Law in Contemporary Society

Rethinking My Practice


Although my original intended practice in Hong Kong is no longer viable due to the passage of the 2020 National Security Law, I would like to plan for a potential return to Hong Kong where I could maintain my goal to advocate for and educate citizens on their civil rights. Prior to 2020, my practice would have involved providing insights and opinions to Hong Kong’s legislative bodies on changes to the political and constitutional structure of Hong Kong at the expiration of the "One Country, Two Systems" agreement in 2047. However, 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, a viable practice would focus on informing and advising citizens of their rights amidst the lack of clarity relating to the scope of the NSL and the ambiguity arising from the evolving interpretations of the NSL as more cases are decided. Citizens must understand their potential exposure to liability in a changing landscape.

The Practice

Getting Off the Ground

A practice that could achieve the goal set out above would likely resemble a legal clinic. An alternative approach would be to create a non-profit organization, but potential staffers (explained below) such as legal practitioners, academics, and students would prefer to be associated with a formal clinic with the resources and prestige of a law school. Of Hong Kong’s three law schools, only The University of Hong Kong offers clinical education. Through HKU’s Free Legal Advice Scheme, the clinic would be able to offer preliminary legal advice relating to the NSL and handle real cases to allow students to develop their lawyering skills. Attorney staffing could also be achieved through outreach to Hong Kong-based private practice firms who are seeking the fulfillment of pro bono or CLE requirements.

Structure and Staffing

Legal practitioners and scholars of Hong Kong Basic Law and Chinese jurisprudence would be suitable staffers. 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. The above staffers could also assist with the educational aspect of the clinic, namely 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, its curriculum has been 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.

Profit Requirements

If the practice is accepted as a clinic offering at HKU, there would be less of a concern regarding profits since the clinic’s costs, ranging from staffing attorney fees to expenses associated with hosting educational sessions, would be funded by the law school. However, if it were to proceed as a non-profit organization, the practice would have to at least break even to remain viable. Potential revenue streams include payments for the legal representation of NSL clients, the presentation of educational seminars to corporate clients and law firms regarding changes to the NSL, as well as external funding by donors. Revenue from legal representation is volatile: as the 2022 National People’s Congress granted the Chief Executive authority to decide which lawyers are permitted to represent defendants, the volume of representation is subject to the arbitrary whim of the Hong Kong government. Moreover, private companies may be reluctant to be affiliated with the clinic for fear of being accused as “un-patriotic”. Finally, the practice would have to be incredibly selective about donors to avoid being accused of foreign collusion. As such, the practice would be best served as a legal clinic attached to HKU.

Further Existential Risks

The overarching, existential risk in running this practice is the violation of the NSL. Accusations of collusion with foreign forces could be 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. Coupled with the Chief Executive’s ability to designate legal representation, 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.


Webs Webs

r13 - 31 May 2023 - 03:53:34 - GillianHo
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM