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Don't undermine rule of law, IBA tells Trump

13 February 2017

An appeal to US President Donald Trump not to undermine the rule of law by repeated personal attacks on members of the US judiciary has been made by the International Bar Association.

The plea follows the President's second reverse at the hands of the courts over his executive order banning nationals of – or people born in – seven predominantly Muslim countries from travelling to the United States for a 90 day period, and suspended admission of refugees for 120 days. Three judges of the Ninth Circuit Court of Appeals in San Francisco unanimously upheld the decision of federal judge James Robart in Seattle to impose a temporary restraining order against the ban.

As a result the restraining order will remain in effect pending a broader court case questioning the ultimate constitutionality or legality of the travel ban.

Following the initial decision the President described it as having been given by a “so-called judge”. The Court of Appeals was dismissed as a liberal bench whose decisions were usually overturned on appeal, and Mr Trump predicted that he would win 8-0 in terms of judicial votes on appeal to the US Supreme Court. He also tweeted that the courts would be to blame if terrorist attacks followed their decisions.

In response the IBA cautioned the President against “further diminishing public confidence in the vital institution of an impartial and independent judiciary”, calling for a halt to his “undermining of the United States judiciary – and consequently the rule of law – through personal attacks on respected jurists”.

IBA President Martin Šolc (Czech Republic) commented: “It is recognised that under the Constitution of the United States of America, it is the prerogative of the nation's President to issue executive orders. Almost every US President has done so. However, where there is conflict between the desires of the President and upholding human rights, judges must be allowed to decide cases impartially, without fear, restriction or improper influence in accordance with their interpretation of the law and the facts. President Trump's controversial travel ban is irrefutably such an instance.”

He added: “The rule of law, the centuries-old legal principle that law should govern a nation, is something that is being chipped away at each time President Trump publicly attacks and disrespects a judge. Not only is this demoralising for the individual who is the target of the contempt, but more widely it damages public confidence in the judicial system. For all the President's statements opposing elitism, he needs to remember not to attempt to place himself above the law.”

Executive director Mark Ellis added: “The Ninth Circuit's unanimous ruling states that the Government failed to show an 'urgent need' for the executive order to be reinstated immediately. This should be welcome news to all who value democracy and understand that judicial independence is one of the core values of a functioning justice system.

“Regardless of political affiliation, upholding the principles that enable independent determinations must be paramount. Further, the US President, though not having received the decision of his choice, should be reassured that, despite unrelenting public attacks, a component of the US judiciary held true to the oath sworn to safeguard the rule of law: an example which legal professionals everywhere should seek to emulate.”


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