Court of cassation, Cour of appeal, Cour of adjudication

Monsieur Abderrahim BIREME HAMID

Président de la Cour suprême du Tchad

L’accès au juge de cassation
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By Abderrahim Bireme Hamid, President of the Supreme Court of Chad

Thank you, Mr Chairman. I would like to thank the King of Morocco, the President of the Supreme Court of Morocco and the office of AHJUCAF who have offered us the ideal setting for an exchange of ideas for the benefit of our courts.

In the daily struggle to consolidate the rule of law, the courts occupy a prominent position and the Supreme Court plays a leading role. According to the Constitution of the Republic of Chad, the Supreme Court is the highest judicial authority in the country. Before it are brought appeals on points of law against decisions coming from the courts of appeal and the trial courts concerning civil, customary, social and criminal law. Furthermore it is also an administrative court, an audit court and a local electoral court.

It must be pointed out, however, that Chad’s Supreme Court has a distinctive feature which stems from law number 006/PR/98 of 07/08/98 relating to the organisation and workings of the Supreme Court. Article 61 of this law provides that “judgments be given either at the hearing or after deliberation on a fixed day. The Ordinary Division of the Supreme Court may set aside the decision brought before it; it can then either refer the case to another court of the same rank as the one which made the contested decision, or, if the case is recognised as being one which the court can deal with on its merits, it can transfer the substantive matter to itself for hearing and determination” (évocation). This exceptional provision means quite simply that, in certain cases, the Supreme Court has the power to have a matter transferred to itself, that is it can give judgement on both fact and law. This is what makes the Court distinctive, even original, for outside its traditional role it is legally empowered to be the court of appeal and the court of adjudication. This modest paper will deal first with the traditional role of the Supreme Court and then with its power to transfer cases from the lower courts to itself for a decision, that is, its distinctive role. This will help us to ascertain the reasons for, and the advantages and disadvantages of this system.

I / THE SUPREME COURT: COURT OF CASSATION

As with other courts of cassation, the general rule with Chad’s Supreme Court is that it does not examine the facts of a case, but rather it seeks to ascertain that there has been a proper application of the law. It regulates the other courts, guarantees consistency in case law and contributes to a unified interpretation of the law. In its capacity as the highest court in the land its fundamental, traditional role is to oversee the proper application of the law and to ensure that case law is unified and harmonious. With regard to Article 7 of law number 004/PR/98 of 25/5/98 concerning the organisation of the judiciary, the Supreme Court is the highest court in the ordinary, administrative and auditing hierarchies. In that regard, it acts as the Court of Cassation in all matters, and it therefore cannot re-examine the facts and impose another version of those facts. The Court considers these facts as having been conclusively established by the lower courts. It therefore does not judge the case; it judges the judgment. By examining contested decisions solely from the point of view of the proper application of the law, the Supreme Court sets out its position on the meaning of the law and on the interpretation that should be given to it. Its rulings setting aside contested decisions or dismissing referrals guide the various other courts by showing them how to interpret any rule of law properly. In this way the Court ensures a uniform interpretation of the law and consolidates the foundations of case law. That is the general rule, but Article 61 of law number 006/PR/98 of 07/08/98, concerning the organisation and workings of the Supreme Court, also sets out an exception to this rule that makes Chad’s Supreme Court a court of appeal and a court of adjudication.

II/ THE SUPREME COURT: COURT OF APPEAL

As a court of second instance, Chad’s Supreme Court completely re-examines the case, both as to the facts, which are the cause of the litigation, and as to the rules of law applied to those facts. By this power, the Supreme Court may either set aside the contested decision by declaring that the Court of Appeal has wrongly applied the law, or alternatively uphold the contested decision by judging that the Court of Appeal has correctly applied the rule of law. Although, in principle the technique of setting aside a decision prohibits the Supreme Court from substituting its own decision for the judgment that has been set aside, there are cases where the Supreme Court sets aside a decision without remitting the matter for re-trial (le renvoi).This is the case when returning the matter to the Court of Appeal for re-trial would be unnecessary because the lower court would have nothing to judge. Such is the theory behind setting aside a decision on a point of law in contrast with passing judgment: legality is only re-established when the second decision in time is set aside. This is also the case when the Supreme Court directly determines the outcome of the case, instead of the lower courts. The Plenary Assembly of the Supreme Court also has this power when it deals with a second referral on the same point of law after the lower court has refused to follow the first interpretation made by the Supreme Court (saisie sur second pourvoi). This can bring an end to the litigation when the facts, which have been conclusively established and assessed by the lower courts, allow the Supreme Court to apply the appropriate rule of law.

III / THE SUPREME COURT: COURT OF ADJUDICATION

• CAUSES OF THIS DISTINCTIVE ROLE

The reasons behind this prerogative stem from the fact that Chad emerged from a long war that lasted practically two decades. The negative effect of this war on the country’s structures, particularly on the court structures, is evident. There was therefore a long period when unfortunately judges, who were advanced in years, were not being replaced because of the lack of initial training. The majority of judges currently sitting are young, and they do not all have enough experience to sufficiently guarantee a high quality system of justice for litigants. For the whole of Chad there is only one single Court of Appeal. In the event of resistance from the Court of Appeal (even if it were composed of different judges) against a decision of the Supreme Court, the only possible recourse is the plenary assembly made up of at least nine judges. Also, so that litigants can be guaranteed a degree of swiftness in handling the case, it is necessary that at any given time the Supreme Court is able to settle and put an end to the litigation, and to prevent the process from becoming interminable. This distinctive role breaks an important principle unanimously accepted and widely used by the majority of courts of cassation in the French-speaking world, namely not to make the court of cassation a court that judges the facts. This role certainly has a number of disadvantages, which should now be set out.

