The last few days, thousands of americans taken to the streets to demonstrate against its new president, Donald Trump. Especially presidentordren about travel restrictions for anyone from seven muslim countries arouses resentment. the Lawyers and judges stand in front of the uprising.
Why is it so important that they say that they think something is wrong?
1. Separation of powers
For the first, it is important that the courts put your foot down when a president goes beyond his powers.
This is the reason why they have the authority to do it. The courts control of the president’s order is rettsstatens way to remedy that so much power placed in one person’s hands.
Courts can, for example, pass orders contrary to the protection against discrimination, protection of privacy or other statutory rights.
the Opposite leading silence from the courts to a legitimation of Trumps coercion – people have confidence that the court will intervene if maktbruken is contrary to law or the constitution.
2. Individuals ‘ last resort
For the second are the courts of last resort for that individuals should get enforced his fundamental rights if the public sector has failed them in the first place.
Both of these points is illustrated by Monday’s judgment from a federal court in Brooklyn where the two iraqi men were given a temporary residence permit. Besides the immediate effect the judgment has for the two iraqis, the judgment is also an important signal to the population about lovmessigheten of Trumps order.
3. Moral responsibility
thirdly, the story is that judges can’t simply to ascertain that the decisions were in line with the national legislation or instructions when they made the decision.
It follows from the principle in the nuremberg trials after 2. world war that the judges have a that independent moral responsibility for the decisions that are made. Good lawyers are lawyers that stand up for the law and against the power if the basic values requires it – even when it means to stand up against the us president.
A central prerequisite for the rule of law
a Free and independent judges, lawyers and lawyers who can act critically to statsstyret is crucial for the american rettsstatens survival – yes a central precondition for any functioning rule of law.
A particular responsibility is incumbent upon the jurists in the public sector who have responsibility for the exercise of orders. Most of the decisions to be brought not before the courts. Individuals rule of law therefore depends on the critical lawyers is the place where decisions are taken on an ongoing basis. It is joyful news that around a thousand employees in the ministries have signed a draft of a note that condemns Trumps travel restrictions.
A less uplifting news for the american rule of law came on Monday night this week. Trump then decided to depose the acting attorney general Sally Yates from of her position, earlier than planned, on the basis of a note in which she expressed skepticism of the legality of the innreiseforbudet.
Is the american rule of law on the game?
Monday’s judgment in violation of the presidentordren was a victory for the rule of law, while the subsequent resignation of Sally Yates was a loss – even in a system where the central actors are replaced by political maktskifter. The crucial question going forward is whether Trump will continue to gag opponents and limit the domstolskontroll and if he will relate to the courts ‘ assessments, so maktfordelingen assumes.
Without a comparison, incidentally: That it is possible in our time to destroy the rule of law to the eyes of both the united nations and NATO, the situation in Turkey is a good example. Here sits a third of the country’s lawyers and judges in prison after president Erdogans orders.
In the Uk?
Trump’s controversial use of proxies is an important issue because it illustrates how fragile the rule of law is and how little it takes before it starts to unravel. Even in Norway we can see for ourselves such an opportunity, even though it appears unthinkable now.
Rettsstatens survival depends namely not only that the principles and rights found in the Constitution, but by the fact that lawyers and judges are willing to enforce them.
the Author is a member of the Norwegian department studentnettverk in The international juristkommisjonen (ICJ)
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