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Former Chief Justice takes on Trump and the rule of law

Donald Trump’s tweets about the credibility of courts from his POTUS Twitter account have been described by retired Chief Justice Robert French AC as a calculated undermining of a fundamental principle of justice.

US President Donald Trump’s recent flourishes on Twitter are a useful case study for rule of law proponents. At least, Former High Court Chief Justice Robert French AC (pictured) thought so, using his first public oration since retirement to lambast “calculated” attempts by the White House “to undermine respect for the rule of law”.

Speaking at a lecture hosted by the Victoria Law Foundation on Friday, the retired judge reflected on Mr Trump’s recent dispatches online. In particular, he noted how the language of the President’s tweet on 5 February pre-empted the court’s appeal process.

“The President's statement could not be dignified as 'criticism' of a judicial decision. It was rather a content-free coupling of epithets calculated to mitigate the political embarrassment caused by the ruling by suggesting that it and the 'so-called judge' somehow lacked legitimacy,” CJ French said.

“Such remarks may be seen as calculated to undermine respect for the rule of law."

President Trump took to Twitter to respond to a decision made by the Ninth Circuit Court of Appeal. The court upheld a decision made by a Seattle-based judge to block a travel ban which the President had signed-off a few weeks prior.

“The opinion of this so-called judge, which essentially takes law enforcement away from our country is ridiculous and will be overruled,” Mr Trump Tweeted.

The President’s remarks preceded more recent statements from White House officials. An adviser to Mr Trump, Stephen Miller, later told Fox News Sunday that the Ninth Circuit Court decision was a “judicial usurping of power”.

“The President’s powers here are beyond question,” Mr Miller told the news program.

The executive order intended to put a ban on immigration for refugees and citizens of seven nations in the Middle East. With it, the Trump administration planned to put a 90-day ban on all would-be entrants from majority muslim countries Iran, Iraq, Libya, Somalia, Sudan and Yemen, a 120-day ban for refugees, and an indefinite ban on refugees from Syria.

In its emergency appeal to the Ninth Circuit Court, the Trump administration argued that the courts had no power to review the executive order. The court disagreed.  

CJ French went on to add, however, that the actions of the President and his government at least indicate an acceptance to the rule of law. This is demonstrated to the extent that the administration expressed its intention to appeal the Ninth Circuit Court decision, he said.

The 2017 Law Oration, which focused on respect for the rule of law, drew on a number of historical voices. Echoing the words of Cicero circa 63 BC, to American trial judge Chief Justice Roger Taney, who sat on the bench during the presidency of Abraham Lincoln in 1861, CJ French’s presentation even squeezed in a reference to '90s Star Trek spin-off series Deep Space Nine.

In his talk he traced the development of the rule of law principle, describing it as offering a “kind of societal infrastructure”. He suggested that now, more than ever, there is a need for wider public understanding about what this legal framework means.

“It has always been important that our community has an awareness of the essential elements of our legal system and our governmental institutions. It has never been more important than now,” CJ French said.

“The spaces left by lack of awareness and misunderstanding are all too readily filled by snake oil salesmen coming in from the hinterland of our civil and political discourses.”

CJ French’s full oration can be watched online.  


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