Information source: Departmental Review - "Department of Justice 2008"

Legal Policy Division advises Government departments and bureaus on whether proposed legislation, or a particular policy, is consistent with the Basic Law, international human rights standards, and established principles underlying the legal system. It also has a specialist unit that provides advice on (and promotes understanding of) the law on the Mainland. In addition, the division plays an active part in law reform, both through its responsibility for any new legislation promoted by the Secretary for Justice, and because the lawyers who serve in the Secretariat of the Law Reform Commission are part of the division.

4th Floor, High Block, QGO
Enquiries: 2867 2167
Fax: 2869 0720

Description

General legal policy

As well as advising on the legality of policies established by the Government, the division also assists in formulating policy, particularly in relation to the legal system and the legal profession. The division has assisted the legal profession in exploring the opportunities that China's accession to the World Trade Organisation will offer and in enhancing its opportunities in the Mainland under the Closer Economic Partnership Arrangement (CEPA).

Where the Secretary for Justice has responsibility for a particular piece of new legislation, counsel in the division will take an active part in the preparation of the Bill and its presentation to the Executive and Legislative Councils. This will often include extensive consultation with those with an interest in the matter, both inside and outside the Government.

Apart from preparing new legislation, the work of the division includes advising on legal issues arising out of petitions to the Chief Executive from prisoners seeking remission of sentences; advising the Chief Executive whether to refer a decided criminal case to the Court of First Instance or the Court of Appeal; and responding to public enquiries and complaints. The division is also responsible for advising the Government on a wide variety of constitutional law issues and the powers and procedures of the Legislative Council.

In 2007, the division took on the new task of advising on petitions under Article 48(13) of the Basic Law by those claiming to be the victims of torture. The division gives advice on comments and clarifications provided by the Director of Immigration, and on Security Bureau's assessment of any new matters included in torture claim petitions.

Human rights

The division provides specialised human rights advice and assistance within the Department of Justice and to other Government bureaus and departments, reflecting the human rights provisions of the Basic Law. Lawyers in the division advise members of the department's Civil Division on human rights law and issues arising from litigation.

The division also advises on the human rights policy aspects of proposals for new legislation (and practices arising from the implementation of legislation) and ensures their consistency with the human rights provisions of the Basic Law.

The division provides advice and assistance in the preparation of reports to the United Nations under various UN instruments related to human rights that have been extended to Hong Kong. In 2006, the HKSAR's report under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment was submitted to the United Nations as part of China's report on the Convention. Hearings on reports under the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women took place in March and August 2006 respectively.

The division also advises Government bureaus and departments extensively on the interpretation, implementation and implications of the Sex Discrimination Ordinance (Cap 480), the Disability Discrimination Ordinance (Cap 487) and the Family Status Discrimination Ordinance (Cap 527). Recently, the division has also provided advice and assistance in relation to the Race Discrimination Bill.

Mainland law and cross-border relations

The department continues to work closely with the legal profession in seeking greater liberalisation of the legal services market in the Mainland under the framework of CEPA. Along with the legal profession, the department attends legal conferences and other promotional activities, both in the Mainland and in Hong Kong, to promote Hong Kong's legal services to the Mainland, especially Hong Kong's strengths as a regional dispute resolution centre.

In September 2007, the Secretary for Justice led a delegation from the Hong Kong legal profession to the 7th China Lawyers Forum in Yinchuan, Ningxia. The Solicitor General led a delegation of counsel from the Legal Policy and International Law Divisions to Beijing and Qingdao in December 2007. Those bodies visited by the delegation included the Ministry of Justice, the Supreme People's Court, the Hong Kong and Macao Affairs Office of the State Council, the Ministry of Foreign Affairs and the Qingdao Justice Bureau.

A major programme to enhance mutual understanding of the legal systems of Hong Kong and the Mainland is the Common Law Training Scheme. Under this scheme, participating officials from the Mainland attend an LLM programme at a Hong Kong university and spend time on attachment to relevant government departments here. By August 2007, a total of 101 Mainland officials had completed the programme. In addition, short term attachment programmes in Hong Kong have been arranged for officials from Mainland justice departments and Bureaus with which the department has co-operation agreements.

Co-operation in cross-boundary legal matters

There has been a steady increase in cross-border projects, such as the co-location arrangements made to enable more streamlined and efficient immigration and customs clearance. Under these arrangements, Hong Kong's immigration and customs facilities have been co-located with those of the Mainland at the Shenzhen Bay Port. The Shenzhen Bay Port Hong Kong Port Area Ordinance (Cap. 591) was enacted to allow the HKSAR to exercise jurisdiction over the Hong Kong Port Area at the Shenzhen Bay Port according to the laws of Hong Kong and to administer that area as a closed area.

Basic Law

The division provides advice to the Government on the interpretation of the Basic Law, both in ensuring alignment of existing legislation with the Basic Law and in the formulation of new policies and legislation. Questions concerning the interpretation of provisions of the Basic Law have arisen in a number of important lawsuits. In such cases, counsel in the division work closely with other divisions in the conduct of the Government's case, and provide advice and research on the Basic Law and other related issues.

The division plays a key role in promoting understanding of the Basic Law. It provides support to other government departments and public authorities including the Civil Service Training & Development Institute and the Civil Service Bureau both by providing counsel to give lectures and seminars on the Basic Law and by assisting in the production and revision of self-learning booklets and other training materials for use throughout the civil service. The division (in conjunction with the Civil Service Training & Development Institute, the Civil Service Bureau and the Constitutional and Mainland Affairs Bureau) publishes the Basic Law Bulletin. The Bulletin was first published in 2001 and is intended to promote greater awareness and knowledge of the Basic Law among civil servants. The latest issue (the tenth) was a special issue to commemorate the tenth anniversary of the coming into effect of the Basic Law in 2007.

The division maintains a collection of research materials relevant to the Basic Law and constitutional law generally. This includes reference books and articles, relevant decisions and interpretations of the Standing Committee of the National People's Congress, reports of the Basic Law Consultative Committee and court judgments. The collection is constantly added to and updated as more case precedents and other literature on the Basic Law become available.