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THE DISADVANTAGES OF THIS DISTINCTIVE ROLE:

There is good reason to fear that the abuse of the power to transfer a matter to Chad’s Supreme Court for determination may distort the essential role assigned to a court of cassation, a role which is solely to oversee the application of the law. The use of this power could breach the principle of equality of citizens before the law. To ensure that this equality is observed, the application of the law must be uniform and the power to rule on the conformity of decisions with the laws of the Republic must be clearly defined. This opportunity, if it can be described as such, must be given to everyone. Any litigant who has lost a trial following such a transfer order may feel that the matter has not been closed and that he or she is left with a feeling of injustice. Through its power to transfer cases from the lower courts for determination, Chad’s Supreme Court has by implication become a court of third instance. This is all the more so since the Court can rule upon and determine a matter completely on its merits, without having to remit the case for trial before a lower court. It also behaves like a "super Court of Appeal". Using its power as a judge of fact and of law, Chad’s Supreme Court can carry out a second examination of the matter, after which it may make a quashing order and have the substantive matter brought before it for determination. In this way the Social Division of the Supreme Court quashed a decision of the Court of Appeal in Chad’s capital, N’Djamena. The Court of Appeal’s decision declared as wrongful the termination, by way of a ministerial order, of a civil servant’s secondment to a private company. The employee was reinstated in her position as a civil servant after having received all her entitlements from the company. She instigated proceedings, and the Court of Appeal ordered the employer to pay damages for breach of procedure. After quashing the order, the Supreme Court ordered that the case be brought before itself for determination and dismissed the employee’s claim. This distinctive role of Chad’s Supreme Court does not only have its drawbacks. There are also some positive aspects.

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THE ADVANTAGES:

The power given to the Supreme Court by Article 61 has a real advantage in that it avoids long, often interminable proceedings. The rule that allows a case to be transferred to the Court for determination avoids a second referral to the Supreme Court. In particular it reduces defiance or resistance from the lower courts or from Chad’s sole Court of Appeal. This rule is also in evidence when the Plenary Assembly deals with a second referral. Indeed the Plenary Assembly can put an end to litigation when the facts, such as they have been conclusively established and assessed by the by the lower court, allow it to apply the law appropriately. Under this notion of setting aside a decision on points of law without remitting the case to another court for retrial, the Supreme Court no longer plays its role of guardian of the law, but instead acts as a court of third instance. This is evidenced by the fact that the Supreme Court makes rulings on costs and on the reimbursement of legal fees.

We have just seen how the Supreme Court in Chad has the power to transfer matters to itself for determination, which allows it to assess both the facts and the law. This is its distinctive role, but this system has many disadvantages, which we have outlined, for often this role does not conform with certain fundamental principles. Nevertheless, it is only one power given to Chad’s Supreme Court. It therefore only concerns a power that can be used in certain cases. If it is used without being abused, it will address certain specific problems arising from the realities of life in Chad.

CONCLUSIONS

The Court of Cassation assumes its traditional role as guardian of the law due to certain principles, namely: the principle of applying the law in a uniform manner, which encourages unified legislation and unified case law throughout its jurisdiction; the principle of limiting the involvement of the Court of Cassation to matters of law; the principle of a channel of appeal under ordinary law by way of a referral; and the principle of effectiveness.
The Court of Cassation was originally confined to its traditional role of guardian of the law.
This concept relies on the rigid principle of the separation of powers and on the idea that the court must limit itself to applying the law, whilst the legislature, by contrast, has the role, not only of making the law, but also of interpreting it.
Supporters of this theory take their thinking from the writings of Montesquieu, who said: “In republican government, it is in the nature of the constitution for judges to follow the letter of the law. If judgments were the individual opinion of a judge, one would live in this society without knowing precisely what engagements one has contracted”. And in the speeches of Isaac le Chapelier to the French National Assembly he said: “No more than the district courts, should the Court of Cassation have its own binding precedents, and if there were a system of binding precedents, that most detestable of institutions, it would have to be destroyed. The only aim of the provisions upon which you are to deliberate is to prevent this from being introduced”, session of 18 November 1790 Parliamentary archives XX, page 516.
This concept met with approval in Italy, and it emerged under the doctrine known as “Nomofilaschia”, inspired by a Greek institution, “nomophylakia”. These were judges who had the task of attending the popular assemblies so as to prohibit the passing of any bills that were contrary to the law.
Later, the powers of the Court of Cassation were strengthened. In addition to its role of guardian of the law, that is its role of ensuring respect for the wishes of the legislature, the Court of Cassation, through the interpretation of the law, has the power to create law, and this allows it to ensure uniformity of both legislation and case law.
In order to interpret the law, the Court of Cassation has the task of piecing together, not only “the will as expressed by the legislature”, but also “the interpretation of this will across the ages”.
This broad perception of the Court’s function has engendered a creative strength in its case law. Thus in a number of areas, theories like the imposition of coercive penalties for failure to comply with a court order (l’astreinte), unjust enrichment (l’enrichissement sans cause) and liability for damage caused by things under one’s control (la responsabilité du fait des choses) were born from the creative strength of the Court’s case law. These theories have come to illustrate a tendency towards a more generous interpretation of the powers and the regulatory role of the Court, namely reviewing decisions given at final instance as to their legality and the coherency of their statements of reasons.
What this concerns is an interpretation of the Court’s role making use of doctrine that allows it to express the law in cases where the law is silent, or where there are lacunae. That doctrine also allows the Court to provide an interpretation that meets with the requirements of the moment, whilst retaining sufficient stability in its case law.
I thank you.