The International Bar Association (IBA) has issued a call for a halt to President Donald Trump’s undermining of the US judiciary – and consequently the rule of law – through personal attacks on respected jurists.
Following the unanimous decision of the judges of the US Ninth Circuit Court of Appeals, in San Francisco, not to reinstate the President’s recently issued Executive Order entitled Enhancing Public Safety in the Interior – which bans nationals travelling to the US from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – the IBA cautions against further diminishing public confidence in the vital institution of an impartial and independent judiciary.
IBA President Martin Solc comments: “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 adds: “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.”
A federal court judge in Seattle, Washington state, James Robart, imposed a temporary restraining order (TRO) against the ban which, among other things, suspended admission of refugees into the US for 120 days, prevented the entry of individuals from the seven Muslim-majority countries for 90 days and prioritised refugee applicants belonging to minority religious groups.
The judge’s action earned him a stinging public rebuke from President Trump on the news and social networking service Twitter.
Lawyers at the Department of Justice (DOJ) and the attorney general for the state of Washington engaged in a court battle over whether the injunction should remain in place or be lifted immediately. On 7 February the US Ninth Circuit Court of Appeals heard oral arguments, via telephone, from both parties. It was the first time DOJ lawyers had the opportunity to be heard, as the TRO was granted ‘ex parte’, that is, the plaintiffs made their case to Judge Robart without DOJ lawyers present.
The plaintiffs prevailed and the TRO will remain in effect while a broader court case questioning the ultimate constitutionality or legality of the travel ban advances.
IBA executive director Mark Ellis says: “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.”
He adds: “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.”
