Less is more
Most people would agree that, in times of unrest and internal subversion, the police should have effective powers to enforce the law and maintain public order. But in times of peace and stability, very few would suggest that more powers should be added to the arsenal already enjoyed by the police.
The government's proposed powers of search without a warrant for Article 23 offences lacked constitutional legitimacy because it failed to meet a strict test of necessity and due proportion. The government's recent decision to drop the proposal affirms this viewpoint. However, there are still several existing, related police powers that are in dire need of amendment if they are to comply with constitutional human rights standards.
The dropped proposal was gratuitous, without any basis in the terms of Article 23 itself. In other words, there was no constitutional necessity for the new power. Hong Kong police officers already enjoy a host of intrusive powers. In what other international city with a constitutional duty to protect human rights do police officers have the authority to detain anyone they wish for the purposes of checking identification? They already have an emergency power to enter homes forcibly to arrest and search suspected offenders.
To the government's credit, the decisions to withdraw the proposed power and to repeal another problematic seizure power - in relation to seditious publications - affirm the fundamental status of the right to privacy under our constitution. The Basic Law provides in unqualified language that the 'homes and other premises of Hong Kong residents shall be inviolable'.
At the heart of this constitutional right is the notion that, in a civil society, arbitrary state interference with privacy is most effectively prevented by having an impartial and independent judicial officer scrutinise the legal grounds for the search before it is carried out.
A further reason to be critical of any new proposed powers of entry and search is the present legal uncertainty as to whether Hong Kong courts have the power to exclude evidence obtained in violation of a defendant's constitutional rights.
If the government sincerely wishes to respect the right to privacy, it must also rectify at least three other constitutionally tainted search powers. The most problematic power is a warrant-based one used to enter and seize publications alleged to be seditious. The power is exercisable when the police satisfy a magistrate of only one condition: reasonable belief that a sedition-related offence has been, or is about to be, committed.
Such power is a recipe for arbitrary searches, and certainly fails to meet constitutional requirements. The same flaw is seen in two additional search powers in the Official Secrets Ordinance. I hope the government will act consistently by continuing to reform the law to ensure the privacy of our homes is fully guarded against unjustified and arbitrary state intrusions.
Simon N.M. Young is an assistant professor in the University of Hong Kong's law faculty