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Colonial Cases

Second Arab Orthodox Congress v. Keladion, 1932

[religion]

The Executive Committee of the Second Arab Orthodox Congress v. The Right Reverend the Archbishop Keladion, Locum Tenens of the Orthodox Patriarchate, Jerusalem

High Court, Jerusalem
1932
Source: The Palestine Bulletin, 12 January 1932

 

ORTHODOX PATRIARCHATE IN COURT

   A petition will be heard in the High Court to-day for an order to the Locum Tenens of the Orthodox Patriarch to show cause why the present proceedings "purporting to the elections of the Patriarch, should not be stayed in view of several irregularities and infringements of the Imperial regulations of 1875 which prescribe the proper form for such elections.

   The petition will be lodged by Dr. M. Eliash on behalf of the Executive Committee of the Second Arab Congress in Palestine and Transjordan elected in Jaffa last November.

   The petitioners allege that among other irregularities in the proposed procedure, is the composition of the Synod and the fact that married priests have been disqualified from voting.

 

Source: The Palestine Bulletin, 17 January 1932

ORTHODOX PATRIARCHATE

  The High Court of Justice announced their decision on Friday and issued an order to the Locum Tenens of the Greek Patriarchate of Jerusalem "to show cause why he should not be ordered to stay the present proceedings purporting to be elections to fill the existing vacancy in the Patriarchal Throne of Jerusalem, and to carry out such elections in accordance with Law."

   No order staying the proceedings was made, but the Court fixed the return day for January 28.

   Mr. Justice Corrie observed that in granting the Order, the Court was guided by Art. 43 of the Palestine Order-in-Council, which grants the High Court of Justice jurisdiction in matters in which no other regular remedy is available.

 

Source: The Palestine Bulletin, 24 January 1932

PATRIARCHATE IN HIGH COURT.

   The High Court was filled to capacity on Friday when Mr. Justice Baker, in the absence of the Chief Fugitive (who is differing from an attack of influenza) presided on the return day of the Order Nisi calling upon the Locum Tenens of the Orthodox Church to show cause why the Patriarchal election, fixed for January 28, should not take place.

   Great surprise was occasioned on the discovery that the Locum Tenens, although served with the Odder of the Court, neither appeared nor responded.  The chief process server and a messenger gave evidence as to the delivery of the Order at the Patriarchate, for which a receipt was obtained, and Mr. Sullivan told the Court that the district Commissioner had a letter from the Patriarchate dated January 20 stating that the Locum Tenens had received the Order Nisi and a copy of the Petitioner's application.

Regulations Violated

   The Court being satisfied that service of the Order had been effected Mr. Eliash on behalf of the petitioners was called upon to submit his arguments.  He dwelt at length on the Imperial Regulations of 1875 according to which the Locum Tenens is responsible for the elections, and showed in the first place that these regulations had not been adhered to in the present instance and secondly, that they needed revision.

   The Imperial Regulations insist that due notice of an impending election should be given, and Mr. Eliash argued that this had not been done.  He referred to another section of these Regulations which require that the person to be elected Patriarch must be subject to the Patriarchal Throne, be either a Bishop or an Archimandrite, and "to have served for ten successive years with ability and without any default in a Metropolis and he and his father at least to be subjects of His Imperial majesty."  Certain persons on the list of candidates, said Mr. Eliash, did not conform to these two Regulations.

Ineligible Candidates.

   At the request of the Court, evidence was given during the afternoon sitting by Archimandrite Epiphanios, chief secretary of the patriarchate and one of the prospective Candia fates, who admitted that three of the candidates were not subject to the Patriarchal Throne and that the Locum Tenens was the only one of the 12 who served in a Metropolis for ten successive years.  He also stated that the Patriarchate had received a letter from the orthodox Congress alleging certain irregularities in the election but that no reply was sent nor were any steps taken in connection with this communication.

