'Mesopotamia. Jurisdiction over Foreigners' [‎145v] (5/10)

inconveniences and difficulties wlrich necessarily arise from conflicts of jurisdiction
where two sets of courts are functioning in the same country. It does not involve any
considerable additional expense, and as foreign Poweis will not consent to the scheme
unless they are satisfied that justice will be reasonably well administered, it ensuies a
higher standard of efficiency for the courts than they are likely to attain if cases
between foreigners are excluded from them. It does not, however, follow that the
scheme would be popular with Mesopotamians or would be accepted by a native
Mesopotamian Government, for the scheuJe will involve safeguards which may not be
acceptable.
The interests of Great Britain as mandatory Power may conflict with the interests
of her nationals resident in Mesopotamia. Regarded from the standpoint of her
position as mandatory Power, the scheme now under discussion seems the best, since
it will strengthen her hand in introducing necessary reforms in the local courts and
in maintaining their efficiency. But her duty towards her own nationals will only
permit of her accepting the scheme subject to adequate safeguards.
The object of the safeguards is to ensure that the courts will be administered
with reasonable efficiency and honesty, and that the law applied by them will be
suitable for foreigners. The Turkish courts were neither efficient nor honest, but
undoubtedly the Judges of Turkish nationality were, as a rule, better qualified than
those of Mesopotamian nationality ; and it would not be possible to form courts of
sufficient strength solely of the existing Mesopotamian judges. Under existing
conditions there is little probability of the courts being either efficient or honest
unless some control is exercised over them by the mandatory Power. That would
seem to be an essential condition of Great Britain or foreign Powers agreeing to the
local courts being vested with general jurisdiction over cases in which foreigners are
interested.
Other safeguards will require fuller consideration than I have been able to give
to them and might usefully be referred to a Committee for discussion, but provisionally
I put forward the following ; —
(а) Under the capitulations cases of a less value than £T. 10 and cases relating
to leases of immovable property were triable by the Nizamieh courts (i.e., the ordinary
Ottoman courts). It is suggested that it would be for the general convenience to
extend the cases which may be tried by the ordinary Ottoman courts so as to coincide
with the jurisdiction of a Peace Court, and to permit all suits in which a foreigner
is interested, which would be within the jurisdiction of a Peace Court if a foreigner
were not so interested, to be tried by a Peace Court. For the jurisdiction of a
Peace Court see Appendix III.
(б) Except for cases within the jurisdiction of a Peace Court {see Appendix HI.)
cases in which foreigners are interested must be tried by a court comprising at least
one British judge out of the usual total of three; if the case is triable by a single
judge, the judge must be British.
The British judge being in a minority, it is probable that cases may occasionally
occur between British or foreign subjects and natives in which the majority of the
court will be prejudiced in favour of the native. If it is thought necessary to provide
an absolute safeguard against this possibility, it will be necessary to provide that the
majority of the Court of First Instance, or at least of the Court of Appeal, are British.
But it is to be remembered that under the capitulations both the mixed tribunals and
the Ottoman Criminal Courts which had jurisdiction over foreigners Avere composed
entirely of Ottoman subjects. I do not consider, therefore, that a demand for a
British majority on the court is justified.
(c) Appeals and applications for revision of judgments in which foreigners
are interested, including judgments of Peace Courts, must be tried by a court on
which there is at least one British judge if the court consists of three, and at least
two British judges if the court consists of four or five, and so on in proportion.
(r/) The trial of commercial cases shall be heard with assessors, as under the
capitulations, in places where there are sufficient foreigners to supply satisfactory
assessors.
(e) The existing law in general must be revised and approved by the mandatory
Power. In particular revision is necessary of the Penal Code and Criminal Procedure
Regulations ; also of the Commercial Code, and especially the sections relating to
bankruptcy. The Mejelleh is quite unsuited for application to foreigners ; but, being
based on the Religious Law, the people of Mesopotamia are attached to it, and it is
doubtful whether they would agree to an extensive revision of its provisions. If an
adequate revision is not feasible, possibly an arrangement can be made excluding