Legal Wise | Tapping at will?

Francisco Leitão*

In the latest edition of the Macau Judiciary Police Gazette “Criminal Investigation and Legal System”, a principal investigator from said police body penned an article defending the need for a criminal procedure reform in which collection and assessment of evidence by investigators can be expedited.

The investigator suggested that, to accelerate the search for and prevent the destruction of evidence, for instance in drug trafficking cases, the procedural requirement of a pre-trial judge’s decision authorizing any interception or record of phone calls should be eliminated and replaced with an after the fact ratification by the competent authority.

This would allow the relevant investigating authority to carry out wiretappings at its discretion, without any type of prior supervision. Collection of any data deemed as suspiciously criminal would become easier and faster, with judges being left to verify the validity of taps as a simple matter of fait-accompli.

In our opinion, the suggested reform would be a clear violation of the rights to privacy and to liberty and secrecy in communications afforded by the Basic Law to all Macau residents. In fact, this is a right so fundamental that it is enshrined in the Universal Declaration of Human Rights.

In respect to this matter, Macau is no different from most democratic jurisdictions, where the fundamental right to privacy is materially constitutional. In turn, this protection is reflected in the relevant provisions of our Criminal Procedure Code, which states that wiretapping can only be validly carried out subject to prior judicial authorization. The breach of said requirement results in the nullity of the relevant evidence, rendering the probative material collected in that manner of no legal effect.

Wiretapping is an exceptional, critical and subsidiary method of evidence collection, and one that is particularly intrusive in nature. By striking at the very core of citizens’ right to privacy, it is a textbook example of why criminal procedure systems absolutely must provide for the intervention of judges during the investigation stage. Pre-trial judges are generally referred to as the “judges of rights and freedoms”, and there is good reason for that.

In this context, any proposed reforms on this topic should, in fact, be pointing the opposite way. Instead of advocating a waiver of judicial authorization and an extension of the scope of investigators’ powers, focus should be on promoting tighter supervision of wiretapping by pre-trial judges.

In tandem connection to the 2007 criminal procedure reform in Portugal, there are a few amendments that could be taken into consideration when reviewing the legal requirements of the evidence collection method of wiretapping.

At a time when investigative misconduct and unlawful compression of suspects’ rights is becoming a concern in Macau, measures such as imposing limited timeframes for the monitoring of phone calls and stringent requirements for the substantiation of judges’ dispatches, would all shift the system towards the protection of individuals’ fundamental rights, reinforcing the intervention of the judiciary power and, ultimately, embodying the principle of presumption of innocence.

The most important thing to glean from this is that, as sophisticated as modern criminality has become, and as important as it is for public authorities to repress it, protecting citizens’ right to privacy from unjustified, unreasonable and disproportionate limitations remains, as a rule, more important than protecting the competent authorities’ interest in speedier investigations.

It is the role of the Macau Courts to ensure the defense of legally protected rights and interests, to repress violations of legality and to resolve conflicts of public and private interests. If there is any ground from which they should step back, wiretapping is certainly not one of them. 

*Partner, MdME Lawyers