Authority of surveillance chief 'not spelled out'

PUBLISHED : Tuesday, 27 June, 2006, 12:00am
UPDATED : Tuesday, 27 June, 2006, 12:00am

Lawmakers say bill should make clear commissioner's powers over staff

The commissioner overseeing implementation of the eavesdropping law after it is enacted could easily be sidelined under plans proposed by the government, lawmakers have warned.

They want the proposed law to explicitly state that the commissioner would have the power to give instructions to his staff, who are to be seconded from the civil service.

Concerns that the commissioner would eventually become 'a general without soldiers' emerged yesterday, when members met to scrutinise the controversial Interception of Communications and Surveillance Bill.

Scrutiny of the bill is supposed to be in its final stage, but lingering arguments over the details of clauses and the revisions proposed by the government have made it unlikely that it will be passed by July 12 - when the Legislative Council breaks for the summer recess - as the government wishes.

In that case, a special full council meeting will be needed to push the bill through by August 8 - the deadline set by the High Court when it ruled covert surveillance operations conducted by the government had no legal basis and breached Basic Law requirements protecting citizens' privacy.

To avoid what it called a 'legal vacuum', the court gave the government a six-month grace period to legislate before its ruling, on a section of the Telecommunications Ordinance and an executive order issued by Chief Executive Donald Tsang Yam-kuen, took effect.

At yesterday's meeting, James To Kun-sun, of the Democratic Party, questioned whether the bill gave sufficient power to the future commissioner overseeing the law.

'If the law does not provide explicitly that the commissioner has the power to administer his support staff, [they] might not listen to him,' Mr To said.

Fellow Democrat Albert Ho Chun-yan asked: 'If the law does not state so, would it mean that the staff seconded from, say, the Security Bureau would still be reporting to their bosses at the bureau?'

Permanent Secretary for Security Stanley Ying Yiu-hong said the commissioner's administrative power would be implicit, but agreed to make this clearer to whoever was appointed.

But Mr Ho said: 'If his power is conferred by the ordinance, I see no reason why it should not be spelled out in the ordinance.'

Justice Department law officer Ian Wingfield said it was a purely administrative matter and unlike a normal employer, the commissioner had no legal relations with his staff.

Panellists and officials also discussed the presentation of statistics in the commissioner's annual report.

Officials agreed to expand the list of information to include a breakdown by types of surveillance, the number of applications and authorisations, the number of notification cases and renewal applications, and the number of cases that have been renewed more than five times.

But Mr To said the report should categorise the cases, spelling out whether a case was a crime or concerned public security.

The bills committee discussion will continue today.