Cassation Court
Civil and Commercial Circuit - No. 109/2009
Session Date: 15 December 2009
Appeal by Cassation No. 109 of 96 - civil appeal by cassation.

(1) Law “repeal of a law”.
Repealing legislative provisions – is permissibly implemented by subsequent legislation which explicitly provides for such repeal, or includes a provision incompatible with the provisions of the previous legislation – S. 2 of the Civil Law – repeal in the later case may only operate within the ambit of incompatibility between the previous and subsequent provisions.
 
(2 – 4) Jurisdiction “substantive jurisdiction: what exceeds the jurisdiction of the ordinary courts: comes within the jurisdiction of the Appellate Administrative Circuit: appeal by cassation against the decisions of the Advocates Disciplinary Council” – responsibility “disciplinary responsibility: administrative sanction: assessing it”.
 
(2) The exclusive jurisdiction of Appellate Administrative Circuit of the Court of Appeal to entertain appeals under paragraph 3 of Section 8 of Law No 7 of 2007 on the Settlement of Administrative Disputes, including appeals against the decisions of the Advocates Disciplinary Council – incompatibility of the aforesaid with Section 72 of the Advocacy Law No 23 of 2006 which endows any of the circuits of the Court of Appeal with the jurisdiction to entertain appeals against the decisions of the said Disciplinary Council – its requirement – that the latter provisions shall be considered as repealed to the extent of incompatibility between the previous and subsequent rules.
 
(3) Assessing a sanction – the rule is that it shall be based on graduation, subject to the severity of the administrative wrong – where there is no proportionality between the wrong and the sanction applied because of it – being outside the ambit of legality and into unlawfulness – its effect – becoming subject to scrutiny by the courts.
 
(4) Where the judgment appealed against by cassation reasonably concludes that the violation attributed to the advocate is a gross violation and that the sanction applied thereon is not proportionate with such violation, and accordingly applies a severer sanction on him – contention against the judgment that it erred in the application o the law, because the court has jurisdiction to entertain the application for cancellation but not the alteration of the sanction, and to decide the extent to which it is proportionate with the act – baseless.
 
1- It is established, as provided by Section 2 of ­­­­the Civil Law, that repealing legislation may be through an explicit provision in subsequent legislation. It may be implicitly implemented by a subsequent legislation that includes a provision incompatible with the provisions of the previous legislation. In this case, such repeal only operates to the extent of incompatibility between the old and new rules.
 
2- Sections 67 and 72 of Law No 23 of 2006 on the Promulgation of the Advocacy Law provide that “The discipline of advocates shall be carried out by a council to be established and chaired by a judge of the Court of Appeal. The decisions of such Council may be appealed against before the Court of Appeal”. Then the Law No 7 of 2007 on the Settlement of Administrative Disputes was promulgated, Section 8 of which provides that “A circuit to be called the Appellate Administrative Circuit of the Court of Appeal shall be established, which shall be composed of three judges and shall have jurisdiction to entertain 1- ..., 2- ..., 3- ... quashing and compensation applications against the decisions of Disciplinary Councils, and other administrative bodies with judicial jurisdiction”. The combined meaning of the said provisions is that the Appellate Administrative Circuit of the Court of Appeal has obtained exclusive jurisdiction to entertain appeals against the decisions under paragraph 3 of Section 8 of the said Law No 7 of 2007.  A clear incompatibility thereby exists between the provisions of the said Section and the provisions of Section 72 of the Advocacy Law No 23 of 2006 which endowed every circuit of the Court of Appeal with jurisdiction to entertain such disputes, at a time when jurisdiction over administrative disputes was not given to the courts, except for disputes relating to administrative contracts. Accordingly the latter provision should be considered as being repealed to the extent of incompatibility between the old and new rules, by virtue of which the Appellate Administrative Circuit of the Court of Appeal became the body responsible for hearing appeals against the decisions of the Advocates Disciplinary Council.
 
3- The rule on the assessment of sanction is that it shall be based on graduation, subject to the severity of the administrative wrong. The clear lack of proportionality between the wrong and the sanction applied because of it would render such sanction outside the ambit of legality and into unlawfulness, and would therefore be subject to scrutiny by the courts.
 
4- The judgment appealed against by cassation has concluded that the violation attributed to the advocate was a gross violation, considering that advocacy is a freely independent profession with the objective of realisation of justice, which contributes with the judiciary in founding its pillars, and assists litigants in defending their rights. Accordingly, and for the purposes of public good pertaining to the observation of higher traditions for the advocacy profession, the sanction applied on the person complained against was not proportionate with the violation attributed to him. Therefore, and according to the aforesaid principles, a severer sanction should be applied thereon, namely the suspension from practicing the profession for three months. The conclusion reached in the judgment appealed against by cassation is a reasonable and correct deduction that falls within the discretionary right of the court. Accordingly, the contention becomes baseless.