   Replying to questions by the Court as to "the composition of the Holy Synod, the witness, who said he could not take the oath but affirmed to tell the truth, stated that the Locum Tenens had been elected two hours after the death of the late Patriarch and explained the addition of members to the Synod which, he claimed, was not contrary to the Imperial Regulations.

   Mr. Eliash asked for costs and an order to make the order Nisi absolute.  Judgment will be delivered during the first half of this week.

 

Source: The Palestine Bulletin, 26 January 1932

Letters to Editor.

PATRIARCHATE IN HIGH COURT.

To the Editor of the Palestine Bulletin.

   Sir. - I shall be glad if you would kindly give space in your paper to the following:  The fundamental claim of the orthodox community relating to its election of the patriarch is to have an ample share in the election.  Sir A. Bertram in his report proposed an amendment to the Turkish law dealing with the election, but his proposal cannot be put into force until it has been accepted by the Synod presided over by the patriarch.  The Committee of the orthodox Congress should have claimed the implementing of the Bertram report soon after its presentation to the Government, and at the time the late Patriarch was still alive.  The Chief Justice referred to this during the proceeding of the case.  The Chief Secretary also wrote to the Committee that the Government could not interfere in their case before the election of the Patriarch.

   The case lodged at the High Court alleged three points: - The illegal election of the Locum Tenens, the absence of the community representatives from the first sitting, and the nomination of candidates was not in conformity with the regulations concerned.

   It is evident that none of these points has any connection whatever with the principal claim of the community.  It is believed that the aim of the body which lodged the case was to impede the procedure of the election as the candidate whom they wish to interest, has failed to obtain a majority in the Synod.

   If the court were to make an order nisi absolute, would this affect Sir Bertram's report?  Certainly not, as the election of a new Locum Tenens and the renomination of candidates in conformity with the law would not solve the problem, since the community have declared that they will not allow their representatives to take part in the election except on the basis of Bertram's recommendations.  An Arab Orthodox.  Jerusalem, January 24.

 

Source: The Palestine Bulletin, 27 January 1932

PATRIARCHATE ELECTION STAYED.

IMPORTANT HIGH COURT DECISION.

   In the Supreme Court sitting as a High Court of Justice, composed of the Chief Justice, and Mr. Justice Baker, the application of the Arab Orthodox Congress for an order to the Locum Tenens of the orthodox Patriarchate to show cause why he should not be ordered to stay the Patriarchal elections was yesterday morning made absolute, with coasts to include L.P. 5 advocate's fee.

   The election was to be held to-morrow, in accordance with an official communiqué of January 6 that the High Commissioner had decided not to excise any name from those contained in the list of candidates voted upon by the Holy Synod.

   In spite of this, the High Court decided that the elections shall not be proceeded with.

As in the previous hearing, the Locum Tenens neither appeared nor was represented by Counsel, and the surprise and regret of the High Court at this action is expressed in the judgment which was read by Sir Michael McDonnell before a crowded court.

   On the other hand, appreciation was expressed of the ability with which Dr. Eliash placed his clients' case.

   The reasoned judgment is perhaps one of the longest ever delivered in Palestine in recent years, and both because of the importance attached to the controversy over the elections to full the vacancy in the patriarchal Throne, and the intrinsic interest of the judgment, will be given in full tomorrow.

 

Source: The Palestine Bulletin, 28 January 1932

Vacant Patriarchal Throne

Full Text Of High Court Judgment

 

IN THE SUPREME COURT SITTING AS A HIGH COURT OF JUSTICE.

BEFORE; the CHIEF JUSTICE and Mr. Justice Baker.

On the application of:

The Executive Committee of the Second Arab Orthodox Congress, Petitioners.

v.

The Right Reverend the Archbishop Keladion, Locum Tenens of the Orthodox Patriarchate, Jerusalem, Respondent.

 

Application for an Order to issue to the Respondent to show cause why he should not be ordered to stay the present proceedings purporting to be elections to fill the existing vacancy in the patriarchal throne of Jerusalem and to carry our such elections according to law.

Judgment.

