'File 14/115 VII Annex (B 9) Abu Musa oxide: collected background material on the case' [‎109v] (229/1904)

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1, Could Sheikh Sakar cancel th
Sheikh Sakar bases his letter of the 22nd February, 1907 _ (9 Moharrem,
1325) (Annex 12 of the first German Memorandum), in which he informs Hassan
Samaih of the cancellation of the lease agreement, on a complaint made to him by Isa of
the conclusion of the agreement with Wonckhaus, of which Isa did not approve and
about which he stated he had not been consulted. In consequence of the representa
tions made by Hassan Samaih, Isa's complaint is again referred to in the second
decision, dated' the 26th March, 1907 (11 Safar, 1325)' (Annex 16 of the first German
Memorandum).
.> < Sheikh Sakar himself very wisely does not anywhere state that he wished to play
4-. , . . the part of a judge, for according to Mohammedan public law it is impossible for the
, Sovereign to assume the functions of a judge. A judgment can only be given by a
. judge appointed by the Sovereign, But the following further objection may be taken
to the view adopted in the British Memorandum : if Sakar is the owner and Jessor of
the mines, as maintained in the British Memorandum, that circumstance alone is
sufficient to preclude him from being a judge in this matter. It is, moreover, surprising
that the British Government, as must be inferred from the Memorandum, should admit
the jurisdiction of a sheikh on the Pirate Coast over British subjects, and that, too, in a
case where the defendant Hassan Samaih resides, not in Shargeh, but at Lingah, in Persian
territory, and therefore in the judicial district of the British consulate-general at BUshire,
? 'while the company itself has its head-quarters ancl domicil for judicial purposes at
Lingah. so that the principle, acter which is generally so strictly
followed in the East, would appear to have been dropped in this case. But assuming
that Sheikh Sakar had taken upon himself to act as judge in his own case, in spite of
such a course being contrary to the principles of Mohammedan public law, it still
remains to consider the further question whether his decision, cancelling of the
lease agreement and withdrawal of the mines, was in itself legally admissible.
Tsa complains that Hassan Samaih has concluded the agreement with Wonckhaus
and in doing so has exceeded his power, and he is afraid that his interests in the
company will be injured by this agreement. It would have been the duty of the judge
to consider whether in concluding this agreement Hassan Samaih did really exceed his
powers, or whether, if he had authority to conclude the agreement, its conclusion had,
nevertheless, injured the other shareholders. If the judge found for the plaintiff, the
judgment could only be either to the effect that the agreement had been concluded by
.an unauthorised person and was, therefore, not binding on the company—in which case
the question of the amount of compensation to be paid to Mr. Wonckhaus would
have had to be settled between the latter and Hassan Samaih—or to the effect that,
although the agreement had been properly concluded and the company were bound
to carry out its stipulations, Hassan Samaih was liable to make good to the other
shareholders the damage thereby entailed on them.
It may be admitted that a construction of the case in question accordino- to the
rules of European logic cannot be expected as a matter of course from an \rabiau
sheikh, and that is why—apart from other considerations—such a sheikh is not usually
allowed to pronounce a judgment where the subjects of a European State are con
cerned. But what one is justified in expecting is that the judgment even of an
Arabian sheikh shall not violate natural justice as it has been violated in the
present case. The dispute between the shareholders is not about the mines
themselves, but entirely about a question, of the administration of the company, the
question, namely, whether a certain individual partner had authority to perform a
certain legal act and whether this legal act was in the interest of the whole bodv or
not. And what does the judge do ? He, who is being appealed to by one party to
protect its rights which are believed to be threatened, and who ought to guard the
interests of both plaintiff and defendant, doing justice between them impartially does
violence not only to both parties but also to the remaining shareholders who are outside
the dispute, simply taking away from the company and putting in his own pocket
the whole valuable object in connection with which the company was founded and
in which he alleges that he has himself a financial interest which is not beino- duly
satisfied. That was an arbitrary act of the worst kind. 13
If, nevertheless, the British Memorandum says: " In no sense of the word does the
conduct of the sheikh appear to have been illegal," and if this is intended as a defence
not only of the manner in which Sheikh Sakar carried out his decision, but also of
the admisssibility of the decision itself, this line of argument becomes intelligible only