Rethinking My Practice

Foreword

When I first considered applying to law school, one of my primary reasons was to be educated on constitutional rights and comparative law 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 grown up with the hope that Hong Kong would be able to work towards elections by universal suffrage (in accordance with a 2007 decision made by the National People’s Congress) and maintain its judicial independence and right to free speech. Following the 2014 Umbrella Protests, Beijing signaled for Hong Kong’s reintegration. The fervent promotion of the Greater Bay Area signaled an accelerated convergence. At that time, I had hoped to acquire legal training to act simultaneously as a facilitator of increased business movement in the region and an advocate for Hong Kong’s unique constitutional features, in particular our ability to vote for representatives of our legislative government and the rights to such as the freedom of speech and press.

However, following the 2019 protests and subsequent passing of the National Security Law (NSL) in 2020, my envisioned role is dead. Given the national security threat accusations lodged against individuals and organizations perceived as critical of the CCP, the fulfillment of my aspirations would likely result in my arrest by Hong Kong authorities or the loss of my permanent residency status either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.

Redesigning My Practice

Renewed Goals

Prior to the passage of the NSL and the implementation of the "patriots only" election in 2021, I had aimed to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of the 50-year "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. Nevertheless, 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. As such, the aim of my practice is moot.

I would prefer to continue pursuing work relating to the rights of Hong Kong citizens. Instead of fruitlessly advocating for the government 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, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into China.

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 useful staffers of the clinic. 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. This would be conducted on a pro bono or on a pay-what-you-can basis. Scholars, assisted by students or research assistants, can track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of National Security Law 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 Hong Kong's Basic Law, recent historical events which have led to the passage of the National Security Law, and the current status of eroding judicial independence and constitutional rights. Instruction in Hong Kong's government structure, history of political events, and local, social issues was previously covered by the compulsory Liberal Studies course administered by local schools in Hong Kong. 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.

The risk of potential charges 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. Additionally, 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 extensive police powers granted by the NSL to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information to accuse the practice of endangering national security. A potential solution would be to use encrypted software and communication tools, but 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 of the NSL, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. At the 2022 National People’s Congress, the Standing Committee ruled that Hong Kong’s chief executive can decide which lawyers are permitted to represent defendants and appoint judges for trials in NSL cases. The Hong Kong government has also previously proposed to remove legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances" and reduce the number of legal aid cases lawyers can take on each year. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the impartiality of the judicial system in the adjudication of these cases and the likelihood of political intervention would result in likely conviction.