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Hong Kong's debate on warantless wiretapping

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  • Greg Cannon
    http://www.thestandard.com.hk/news_detail.asp?pp_cat=11&art_id=11267&sid=6511526&con_type=1 Push to keep wiretap laws The government, fearing the court may
    Message 1 of 1 , Feb 2, 2006
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      http://www.thestandard.com.hk/news_detail.asp?pp_cat=11&art_id=11267&sid=6511526&con_type=1

      Push to keep wiretap laws

      The government, fearing the court may order Chief
      Executive Donald Tsang to sign a law shelved for more
      than eight years and which regulates wiretapping and
      covert surveillance, has asked for "temporary
      validity" of laws that may be ruled unconstitutional.

      Albert Wong

      Friday, February 03, 2006

      The government, fearing the court may order Chief
      Executive Donald Tsang to sign a law shelved for more
      than eight years and which regulates wiretapping and
      covert surveillance, has asked for "temporary
      validity" of laws that may be ruled unconstitutional.

      Justice Michael Hartmann is in the final stages of
      deliberating whether section 33 of the
      Telecommunications Ordinance allowing wiretapping
      without court warrants offends privacy rights
      guaranteed by the Basic Law.

      Senior Assistant Director of Public Prosecutions Kevin
      Zervos warned the court Thursday that declaring the
      section to be immediately unconstitutional will
      cripple law enforcement agencies.

      Instead, he suggested the court suspend the effect of
      any declaration for six months or more, until the
      government enacts its own laws regulating covert
      surveillance.

      The government's proposals were submitted Wednesday
      and will be debated by the Legislative Council's
      security panel Tuesday. But legislator Leung
      Kwok-hung, who initiated the judicial review of
      existing wiretapping laws, said the proposals are
      "like a threat" and the government should not be
      telling the court what to do.

      Leung said the existing Interception of Communication
      Ordinance, passed by Legco in 1997 but never signed
      into law, should be taken off the shelf and made
      effective. "It's as easy as going into the kitchen and
      collecting your cutlery when you don't find it already
      laid out on the table," he said.

      During a hearing in December, Hartmann indicated he
      would require additional assistance to the types of
      relief he can order, should he rule in favor of the
      applicants on one or more of their grounds. He
      reiterated Thursday the additional hearing was to
      deliberate the legal remedies available if he rules
      against the government, indicating the applicants have
      at least partially succeeded.

      The two applicants, Leung and activist Koo Sze-yiu,
      are seeking a court declaration that the chief
      executive's decision not to bring the ordinance into
      effect is unconstitutional. The law would have
      addressed the failings of section 33 of the
      Telecommunications Ordinance, which has been
      repeatedly criticized by the United Nations as being
      offensive to protected privacy rights.

      Zervos made the region's first application for the
      exceptional judicial measure of "temporary validity"
      less than a week before Hartmann formally hands down
      his judgment.

      The immediate striking down of section 33 will leave
      "no legislative basis in which the chief executive can
      intercept communications, and will have serious
      consequences to the safety and well-being of Hong Kong
      residents," Zervos said.

      "Its not for judges to bring about legislation," he
      said, adding that suspending the effect will allow the
      legislature to seek its own means to address the
      issue. He said "temporary validity" is an exceptional
      remedy but that this is an instance that justified its
      use.

      He reiterated that the interception ordinance was not
      an available option since it was drafted in a rush,
      seriously flawed, and "practically unworkable."

      Leung submitted the ordinance should be signed, with
      prompt amendments to any flaws. "It took the
      government only two months to formulate a
      constitutional reform proposal that will affect the
      Hong Kong people for decades," he said.

      Representing Koo, Philip Dykes SC said: "The IOCO
      [Interception of Communication Ordinance] can be
      improved, but it is law," and necessary amendments can
      be made just as they are made to update any other law.

      Furthermore, Article 160 of the Basic Law would
      suggest temporary validity is not available as a
      remedy. The Basic Law states that if any law is
      declared unconstitutional, "it shall be amended or
      cease to have force."

      Dykes said: "If there were provisions recognizing the
      remedy of temporary validity, you would expect to find
      it in [Article] 160."

      The controversial debate about covert surveillance was
      reignited by District Court judge Fergal Sweeney last
      April when he was asked to rule on the admissibility
      of evidence gathered by covert surveillance in a trial
      for manipulation of shares.

      Consequently, Tsang issued an executive order
      stipulating legal procedures for covert surveillance
      effective since August 5, 2005.
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