Judges' impartiality in the spotlight
Secret surveillance is a double-edged sword. It can be used to protect society against crime and terror, and just as effectively for reprisals against people for their political or other views. The new surveillance law puts the burden on four judges who must vet spying applications from law enforcement agencies. However, there is much misunderstanding about the new system.
The chief gatekeeper is Mr Justice Woo Kwok-hing, the commissioner on interception of communications and surveillance. Under the law, he does not have the power to overrule any permission, once it is given, to carry out wiretapping or surveillance. He can only comment and advise the heads of departments or the chief executive after the event.
He can investigate a complaint from a member of the public. But even if he thinks that permission for an interception should not have been given in the first place, he has no power to stop it.
Moreover, the commissioner may not get a full picture of the surveillance activities being carried out. He will only know about activities when there are complaints, or when permission for a surveillance operation has been sought. Many types of secret surveillance do not require permission, or are not categorised as 'secret surveillance'.
For example, all surveillance operations that do not involve surveillance devices are technically not 'secret'. No permission is required if an officer decides a subject does not have a legitimate expectation to privacy.
It is wrong to think that the commissioner, and the three judges on the panel to consider surveillance applications, will act as a team of judges. In fact, they do not work together at all. Nor does a panel judge act in his capacity as a judge when he gives permission for wiretapping.
His role is administrative, not judicial: the law makes that very clear. Each of the panel judges is to deal with applications alone, and in secret. He cannot hear the other side of the case. He is not allowed to give reasons for granting permission, but only for refusing it, and his decision is not subject to any appeal. In short, there is nothing to help him maintain impartiality - no matter how much he may wish to do so.
A judge makes decisions on the basis of evidence. Since all the evidence in an application is provided by the government, how realistic is it to expect him to refuse an application?
A judge's image of impartiality and detachment may be destroyed by continuous administrative work in a close and secret relationship with the police, the Independent Commission Against Corruption and other executive authorities.
There is no precedent for the system the Hong Kong government has adopted.
Under the US system, applications for wiretapping are made by the attorney general to a judge in court. In Britain, a tribunal of lawyers has the power to refer a case to a judicial monitor, and to overrule an unjustified warrant. In Australia, the burden is shared among almost all high-court judges.
Because of the government's stubbornness, we are now stuck with this worrying system. Everything that can be done to safeguard the impartiality of the judiciary must be done. It is reassuring that Mr Justice Woo and panel member Justice Pang Kin-kee have announced that they will not handle court cases for the duration of their appointments. The other two panel judges should follow suit, as a matter of principle. The government has already pledged to help the judiciary deal with the resulting shortage of judges.
The panel judges should consider publishing a set of rules and principles on how they will conduct themselves in dealing with applications for interception and surveillance.
It should also cover other matters relating to their duties under the law, and the standard they expect applicants to meet. There is nothing in the ordinance to prevent them from doing so.
It would strengthen public confidence if they pledged to speak out should they find that the system was flawed - and to refuse to carry on if the task became incompatible with their professional integrity.
Margaret Ng Ngoi-yee is a legislator representing the legal profession
