Jefferson and the independence of the judiciary: an Egyptian approach

Is there any difference between the political events in America in the early 19th century; what took place in Turkey a decade ago; and what is occurring in Egypt today? History does have a habit of repeating itself, like a novelist making fun of his readers who do not read too deeply and do not deserve his wisdom, so he retells his story over and over again with small changes in names, places and times.

The French stormed the Bastille in 1789, thus beginning the “Western Spring” and revolution spread like wildfire. In American, the aristocrats of the “Federalist Party” felt danger knocking on their doors, so they passed the “Alien and Sedition Acts” aiming to silence the opposition. Instead, they enhanced its credibility. Elections were held in 1800 and the “Democratic-Republican Party” won the presidency, vice-presidency and the majority of the seats in Congress.

Some called this the Revolution of 1800, as the Federalist President John Adams, one of the founding fathers of the United States, was defeated; he had made himself unpopular by being tyrannical, arrogant and linked to the British ex-colonial power. He was also interested in assigning political tasks to his son, which came across as nepotism and an attempt to prepare him for a public role.

Adams did not take his ejection from the White House easily; he carried out a constitutional manoeuvre which allowed his party and deeply rooted state apparatus to remain in power. Just hours before his term of office expired, he signed statutes to establish new courts and fill the vacancies with judges aligned with his party; they were known as “Midnight Judges”.

The defeated President Adams believed he was defending the system and state against newcomers. The Federalists, consisting of aristocrats and the elite, were uncomfortable with the rival popular party, made up of peasants and religious farmers seeking to break the senior industrialists’ control of the economy. It became clear that things were heading for a constitutional and legislative battle.

The victor of the 1800 election was Thomas Jefferson; he was no novice in the world of political conflict and would not be broken by this crisis. When he was 33 years old, he wrote the US Declaration of Independence and moved up in political and decision-making circles until he founded the Democratic-Republican Party. Jefferson was not an eloquent speaker, but he had made significant inventions in mechanical engineering and architecture; he was an excellent reader and writer reflecting the intelligence of a man fluent in five languages; and he had the wisdom of a farmer passionate about improving crops and rural life.

However, his rivals were not concerned with his achievements as much as they were with exaggerating and even fabricating, if necessary, his weaknesses. Although many Federalists and US founding fathers were openly atheists and advocates of the full separation of religion from the state, they did not hesitate to attack Jefferson for his religious belief; he was a Christian Deist who believed in the ethics and non-mystical teachings of Jesus, while denying that he was a deity. The Federalist newspapers also accused Jefferson of not only being a puppet in the hands of the French but also that he would eliminate democracy and send his opponents to the guillotine, as the French had done during their revolution.

The Federalists opposed Jefferson in democracy, but they did not believe that the people were ready to govern themselves; they believed that they – the educated elite – had to protect the naïve nation filled with illiterate people. The leader of the Federalist Party, Alexander Hamilton, wrote in article 71 of the Federalist Papers, “When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.” If we wanted to complete this phrase based on the reality of the Arab situation today, we would add, “…on behalf of some of the elites”; our people’s votes can be bought with “oil and sugar”; they are not ready for democracy and must sometimes be protected from those they select to represent them.

When any authority turns into a layer with its own interests dependent on the continuation of the current situation, it is difficult not to see their interests as the nation’s interests. Didn’t Louis XIV say, “I am France”?

The Egyptian judge Ahmad Fathi Zaghloul Pasha played a national role and made important contributions to translation and the establishment of institutes, newspapers and charities, but when he was assigned to the Danshawi Court in 1906 and his job was on the line, he was the one who formed the rationale behind the ruling that sentenced 4 farmers who were wrongly accused of killing a British officer (who actually died from heat stroke) to be executed.

We do not know how the older brother of the famous statesman Saad Zaghloul justified this ruling to himself; maybe he thought that executing a few would protect the rest, or that by preserving his position as a judge who was trying to save as many as he could would be in the country’s best interest. We really do not know what he was thinking, but history shows us time and time again that the more a person knows and believes in themself, the more they are able to justify their mistakes, even if they are as clear as day to others.

Of course, we cannot generalise. Many of Egypt’s judges, even some of those currently opposing President Morsi, have had notable roles in trying to control the former regime. However, it is obvious that some shifted to the party seeking to cause harm and twisting the laws selectively and quickly to make a decision in favour of one party over the other. Moreover, the attempts to hinder the amendment to the constitution render the judiciary, as an institution, as a far from neutral political group and an accomplice to polarisation.

This is not an attempt to defend President Morsi, who needs advice now more than ever, but an attempt to defend the right of the people to choose whomsoever they want: Morsi, Sabahi or even Shafik. The people have to be the source of the three authorities away from the lack of accountability that is not harming a particular person as much as distorting the democratic infrastructure even as it is being built.

When Jefferson inherited his predecessor’s “midnight” judiciary he was quick to announce his rejection of them. He was clear in his distinction between two matters: “Yes” to the independence of the judiciary from the executive, and “No” to the independence of the judiciary from the people. He said in old age, while remembering this conflict, that “a legislative council that is not elected by the people is less harmful than a judicial power independent from the people, because the implementation of laws is much more important that writing them.”

When Jefferson announced the suspension of the judicial status quo he inherited from the former president, some of the judges took the case to the Constitutional Court demanding their appointment. John Marshall, the Chief Justice of the Supreme Court, was expected to support the judges due to their mutual interests; however, the president hinted that he would hold a referendum on amending the Constitution and redefining the powers of the judiciary.

Here is where we witness Marshall’s wisdom, as his decision, which he formed in a diplomatic manner, was in favour of the Jefferson administration. He used the same method in 14 rulings made over the following decades, all of which were consistent with the will of the Congress. Marshall was able to prove a very dangerous point calmly and quietly; the right of the Constitutional Court to determine whether the actions taken by the executive and the Congress are in line with the constitution.

The fear of the judiciary taking over became an obsession and nightmare no one wanted. John Dickinson, one of those who signed the US Constitution, said, “The actions deadly to freedom and diminishing of democracy that can be committed by an independent judicial system separate from the people are uncountable.”

Presently, American presidents appoint new members to the Constitutional Court when one of the seats is vacant as a result of retirement or death. This mechanism prevents any president from having full control of the Court, while the state courts are subject to the authority of the people, as local judges are appointed through direct or indirect nomination through the people’s representatives.

The harmony between the authorities allowed Jefferson to carry out his duties and achieve a great deal. It is enough that he was able to push through the Louisiana Purchase from France for $15 million, which doubled the size of the United States. The deal also encompassed all or part of the area of 14 other states.

Jefferson died in 1826 on American Independence Day. The president whose opposition claimed he would send them to the guillotine died leaving behind a large debt and an ill daughter. He was forced to sell his library to Congress, which included a copy of the Holy Qur’an, the same copy which Keith Ellison, the first Muslim Congressman, placed his hand on when he was sworn into office in 2007. Jefferson’s last words were, “I resign my spirit to God, my daughter to my country.”

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.