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The chief executive  violated the Basic Law by issuing an executive order to allow law enforcement agencies to conduct covert surveillance, a court heard yesterday.

Legislator 'Long Hair' Leung Kwok-hung  made the accusation during a judicial review hearing into an executive order that laid out guidelines for agencies wishing to undertake covert surveillance that was issued in August by Donald Tsang Yam-kuen.

The order was made in response to two District Court cases where evidence gathered through clandestine means was ruled inadmissible because it broke Article 30 of the Basic Law.

Mr Leung said the chief executive could lobby to have laws changed before they were passed and could seek amendments later on, but he could not bypass the Legislative Council.

'He's wrong - he is completely wrong.'

Mr Leung and fellow activist Koo Sze-yiu  want the Court of First Instance to quash the order and force Mr Tsang to sign into force legislation governing the practice that was passed by Legco on June 27, 1997, but never activated by the chief executive.

The government has argued that a more suitable piece of legislation is being drafted and the order was simply a stop-gap measure needed to establish the 'legal procedures' required under Article 30 until the new law is ready.

Article 30 guarantees the privacy of residents' communications and allows for the authorities to intrude 'in accordance with legal procedures' only where the needs of public security or criminal investigations dictate. But Philip Dykes  SC, for Mr Koo, said Article 30 needed to be read in conjunction with Article 39, which gives effect to the International Covenant on Civil and Political Rights and states: 'The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.'

Hence, the only constitutional solution was a legislative one, and that legislation already existed in the form of the eight-year-old Interception of Communications Ordinance that the chief executive has so far refused to sign into law.

The chief executive needed to either sign the law into effect or send it back to Legco for amendment within three months, as specified in the Basic Law.

The government will put its case before Mr Justice Michael Hartmann today.



Chief's order on spying violates  Basic Law, 'Long Hair' claims