HIGH COURT RULES ON COVERT SURVEILLANCE CASE

UNCLAS SECTION 01 OF 02 HONG KONG 002850

SIPDIS

SENSITIVE
SIPDIS

NSC FOR DENNIS WILDER
DEPT FOR EAP/CM

E.O. 12958: N/A

TAGS: PGOV PHUM PREL HK CH PINR MC
SUBJECT: HIGH COURT RULES ON COVERT SURVEILLANCE CASE

REF: HONG KONG 0523


1. (SBU) Summary: On July 12, the Hong Kong Court of Final
Appeal (CFA) struck down a February lower court ruling that
had granted six-month "temporary validity" to the
Government's covert surveillance and wiretapping operations,
despite the lower court's finding that such operations were
unconstitutional. The six-month grace period was meant to
give the Government an opportunity to enact corrective
legislation without disrupting normal investigative
operations, but the CFA found that the lower court had gone
too far in granting "temporary validity." Recognizing the
need to avoid a legal vacuum, the CFA instead substituted a
"suspension" of the declarations of unconstitutionality for a
period of six months from the date of the lower court's
original ruling. The practical effect of this is that the
Government will still have until August 8 to enact corrective
legislation but, importantly, will not be shielded from legal
liability for its unconstitutional surveillance operations,
as had been the case under the lower court's "temporary
validity" order. End Summary.


2. (SBU) The CFA on July 12 overturned a lower court decision
granting "temporary validity" to the Government's covert
surveillance and wiretapping operations for a period of six
months. In that earlier decision, issued on February 9,
2006, High Court Justice Michael Hartman ruled that Chief
Executive Donald Tsang's August 2005 executive order
authorizing covert surveillance was "an administrative order
having no legislative effect" (see ref). Hartman also ruled
that Section 33 of the decades-old Telecommunications
Ordinance was unconstitutional because it authorized access
to, or the disclosure of, the contents of intercepted
communications in violation of Articles 30 and 39 of the
Basic Law, which guarantee the right to free and private
communications. Hartman accepted, however, the Government's
petition to grant "temporary validity" to both the executive
order and the Telecommunications Ordinance for a period of
six months to allow the Government time to enact corrective
legislation. Hartman admitted that his ruling was "unusual"
and "exceptional" but justified it by arguing that the
prospect of a legal vacuum constituted "a real threat to the
rule of law." As precedent for his decision, Hartman relied
heavily on a Canadian decision in which the court granted
"temporary validity" to nearly all of the laws on the books
in Manitoba Province, despite having declared those laws
unconstitutional because they were not written in both French
and English.

A Victory for Long Hair, But Little Practical Effect
-------------- --------------


3. (SBU) The plaintiffs in that case, legislator "Long Hair"
Leung Kwok-hung and fellow activist Koo Sze-Yiu, appealed
Hartman's "temporary validity" ruling to the CFA. In its
unanimous decision, CFA Justice Kemal Bokhary said "The
scenario in the present case is nothing like a virtual legal
vacuum or a virtually blank statute book (referring to the
Canadian case). It is by no means as serious as that. I see
nothing to justify temporary validity in the present case."
Bokhary added, however, that "All things considered, I am of
the view that the danger to be averted in the present case is
of a sufficient magnitude to justify suspension." Bokhary
concluded that "I would allow the appeal to set aside the
temporary validity order. In its place I would, to afford an
opportunity for the enactment of corrective legislation,
substitute suspension of the declarations of
unconstitutionality so as to postpone their coming into
operation, such postponement to be for six months from the
date of Hartman's judgment of 9 February 2006."


4. (SBU) The practical effect of the CFA's ruling is that the
Government will still have until August 8 to enact corrective
legislation. However, it will not be shielded from legal
liability for its unconstitutional surveillance operations,
as had been the case under Hartman's "temporary validity"
ruling. Bokhary made this point explicit by saying "The
Government can, during that period of suspension, function
pursuant to what has been declared unconstitutional, doing so
without acting contrary to any declaration in operation.
But, despite such suspension, the Government is not shielded
from legal liability for functioning pursuant to what has
been declared unconstitutional."


5. (SBU) Outside the court, Leung and Koo opened a bottle of
champagne in front of television cameras to celebrate their
victory. They called on Donald Tsang to make a public

HONG KONG 00002850 002 OF 002


apology for his unconstitutional act, and to promise not to
do it again. The Government has not yet reacted to the
ruling. Leung and Koo, both of whom claim to be targets of
covert surveillance and wiretapping, say they intend to file
a lawsuit against the Government for unconstitutional
surveillance.
Sakaue