The High Court's ruling on Chief Executive Donald Tsang Yam-kuen's executive order on covert surveillance is generally seen as a victory for legislator 'Long Hair' Leung Kwok-hung and a defeat for the government. Ironically, however, it is 'Long Hair', not the government, who is planning to appeal against the judgment. Mr Justice Michael Hartmann ruled that the order issued last August, while legal, had no legislative effect and that the section in the Telecommunications Ordinance that gives law-enforcement agencies powers to intercept communications was unconstitutional. However, the judge suspended his judgment for six months to give the government time to bring in new legislation. In the meantime, he said, because covert surveillance was 'an essential tool in combating crime and safeguarding public security', the government could continue to do what it had been doing. This means that, while governmental covert surveillance did not have legal backing prior to the judgment, it does now and will continue to do so for the next six months. The government appears content and Secretary for Security Ambrose Lee Siu-kwong said legislation would be in place within six months. Moreover, he said the government had the option of seeking an extension from the courts. But this does not mean that all is well. Mr Leung has said that he will appeal and, if necessary, take the case to the Court of Final Appeal, saying it is unfair and contradictory to allow a law declared unconstitutional to remain in force. If Mr Leung appeals, the government may not have the luxury of six months to prepare legislation. In fact, Philip Dykes, Mr Leung's legal representative, said the six-month delay could violate Article 160 of the Basic Law, which deals with legislation that is discovered to be in contravention of the constitutional document. Article 160 is silent on the possibility of a court declaring an invalid law to be temporarily valid. If Mr Leung should win his appeal, the government may be faced with a situation where it has no legal backing for its covert surveillance activities. It will have no choice but to take immediate action to give itself the relevant legislative powers. In fact, the Legislative Council, in June 1997, passed the Interception of Communications Ordinance, but it was never signed into law. This legislation was sponsored as a private member's bill by legislator James To Kun-sun. Mr To says the government can save time by activating the ordinance he proposed, with some amendments to cover covert surveillance. However, the government has made clear its opposition to Mr To's legislation. Legco's security panel will hold a meeting on Thursday, at the government's request, to speed up discussions on the issue. Coincidentally, the panel was given a paper by the Security Bureau two days before the Hartmann judgment in which the government presented its 'proposed legislative framework on interception of communications and covert surveillance'. Interestingly, its final paragraph said that 'the provision governing interception of telecommunications under section 33 of the Telecommunications Ordinance would be retained' although it would be amended 'to cater for the operations of, for example, the Office of the Telecommunications Authority in detecting unlicensed service operators'. This was the precise section that Mr Justice Hartmann ruled was unconstitutional. The paper added: 'The Interception of Communications Ordinance would be repealed.' This suggests that if the government loses its six-month grace period, it does not have draft legislation at hand to plug the gap. Frank Ching is a Hong Kong-based writer and commentator
