Legislator attacks six-month breather, but government calls suspension vital High Court judge Michael Hartmann's judgment on covert surveillance was yesterday brought into question by both parties to a judicial review as the Court of Appeal heard consecutive appeals and cross-appeals. The government is appealing against Mr Justice Hartmann's ruling that the executive order issued to regulate the use of covert surveillance by law enforcement officers did not satisfy constitutional requirements to protect freedom and privacy of communication. At the same time, legislator 'Long Hair' Leung Kwok-hung, who represented himself, and barrister Philip Dykes SC, for activist Koo Sze-yiu, argued that the judge's suspension of the effect of his judgment for six months was inconsistent with the Basic Law. Mr Leung argued further that the court should require the government to bring into force the Interception of Communications Ordinance, which was passed by the Legislative Council in 1997 but never brought into effect. Both sides also asked the court to review the questions to be put to the Court of Final Appeal in the eventuality of an appeal against what the Court of Appeal decides. Mr Dykes told the three appeal judges that Mr Justice Hartmann's reliance on 'the rule of law' as justification for the suspension was incompatible with Article 160 of the Basic Law and was not available as a remedy under common law. He said judicial power could not validate laws found to be unconstitutional except under the 'doctrine of necessity', but added that the executive order did not even qualify as 'law'. 'The courts have no power to legislate by giving an executive order legislative effect,' he said. Even assuming this power existed, Mr Dykes said, it should only be exercised when there was a threat of a legal vacuum 'threatening the fabric of society as a whole'. Kevin Zervos SC, for the government, said in the absence of a suspension, the problem would have been far more severe than 'mere inconvenience to law enforcement officials'. 'The issue in relation to covert surveillance goes to the very heart of law and order and the stability of Hong Kong,' he said. 'No law and order means no rule of law.' Mr Zervos also argued that Article 30 of the Basic Law gave the government the right to infringe on freedom and privacy of communication in accordance with legal procedures, including the issuance of an executive order. But appeal judge Mr Justice Robert Tang Ching disagreed, saying the provision was meant to restrict government powers and any restriction of rights should be narrowly construed. Mr Leung said it was 'constitutionally inappropriate' for successive chief executives to take no action on a law passed by the legislature. The court reserved judgment.