Rethinking My Practice

Foreword

When I first considered applying to law school, I had hoped to acquire legal training to act as a mediator or an advocate in anticipation of future negotiations between Hong Kong and Mainland China at the expiration of the "One Country, Two Systems" agreement in 2047. Born shortly after the handover, I had aspired to gain admission to the committees that would be debating Hong Kong's political and constitutional structure at the expiration of "One Country, Two Systems" policy as either a business leader or trained lawyer. There was historical precedent for such a path. In 1985, the National People's Congress formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of the 1997 handover. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sector and debated submissions on electoral issues and civic rights to be codified in the Basic Law.

However, following the 2019 protests and subsequent passing of the 2020 National Security Law (NSL), my envisioned role is dead. The independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. Furthermore, given the national security threat accusations lodged against those seen as critical of the CCP, the fulfillment of my aspirations would likely result in my arrest or the loss of my permanent residency either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.

Redesigning My Practice

Renewed Goals

I would prefer to continue pursuing work relating to the rights of Hong Kong citizens. Instead of fruitlessly advocating to maintain these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided. Citizens must understand their potential exposure to liability in a changing landscape.

What My Practice Could Look Like

A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law and Chinese jurisprudence would be suitable members. The legal practitioners could provide consultations for individuals with queries regarding their rights and any potential liability exposure arising from actions they have already taken or intend to take. Scholars, assisted by research assistants, can also track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of NSL cases and potential changes to the law. Finally, staffers of the clinic could collaborate on publishing an annual report summarizing the crucial judicial and legislative decisions and providing an update on the most recent status of various rights. This would be distinct from the work done by organizations such as Amnesty International, as the work would be conducted from within Hong Kong.

Another aspect that education could take on is imparting the history of the Basic Law, recent events which led to the passage of the NSL, and how our judicial independence and constitutional rights have eroded. Instruction in Hong Kong's government structure, history of political events, and local, social issues was previously covered by the compulsory Liberal Studies course. Yet due to allegations of teachers presenting biased views that resulted in the supposed radicalization of students, it has since been renamed as "Citizenship and Social Development" and its curriculum refocused on topics such as patriotism, national development, and lawfulness. In order to preserve awareness of the civic rights once secured under the Basic Law and memory of the historical events which have led to their erosion, perhaps lectures or videos could be made covering these topics. In order to protect lecturers from accusations of being a national security threat, they will be advised to withhold their personal opinions and present factual narratives.

Risks

The predominant risk in running this practice is the violation of the NSL. This would likely complicate staffing and funding of the practice, as individuals and organizations would be hesitant to be exposed to this liability. Further, in order not to run afoul of the NSL, foreign funding, and staffing would be wholly unavailable in order to avoid charges of foreign collusion.

Accusations of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. The practice could emphasize that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the NSL’s extensive police powers to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information for allegations of endangering national security. While one could use encrypted software and communication tools, any communications outside of the work of the practice could still be used in considering criminal charges.

The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. The 2022 National People’s Congress also granted the Chief Executive authority to decide which lawyers are permitted to represent defendants and appoint judges in NSL cases. Separately, the Hong Kong government has proposed removing legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances"—presumably, NSL cases would not fall into this category. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the partiality of the judicial system in the adjudication of these cases and political intervention would result in likely conviction.

In the process of cutting, another approach might have been to separate the past from the future, recognizing the forward-looking purpose of the effort and reweighting accordingly. Cutting down to exactly 1,000 words rather than building up from 500 was the crucial decision.

In imagining a future practice, you are envisioning an expensive and carefully-constructed array of people and moving parts in which as a new lawyer you could hold a position, tentatively. In what sense is this your practice? Assuming it wasn't merely assumed into existence, how did you plan its creation?

Making such a thing is a vastly complicated and risky undertaking when all it has to do is make a living, long before one gets to the enmity of the government and its national security laws. Imagining in the big leagues is not just a wave of the wand: your magic brush must actually produce architectural drawings that can be built by mere mortals, such as you.

Let's try at least to be explicit about the issues. That makes some of our thinking reusable in the event that the particular magic refuses to put itself at our disposal.