Founding father

Ninety years ago, Orme Bigland Clarke established the judicial system in mandatory Palestine - planting the seeds of the modern Supreme Court.

By DAN IZENBERG
supreme court 224.88 (photo credit: Ariel Jerozolimski [file])
supreme court 224.88
(photo credit: Ariel Jerozolimski [file])
This year, as we all know, marks the 60th anniversary of the establishment of the State of Israel and many of the institutions that were created along with it. But less well known is the fact that this year also marks the 90th anniversary of the establishment of the modern Supreme Court, first in mandatory Palestine and then, in an almost seamless transition, Israel. Indeed, six months after Gen. Edmund Allenby dismounted from his horse and walked through the Jaffa Gate, marking the British conquest of the Holy City, the Supreme Court as we know it today opened its doors to the public. The date was June 24, 1918. The anniversary was celebrated a few weeks ago in the legendary Room 1, the uncharacteristically spacious courtroom on the second floor of what is today Jerusalem Magistrate's Court, situated in the old pilgrims' hostel in the Russian Compound in downtown Jerusalem. The room served as the main courtroom of the Supreme Court for 74 years, until it moved into its present quarters in 1992 in the government compound, near the Givat Ram campus of the Hebrew University. On hand to celebrate the occasion were the four living presidents of the Supreme Court, Moshe Landau, Meir Shamgar, Aharon Barak and current President Dorit Beinisch. Another special guest was William Clarke and his wife, Elizabeth. Clarke, 65, is the grandson of Orme Bigland Clarke, whose name may not mean much to most Israelis but who, in fact, was the man who established the entire pre-mandatory and mandatory judicial system in Palestine. Clarke was an officer in the British army stationed in Egypt during World War I and spent only a few months in Palestine in 1918. But during those months, he rebuilt the entire judicial system after all the Turkish judges fled the country along with the retreating Ottoman army. Natan Brun, one of the speakers at the ceremony, told the audience about Clarke's achievements. He is one of the few experts in the field and has recently published a book, Judges and Jurists in the Land of Israel, a history of the judicial system between 1900 and 1930. Brun was a reporter for Yediot Aharonot for 40 years. After completing his military service, he studied law at the Hebrew University while covering the legal beat. His work included all three Jerusalem-based courts. Brun completed an MA in law and then went on to work full-time as a journalist. At 60, when many people contemplate retirement, he switched fields and returned to the Hebrew University to earn a doctorate in law. He wrote his thesis on the history of the judicial system from Ottoman times to the present and the first part of it became the recently published book. The seeds of the modern Supreme Court were sown on December 9, 1917, when Allenby entered Jerusalem and declared martial law. According to Brun, Allenby carried the British army law code, known as the Manual of Military Law, on his person at all times. Chapter 14 dealt with administering occupied territory based on the 1907 Hague Convention. According to the law, the military commander of occupied territory, which was Palestine's status until it became a British mandate on behalf of the UN in 1922, was obliged to administer it in accordance with local law as much as possible. Since there were no judges left, Allenby would have to rebuild the system. But who was to do this? THE MAN Allenby picked was Orme Bigland Clarke, who was born on October 8, 1880, in Calcutta to a British colonial family. He studied at Eton and Oxford and became a barrister in 1906. For the next eight years, he served as legal aide to one of the most prominent lawyers of his time, Sir John Simon, who was later appointed solicitor-general of England. Clarke married a wealthy scion of the Roosevelt family, Alfrida Roosevelt, who was related to both Franklin Delano Roosevelt and his cousin and wife, Eleanor Roosevelt. According to Brun, Alfrida was so wealthy that the couple was able to buy an entire village, called Bibury, located about 30 kilometers from Oxford. Clarke's connection to Palestine began indirectly in 1914, when the Ottoman government invited him to Constantinople to head the Corps des Inspecteurs, a body in charge of implementing and supervising a sweeping reform of the legal system initiated by the Young Turks. He arrived on June 10, 1914 and remained only a few months, until the outbreak of World War I, which pitted his homeland against his employer. Clarke returned to England, enlisted in the army and, in 1916, was posted to Cairo as a staff officer at British army headquarters. According to Brun, however, in the two months he was there, Clarke threw himself into his work and learned a great deal about Ottoman law. Because of that knowledge, he was considered the best choice to reestablish the judicial system in Palestine, which had ceased to function after the British occupation of Jerusalem and had barely operated for many months before that. Clarke arrived at Allenby's headquarters in Lod on January 20. From there, he immediately continued on to Jerusalem. In his book, Brun described what Clarke saw there: "In the city, and in fact throughout the occupied