Leung Kwok Hung 梁國雄 (also known as Long Hair 長毛) was first elected into the Legislation Council of Hong Kong Special Administrative Region representing people of New Territories (East) in year 2004.
Soon, he creates waves. He is not only a street fighter but indeed has made the proceedings of the HKSAR legislative more exciting. He has brought the political game into another level.
He is now playing the court room game.
He has asked the court to determine the constitutionality of an administrative order which allows the enforcement authorities to intercept private communication. It has been common knowledge that Hong Kong Government is intercepting communication not only for the purpose of combating crime and safeguarding public security, but also to monitor the political activities.
The court handled down the judgment on Feb 6th, 2006 , answered in affirmative that the administrative order is ultra vires the Basic Law of Hong Kong.
The court was of the view that any immediate declaration of invalidity would give rise to the danger of Hong Kong residents by way of a threat to the rule of law.
In order to close the legal vacuum, The High Court of HKSAR has to invoke the remedy of temporary validity for 6 months so that the corrective legislation can be put in place.
It means that, law declared to be in violation of a constitution may nevertheless be declared temporarily valid. The court found the support in a judgment of Supreme Court of Canada (Re Manitoba Language Rights under the Manitoba Act 1870) and also the constitution provision of South Africa.
Hartmann J observed that:" The remedy of temporary validity, whether it is incorporated into the direct language of a constitution or is employed by a court as a constitutional remedy, is today a recognised means by which, in admittedly exceptional circumstances only, the provisions of a constitution may be protected by the striking down of invalid subsidiary laws without that process itself pulling down the pillars of the constitution upon itself"
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