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Newsletter - July 2006
2006-07-01 Dear Colleague I hope you will join the march for democracy on 1st July, 3 p.m. from Victoria Park. It is likely to be a very hot day, so dress comfortably and bring your bottle of water. It might be a challenge for the sedate, but if we don’t fight for democracy we won’t have the rule of law for long. So that is that. The Government’s panic to make LegCo enact a law by 12 July to legalise what the ICAC and the Police have been doing for years in covert surveillance and interception of communications is making a victim of us all. I don’t mean just LegCo members who are compelled to spend hours nearly every day in meetings of the Bills Committee. I mean that given the complicated bill, the serious issues raised and the ruthless rush, I am not confident that the end product will be up to the standard required by the rule of law. This bill does not appear to aim at the protection of our rights to keep private communications private, but far more at protecting the law enforcement agents in proceeding with their operations. The problems are legion: the threshold for carrying out spying operations is too low (preventing or detecting crimes punishable with 3 years imprisonment or more, or protecting “public security”, undefined); the scope of operations which will come under the regulation of the law is too narrow (e.g. see definitions of “communication”, “interception” and “covert surveillance”); in any event obtaining authorization to carry out the operations concerned looks strict but is full of loopholes (for example, while “Type 1” surveillance must have the authorization of a judge and “Type 2” requires only departmental authorization, “Type 2” is by far the more usual and extends to all under cover agent surveillance and recording so long as it does not involve entry into private premises without permission). Communication under legal professional privilege becomes vulnerable; a person who is wrongfully or mistakenly spied on has neither the right to be notified nor compensated for damages; willful abuse of power has no criminal consequence. The list goes on, but one thing which has to be pointed out is the price we have to pay in terms of the separation of powers and the perceived independence and impartiality of the Judiciary. “Panel Judges” are appointed by the Chief Executive to consider applications and give authorization, acting not judicially or by judicial procedure, but as part of the investigative machinery. It is hard to see how these panel judges can function as part of the executive in the morning and functions as judicial officers in the afternoon. It is even worse for the Commissioner who oversees the whole system if he is, as envisaged by the bill, a sitting judge. Therefore, major amendments must be made if the bill is to become acceptable law. Much will depend on the Government’s proposals. But where is the time for amendments to be negotiated and deliberated upon if the 12 July deadline is insisted upon？ Amendments proposed by the Government are still being tabled as this newsletter is written. This means members will have only a few days to decide, draft and file any amendments they may have in a few days. This is not how legislation should be enacted, particularly when it affects fundamental rights and particularly when the person whose rights are infringed is kept in the dark. While we are on the subject of judges and judicial independence, I should mention that, regrettably, a member of the profession has chosen to bring guideline for judicial conduct into the political arena. The pretext was that two members of the Bar of impeccable standing, Jacqueline Leong S.C. and Thomas Au who joined Civic Party were Recorder and deputy judge respectively. The question was raised by the DAB as to whether such “judges” should be allowed to have political affiliation. As a matter of fact, the Code of Conduct for Judges, which is applicable to substantive full-time judges, recommends judges to refrain from political membership. The Judiciary was then queried for not extending the same restriction to part-time judges. The explanation of the Judiciary that this was because part-time judges are full-time practitioners and as such are not required to sever their non-judicial ties did not satisfy the DAB. The debate is made an agenda item for the JLS Panel’s meeting on 26 June. On behalf of Civic Party, a paper was submitted on 5 June setting out the relevant principles. On 16 June, the Chief Justice issued a Guideline for part-time judges on political activities, permitting political affiliation while banning certain political activities. This makes the HKSAR the most restrictive among the common law jurisdictions in the world. Although nowhere in the common law world are part-time judges required to refrain from political affiliation, on 21 June the DAB member called for such a restriction to be imposed by the Chief Justice. It is the duty of LegCo to respect the independence of the Judiciary and not to allow pressure to be brought to bear upon it. The Judicial Code of Conduct is for a matter for the Judiciary. While different views may exist regarding the Code or the new Guideline, now that the Chief Justice has issued the Guideline, the debate must be regarded as closed. Still relating to the Judiciary, although from it rather than of it, the Chief Justice’s Working Party on solicitors’ higher rights of audience has published its consultation paper. The general public and not just the two branches of the profession, is the target of the consultation. The three months consultation will end on 31 August. You can access the document from the Judiciary’s website www.judiciary.gov.hk and give your comments to the Working Party. I was told that the reason why it has taken so long to publish the document is that he Chairman of the Working Party, Mr. Justice Bokhary, PJ, considered consensus most desirable. Hopefully, this spirit will prevail and a solution is reached. Summer is only too soon upon us. You might gather that I am not likely to be able to get away any time soon. I am pleased to announce that Anthony Neoh SC, a practitioner with a rich and distinguished career, has agreed to give a tea gathering on 21 July. Those who missed the talk on hearing bundles by Madam Justice Chu on 16 June really did miss something! However, I have obtained her kind consent to make her speaking notes available to participants once they are typed. I wish to record my thanks to her for being doubly generous. Yours sincerely Margaret Ng |
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