Sunset clause would mean better legislation

PUBLISHED : Saturday, 29 July, 2006, 12:00am
UPDATED : Saturday, 29 July, 2006, 12:00am

Legislators are about to pass a law that is intended to put snooping on citizens by law enforcement agents on a legal basis that has been lacking. It is an opportunity for Hong Kong to get it right in striking a balance between competing public interests - protection of privacy and the need to combat crime.

After 120 hours of discussion by legislators on the government's bill to regulate covert surveillance and interception of private communications, it remains unclear whether we have got it right. As we report today, legal experts are already predicting that covert surveillance operations will remain open to constitutional challenges even after the legislation is passed.

The government has refused to consider more than 150 changes proposed by lawmakers from the pan-democratic camp. The support of other lawmakers ensures that the bill will be passed.

The democratic camp, however, is prepared to support it too if just one safeguard is added - a 'sunset clause' that would mean the legislation would lapse and be reintroduced in the Legislative Council in two years. This would mean it could be amended in the light of experience, either to make it more effective in the fight against crime or to strengthen safeguards for personal privacy.

This approach has been suggested as a way to get the government out of a mess of its own making without making another. It has refused for years to heed warnings about the legal status of its covert surveillance operations. It is a year since the first of two court rulings found that certain types were illegal under the Basic Law. Chief Executive Donald Tsang Yam-kuen responded by issuing an executive order intended to legalise official spying pending legislation to put it on a proper footing. The High Court found the order did not provide a legal basis for such operations and gave the government until next month to put legislation in place before its ruling took effect.

The government is lucky that the courts have taken an exceptional course in suspending a judgment that could have crippled the fight against crime and given it time to pass legislation. However, a concern arises that the legislation is being rushed through.

There are good reasons why the deadline should be met. But if it was not, the government could ask the court for more time and would probably get it. Instead, the government finds itself having to get complex legislation through by a deadline so that law enforcement can continue in a way that is constitutional.

A sunset clause might be a good idea because if legislation is flawed as a result of being rushed through in exceptional circumstances it provides the opportunity to amend it and put it right in the future.

There is room for debate as to whether this is the best way to go about it. Margaret Ng Ngoi-yee of the Civic Party has said the United States had a sunset clause in its Patriot Act, which it introduced after the September 11 attacks, and Australia had a similar clause in its anti-terrorism law, also pushed through in haste. These examples were to address threats that arose suddenly and might go away. Detection of crime is neither a temporary or unusual problem.

It may well be, as one legal expert says, that legal challenges, court rulings and legislative amendments to comply with them may turn out to be a more meaningful way to meet proper constitutional standards.

However, given the reality that the government is pushing its legislation through by a deadline, it may be unwise to be intransigent. The bill regulates intrusions of privacy that would normally be regarded as repugnant in a free society but are accepted as necessary in certain circumstances. This newspaper has said all along that it is most important to get the best legislation. A sunset clause offers a way forward now that leaves the door open to revisit it later. That would seem a sensible safety net for a government that will be glad to put a sorry affair behind it.