between Germans and between Austrians in place of the German and Austro-Hungarian Consular courts,and by a Military Proclamation in January 1915 all persons
resident in enemy territory were declared incompetent to commence or continue civil actions in Egypt,unless
especially licensed to do so by the Military authorities.
The Mixed Courts decided,in the case of Princess Fatma Hanem ,that the logical consequence of this Proclamation
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was to cause the striking out of all appropriate cases.
It did not however mean that persons resident in enemy territory were under any incapacity as regards suits
against them,and these were allowed subject to the service of proper notice on the defendant.The same applied to
enemy aliens,and in a case in 1916 it was held that service on the domicile of an enemy alien was proper service,or if no domicile was known then the notice
should be served on the Parquet.Only if the Parquet stated that it was unable to inform the defendant of the service was the notice deemed to be incorrectly served.In the
same year it was held ^that notice served at the domicile in Egypt of an Egyptian exiled to Malta was proper service.
His residence in Malta was only temporary and thus the d e f e n d a n t s real domicile was in Egypt.
The purpose of service in Egypt was the same as in any organised system.A defendant had a right to know that proceedings had begun against him,and he was entitled to sufficient time to prepare a defence.The care with which the Mixed Courts upheld this ideal during the years of Martial Law mirrored their desire to t r e a t ,subject to the law,all persons e q u a ll y ,whether they were enemy aliens, resident in enemy territory,or exiles.
A leading decision of the Mixed Court of Appeal held that 5 enemy aliens were to be treated with fairness within the laws.The purpose of Martial Law rules against enemy trade was stated to be the frustration of enemy commerce,and not directed against enemy property as such but rather against the usage that might be made of that property to the prejudice of Egyptian or Allied interests.
To that end,liquidators were appointed for enemy companies and b u s in e ss e s ,although the Mixed Courts interpreted
!enemy business* quite loosely.In one case a partnership had been validly constituted in Egypt with a majority of the partners of German nationality.lt was held^that the other non-German partners could carry on business during the war,and the firm was not dissolved.This was a further application of the principle that the courts looked behind the face of partnership deeds and other documents to see the true nature of what was involved.The alternative decision in this case would have been to the prejudice of Egyptians and foreigners in business with nationals of enemy states,and the effect of the actual decision was to allow the former to continue trading without the enemy a l i e n s .
The Mixed Courts prided themselves on a fair approach,and a further case in 1918 typifies their even-handed attitude.
A German owed a small amount of money in Egypt,and had all his assets seized because he was unable to defend the
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action properly.lt was held that this was unfair,and the seizure was lifted.The court went to some length to
explain that the fact the defendant was an enemy alien did not excuse an unfair and heavy-handed approach.and in the circumstances the penalty of seizure was not warranted.
The Mixed Courts had to decide on other questions concern
ing the war and Martial Law.One of the most important was g
the Affaire Auguste Faget ,where the court upheld a saisie administrative levied against Faget*s property to enforce collection of the Ghaffir tax.This tax had been decreed
by the court that the tax must be paid.It will be rememb
ered that some foreigners declined to pay t a x e s ,claiming that they were not bound to do so because of the various treaties with Egypt and the Ottoman Empire.The Proclamation enforced this Ghaffir tax without distinction and the
Mixed Courts upheld its application to foreigners without question.
A dispute over a Proclamation regulating leases was the major case in this period concerning Martial Law and its effect on contracts.In 1921 an Egyptian sued a foreigner in the Mixed Courts for rent calculated according to the Proclamation.The defendant claimed that the Proclamation was invalid as a law affecting foreigners because it had not been approved by the Capitulatory Powers.In addition, he claimed that the Egyptian Government and the British Authorities had no right to continue Martial Law when Egypt was at peace.It was held that both these arguments 9 failed.The court said that the Treaty of Versailles had implicitly and incontestably given sufficient authority to the Commander in Chief of the British forces in Egypt to issue Proclamations.Further,the time limits of a state of siege giving rise to Martial Law were a matter for the sovereign power and could not be questioned in the courts, by an i nd iv id u al ,and finally the juridical fiction of extra-territorial rights could not be extended to contest the right of the authorities responsible for law and
order to declare a siege(and therefore Martial Law) erga omnes.
This was a valuable judgement,not only because of the unequivocal recognition of Martial Law by the Mixed Courts but also because the judgement stated clearly the benefits of a unified application of Proclamations to all the inhabitants of Egypt.Proclamations were used by the British in many ways to reform areas of the law, especially the criminal law,and the attitude of the Mixed Courts to arguments over Capitulatory P o w e r s 1 permission for such Proclamations showed that there was little
judicial support for the notion that foreigners were able
a privileged place for thems e lv es .The further approval of the courts for the right of Egypt and Britain to continue the state of siege for as long as the two countries thought fit is also in keeping with Egyptian courts deferring to the rulers of Egypt in matters of public policy.
Finally,the application of the Treaty of Versailles in the domestic forum was again upheld in 1 9 2 3 ^ fwhen the Mixed Courts allowed a plaintiff,who was the Public
Custodian of Enemy Property,to sue on a Bill of Exchange drawn to the order of a German firm seven years after its due date.The defendant owed money on the Bill of Exchange in 1914*and the claim was made in 1921,so he put forward as his defence the prescriptive time bar.The plaintiff countered with the provisions of Art.300 of the Treaty, that provided for a suspension of prescriptive periods during the war.It was held that the Treaty of Versailles applied in Egypt despite the absence of any formal
Egyptian approval,because it had been expressly so
extended by an English Order in Council,and by Proclamation of the Commander in Chief of the British forces in
Egypt,and thus the plaintiff was able to recover the money owed.The court clearly felt that to ignore the Treaty's provisions because of the absence of formal approval by Egypt would be against the spirit and purpose of the Treaty itself.
