Date
18 November 2019
While the government has won several court injunctions against protesters, pan-democrats want to take the same legal route to prevent the authorities from further eroding the people's personal freedoms. Photo: HKEJ
While the government has won several court injunctions against protesters, pan-democrats want to take the same legal route to prevent the authorities from further eroding the people's personal freedoms. Photo: HKEJ

Pan-dems have doubts about seeking injunctions against police

As the civil unrest rages on with no signs of abating, the government and protesters are fighting each other not only on the streets but in courts as well.

Over the past month or so, the Hong Kong Police Force and the Department of Justice (DoJ) have succeeded in securing interim court injunctions to ban anyone from blocking or damaging the 21 Disciplined Services Quarters and Police Married Quarters across the territory, from doxxing police officers and their families, as well as from promoting, encouraging or inciting the use or threat of violence through internet-based platforms such as the social media forum LIHKG and the messaging app Telegram.

On Friday, the High Court extended the validity of the interim injunction against doxxing, and also granted an application from the Hong Kong Journalists Association seeking to exempt media workers from the ban on disclosure of relevant personal data when they are reporting news.

But just as the authorities were clinching court victories one after another, pan-democrats and their supporters were asking themselves: Why can’t we fight back and give the government “a taste of its own medicine” by seeking injunctions against the police’s abusive behavior?

In fact, there are mounting calls among supporters of the pan-democratic camp for the Civic Party, which is known for having a lot of prominent barristers as key members, to take solid action in this regard.

A Civic Party insider has admitted that people have high hopes for them to initiate action on the judicial front, particularly when it comes to seeking injunctions, so as to regain the initiative in the democracy fight.

“We’ve been studying it and we haven’t given up on this option,” the person said.

However, the source went on to explain that seeking injunctions from the court is a lot more difficult than most people think.

In order to obtain a special court order, for example, one needs to cite a specific and proper “party”. So if the injunction application is intended to target the entire police force, then the court is very likely to rule against it.

Meanwhile, pan-dems have noted that police officers, on numerous occasions, have entered shopping malls and private residential estates to conduct search and arrest operations targeting protesters. This presents an opportunity for the opposition to seek an interim injunction against such operations.

Yet given the fact that the police are vested with immense power under the existing law, the pan-dems believe it still won’t be an easy task to secure a court injunction.

Besides, as a pan-dem has pointed out, more than 20 pro-democracy lawmakers are now focusing their firepower on the pending judicial review of the government’s anti-mask law. And as such, they could risk overreaching themselves if they further stretched the battlefront by rashly applying for injunctions at this point.

Nevertheless, the pan-dem stressed that they may still embark on this undertaking to prevent the authorities from further eroding the people’s personal freedoms – but only when the time is ripe and there is a clear target.

Around two months ago, according to a source from the legal sector, a number of senior barristers formed a work team to look into the feasibility of seeking injunctions to ban the police from firing expired and toxic tear gas canisters. However, they shelved the idea after thorough deliberation.

Why? Not because they were afraid of losing the case, but because they didn’t want to turn the court into a tool for resolving political issues, which would have been an inevitable scenario regardless of whether they win or not.

The judiciary has already come under fire for becoming increasingly politicized in recent years. It may get caught up more deeply in the spiral of political disputes once applying for injunctions has become the “new norm”, thereby further undermining public confidence in the rule of law.

This article appeared in the Hong Kong Economic Journal on Nov 6

Translation by Alan Lee with additional reporting

[Chinese version 中文版]

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JC/CG

Columnist of Hong Kong Economic Journal.