September, 2006

The Covert Surveillance Law and the Protection of Privacy

Rose Wu

The legality of covert surveillance operations in Hong Kong has been in doubt since two court rulings last year declared various forms of covert surveillance to be unconstitutional as Article 30 of the Basic Law provides that such infringements of personal freedom and privacy can only be conducted "in accordance with legal procedures." Chief Executive Donald Tsang Yam-kuen attempted a quick solution by issuing an executive order in August 2005. The move was intended to provide these operations with a cloak of legality, but it was challenged when Legislative Councillor Leung Kwok-hung and activist Koo Sze-yiu brought a legal appeal in February.

In his decision, High Court Justice Michael Hartmann ruled that the existing framework for covert surveillance breaches the Basic Law. He also noted in his ruling that Tsang's order was not sufficient because it was no more than administrative directions binding only on government civil servants. What was controversial about the ruling was that, having held covert surveillance to be unconstitutional, the judge suspended the effect of his declarations for six months to give the Legislative Council (Legco) time to enact corrective legislation.

The extent of the issue was underlined when, according to the South China Morning Post, the government disclosed that law enforcement agencies had conducted 348 covert surveillance operations involving 170 cases in the final three months of last year, indicating how regularly the government is intruding into people's privacy. Many legislators moreover suspect that these figures do not reflect the real dimensions of covert surveillance operations in Hong Kong.

Subsequently, after the High Court decision, officials informed lawmakers of the framework for the proposed legislation. They were told that if such legislation is passed the chief executive will, on the recommendation of the chief justice, appoint a panel of judges to authorise covert surveillance. Legislators were also informed that all interception of communications and intrusive surveillance operations that involve the use of surveillance devices will have to be authorised by judges. Lastly, an independent commissioner, who will be a serving or retired judge, will audit these operations and handle complaints.

The concern of civil society was whether the bill strikes the right balance between the protection of privacy and the need for law enforcement agencies to combat crime. The bill regulates intrusions of privacy in a way that would normally be repugnant in a free society but are accepted as necessary in certain circumstances.

The major contentions of the bill included the following: the method of appointing the 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 the commissioner's annual report; automatic destruction of evidence collected; 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; the definition of what constitutes cases carried out for reasons of public security; and lastly, inclusion of a sunset clause to repeal the Interception of Communications and Surveillance Bill within two years.

Given the reality that the government was pushing the legislation through Legco to meet the court-ordered deadline, the covert surveillance bill, as expected, was enacted. The bill's passage occurred in the early morning of Aug. 6 after a marathon debate that stretched over five days and saw all of the government's amendments inserted in the legislation. Pro-democracy legislators staged a dramatic walkout from the Legco chamber, however, after all of their 200 amendments were defeated, including the sunset clause above that would have required the government and Legco to review the law in two years.

Before the debate on the sunset clause began, Margaret Ng Ngoi-yee, the legislator for the legal sector, described it as the most critical part of the bill: "In a way, we [the pro-democracy camp] expected none of the amendments that we proposed would be carried. What we were trying to do in that exercise was expose every major fault in the law they [were] about to pass. This law is a huge compromise, . . . and it is necessary to have a sunset clause so there will soon be a legal obligation to review it before it expires."

According to the comments of the democrats, the law does not provide adequate safeguards to protect the privacy of individuals. Moreover, the new commissioner for covert surveillance lacks the power to ensure that abuses are not only identified but that offenders are punished and victims compensated. The new arrangements also allow a small panel of handpicked judges to be appointed to vet surveillance applications. Although this process will be separate from the legal system and court hearings, there is concern that the judiciary's independence will be further impaired.

In her speech, Ng clearly noted this danger, pointing out that maintaining judicial independence is the core value of the rule of law: "Having a panel of judges appointed by the chief executive—on the recommendation of the chief justice—sitting outside the scope of the courts to make decisions on covert operations would end the separation of the executive and the judiciary. It is, indeed, the most damaging effect of the bill."

For the government, the passing of the covert surveillance law seems to be a victory, but it is one that could have serious consequences for Hong Kong. Once again, the strength of Hong Kong's executive-led government and the absence of meaningful checks and balances in Legco were vividly illustrated by the passage and defeat of amendments to the bill. Hong Kong's people will now have to live with the new law. Concerns about the flaws in the law would have been eased if the government had inserted a sunset clause, but it refused to do so. Now officials must keep their promise to review the law within three years. The public must put more pressure on Tsang and his government to ensure that the review is done thoroughly, transparently and with the aim of strengthening the protection of people's privacy. Hong Kong does not want to be part of the global trend in which people's rights and privacy are being diluted and threatened in the name of protecting society.