Lawmakers' litany of complaints against spying bill

PUBLISHED : Monday, 31 July, 2006, 12:00am
UPDATED : Monday, 31 July, 2006, 12:00am

Sunset clause just one of the many amendments legislators want included

The controversial covert surveillance bill that legislators will vote on this week contains several contentious issues apart from the lack of a sunset clause

The democratic camp has said it will vote against it if a sunset clause that would kill the bill after two years is not included.

But another issue that generated much debate during three months of bills committee discussions is the appointment of a commissioner of covert surveillance and a panel of judges that will grant permission to law enforcement agencies to install monitoring or eavesdropping equipment in people's premises.

Pro-democracy legislators say the Legislative Council should have the power to vet the judges chosen for the task.

The government wants the commissioner to be appointed by the chief executive on the recommendation of the chief justice.

The legislators - the most vocal of whom have been Margaret Ng Ngoi-yee, James To Kun-sun, Ronny Tong Ka-wah and Emily Lau Wai-hing - also want the commissioner to make his annual report on covert surveillance operations available to Legco.

The issue of notification of unlawful covert surveillance and compensation for people wrongly or mistakenly spied upon has been a major bone of contention for Mr To, who has argued during months of debate that the bill fails to adequately address this issue.

While the bill enables the public to seek compensation for wrongful surveillance, law enforcement agencies are under no obligation to notify targets afterwards, so most people will never know they have been spied upon.

The government argued that such cases would be reported to the commissioner, who may refer to them in his annual report.

Another issue repeatedly discussed by Ms Lau and Mr Tong was that of snooping on legal professionals and the media.

One of the most contentious issues was the automatic destruction of material collected during covert surveillance operations.

Practical implications of this were highlighted during a recent court case in which the defence claimed that a recording of a phone call intercepted and later destroyed by the Independent Commission Against Corruption could have helped clear a defendant.

Legislators have argued that not only should material obtained during covert surveillance be retained until a court case is heard, the content of that material should be made known to the defence.

Under the bill, information gathered could be revealed to the prosecution, which may choose to let the judge in the case know about it. Legislators and members of the legal fraternity insisted that did not work in an adversarial legal system and would give too much power to the prosecution.

During the bills committee debates, legislators also called for specific penalties for law enforcers and public officials who did not comply with the bill's regulations. The government said there were several other laws for which no penalties were stipulated.

Some legislators also called for the chief executive to be specifically named in the bill as not being able to order covert surveillance on any individual or party. Under existing law, which was deemed unconstitutional by the courts this year, the chief executive is the person who must authorise covert surveillance operations.

The government argued that the chief executive is a public official and public officials would be bound by the law of the bill - which says only the panel of judges can order covert surveillance - therefore there was no need to include him specifically.

While the government said it would reveal the number of cases investigated each year, Mr To said it was crucial that it to publicise the exact number of phone lines, individuals and internet addresses monitored.

The bill must be gazetted by August 8, when the court ruling that the existing law is unconstitutional comes into effect.

Secretary for Security Ambrose Lee Siu-kwong said yesterday he was confident the bill would pass before the court-imposed deadline. He said he hoped legislators could handle the bill in a reasonable manner.


Sunset clause to repeal Interception of Communications and Surveillance Bill within two years

Method of appointing commissioner and panel of judges

Penalties for law enforcers and public officials who carry out unauthorised snooping

Whether spying on journalists and lawyers should be sanctioned by a judge

Legislative scrutiny of commissioner's annual report

Automatic destruction of evidence collected

Whether chief executive should be prohibited from ordering covert surveillance

Notification and compensation for people wrongly put under surveillance

How much detail should be revealed about the number of individuals, phone lines and computers monitored

Definition of what constitutes cases carried out for reasons of public security