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Licensed Unlicensed Requires Authentication Published by De Gruyter February 8, 2017

The Enigma of the Hong Kong Injunction Cases – A Perspective on Political Question Doctrine, Separation of Powers, Rule of Law and Universal Suffrage

Fozia Nazir Lone
From the journal ICL Journal

Abstract

On 31 August 2014, disputes over Beijing’s plans to retain control over the political reform relating to the Chief Executive elections in Hong Kong led to the eruption of a mass civil disobedience campaign and the occupation of public places. In response to the aforesaid movement, pro-government groups approached the courts of Hong Kong for an injunction as a strategy to clear those public places (the Injunction Cases) and thereby put an end to the civil disobedience campaign. The courts heard the Injunction Cases and ruled in favour of the plaintiffs by upholding findings of public nuisance.

The primary objective of this article is to demystify the enigma of the Injunction Cases by reviewing them from the perspective of justiciability, acts of state, rule of law and separation of powers. This article also seeks to map the dialectical disconnect between accepted practices in Hong Kong on matters of justiciability and how the courts of Hong Kong dealt with it in the Injunction Cases. It is argued that the courts should have first determined whether the Injunction Cases were justiciable from common law perspective and constitutional doctrines before proceeding to hear such cases.

For the purpose of facilitating a more complete discussion, notable cases in relation to the doctrine of justiciability will be discussed. Other issues within the framework of the rule of law, separation of powers and right to democracy will also be reflected upon.

Published Online: 2017-2-8
Published in Print: 2016-3-1

© 2017 by Walter de Gruyter Berlin/Boston

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