When US congressional advisers made morality-coated statements to criticize the National Security Law for Hong Kong (NSL) and called for sanctions on 29 Hong Kong judges tasked with hearing NSL cases, they tried to create a deceptive impression by falsely representing that they are standing on the moral high ground buttressed by the theory of natural duty of justice.
Proponents of this theory believe that there are strong cases for morally justified sanctions because they should assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to themselves (John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971)). Since the US government is theoretically democratic, proponents of the above theory argue that the US government should formulate and implement foreign policies to realize the will of the majority of its citizens.
But we are living in an imperfect and bully-dominated world, which is not suitable for proponents of the theory of natural duty of justice to propagate their ideas. The reality is that power politics is driving the US and China toward mistrust, competition and soft confrontation. As explained below, the US Congress has a strong motive to weaken China by playing the “sanctions card” against Hong Kong, particularly its judges and prosecutors.
Behind the facade of high-sounding moral principles, the US has implemented a selected sanctions regime to target only judges of “unfriendly countries”. While the US has turned a blind eye to “show trials” in the courts of its allies, it has paid great attention to courts in countries it considers “unfriendly”. Ebrahim Raisi, a former judge of Iran, was placed under US sanctions for “human rights abuses” in 2019. Later, Raisi secured a landslide victory in Iran’s presidential election in 2021 (Hardline Judge under US Sanctions for Human Rights Abuses Wins Iran Presidential Election, CNBC, June 19, 2021).
Two Iranian judges were also punished by the US Department of Treasury’s Office of Foreign Assets for issuing allegedly “cruel sentences” on activists, journalists and religious minorities (press release from the US Department of Treasury, Dec 19, 2019). Judges in Venezuela were also sanctioned by the US in 2017. The selectivity of American intervention has undermined American soft power and dealt a fatal blow to the credibility of the US government.
It’s also worth mentioning that then-US president Donald Trump imposed sanctions on two prosecutors of the International Criminal Court (ICC) in June 2020. The ICC was established by the 1998 Rome Statute of the International Criminal Court. The US has never been a party to the Rome Statute. The US has never been a party to the Rome Statute. The prospect of prosecution of US military personnel and agents of the CIA for their alleged criminal acts in Afghanistan triggered a surge of US hostility toward the ICC. In spite of US sanctions, Canada was among 67 countries signing a joint statement reconfirming their unwavering support for the ICC as an independent and impartial judicial institution (Catherine Morris, USA vs the International Criminal Court: A Fraught History in the Quest for International Accountability for Atrocity Crimes, Slaw, May 19, 2021).
Following promulgation of the NSL, the Trump administration imposed sanctions on 11 central government and HKSAR government officials for their involvement in enforcing the NSL. The Hong Kong Autonomy Act was passed unanimously in the US Congress in July 2020 to punish the Hong Kong Special Administrative Region government for implementation of the NSL in the city. Later on, the US threatened to impose sanctions on Hong Kong prosecutors who handle national security cases.
The latest move by the Congressional-Executive Commission on China (CECC) to intimidate Hong Kong’s judges is brazen interference in China’s internal affairs and a blatant act perverting the course of justice.
Indeed, the Biden administration and the US Congress are more concerned with the US’ strategic need to contain and weaken China than with their self-appointed mission to uphold judicial independence in Hong Kong. Undermining Hong Kong’s judicial independence and thus its rule of law by intimidating the city’s judges is part of Washington’s strategy to hurt China. American politicians must have believed that playing the “Hong Kong card” gives the US an extra edge over China.
It comes as no surprise that the CECC has urged the US government to impose sanctions on 29 Hong Kong judges tasked with hearing national security cases and to devise a set of policy tools to counter the “subversion of universal rights” by Beijing in its latest report on the NSL. The report, fraught with disinformation and lies, should be condemned to the fullest for its fabrications. Contrary to the CECC’s allegations, Hong Kong’s judiciary is an independent and impartial institution.
It has caused outrage among the Hong Kong legal community, and rightly so. A Hong Kong judiciary spokesman said attempts to exert pressure on Hong Kong judges are unacceptable, noting that the rule of law and judicial independence in Hong Kong are guaranteed by the Basic Law. As Fu Hualing and Michael Hor have correctly pointed out, the inclusion of human rights provisions in the NSL and especially the reference to the International Covenant on Civil and Political Rights and other international rights regimes are significant in signaling a commitment to maintaining the “one country, two systems” policy (Introduction: Re-balancing Freedom and Security in Post-NSL Hong Kong; The National Security Law of Hong Kong: Restoration and Transformation (HKU Press, 2022)).
The CECC’s report was also condemned by the Hong Kong Bar Association and the Law Society. The Bar Association said in its statement, “Attempts by anyone, no matter their location, to interfere with the operation of the independent judiciary must be sternly deplored and condemned.” The Law Society said, “Any attempt to exert pressure by the implementation of sanctions against a judge due to the type of cases that he or she is assigned to handle is an affront to the rule of law and judicial integrity.”
Junius Ho is a Legislative Council member, a solicitor, and a senior strategic development adviser of the Chinese Dream Think Tank.
Kacee Ting Wong is a barrister, a part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, and chairman of Chinese Dream Think Tank.
The views do not necessarily reflect those of China Daily.