   This is a return to a rule nisi issued by this High Court on the 15th January, 1932, calling upon the Right Reverend Archbishop Keladion the Locum Tenens of the orthodox patriarchate of Jerusalem, "to show cause why he should not be ordered to stay the present proceedings purporting to be elections to fill the existing vacancy in the patriarchal Throne of Jerusalem and to carry out such elections in accordance with law."

   The rule was obtained on the application of the executive committee of the second Arab Orthodox Congress, a body which has registered itself in the Office of the District Commissioner of the Jerusalem District, in accordance with Article 6 of the Ottoman Law of Societies, as having for its aim "the welfare of the local Arab Orthodox Community and the preservation of its rights."

   The rule nisi was granted by the High Court under section 6 (b) of the Courts Ordinance 1924, which gives the High Court exclusive jurisdiction inter alia in "Orders directed to public officers or public bodies in regard to the performance  of their public duties , and requiring them to do or refrain from doing certain acts."

   The Court is  satisfied that the locum tenens of the Greek Orthodox Patriarchate is a public officer and, in this connection, we need only quote from  page 1610 of the second edition of Stroud's Judicial Dictionary the following passage:-

"Everyone who ids appointed to discharge a PUBLIC DUTY, and received a compensation in whatever shape, is constituted a Public Officer, e.g., a Bishop, Clergyman, or Lord of as Manor, or a Corporation with a grant of lands which grant imposes a public duty, and, as such, is liable to an action for injury to an individual arising from abuse of the Office, either by act of omission or commission. (Henry Lyme, 5 Bing 107, 108.)"

   The performance of a public duty by a public officer being involved, the court held that it had jurisdiction in virtue of the second paragraph of Article 43 of the Palestine Order in Council 1922, which reads as follows:

The Supreme court sitting  as a High Court of Justice, shall have jurisdiction to hear and determine such matters as are not causes or trials, but petitions or applications not within the jurisdiction of any other Court and necessary to be decided for the administration of justice."

   On the return to the rule, the respondent - the locum tenens - failed to enter an appearance but proof of service of the order nisi was given, addressed by Archbishop Keladion to the District Commissioner of Jerusalem.

Locum Tenens Unrepresented

   We must express our surprise that a prelate in this position should not have appreciated the fact that a plea to the jurisdiction could not be maintained by his mere ipse dixit addressed to the District Commissioner, but should have been represented on the return to the rule by argument at the Bar before this court.

   We must also express our regret that the respondent did not appear by Counsel to argue before us all the complicated and important issues affecting the spiritual headship of one of the great Christian communities in this country, which have arisen in the case, and in this connection we desire to express our appreciation of the ability with which Dr. Eliash, although as will be seen we do not adopt all his arguments, placed with much clearness and fairness his clients case before us.

The Fundamental Law

   To come now to the merits of the case.  The election of as patriarch, it is admitted, is governed by the Ottoman Law, entitled the Imperial Regulations of 1875, to which we shall in this Judgment refer as "The Fundamental law."  The translation into French of this law contained in our usual repository, in a Western language of the laws of the Ottoman Empire - Mr. George Young's Corps de Droit Ottoman, Volume II, page 36, is admittedly faulty and incomplete.  We have fortunately before us a translation by Mr. Ongley, formerly Land Court Judge in Jerusalem, on page 243 of the report by Sir Anton Betram and Mr. Luke, who sat as Commissioners upon the affairs of the Orthodox patriarchate and presented this Report to the High Commissioner in March, 1921.  For ease of reference we shall in this Judgment speak throughout of this report at "Bertram Luke."

   In 1925 certain controversies between the orthodox patriarchate of Jerusalem and the Arab orthodox community led to the appointment of a further Commission, again presided over by Sir Anton Bertram, with Mr.  J. W. S. Young as a member, and this Commission reported in June of the same year.

Bertram-Young Report

   In this report, to which we shall refer throughout as "Bertram-Young" there is printed, on page 292, a transition of the firmamental law which on page 220 of the  report is stated to be the  same translation as was prepared by Mr. Ongley at the request of the Betram Luke Commission.

