July was much occupied with the ‘Spy Bill” (Interception of Communications and Surveillance Bill). We had to race against time. Amendments had to be filed by midnight 24 July, The documentation required is complex and governed by strict rules. Then the government objected to many of the amendments proposed by me and by James To, on the grounds that they were outside the scope of the bill or had a “charging effect” on the revenue. We had to reply to the objections by midnight of the following day. The LegCo President ruled out some but let in others. Adjustments had to be made to the order papers. Of course I also had to give my amendments a once-over to make sure that the whole thing made sense, and identified any amendments which no longer served any purpose. It made tedious work, but perhaps nothing extraordinary for a member of our profession. You just have to keep a cool head and keep your eye on your papers. If you have done your preparation work properly, as my pupil master once told me, you have no reason to be flustered.
Because the problems of the bill were so numerous and serious, and the changes the government was prepared to make were so inadequate, even with the amendments James To and I proposed, the resulting legislative scheme would still pose an unacceptable risk to the freedom and privacy of communication and against abuse of power. To meet the concern for “legal vacuum” if no legislation was passed, I proposed adding a “sunset clause” whereby provisions on the power to authorize wiretapping and surveillance would expire on 8 August 2008. Before “sunset”, a public consultation and thorough review must be carried out under the Commissioner who would make recommendations to the Chief Executive to amend or replace the Ordinance. This is by no means a new idea, although the label “sunset clause” was made famous by the American Patriot Act, civil contracts often adopt the device and label. Our matter-of-fact Secretariat advised me to change the heading to the mundane “Expiry”, which I accepted.
On 27 July, representatives of the pan-democrat legislators went to see Secretary for Security Ambrose Li, to make a last ditch effort to persuade him to accept the sunset clause. He flatly refused, and told us that he had already discussed this with the Secretary for Justice. We told the press that if the sunset clause was defeated, pan-democrat legislators would have no alternative but to reject the bill.
We therefore entered the long debate on 2 August with no illusion of what was installed. Yet the conduct of the government and its supporters turned out to be worse than I expected. Little attempt was made to answer, even for the record, the valid issues raised. Pro-government legislators were given the three-line whip by CE Donald Tsang personally. Administrative Officers were stationed everywhere in the corridors of the LegCo building to monitor their every movement. They were encamped in the ante-chamber, turned into a picnic ground with all kinds of food and sugared cakes in heaps of paper boxes and plastic bags. Senior officials took turns to keep them in good cheer. They made few attempts to take part in the debate or even to follow it but dashed in to vote every time the division bell went. They accused the pan-democrats and their amendments of aiding thieves and undermining law and order, of filibustering and obstructing the passage of the bill just to embarrass the government. No one who watched the live broadcasting shared their view, and fortunately an astonishing number of the public watched. Some came to LegCo and watched from the public gallery. You can access the whole debate at www.rthk.org.hk/special/legcolive .
I proposed 120 amendments (12 were ruled out); James To (DP) proposed 80 amendments (11 were ruled out); Lee Wing Tat (DP) proposed 1 amendment; Cheung Man Kwong (DP) proposed 1 amendment; Albert Ho (DP) proposed 8 amendments.
All of the amendments were defeated. All of the Government’s 189 amendments were carried. The debate lasted 58 hours. I spoke 67 times. The pan-democrats walked out at 2:00am on Sunday 6 August, after the sunset clause was defeated. The bill was passed by 32 votes against 0 a few minutes later. It was gazetted on Wednesday 9 August, and came into affect immediately.
Having examined the bill in great detail, I know only too well the flaws in it. The big challenge now is to make it work in such a way as to satisfy accountability and prevent abuse. The court must exercise its jurisdiction to safeguard its own independence and impartiality, actual and perceived. Although the law does not require it, the Judiciary has the power to stop listing cases before judges appointed by the CE as panel judges and Commissioner. The panel judges must demand a high standard of credible evidence and strong grounds before any authorizations is given. It will be an arduous task, especially when they are provided only with one-sided representation. Lawyers will have to use every opportunity to fight for administrative safeguards in the handling of any privileged communications obtained through interception. In the U.S. judges who granted warrants for wiretapping make detail reports to Congress. LegCo should establish an effective mechanism for monitoring the government’s use of the power under the Ordinance and the electorate should require their legislators to do so. The next months will be crucial in setting the tone for the whole system for the future.
Covert surveillance was by no means the only major business in July. The situation of asylum seekers and CAT (Convention Against Torture and other Cruel or Degrading Treatment or Punishment) claimants is developing into a crisis, repeating many features of the Right of Abode of mainland-born children of Hong Kong parents. The heart of the problem is that asylum seekers are not given any official recognition. There is no official policy to allow them to remain pending screening by UNHCR being completed and for basic sustenance to be provided where required. Although Government said that no one will be arrested or deported for seeking asylum, and sustenance will be given for humanitarian grounds if proved, the fact is that they are arrested or deported for overstaying or breach of condition of stay, or forgery of travel documents, all of which are almost inevitably the case with asylum seekers. The condition of the Welfare Department that they have to register first with the Immigration Department before they can be given regular assistance means they have to choose between arrest and deportation, or starvation and exposure. Currently there are about 1800 asylum seekers, with about 78% from Asia and 19% from Africa. About 100 of them are in detention. There is no legal aid for representation in the screening process, and although legal aid is available for representation in criminal proceedings and judicial review, the detainees have no realistic way of applying for or obtaining legal aid. LegCo members of the Welfare and Security Panels are extremely concerned, and I have spoken out for proper procedure backed up with legal safeguards, to prevent a shambles and scandal of Hong Kong breaching its human rights obligations.
About 58,000 people turned out in the July 1 march for democracy. The participation of Mrs. Anson Chan, former Chief Secretary, roused great interest and even greater speculation. Personally, I am glad she took the step of active involvement to fight for universal suffrage for Hong Kong. I only wish her former colleague, present CE Donald Tsang, did the same.
The return of former Secretary for Security, Mrs. Regina Yip of Article 23 fame, has added further excitement. She has lost weight and put on popularity, such is the magic of chasing democracy.
On the softer side, I had a wonderful opportunity of telling stories to children at the Book Fair on 21 July. I told them stories about the constellations – Hercules and the Lion of Nemea, Demeter and her daughter Persephone and Hades – and was most gratified by the response of my angelic audience. I confess I was a little uneasy lest they understood too much!
On 21 July we had our last tea gathering of the session, with Anthony Neoh SC on legal education. The breath and depth of his presentation far exceeded the title. He talked about China’s development in hard economic terms, Hong Kong’s role in it and precisely what challenges the legal profession is facing and what should be done. Really thought-provoking and exciting stuff and a very befitting event to round off the session. I am pleased to report that during the session, a total of 19 tea-gatherings were held, total attendance was 2431 person-times.
Normally, I would be producing my LegCo annual report in August. This year, we are creating a brand new on-line report which may be less detailed but hopefully more lively. To save some trees and public money in printing cost and postage, I will not be producing the usual print version. However, if email is not your thing, we will gladly send you a hard copy of the on-line report. Just filled in the reply slip below. I am finally going off for a break – much needed to restore my sanity.
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