Snooping verdict puts law in doubt, says legislator
But legal experts back court ruling on covert surveillance
Mr Justice Michael Hartmann's ruling yesterday on the legality of covert surveillance operations had cast the law into a state of uncertainty, said legislator James To Kun-sun. But legal experts supported the decision.
Mr To, who has previously attempted to introduce legislation governing the interception of communications, said the judge had highlighted the fact that phone tapping and other eavesdropping had been illegal since 1991, when the Bill of Rights was introduced.
But he questioned the court's decision to suspend the validity of the judgment for six months, to give the government time to pass legislation which would make such operations lawful. 'It's very strange. It leaves everything in a state of uncertainty,' he said.
Lawmakers had their first chance to scrutinise the government's proposals on the subject in full last week when they were presented to members of the Legislative Council's security panel. Mr To, who chairs the panel, said he would push for the government to table the first reading of the proposed new legislation in the next two to three weeks.
'Legislators need time to scrutinise the proposals properly,' he said, adding that the sooner the bill was tabled, the higher the chance that it may be passed into law within the six-month period the judge allowed the government.
Mr To's Interception of Communications Ordinance was enacted in 1997, but lacks the chief executive's signature to bring it into force.
The legislator says the government could save considerable time by simply activating his bill, with some amendments to cover other forms of covert surveillance.
Legal experts said that while the judge's ruling highlighted that covert surveillance, as it is currently carried out by law enforcement agencies in Hong Kong, is illegal, keeping Donald Tsang Yam-kuen's executive order - which lays down procedural guidelines for such operations - in place was a 'necessary evil'.
Michael Jackson, head of the department of law at the University of Hong Kong, said: 'The government is working on the premise that it is better than nothing.
'Without it, they have a blanket statement of determination that covert surveillance is unconstitutional and breaches the privacy provisions and the constitution unless the ordinance proceeds into law.' He said that the ruling meant that 'defendants may choose to challenge evidence and to question cases brought against them where they believe there has been covert surveillance'.
'It is accepted that there is a clear necessity for law enforcement agencies to carry out covert surveillance in various forms,' he said.
Clive Grossman, defence lawyer in one of the cases that led Mr Tsang to issue the constitutionally dubious executive order last year, said: 'It seems a sensible ruling. A country needs surveillance for serious crimes. The government has been delaying [introducing the legislation] and it has been a bit of a vacuum.'
The judge's decision to suspend the ruling for six months was criticised by the director of the Hong Kong Human Rights Monitor, Law Yuk-kai, who called it 'extreme and unprecedented and with a very weak legal basis'.
