Snooping law concerns need to be addressed

PUBLISHED : Thursday, 13 July, 2006, 12:00am
UPDATED : Thursday, 13 July, 2006, 12:00am

The top court's decision to allow the government time to sort out the mess it has got itself into over covert surveillance challenges traditional notions of the role of the judiciary. The judges have taken an exceptional step.

We are left with a strange situation in which snooping by law enforcement agencies has been declared unconstitutional by the courts, but is allowed to continue while officials strive to put things right. This is not satisfactory. The government, having long refused to heed warnings about the legal status of its covert surveillance operations, has been thrown a lifeline it does not deserve.

But the Court of Final Appeal's decision is, in the circumstances, sensible. The judges agreed that an earlier ruling declaring snooping activities to be unconstitutional should not bite until August 9, by which time new laws making such operations legal are expected to be in place. This is the only way to ensure that covert surveillance can continue to be used in the fight against crime. To outlaw such activities with immediate effect would have benefited criminals and not been in the interests of society.

Such a ruling would also have almost certainly led to emergency legislation to fill the gap. We would then have had complex laws pushed through with undue haste. That, too, is best avoided.

But there is no escaping the question of whether the courts should, as in this case, be considering the consequences of their judgments, rather than simply ruling on the law. It is one which concerns the role the judiciary should play in a modern society.

The Court of Final Appeal was alive to this issue. Mr Justice Kemal Bokhary noted the traditional view that the courts should not worry about the impact of their rulings. He referred to the old saying: 'Let justice be done, though the heavens fall.'

But the judge has a point when he says the priority for the court must be to decide precisely what it is that justice requires. In this case, it requires maintaining the ability of law enforcers to effectively combat crime, while giving the government a deadline by which covert surveillance must be put on a sound legal footing.

Deferring the impact of court decisions, especially those involving human rights, should not be done lightly. It is vital to ensure that judges continue to interpret the law freely, fearlessly and in accordance with established legal principles. In all but the most exceptional cases, that will involve judgments taking immediate effect. On the rare occasions when a suspension is granted, there must be very good reasons to justify it.

The ruling yesterday did not, however, all go the government's way. The suspension granted by the court replaced an earlier order which had given temporary validity to the existing covert surveillance procedures. The distinction is a fine one, but it could have serious consequences. Removing the temporary validity status might open up the government to fresh legal challenges from people who claim to have been illegally snooped on.

Such a case would not be easy to bring and it is unclear whether a compensation claim would succeed. But the ruling means the government cannot feel entirely comfortable when conducting such operations until new laws are in place.

This regrettable situation should never have arisen. For years, the government stubbornly refused to take steps which would have ensured snooping operations complied with the Basic Law. That must be put right in the few weeks which remain before the deadline imposed by the court. Work on the relevant bill is well advanced. But many concerns have been raised about whether the proposed laws sufficiently protect fundamental rights.

Although time is short, those concerns must be dealt with. We need laws which meet the highest international standards. Any attempt to force the legislation through, without giving it careful consideration, would risk prolonging this unhappy chapter.