Why section 144 orders are unconstitutional

Now that the Constitutional Tribunal is back, we can presume past court decisions it has made still stand. This is good news for a challenge to section 144 orders.

As demonstrators across the country find creative ways to circumvent section 144 orders, its important to question whether section 144 is constitutional in the way it is currently being used.

I would argue it is not. The Constitutional Tribunal could hear a petition on the following question: does the use of section 144 orders issued by the administration breach section 11a of the Constitution?

Let me explain. Perhaps the most significant case ever decided by the Constitutional Tribunal (ok, so it hasn’t decided that many cases, but still) is the case about section 11a (which Ive referred to elsewhere as the Judicial Power Case). This is the section that mentions three branches of government as separate but then seems to qualify the scope of the separation of powers and checks and balances.

The petition was made by the Chief Justice of the Supreme Court. The petition questioned the constitutionality of a request of the Ministry of Home Affairs to appoint sub-township administrative officers to adjudicate minor criminal cases. Recall that the Minister of Home Affairs is one of the appointments made by the military (s 232b(ii)).

The Supreme Court argued that it should not have to grant the request of the Ministry of Home Affairs to transfer judicial power to administrative officers because that would compromise the separation of powers.

In its decision, the Constitutional Tribunal acknowledged that the previous military regime (pre-2011) had a practise of allowing administrative officers to exercise judicial power by adjudicating minor criminal offences.

The Constitutional Tribunal determined that there is a clear distinction between the previous regime’s practices and the post-2011 constitutional requirement of the separation of powers.

The effect of the Constitutional Tribunal’s decision was that the Ministry of Home Affairs could no longer request that first class magistrates’ power be delegated to the General Administration Department.

The Supreme Court issued a directive following this decision to revoke the authority of township administrators to exercise judicial power, which was understood to revoke the transfer of the judicial powers of a first-class magistrate to the administration.

Was this followed by the administration? Im not sure but given the disregard with which many institutions treat the decisions of the Constitutional Tribunal, probably not.

But it should have implications for the constitutional validity of section 144 orders exercised by township administrators. The GAD claim that the transfer of section 144 powers from judges to township administrators took place under military rule. Yet post-2011, there is an argument that the exercise of these orders is no longer constitutional.

In an era of the separation of powers under the 2008 Constitution, the administration can no longer issue section 144 orders as it likes but should be required to seek approval from a judge.