Surveillance order 'unconstitutional'

PUBLISHED : Friday, 19 August, 2005, 12:00am
UPDATED : Friday, 19 August, 2005, 12:00am

Law chief calls for quick action on legal wrangle

The Law Society president yesterday called for speedy enactment of a law governing hidden surveillance, claiming the executive order issued this month was unconstitutional.

Peter Lo Chi-lik said the chief executive's order on covert surveillance did not satisfy the requirement of Article 30 of the Basic Law that the right to privacy of communication should be restricted only in accordance with 'legal procedures'.

'This [executive order] is only the government announcing that it will practice some self-restraint,' Mr Lo said. 'In my view, that does not amount to legal procedure under Article 30.'

Lawmaker 'Long Hair' Leung Kwok-hung on Monday filed an application for judicial review of the order, seeking its withdrawal.

The government may face another legal challenge. Democratic Party lawmaker James To Kun-sun said yesterday he was seeking legal advice and 'reserves the right to take legal action against the government for not bringing into force the Interception of Communications Ordinance'.

That law was passed in 1997, but then chief executive Tung Chee-hwa never brought it into force. Mr Leung's application for judicial review challenges this 'dereliction of duty' and seeks an order that the chief executive appoint a date for the law to enter into force.

Mr To urged the chief executive to bring the law into force as an interim measure. The government could propose amendments to the law if it found its provisions insufficient, he said.

Mr Lo said it was important for the public to realise that even if evidence was unlawfully obtained, it could still be admitted as evidence in a criminal trial unless to do so would be 'unfair or prejudicial to the defendant'.

'A question to ask in legislating on the matter would be whether evidence obtained in breach of the new law should be admissible in court,' he said. 'I am sure there will be many legal battles whenever there is evidence obtained by covert surveillance and this is something that should be discussed and addressed.'

Mr Lo said the executive order, while it set out procedures for law enforcement officers to follow, did not have 'compelling legal effect' and did not successfully balance the needs of law enforcement and the rights of individuals.

'We should now be focusing on devising a new system under Article 30 and this ought to be dealt with quickly,' he said.