   As we shall shortly see the two translations are not in fact in exactly the same words.

   The first of the grounds upon which the petitioners rely is that the Locum Tenens was elected by a body, calling itself the Holy Synod, which was, in fact, improperly constituted inasmuch as it consisted of twelve Bishops and eleven Archimandrites, instead, as the Petitioners allege as is required by law, of six Bishops and nine Archimandrites.

Constitution of Holy Synod

   In answer to a summons issued by the Court, in the course of the hearing there attended before us a member of the synod, the Archimandrite Epiphanies who is the Chief Secretary of the Patriarchate.

   We were informed by the Archimandrite that in fact the meeting of the synod which elected the Locum Tenens, although it at that time consisted of 12 Bishops and 11 Archimandrites, only ten Bishops and 11 Archimandrites were present, as two Bishops were abroad.  This, however, does not affect the petitioners' argument, which is that the numbers composing the Synod were not those laid down by law.  To determine this point we must turn to Article 3 of the Fundamental Law.

   In Bertram Luke the relevant part of this articled is translated as follows:-

"The Holy Synod is composed of six Bishops and nine Archimandrites and, subject to the condition that the permanent body of its members shall not be altered, the increase, diminution and substitution of its members, according to necessary, is left to the spiritual opinion of the patriarch."

   The petitioner's case is that the word prescribing "That the permanent body of its numbers shall not be altered" are the dominant words of this provision.

   Dr. Eliash argued further that, as to the qualifying words, Bertram Luke contains the correct translation where it says "the changing, withdrawal and addition according to the spiritual advice of the Patriarch."

   His theory is that "changing" relates to members serving their turn in a roster for a period, and then being replaced; "withdrawal" on the part of s Bishop must occur, so he alleges, when an Archimandrite is promoted Bishop , so as to retain the number of Bishops at the statutory figure of  six; "addition" he argues occurs when a new member joins the Synod, to replace one who has died or who has withdrawn from the post of Archimandrite, or who had withdrawn owing to the operation of the roster system.

   It is peculiarly unfortunate that on the interpretation of this obscure section we did not have the benefit of argument from counsel on behalf of the patriarchate, but from the evidence of Archimandrite Epiphanios we gather that the view of the patriarchate is that the article merely means that the patriarch cannot abolish the Synod, but can increase or decrease its numbers.  We are also told by this witness that at the end of 1925 or early in 1926, again, in August 1929, and once more in November 1930, actual numerical additions in some cases of Bishops and in  some cases of Archimandrites, increasing the membership of each class of members of the Synod, were made.

   The interpretation of Article 3 has, moreover, been the subject of discussion by the two Commissions to which we have referred.

   On page 1206 of Bertram Luke we find the following:

"The question then arises - is it possible to produce a quorum by the addition of members to the synod?  Under Art. 3 of the Regulations of 1875 it is competent to the patriarch to increase the numbers of this Synod "provided that the integrity of the Synod is not impaired." The meaning of the last phrase is not very clear.  Probably it means simply that the Patriarch may not dismiss the whole Synod and constitute an entirely new one."

   It will be observed here that although on page 244 of the report occurs in Mr. Ongley's translation "in such a manner that the permanent body of members shall not be altered" the commissioners on page 106, without any explanation, use a totally different translation, viz:

""Provided that the integrity of the synod is not impaired."

   The interpretation of the provisions in the same article is considered on pages 225-0227 of Bertram Young (quoted in full in the judgment.)

Commissioner's Interpretation

   The Commissioners clearly interpret the Article to mean:-

  1. That the Patriarch can increase the number of Bishoprics or omit to fill up vacant bishoprics;
  2. That the Patriarch can determine the number of Archimandrites on the Synod and that these serve on a system of rotation, the rules as to which are left in the hands of the Patriarch.

