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Legislative proposals to regulate covert surveillance activities of law enforcement agencies will be presented to lawmakers after the summer recess, Chief Secretary for Administration Rafael Hui said yesterday.

The aim of the exercise is to pass a law in the new legislative year starting from October, he said.

Announcing the timetable, Hui denied allegations that Chief Executive Donald Tsang had overstepped his authority by issuing an executive order last week to bind the covert operations.

"The executive order is backed by the Basic Law. It is a step taken to protect the rule of law," Hui told the press at the government headquarters.

"What has happened is that in two cases before the court, a certain part of the investigation process was considered problematic. Were we to sacrifice the law, we could have simply ignored the consideration and carried on with what we had been doing," he said.

"Indeed in common law practice, a covert surveillance has always been permissible... till the questions raised by the court recently. It's thus necessary to give it a clearer legal basis so that other investigations can continue. It indeed protects the rule of law," he said.

The government has filed an appeal in the higher court to overturn the ruling in one of the cases, Hui said.

On Monday night, the Hong Kong Bar Association issued a statement, accusing Tsang of going beyond his powers to issue the Law Enforcement (Covert Surveillance Procedure) Order to regulate covert probe activities.

The association accused the CE of virtually assuming the legislative power by seeking to make lawful what might otherwise be unlawful by making prior authorization for covert surveillance mandatory. The government has denied the accusation.

Secretary for Justice Elsie Leung said it was worth studying the question whether covert surveillance permitted by the law in the past violated Article 30 of the Basic Law as suggested recently by one of the judges.

"Our feelings are that the law enforcement agencies cannot all of a sudden stop using this investigative means, for were we to accept it, many criminals would be able to escape the law," Leung said on a separate occasion.

She said the authorities were caught in a situation in which on one hand they want to pass a law to regulate surveillance, while on the other they realize it could not be done overnight because the legislators and the community had to be given enough time to discuss the proposals.

"Therefore, we have resorted to the method of an executive order to provide a temporary solution," she said, clarifying that according to Article 48 of the Basic Law, the CE was vested with the power to issue an executive order.

"Furthermore, the order mainly applies to law enforcement officers, or government staff in other words, and doesn't affect the general public. The CE is thus fully empowered to order the officers how to perform their duties," Leung said.

According to Article 30 of the Basic Law, the authorities may inspect the record of conversations in accordance with "legal procedures" to meet the needs of public security or to probe a crime. Otherwise, nobody may infringe upon the privacy of a resident's communication.

She said the executive order has "legal binding effects" for the law enforcement officers but not the general public. "It is therefore not equivalent to a legislation and we've stated clearly we're going to table a bill in LegCo for deliberation."

The community has agreed that it's necessary for the law enforcement authorities to retain and exercise the power lawfully.

"The legal procedures need not necessarily be a piece of statute or legislation. Common law, too, is a legal provision," she said, hinting that though challenged by court recently, covert surveillance was permissible earlier according to the common law practice.

Leung said the executive order was also aimed at making the process more transparent to the public so that it would know that it was subject to restriction and safeguards.

"It therefore complies with the demands of human rights laws.. and does no harm to the people. Let's ask ourselves: 'Are we willing to let criminals escape the law when we do not have the surveillance tool?' This is a point everybody must think about carefully."

Leung will meet the legal professionals over the next few days to explain the executive order and the rationale behind it.

Yesterday, Kennedy Wong of the New Forum suggested that lower courts should be made to refer to the Court of Appeal or the Court of Final Appeal if their cases are concerned with interpretations of the Basic Law.

On July 5, District Court Deputy Judge Julia Livesey accused ICAC of breaching the Basic Law by secretly recording the conversation between a suspect and his lawyer in a case involving bidding for government contracts. She stayed the case permanently, too.

On Friday, Tsang exercised his constitutional powers and passed the executive order to regulate covert surveillance to provide a clearer legal basis for law enforcers to refer to.

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