territory, there was great poverty at the end of Turkish rule which caused improper social and moral behavior and, above all, hunger and disease. In Jerusalem, for example, a few hundred Jewish prostitutes were active, forced to choose this occupation because of the poverty and hunger. In the occupied territory's second largest city, Jaffa, the situation was very bad." Apparently, the Turks had expelled most of the Jews from Jaffa and Tel Aviv in April 1917 and they were living in Turkish-controlled territory north of the Jaffa-Jericho line separating British troops in southern Palestine from the Ottoman forces in the north. The first thing Clarke did in Jerusalem was to consult with the only two certified lawyers then living in the city. One was Ali Jaralla and the other was Gad Frumkin. Both had studied law in Constantinople and returned home to practice. Of the two, wrote Brun, Clarke relied more on Frumkin, possibly because he spoke English. Indeed, throughout the 30 years of the British presence in Palestine, including two years of military occupation, two years of civilian government and 26 years of mandatory administration, Frumkin was the leading Jewish legal figure. Clarke met with him five days after his arrival in Jerusalem. The Jewish leadership in the city regarded the arrival of the British as an opportunity to make inroads in the legal administration. One of their first demands, for example, was to introduce Hebrew as an official language into the judicial system. Altogether, Clarke spent nine days on his first fact-finding mission, including a visit to Jaffa which was destined to become the seat of the other district court in southern Palestine, along with Jerusalem. He then returned to Cairo to prepare for his mission. On April 10, 1918, he returned to Jerusalem to start his work. Within a little more than two months, he had the entire system in southern Palestine up and running, and had managed to organize the court system in northern Palestine almost simultaneously with Allenby's defeat of the Ottoman army in the north, beginning in September 1918. But first things first. When he returned to Jerusalem in April, his mission, according to Brun, was clear. It was "to build a judicial apparatus according to the previous Ottoman structure and system, and, at the very most, include changes and adjustments that would not harm the principles in effect before the occupation. Gen. Allenby's instructions were clear and explicit and Clarke had little room to maneuver." AT THE BEGINNING of May, Clarke embarked on a tour of his judicial fiefdom. The visit included Jaffa, Majdal (Ashkelon), Gaza and Beersheba. A few days after returning to Jerusalem, he visited Bethlehem, Ramallah and Hebron. All of these cities and towns were slated to have local (magistrate's) courts. During these trips, he met with potential candidates to serve as judges and searched out buildings to house the courts. The most important location of all, however, was Jerusalem, not only because it was the seat of the British administration but also because it was to have three separate courts, a magistrate's court, a court of first instance (later renamed district court) and the court of appeals (later renamed the Supreme Court). Clarke found what he was looking for in what had been a hostel for Russian pilgrims in the Russian Compound. He wrote his wife, "I've wasted the last few days in tours of Jerusalem, looking for an office. In the end, I found the Russian buildings where I will be able to establish my own office and the courts. It will take some time to get the place in shape, but when it is, I think it will not be bad at all. Of course, furniture, lighting, and in winter, heating, will be a problem." Although Clarke stuck to the Ottoman system of law and administration, as he was obliged to do under international and British law, he made two critical departures from prewar arrangements. Perhaps the most important was that he manned the courts with Jews and Arabs. The Ottomans had employed only Turkish judges. Under Clarke, the presidents of the courts and the heads of the panels were always British, but most of the work, which was conducted in the magistrate's courts, were conducted by single, "native" judges. The other major innovation was to cut back the number of district courts, which had to hear all cases by a panel of three judges, and transfer much of the work to the magistrate's courts. Clarke believed that by localizing justice, he was making it more accessible to the population. By allowing only one judge to hear each case, he was speeding up the process. Furthermore, by reducing the number of district courts, he was cutting back on the payroll. Clarke's official title during these months was senior judicial officer. In fact, he served as minister of justice, legal adviser to the government and chief prosecutor. By June, all was ready for the proclamation of the reestablishment of the courts and the rules of court which determined the rules of procedure. Clarke drafted both documents. According to the proclamation, the bottom row of the judicial, hierarchical triangle included the Magistrate's Courts, established in the cities and towns mentioned above. Next came the Courts of First Instance established in Jaffa and Jerusalem. They were to hear appeals against Magistrate's Court decisions and criminal cases. The Court of Appeals would hear appeals from the Court of First