The rush to spy on us

PUBLISHED : Thursday, 02 March, 2006, 12:00am
UPDATED : Thursday, 02 March, 2006, 12:00am

Another session of the Legislative Council panel on security is being held today as part of the government's attempt to enact covert surveillance legislation within the six-month period provided by Justice Michael Hartmann in his judgment last month.

Already, almost a month has gone by. Legco normally adjourns for the summer in July, which means that only four months remain. That is not normally sufficient time to draft, examine and adopt important legislation, which this clearly is.

The Hartmann decision said that while there was no legal basis for government snooping, it could continue during the grace period. But there is an appeal against that ruling: if upheld, the appeal would leave the government with no legal leg on which to stand. It would have to immediately halt all covert surveillance and interception of communications, a nightmare scenario from a law-enforcement point of view.

Much remains to be done. The government's disclosure that law-enforcement agencies had conducted 348 covert surveillance operations involving 170 cases in the final three months of last year shows just how big the problem is, and how regularly the government is intruding into people's privacy. And many legislators suspect that the figures do not reflect the real dimensions of covert surveillance operations.

The secretary for security, Ambrose Lee Siu-kwong, has said that if the appeal court strikes down the grace period, he would be prepared to call Legco into session to pass emergency legislation.

However, Mr Lee's confidence that the legislature will support the government may be misplaced. Clearly, the democratic camp is not inclined to go along with this scenario, and even other lawmakers who may normally be counted on to support the government have indicated that they are tired of being taken for granted.

There is a real chance that the government may discover that it does not have the votes to push through emergency legislation to allow it to continue its covert operations.

A better alternative may well be for the chief executive to sign into law the Interception of Communications Ordinance, passed by Legco in 1997, just before the handover. That ordinance covers the interception of communications, and will require amendments to make it more comprehensive, including on covert surveillance. But it should be much easier to do that than to draft a new law from scratch.

Moreover, this would show that the executive is willing to work with the legislature, and to acknowledge the work it has done in this field. The government is clearly opposed to this course of action, but it may not have much choice if the courts strike down the Hartmann judgment.

It is significant that Hong Kong is only now getting round to enacting legislation to make legal what its law-enforcement agencies have been doing for almost nine years. It is even more significant that the government acknowledges that even if its proposals are adopted, Article 30 of the Basic Law would still not be fully implemented.

This is because the first part of the article says: 'The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents.'

The government so far has been preoccupied with drafting legislation to provide 'legal procedures' to allow itself to 'inspect communication' so as to 'meet the needs of public security or of investigations into criminal offences'.

In short, it is focused only on an exception to the article's primary purpose. It has not yet focused on the primary thrust of the article, which is to protect the freedom and privacy of communication of Hong Kong residents.

Frank Ching is a Hong Kong-based writer and commentator