Flawless Interpretation

   In the light of this interpretation, in which we can put our finger on no flaws, front a source as authoritative as is Sir Anton Bertram, the Chairman of the commission, coupled as it is with the admitted practice for some years by which the Synod has not been confined to six Bishops and nine Archimandrites we are unable to interpret this ambiguous article as to hold that the synod which elected the Locum Tenens was improperly constituted.

   We come, however, now to the next stage, which is governed by article 4 of the Fundamental law.

   By this article the election of a Locum Tenens is notified to the Mutassarif who submits the matter to the Grand Vizierate which takes action by sending an Emir name ordering the confirmation in his office the Locum tenens or a Patriarch in accordance with the law.

   Before the British Occupation, there were three Mutassarifs in this country of whom one was over the Liwa of Acre and one over that of Nablus.  They were responsible to the Wali at Beyrouth.  The third Mutassarif, who administered the Liwa of Jerusalem, was owing to the special importance of Jerusalem, responsible only to the Grand Vizierate.

   Liwas were divided into Quadas, the administrative heads of each of which was a Kammaikam.

   In High Court No., 70/1927, Khalil Ibrahim Bayyad and another v. District Officer of Jaffa, this Court has held that it is for the District Commissioner to perform the functions statutorily imposed upon the Kammaikam.

High Commissioner As  Mutassarif

   This being so, we must hold that the mantle of the Mutassarif has fallen on the High Commissioner for he alone is directly responsible to the Secretary of State for the colonies, who alone for his part can be held to stand in the shoes of the Grand Vizier/

   Upon this argument we are forced to the conclusion that, albeit the election  of the Locum tenens as we have seen, complied with the law, he is still lacking confirmation in his office from the Secretary of State and, what is more, that it is  not till the Secretary of State so orders that the first stage under Articles 5, preparatory to the election of a patriarch, can legally take place.

   Upon either of these points alone we should be bound to make the order absolute, but in view of the importance of the issues involved and the necessity of preventing, if possible, in future, the regretted necessary of a recourse to the Courts in such a matter we feel bound to adjudicate upon the remaining points urged in support of the Rule.

Need For Notice To People

   We hold that Article 5, although it again is an example of bad draftsmanship, must be held by the use of the words "within the specified time to impart, into the notification to the people in each Metropolis and Bishopric to send a priest to the council of Election the same need for a notice of 21 days [this?] has to be given to the Metropolitans and Bishops when they are summoned to attend.

   We further hold that under article 6 while Archimandrites may be nominated for election, the Council of Election which is in this article called "the said Spiritual Council" and which has the power of nomination clearly consists only of all the Metropolitans and Bishops and differs entirely from Synod in that no Archimandrite may take part in the nomination.

   We hold that under this same article the only "sine qua non" required of a nominee is that he be a metropolitan, Bishop or Archimandrite subject to the patriarchal Throne at Jerusalem.

   There is nothing, so long as he has those qualifications, to prevent a prelate being nominated who is not possessed of the further qualifications required for election as under Article 12.

   This article states that the preseason "elected" must be more than 40 years of age, must have served 19 successive years in a metropolis ands must both be the son of, and be himself, a subject of His Imperial Majesty (the Sultan.)

   We cannot agree that any of the qualifications in Article 12 can be imported into the stage of nomination.

   We can well conceive a case in which a person qualified under Articled six but not having the qualifications described by Article twelve might, let us say, by way of compliment, be nominated to show respect to his age, his learning or his piety, with full cognisance of the fact that he was disqualified from election.

The Official Communiqué

   We finally come to the Official Communiqué No. 4/32 of 6th January, 1932, which publishes, for general information, official action by the Palestine Executive, which clearly purports to be done in compliance with Article 8 of the Fundamental Law.

   The effect of Article 8 is that the list of nominees is to be sent to the Mutassarif, who then transmits it to the Sublime Porte which has the power, if it thinks fit, to excise any of the names of nominees from the list, and the Sublime Porte then issues an order for the election to be made from among the remaining names, and it is for the Mutassaif merest to notify such order to the Locum Tenens and the Synod.