Instance. It was not until 1922 that the Court of Appeals, renamed the Supreme Court, also became the High Court of Justice. June 24, 1918, marked the official opening of the judicial system. Clarke celebrated the occasion in Courtroom Number 1, in the Court of Appeals wing of the Russian Compound courthouse, the same room where Israeli dignitaries marked the 90th anniversary of the occasion. A few days after the original ceremony, Clarke wrote his wife: "I opened the Court of Appeals on Monday and it has been operating all week. It is truly an exceptional moment. I arranged a little ceremony and swore in the judges according to an oath that I composed myself. Albeit, the courthouse isn't furnished luxuriously but it looks pleasant enough, dignified and impressive." According to Brun, however, the occasion did not leave much of an impression on the Jewish population of Palestine, even less so compared with the festivities surrounding the laying of the cornerstone of the Hebrew University on Mount Scopus a month later. "The truth is," Brun wrote, "the event did not leave traces in the collective memory of the Jews and the Land of Israel. On the other hand, the laying of the cornerstone ceremony of the Hebrew University on Mount Scopus, which took place exactly one month later, on July 24, 1918, was regarded as an event of much greater national importance, has received great publicity ever since and many reminiscences, articles and research papers have been written about it. This apparently can be explained by the fact that the judicial system was perceived as a branch of the British administration, whereas the establishment of the university was regarded as a Zionist-Jewish-national enterprise of the first order." THIS WAS A sign of things to come. For many years afterward, the judicial system was regarded as a British or foreign institution in the historiography of the Land of Israel during mandate times. Gad Frumkin, for example, who was the only Jewish Supreme Court judge, the most senior civil servant and head of many public institutions, is not mentioned in many of the lists of the Jewish elite in mandatory Palestine. The first head of the Court of Appeals was Maj. Harry James Scott. The first Jewish judge was Malchiel Manny, who was not a lawyer but well-versed in Ottoman law. The Arab judges included Jarallah and George Homsi, a Christian, who, like Manny, was not a lawyer. Two years later, the British decided that only lawyers could sit on the highest court in the land. Manny and Homsi had to leave and were offered positions on lower courts. Manny accepted, but Homsi was so insulted that he rejected the offer, returned home and died within 10 days. Manny was replaced by Frumkin, who continued to serve as the Jewish representative on the court until the establishment of the state in 1948. Scott's tenure as president came to an abrupt end. On April 20, 1920, while hearing cases in Room Number 1, he was disturbed by loud noises in the hallway, outside a room in which a British commission of inquiry was hearing testimony about an Arab riot that had broken out in Jerusalem a few days earlier. Angered by the noise, Scott walked into the hallway and scolded the Jewish crowd. "Quiet," he said. "This is not a synagogue." One of the Jews who heard him, a lawyer named Ephraim Washitz, complained to the chief administrator of the occupied enemy territory administration, Louis Bols. Bols not only forced Scott to write a letter of apology, but he also fired him the same day. According to Brun, the British government was anxious to prove to the Jewish community that it was not anti-Semitic. The fact is that many members of the administration were biased against the Jews. However, Clarke was not one of them, according to Brun. He quoted from Norman Bentwich, the Anglo-Jewish Zionist who served as the first chief prosecutor under Clarke, who said that his boss tried faithfully to carry out his government's policy of creating a Jewish national home in Palestine. Brun pointed out that while Jews made up only 10 percent of the population after the war, 20 percent of the judges appointed by Clarke were Jewish. Three months after the judicial system began functioning again, Allenby resumed his offensive against the Ottoman army. Nablus fell on September 21, followed by Haifa and Acre two days later. The British entered Damascus on October 1. Clarke followed close behind. Just as he had set up a legal system in southern Palestine, he now headed north to continue his work. In the next month or two, he established magistrate's courts in Nablus, Jenin, Tulkarm, Haifa, Acre, Tiberias, Nazareth and Safed, and district courts in Nablus and Acre (later moved to Haifa). Clarke finished his work just in time. In November, he fell ill with a serious case of malaria. He was sent to Alexandria where he recuperated in the home of a wealthy Jewish family. The British administration in Jerusalem was waiting for him to return, but Clarke decided not to. He resigned from the army, returned home and joined the British civil service. In time, his unique contribution to the establishment of the rule of law in Palestine was largely forgotten. But closer to his own day, three of the most outstanding Mandate figures, Bentwich, the first high commissioner, Herbert Samuel, and Ronald Storrs, the first governor of Jerusalem, all credited Clarke with establishing a modern judicial system in Palestine.