Laws on surveillance are long overdue

PUBLISHED : Friday, 10 February, 2006, 12:00am
UPDATED : Friday, 10 February, 2006, 12:00am

The legality of covert surveillance operations in Hong Kong has been very much in doubt since two court rulings last year declared various forms of them to be unconstitutional.

Chief Executive Donald Tsang Yam-kuen attempted a quick-fix solution by way of an executive order governing such activities. The move was, no doubt, intended to provide them with a cloak of legality. But it was not a convincing approach. This was confirmed yesterday when Mr Justice Michael Hartmann ruled that the existing framework for covert surveillance breaches the Basic Law. The ruling does not come as a surprise.

The executive order was issued in August after the two court rulings. The surveillance operations concerned were unlawful because Article 30 of the Basic Law provides that such infringements of personal freedom and privacy can only be conducted 'in accordance with legal procedures'. No such procedures exist for most forms of covert surveillance.

Mr Tsang's executive order, therefore, sought to fill the gap. But it was not sufficient. As Mr Justice Hartmann noted in his ruling, the order 'is no more than a body of administrative directions binding only on government servants'.

What is controversial about the ruling is that, having held covert surveillance to be unconstitutional, the judge suspended the effect of his declarations for six months to give the Legislative Council time to enact corrective legislation. The logic of this decision is hard to fathom. It is reasonable to think that if the existing arrangements are unconstitutional, they should cease to have effect immediately. Indeed, Legislative Councillor Leung Kwok-hung and activist Koo Sze-yiu, who brought the action, found the ruling unacceptable and are considering an appeal.

But while the Basic Law and the human rights it protects must be respected, there is also a need for common sense. It would not be in the interests of society if law enforcement agencies were required to cease immediately all covert surveillance. Quashing the order before appropriate legislation is introduced to plug the ensuing legal vacuum would mostly benefit criminals. The judge's decision to give the government six months to sort out the mess it has got itself into is exceptional. But there are precedents for it in other parts of the world (the judge based his decision on judicial rulings in Canada). His decision to suspend temporarily the effect of his judgment, therefore, appears to be sound.

The government and Legislative Council should now work with a sense of urgency to pass the necessary legislation. Last week, officials informed lawmakers of the framework for the proposed legislation. If such legislation is passed, the chief executive will, on the recommendation of the chief justice, appoint a panel of judges to authorise covert surveillance. All interception of communications and intrusive surveillance operations that involve the use of surveillance devices will have to be authorised by judges. An independent commissioner, who will be a serving or retired judge, will audit such operations and handle complaints.

On the face of it, the principles that govern the proposals appear reasonable. But as the devil is in the details, it is not yet clear whether the draft legislation will be acceptable. Legislators should carefully scrutinise the bill to ensure that it provides adequate safeguards and meets the highest international standards.

The row over snooping has dragged on for eight years. Just before the handover, the legislature passed a law that regulated telephone tapping. But it requires the chief executive's approval before it can come into force - and this has never been given. Mr Justice Hartmann ruled that the chief executive is entitled to delay bringing the law into force. Be that as it may, the government has clearly dragged its feet on this issue until forced to take action by the courts. That does not befit a government which - rightly - declares the rule of law to be paramount.