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that, generally speaking, to substantiate such a charge requires evidence of a pronounced degree of improper governmental administration. It seems to me that, even in the light of such a principle of responsibility applied to facts disclosed by the record, there was an unjustifiable culpability in the delay of approximately one year and a half in giving effect to the rights invoked in behalf of Salem in November, 1919.
The wrongful application of the law by the courts may result from errors that have not their origin in prejudices or in improper motives. Perhaps it may be said that in such cases international tribunals will be disinclined to make pronouncements with respect to improper administration of justice, when charges of wrongful judicial acts are made. My associates have not overlooked the action of Judge Fayek when he appeared in some capacity before the Mixed Court of Appeal during December, 1925, in the proceedings instituted by Salem under advice of his own Government. I find it difficult entirely to overlook the declarations then made by the Judge, or former Judge, when he characterized Salem before the Mixed Court of Appeal "as a forger or, at least, a man prosecuted for forgery". I understand that the function of this Judge in this latter capacity was to enlighten the court on the law. Administrative authorities of the Egyptian Government had taken the position that he had no jurisdiction in the case against Salem. He had himself so held. The charge of forgery had therefore not been sustained in the Native Court. Furthermore, there had been a trial of Salem before the appropriate American extraterritorial tribunal, and Salem had been acquitted of the charge of forgery. It may be difficult accurately to characterize this so-called trial as one conducted in harmony with principles of law governing trials in criminal courts in the United States or in other American extraterritorial courts. It seems to be more logical to regard this proceeding as one in the nature of a recommendation by a prosecuting attorney, designated by the American Minister of a nolle prosequi,
which was approved by the Minister, after a thorough consideration of the results of an impartial and careful investigation made by the prosecutor.
It seems to me that in connection with the attitude of the Judge in dealing with the plea to the jurisdiction presented to him when he presided over the court at Mehalla in 1919, it is proper to take account of the declarations made by him before the Mixed Court of Appeal. They may not have a bearing on the question of his judicial impartiality with respect to the interpretation of treaty rights pleaded. But the record discloses that he could make use of the term "forger" in the absence of a trial before himself, and even after there had been a trial and an acquittal before an appropriate tribunal. It seems to me that, furthermore, it may be observed that this charge of forgery, made under these conditions, could perhaps be said to be the more remarkable, if counsel for Egypt were right in his conclusion that the Judge examined the record of the preliminary investigation before Ibrashy Bey. I may somewhat reluctantly admit that the results of the investigation might have justified a trial. But, as I have already observed, the record of the investigation indicated innocence and not guilt on the part of the accused. Whatever allowances may be made for the opening statements of counsel in a case of this character these particular remarks, in my opinion, do suggest prejudice against the claimant. It is especially unfortunate that there was an alternative statement that Salem was either a "forger" or, at least a person prosecuted for forgery. In my opinion, neither from a legal nor from an ethical standpoint was there any justification for the suggestion that he might be a forger.
In addition to this attitude of the Judge of the Court of First Instance at Mehalla, it seems to me that it may also be pertinent to note excerpts from the record of the Court at Tantah, which delayed for a protracted period its pronouncement as to lack of jurisdiction. In the record of the proceedings of the Court on December 7, 1919,
to which I have referred in some detail, we find statements such as these: "The first party [Salem] having committed forgery in Mehalla el Kobra in connection with a private deed ."; "The forgery has been committed by fixing
to the deed a forged signature . . . .";" He then made use of this deed, which he knew to be forged "; "The other parties, . . . having assisted George Joussef Salem, the principal author of the crime of forgery, in the accomplishment of said crime". Annex E to the Egyptian Memorial, Exhibit 12(A). No improper prejudging of guilt may have been intended. Perhaps this is the Egyptian way of referring to a person accused of a crime. I am not informed concerning that point. But it is noticeable that references are at times made in the record to "accused" persons instead of to forgers.