   The Communiqué of the sixth of January reads as follows:-

Orthodox Patriarchate

"It is notified for general information  that the list of Candidates which was submitted to the Government by the Locum Tenens of the Orthodox patriarchate in accordance with Regulation 8 of the Imperial regulations, 1875, has now been considered by His Excellency the High Commissioner who has decided not to excise any name from those contained in the list.  The Locum Tenens has accordingly been informed that the election should proceed from among the names included in that list."

   As to this we need only say that by a parity of reasoning to that which we have here applied to Article 4, we hold that His Excellency the High Commissioner in purporting to exercise a discretion as to the right of veto, and in giving an order to proceed with the election, has misconceived his powers and has, in fact, albeit obviously inadvertently, usurped functions which are expressly vested by law in the authority at the seat of the Imperial Government which can only be represented by the Secretary of State.

   We cannot conclude without making one comment upon the matter as a whole.

   The findings of the Bertram Luke Commission were, at an earl stage, implemented by legislation relating to the control of the Finances of the Patriarchate.

   In the forefront of the terms of reference of the Bertram Young Commission was placed the question "whether any, and if so, what steps should be taken to revise the Ottoman Imperial Regulations of 1875" which we have called the Fundamental law.  Thirty pages of the report are devoted to recommending that such revision should be effected and the commissioners went so far, in Appendix D, as to present a draft bill to effect the revision, and, in this connection, it must not be forgotten that the Chairman of the commission was a distinguished Chief Justice who had very wide expedience as a law officer and as a judge in no less than three colonies and was, in consequence, probably the best possible draftsman of such a law.

Pigeon-Holed Report

   We know nothing of the reasons, which, after the administration had gone our of its way to appoint the commission, led apparently to the pigeon-holing of its report and of its recommendations for nearly seven years, but we wish to make this concluding observation.

   The Fundamental Law is a faulty ambiguous ill-drawn and barely intelligible instrument, hastily concocted fifty-seven years ago in the Turkish language to cover circumstances prevailing under the Ottoman regime.  To this the Bertram Young and Bertram Luke reports bear ample testimony.

   We consider that a law such as this is calculated to lead to disputes and litigation in regard to the election of the patriarchate h of what is, at present, the most numerous Christian community in this country, a community which, further, forms an important part of one of the great Churches of the Christian World.  An indefinite continuance of such circumstances is a matter winch all responsible persons would be bound to view with regret.

   We make the order nisi absolute, with costs to include L.P. 5 advocate's fees.

 

The Palestine Bulletin, 8 June 1932

GREEK ORTHODOX DELEGATION

Interviews High Commissioner

   A delegation composed of Messers. Faroj, Anton Atallah, Issa Jouba, Samaan Daoud, and Yusef el Ouda, interbreed His Excellency, the High Commissioner, yesterday morning on beheld of the Arab Orthodox Community with regard to the Arab orthodox dispute following the judgment of the High Court given in January 6, ordering the stay of election.  His Excellency told the delegates that he had sent the judgment of the High Court to the Colonial Office together with his observations soon after it had been delivered.  His Excellency regretted that so far no reply had been received.  The delegation impressed on His Excellency the necessity of an early decision and submitted their views on the matter at issue.  It was pointed out to His Excellency during the interview, that the Locum Tenens was not confirmed in office by the Secretary of State as required by the Judgment of the High Court.  The consequence of this was that the Ecclesiastical Court of Appeal, of which the Patriarch, or Locum Tenens, was the President, was improperly constituted and therefore its judgments were invalid.  Also all sale transactions and other business done by the LocumTenens were liable to be challenged and upset by the Courts.  His Excellency said that he would forward the views of the delegation to the Colonial Office and request them to give a decision as early as possible.

   The election of the orthodox Patriarch was to have been held on January 28, but upon the application of the Arab Orthodox Congress, the High Court ordered the stay of the election.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School