The Mixed Courts and Foreigners.
The years from 1916 to 1925 saw hundreds of cases disputing or claiming foreign nationality,The upheaval caused by the Turkish defeat in the 1 s t .World War,together with the
Mandates granted to Britain over Palestine and to France over Greater Syria,as well as the continuing change in political status of much of the Near East,meant a huge increase in the number of decisions regulating the competence of the Mixed Courts in the context of the nationality of litigants.Did their jurisdiction over
foreigners include ex-Ottoman subjects of newly independent states?
The definitive judgement concerning Receivers appointed by the British to control Ottoman property was given in 1 9 1 9 ^ * Action was taken against an Egyptian on behalf of a Turkish prince whose property was s equestrated.The Egyptian defendant pleaded that the case was between
two native persons and therefore belonged in the Native Courts,and not the Mixed Courts.The Mixed Court of Appeal held that the Receiver had the same national character as his principal where a third party was involved,and therefore the Receiver of Ottoman property was to be treated as an Ottoman.As the British Protectorate had not affected either the status of Ottoman subjects nor
the status of Egyptians as native subjects
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the correct court for disputes between Ottomans and Egyptians was clearly not the Mixed Courts but the Native Courts.Another major area of i m p o r t a n c e ,and one where there were conflicting opinions amongst j u ri s ts ,concerned the status of Russians.Since the 1917 revolution the Imperial Russian state had been replaced by the Soviet state,but Egypt did not recognise Soviet Russia either de facto or de jure.Nevertheless,the Russian consuls in Egypt had been appointed by a government now o ve rt hr o wn ,and it had been Imperial Russia and not Soviet Russia that had agreed to the jurisdiction of the Mixed Courts over Russians and other foreigners.
Most difficulties were avoided by allowing the Russian consuls to continue de facto as before,with the aid of an allowance from the Egyptian G o ve r nm e n t ,and by assuming that the appropriate Russian law remained the Imperial law.Problems did arise however when Egypt announced on the 11th.October 1923 that it would cease to pay for or
recognise the old Russian consular officials.
Shortly afterwards the Mixed Courts had to decide whether a plaintiff was a Russian subject and therefore a
foreigner.A certificate was produced from the archives of the old Russian c on su la te ,given by the former Russian consul,stating that the plaintiff was Russian.Should this be taken as conclusive?It was held 13 that the withdrawal of de jure recognition from the old Russian consuls in
Egypt did not deprive Russian subjects of their nationality and their privileges as f o re ig n er s,and the question to be asked was whether Russia was still a distinct and separate state,or whether it had been conquered or annexed by
another,foreign,state.The court decided that Russia was still a sovereign state,albeit unrecognised by Egypt,and Russian nationality could still be recognised as a legal s t a t u s .
The next question was as to burden of proof.If there was no valid consular a u t h o r i t y ,how could Russian nationality be proved?The court decided that a certificate from the former Russian consul was admissable evidence which raised a rebuttable p r e s u m p t i o n ^ .In the absence of any contrary evidence the court was entitled to decide the question of nationality on the evidence that it had before i t .
The main consequence of this case was that Russians
remained foreigners for the purposes of the Mixed Court, despite the change in their domestic regime,and two further cases illustrate the Mixed Courts* attitude when dealing with Russian matters.
In 1924-*Egyptian creditors arrested a Russian ship in Egyptian waters.A question of priority arose because
there was a competing claim on the vessel by its crew, who based their rights on a judgement of the Russian
consular court in Egypt in 1922.This latter court had used its certified lists of Russian seamen as authority for the judgement against the ship,as well as deciding the claim by Russian Imperial law.What were the Mixed Courts to do?It was held 15that the court could not consider Soviet law because Soviet Russia had not been recognised de jure.Thus the only Russian law applicable was Imperial Russian law which was deemed to be in force for the
consular courts,and consequently the Russian consular court had been entitled to give judgement in favour of the seamen.As their claim predated the attachment of the Russian ship by the Egyptian creditors the seamen had p ri o r i ty .
This was a very practical result.Apart from the fact that Soviet law was uncertain and difficult to prove at the time the need for some continuity of practice prompted
decisions based on practical commercial needs,and the results of applying Imperial Russian law were generally satisfactory.
In the Hamarvy c a s e ^ i t was held that the inheritance rights of Russians in Egypt were to be determined by Imperial Russian law,and not by the new Soviet Law of Succession.Thus the certificates issued by the former Russian consuls were again accepted as valid for setting out distribution rights.The only question that remained was one of jurisdiction.Which court had jurisdiction for Russian personal status questions?As there was no consular court,was it the Mixed Courts,who often decided these
matters as incidental questions,or was it the Sharia courts as the residuary Egyptian courts of personal status?The arguments were thus between the Mixed Courts as Egyptian courts of general jurisdiction over f or ei g n e rs ,and the Sharia courts as the general personal status courts of Moslem countries 17.There was no particularly satisfactory answer,and both courts claimed and took jurisdiction in differing circumstances.lt was probably the reluctance of