The effectiveness of the warrant of prohibitory injunction in causes against the government

Abstract

The focus of this study is on the effectiveness of the warrant of prohibitory injunction in causes against the Government under Article 873 of the Code of Organisation and Civil Procedure. To issue an injunction, (1) there must be a prima facie right, (2) the injunction must be necessary to prevent the prejudice of that right, (3) the Government must confirm on oath that the act is intended to be done and (4) the harm caused to the applicant must outweigh the harm caused to the Government. The vast majority of the injunction proceedings brought against the Government following the 2006 amendments were denied. In light of human rights breaches and conflicting amendments in the law, the distinction in Article 873(3), a distinction which is not found in other European jurisdictions, is giving the Government an unfair advantage over the individual. The rigid requisites of Article 873(3) are placing the Government in such a privileged position that the injunction is being rendered inadequate. The injunction is only marginally effective in causes against the Government. The legislator must follow in the footsteps of other European jurisdictions and abolish Article 873(3).