The Court
 

Having reviewed the documents and listened to the report reiterated by the judge-rapporteur, and after the litigations and deliberations; and as this appeal by cassation has satisfied its formalities.
 
The facts, as revealed by the judgment appealed against by cassation and other documents, are as follows. The Respondent referred the Appellant advocate to disciplinary trial before the Disciplinary Council to be sanctioned for matters attributed to him in the disciplinary claim No 21 of 2007 that he violated the principles of honour, honesty and integrity required in the advocacy profession, by representing opposing interests in the appeals No 505/2003 and No 45/2008. The Advocates Disciplinary Council decided to sanction the Appellant by the punishment of reprimanding him. The Respondent lodged against such decision an appeal No 45/2008 before the Administrative Circuit, applying for a stricter punishment on the Appellant. At the session of 28.4.2009 the court issued a judgment altering the decision appealed against, and sanctioning the Appellant by suspension from exercising the advocacy profession for three months. The Appellant lodged against such judgment an appeal by cassation, which was presented before this Court, at the deliberations chamber, and a session was fixed for its consideration.
 
This appeal by cassation is based on two reasons. In the first reason, the Appellant contends against the said judgment that it erred in the application of the law. He stated that jurisdiction for entertaining appeals against the decisions of the Advocates Disciplinary Council is endowed to the Civil Circuit of the Court of Appeal, and not the Administrative Circuit, since the said are judicial decisions, issued by a judicial authority, not subject to approval by any other body. The jurisdiction of administrative adjudication is only limited to appeals relating to quashing and compensation, without alteration by inflicting milder or severer punishments. The judgment appealed against by cassation was issued by the Administrative Circuit of the Court of Appeal, which is a violation of the law, necessitating its cassation.
 
This contention is inappropriate. As provided by Section 2 of the Civil Law, repealing legislation may be through an explicit provision in subsequent legislation. It may be implicitly implemented by a subsequent legislation that includes a provision incompatible with the provisions of the previous legislation. In this case, such repeal only operates to the extent of incompatibility between the old and new rules. Sections 67 and 72 of Law No 23 of 2006 on the Promulgation of the Advocacy Law provide that “The discipline of advocates shall be carried out by a council to be established and chaired by a judge of the Court of Appeal. The decisions of such Council may be appealed against before the Court of Appeal”. Then the Law No 7 of 2007 on the Settlement of Administrative Disputes was promulgated, Section 8 of which provides that “A circuit to be called the Appellate Administrative Circuit of the Court of Appeal shall be established, which shall be composed of three judges and shall have jurisdiction to entertain 1- ..., 2- ..., 3- ... quashing and compensation applications against the decisions of Disciplinary Councils, and other administrative bodies with judicial jurisdiction”. The combined meaning of the said provisions is that the Appellate Administrative Circuit of the Court of Appeal has obtained exclusive jurisdiction to entertain appeals against the decisions under paragraph 3 of Section 8 of the said Law No 7 of 2007.  A clear incompatibility thereby exists between the provisions of the said Section and the provisions of Section 72 of the Advocacy Law No 23 of 2006 which endowed every circuit of the Court of Appeal with jurisdiction to entertain such disputes, at a time when jurisdiction over administrative disputes was not given to the courts, except for disputes relating to administrative contracts. Accordingly the latter provision should be considered as being repealed to the extent of incompatibility between the old and new rules, by virtue of which the Appellate Administrative Circuit of the Court of Appeal became the body responsible for hearing appeals against the decisions of the Advocates Disciplinary Council. Therefore, the contention in this reason becomes baseless, and should be inadmissible.
 
The Appellant contends, in the second reason of this appeal by cassation that the said judgment has erred in the application of the law, because the legislature allowed the court jurisdiction in the case of an application for quashing the judgment, without alteration of the sanction, and whether or not such sanction is proportionate with the act. The said judgment has violated this and is therefore defective and worthy of cassation.
 
This contention is inadmissible. The rule on the assessment of sanction is that it shall be based on graduation, subject to the severity of the administrative wrong. The clear lack of proportionality between the wrong and the sanction applied because of it would render such sanction outside the ambit of legality and into unlawfulness, and would therefore be subject to scrutiny by the courts. The judgment appealed against by cassation has concluded that the violation attributed to the advocate was a gross violation, considering that advocacy is a freely independent profession with the objective of realisation of justice, which contributes with the judiciary in founding its pillars, and assists litigants in defending their rights. Accordingly, and for the purposes of public good pertaining to the observation of higher traditions for the advocacy profession, the sanction applied on the person complained against was not proportionate with the violation attributed to him. Therefore, and according to the aforesaid principles, a severer sanction should be applied thereon, namely the suspension from practicing the profession for three months. The conclusion reached in the judgment appealed against by cassation is a reasonable and correct deduction that falls within the discretionary right of the court, and accordingly, the contention becomes baseless.