In the absence of a law on covert surveillance, the chief executive issued an order governing it, arguing that law enforcement agencies, by complying with the order, would be acting in accordance with 'legal procedures'.

The attempt to differentiate 'legal procedures' from 'law' is being challenged by legal experts, including the Bar Association. Legislator 'Long Hair' Leung Kwok-hung has already sought leave for a judicial review. If the application is successful, eventually a court will tell us if the government is right in making this distinction, or if you cannot have 'legal procedures' without a law.

In the meantime, one can draw a preliminary conclusion by looking at the Bill of Rights Ordinance and the International Covenant on Civil and Political Rights, both of which are part of Hong Kong law.

In fact, Article 14 of the Bill of Rights Ordinance is a word-for-word copy of Article 17 of the covenant, which says: 'No one shall be subjected to arbitrary or unlawful interference with his privacy, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.'

Like Article 30 of the Basic Law, Article 14 of the covenant also protects privacy of communication (correspondence). And it says everyone has the right to protection of the law (not simply 'legal procedures') against such interference or attacks. Moreover, Article 39 of the Basic Law says: 'The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless prescribed by law.' Thus, it would appear that even if the chief executive's order is to be construed as providing 'legal procedures', that is not enough because the Basic Law says there must be a law.

Law officer Ian Wingfield told the Legislative Council's security panel on Monday that a court had previously decided that 'when the Basic Law contemplates that a particular course of action has to be prescribed by law, the Basic Law says so'. Indeed, as can be seen from Article 39, the Basic Law does say so.

The current controversy stems from two decisions made by District Court judges on covert surveillance. In fact, in one case, Judge Fergal Sweeney specifically discusses the meaning of the phrase 'in accordance with legal procedures' and concludes, after discussing the Bill of Rights Ordinance, the European Convention and the international covenant: 'I find that Article 30 of the Basic Law mirrors the objectives sought to be achieved by the above-mentioned articles and that the proviso 'in accordance with legal procedures' bears an equivalent meaning to the proviso 'in accordance with the law'.'

Thus, it is not tenable for the government to argue that the executive order is not a law, but that it does provide legal procedures. The executive, it would appear, can on its own neither make law nor create legal procedures.

Frank Ching is a writer and commentator based in Hong Kong