Guest Contributor: Thomas Nulty – retired Lawyer
King JOHN and Donald JOHN have many traits in common. Some of the more obvious ones are self-centeredness; vanity; lasciviousness; broken promises; and a love of appointing justices that are reckoned to be ‘…on their side’.
King JOHN was not just satisfied with appointing them but he required the judge to “…discuss his judgement with him” so he could approve or disapprove. As far as we know Donald JOHN could not easily avail himself of that degree of perversion of the Courts.
Returning to King JOHN and his nefarious practice of changing judges’ decisions. This practice was just one of a myriad of grievances that a rebellious group of powerful Barons confronted King JOHN with at Runnymede in June 1215. The document actually presented, listed the Barons’ suggestions for ways to remedy the wrongs of his Kingdom.
King JOHN finally sealed the document on the 15th of that month. But JOHN was nonetheless a very reluctant signatory. In fact, he was so unhappy he, in typical Donald JOHN-like style, appealed to the head of the Holy Catholic Church in Rome, the Pope, to “unseal” it. The act of unsealing had the effect of nullifying the document entirely and would have restored to JOHN all the powers and privileges he had hitherto enjoyed. That was not to be. The Pope refused King JOHN’s request.
Hence Magna Carta has become one of the greatest law reforms under the Law of England during the whole of that millennium.
Amongst its far-sighted reforms the following are major in the judicial, human rights and constitutional fields:
That –
- a person appointed to the courts should have legal training;
- everyone is subject to the law, even the King;
- no “free man” shall be imprisoned without having access to the right to due process of the law. (Over a century later the word ‘free ‘was removed so everyone was included);
- appointees as justices of the courts be made so as the Judiciary remains independent of the King and government; and
- a committee of Barons be appointed to oversee the decisions of the King.
Most certainly no credit can be attributed to King John for the Great Charter except he, under considerable duress, affixed his seal to it.
Fast forward to these days of 21st century when it must be noted that “a judiciary independent of the Government” is considered to be not only a key hallmark of any proper democratic system of government but also, a key attribute of any government that abides by the ‘The Rule of Law’. Please note that the good people of USA have been taught to believe that they have the world’s leading democracy. The UK based publication, the Economist rated the USA in 2020 in its “World Democracy Index” as no longer being a full democracy but as a flawed democracy. The citizens of the USA can perhaps take some little comfort that its rating is still above that of China who doesn’t even require legal training for the Chief Justice of its highest court, who is usually just a Communist Party hack.
On the occasion, five years ago, of the 800th anniversary of the ceremonial sealing of the Magna Carta the American Bar Association chose to celebrate it with the rededication of the rather splendid monument which it had first erected at Runnymede in 1957. During this rededication, the representative of the ABA mentioned the significant influence that the Magna Carta had had on the law of the USA.
Yet not a word was uttered about the serious shortcomings that have appeared in the Constitutional processes and mechanisms for the appointment of Justices to the Supreme Court of the United States in these more recent years. Donald JOHN’s term has highlighted the lack of independence that has been allowed to develop on its bench. To be fair these flaws emerged 20 years ago in the GW Bush V Gore election. Can we ever forget that an election of a US president was determined, not by the people, but by the Supreme Court and “hanging chads”! Such issues have again resurfaced with a vengeance during Donald JOHN’s term.
These appointments of justices to the Supreme Court are made pursuant to the US Constitution, commonly, by nomination by the President and confirmation by the Senate. When the constitution was written it was imagined that the person who held the office of the President of the USA would be expected to have had the wisdom to select a candidate who would act independently without fear or favour. Alas it has proved to be a grave error of judgement – at least in the person of Donald JOHN.
I pause here to consider what may have been in the mind of the Founding Father, George Washington who was concerned by the potential for divisiveness if a system of “political parties” developed resulting in hyper-partisanship which would eventually divide the nation. He was a man of prescience !
So, returning once more to the present day, Donald JOHN has made no bones about the partisanship of his judicial appointments. He actually boasted that he was proud that he could elevate a person with such a fine conservative set of values to the court bench. But can the USA now proclaim that it has an independent Judiciary, I think not !
So the question for the people of the United States remains, do they really give a damn about the Magna Carta or the independence of the Judiciary ?
Next question, will they find “barons” who will rectify the appointment system to attempt to achieve a truly independent judiciary or will they let their whole system fester and thus allow the divisiveness of a hyper-partisan populace to take its own destructive course ?
I’ll wager sadly, Donald JOHN’s legacy will see a larger dose of partisanship and a lesser dose of democracy.
The views and opinions expressed here are solely those of the author.