In reaching my conclusion with respect to non-observance of treaty provisions I have taken account of all of the facts in the record which I have sketched in some detail and of principles of law which in my opinion are applicable in dealing with this question. It is one which cannot be resolved by the application of some established, concrete formula, since none exists.
There is some suggestion in the majority opinion to the effect that statements or actions of Salem or his lawyer may have contributed to confusion with respect to the matter of nationality. In the absence of direct evidence, I think that a man's own testimony may be regarded as competent with respect to his citizenship. In the instant case that to which consideration must be given of course would include also evidence furnished by Salem to substantiate his American citizenship. If there has been inconsistency on his part, it is not the only inconsistency revealed by the record. The Egyptian authorities have said from time to time that Salem should be regarded as a Persian, and also that he should not so be regarded; that he should be considered to be an Ottoman subject, and also not an Ottoman subject; a "local subject", and also not a "local subject"; that he must be recognized as an American; that he should
not be so recognized. Authorities of the United States on two or three occasions said that Salem was not entitled to the protection of the United States, and at least on two occasions corrected such declarations. I do not mention these things by way of adverse criticism. The difficulty doubtless inhered in uncertainty as to facts. But if the experts of the Foreign Office of each of the two Governments can thus take contrary positions, there may be good excuse for some inconsistency or confusion on the part of Salem or his lawyer in connection with the difficult task of protecting the rights of the former.
I am not in sympathy with the generalities employed in the majority opinion to discredit Salem's testimony.
References to some petty affairs between Salem and the police authorities might convey the idea that he had a bad criminal record, which evidently is not the fact, whatever his faults may have been.
LOCAL REMEDIES AND INTERNATIONAL RESPONSIBILITY FOR THE MIXED COURTS
The majority opinion refers to the contention made in behalf of the Government of Egypt that as stated in the opinion" the claim fails for reason that only the Mixed Courts are competent to deal with such claims for damages such as that put forward by Salem and that in these cases the diplomatic method is excluded, as may be seen from the genesis of the Egyptian Judicial Reform ". It was argued that the Mixed Courts were erected for the special purposes of allowing foreigners to sue the Egyptian Government; that before that was done claims had to be settled through diplomatic methods. The Egyptian Government states, it is recited in the majority opinion, "that the Mixed Courts are to be regarded as international arbitral tribunals, and that therefore no further arbitration proceedings can be opened against the decision of these courts ".
It was argued that, in so far as the claim was based on allegations with respect to denial of justice by the Mixed
Courts, the claim was inadmissible, because the Egyptian Government is not responsible for the acts of those Tribunals. It was also argued that, if the Mixed Courts were regarded as national courts, the United States could not maintain this claim before this Tribunal on the merits, because Salem did not exhaust all his legal remedies against the decision of the Mixed Court of Appeal at Alexandria. After he had obtained the court's final decision dismissing his case, there was open to him, it was said, the recours en requête civile " against the decision of the Court. These contentions are analyzed to some extent in the majority opinion and the one with respect to nonliability for the action of the Mixed Courts appears to be sustained.
It is true that it is a general rule of international law that diplomatic intervention by a Government in behalf of a claimant against another Government is not justified until he has exhausted his legal remedies in the appropriate tribunals of the country against which he makes the claim. I think that there are times when the rule may be applicable in connection with attempts to vindicate rights under treaties as well as rights under domestic laws. My associates take the view that the rule should not be given application in the present case before the Tribunal, so as to preclude us from considering the case on its merits with a view to the determination of the question of the responsibility of Egypt in the light of the terms of submission contained in the Protocol of January 20, 1931. Even though I do not entirely agree with the reasoning of my associates in arriving at their determination on this point, I concur in the conclusion that the rule should not be applied.
I do not think that the use of the term "equity" in the Protocol has any bearing on this point. In my opinion provisions of the Protocol that cases shall be determined in accordance with the principles of law and equity should properly be construed to state the require