A good first step
The need to spy on criminals is undisputed. The only bone of contention is when and how, and under what checks and balances.
On August 5, Chief Executive Donald Tsang Yam-kuen issued an executive order to ensure that law enforcement bodies can continue to legally keep track of illegal activities. It is supposed to be pursuant to Article 48 of the Basic Law, which sets out 13 powers and functions of the chief executive, including Section 4: to 'decide on government policies and to issue executive orders'.
Mr Tsang was reacting to the courts' recent rulings, based on Article 30 of the Basic Law, to strike out evidence collected by the Independent Commission Against Corruption through hidden cameras and recorders. The government has lodged an appeal. Mr Tsang's unprecedented, abrupt stopgap measure took the Legislative Council and the public by surprise. The Article 45 Concern Group, the Democratic Party and the legal profession are all uncomfortable with the way the legislature was bypassed.
Department of Justice law officer Ian Wingfield has said: 'An executive order is not law. It cannot create criminal offences, amend legislation, or impose obligations on members of the public.' He said the order did not purport to create the power to conduct covert surveillance. Instead, it restricts the exercise of that power. Yet, the legal community and the democrats remain unconvinced. Senior counsel Martin Lee Chu-ming of the Democrats holds the extreme position that all government covert surveillance procedures have been illegal for the past eight years. If that is true, he and his allies from the legal fraternity owe the public an explanation of why they have not raised the issue before.
Unlike some lawyers, legislator 'Long Hair' Leung Kwok-hung is a man of action. Instead of prolonging the bickering, he has sought a judicial review to challenge the order's legality. That will help clarify the legal fine points. In any case, a specific law will eventually have to be enacted to remove any uncertainties.
During British colonial rule, the right of a person not to be under surveillance was not recognised under the Common Law, which does not have a complete concept of the right to privacy. In the statutory law, the Telecommunications Ordinance and the Post Office Ordinance have authorised the authorities to intercept telecommunications and mail. There is, however, no law to regulate covert recording and photo taking in public places. Strictly speaking, the practices of the paparazzi are beyond the law.
In 1995, the Personal Data (Privacy) Ordinance was enacted. The following year, the Law Reform Commission came up with a report on the sensitive topic. Its recommendations were put aside because of the tricky issues involved in balancing privacy with the freedom of the press.
In 1997, James To Kun-sun's private member's bill was endorsed by the legislature. The Interception of Communications Ordinance, however, still awaits the chief executive's signature to become law.
In a nutshell, there is no clear stipulation on the legal use of covert video and tapping devices in both public and private places. The executive order is meant to plug the loophole, before a proper bill is drafted, debated and passed into law.
Mr Tsang has vowed to strengthen governance during his campaign. His handling of the pig-borne Streptococcus suis infection and the renovation of Government House are not in line with his pledges.
He has a strong case in issuing the executive order and does not have to be apologetic. The next step is to present a draft law for extensive public consultation. A bill should be tabled in Legco for deliberation immediately after its summer recess. Legislators, on the other hand, are duty-bound to scrutinise the proposed provisions without delay, to fill the legal gaps once and for all.
Albert Cheng King-hon is a directly elected legislator
