Despite Protest, Hong Kong Surveillance Law Passes
By KEITH BRADSHER | Published: August 6, 2006
HONG KONG, Aug. 6 — Pro-Beijing lawmakers approved legislation here today giving broad authority to the police to conduct covert surveillance, including wiretapping phones, bugging homes and offices and monitoring e-mail.
The bill passed the 60-member Legislative Council on a vote of 32 to 0 soon after pro-democracy lawmakers walked out of the chamber in protest early this morning. The Democratic Party and its allies had tried to introduce nearly 200 amendments to the bill through four days of marathon debates, but all were defeated or ruled out of order.
Ambrose S.K. Lee, the secretary for security, welcomed the legislation, saying it was necessary to fight crime. “I wish to assure the residents of Hong Kong that the law now is a good balance between effective law enforcement on the one hand and the protection of privacy on the other,” he said.
But James To, the Democratic Party lawmaker who is the chairman of the legislature’s security committee, said the law gave too much discretion to the police and to the chief executive. He contended that the law would make it too easy for the government to monitor political opponents.
He objected to the law’s broad authorization of covert surveillance for the sake of public security and to the creation of a three-judge panel chosen by the chief executive to review such surveillance.
The government has said that it would not apply a political litmus test in choosing the panel’s members from among the two dozen judges eligible for it. But Mr. To was skeptical.
“We don’t know whether it’s a political vetting or not,” he said.
The government also promised not to use covert surveillance for political spying, but blocked efforts by democracy advocates to write an explicit ban on political surveillance into the law.
The new law requires the police and other security agencies to obtain the panel’s permission before entering anyone’s premises to place or operate surveillance equipment. But the heads of security agencies are allowed to order less intrusive surveillance, like monitoring e-mail and phone calls through servers and telecommunications switches, without obtaining the panel’s prior approval, although subject to review by the panel and by a commissioner named by the chief executive.
Since long before Britain returned Hong Kong to China in 1997, the police here relied on a section of the city’s telecommunications ordinance for their authority to conduct covert surveillance.
But a Hong Kong court ruled early this year that the section did not comply with the Basic Law, Hong Kong’s mini-constitution. The court effectively gave a deadline of Aug. 8 for the adoption of new legislation. The territory’s highest court, the Court of Final Appeal, upheld the decision and the deadline two weeks ago,
The police have said little about the extent of covert surveillance here. Prosecutors seldom introduce evidence in court based on covert surveillance partly to avoid having to answer questions from defense lawyers about the surveillance and about whether any exculpatory evidence was also gathered.
The new law sharply limits the ability of defense lawyers to ask such questions during trials, a provision that was opposed by the Hong Kong Bar Association.
Recent court cases have provided hints that the surveillance is extensive. Some experts said that establishing a clear legal framework for the surveillance represented an improvement.
“It’s going on anyway — it’s a lot better to have something on the statute books even if it is fairly draconian,” said Stephen G. Vickers, a top police intelligence official during British rule here who is now the president and chief executive of International Risk Ltd., a security consulting firm.
The bill was particularly controversial because it does not prohibit covert surveillance of journalists and because it imposes only a few restrictions on covert surveillance of lawyers. Lawyers are subject to surveillance, but while they are in their homes and offices they can only be monitored if they are personally suspected of committing serious crimes or posing a threat to public security.
The government promised to review the legislation in 2009. Its allies in the legislature defeated a sunset provision introduced by pro-democracy lawmakers that would have required the government to reauthorize the bill for any new covert surveillance warrants to be issued after Aug. 8, 2008; the pro-democracy lawmakers walked out in protest after the defeat of the sunset provision, clearing the way for final passage.
Chinese state security agencies maintain very extensive operations here that have reportedly expanded considerably following the huge democracy protests that filled the streets in 2003 and 2004. The legislation approved today would theoretically cover these agencies’ activities as well, but Chinese agencies have tended to operate with considerable independence from the Hong Kong government and its institutions.
Debate over the covert surveillance bill raised a broader constitutional issue for the courts. Rita Fan, the pro-government president of the legislature, ruled that a series of opposition amendments were not permissible because of longstanding rules in the legislature barring members from introducing amendments to government-sponsored bills if the amendments would affect government revenues or spending.
Leung Kwok-hung, an independent lawmaker and the legislature’s only avowed Trotskyite, filed a legal challenge on Saturday to the legislature’s rules, contending that they limited powers granted to the legislature by the Basic Law. The executive branch of government here has been insistent on controlling public revenues and spending.