Sanctimonious sanctions

Neville Sarony November 21, 2023 09:20

With clockwork inevitability, the proposal by a number of US lawmakers to introduce the Hong Kong Sanctions Act provoked a locust swarm of vitriolic protests.

The idea of sanctioning 49 Hong Kong officials for their various roles in effecting the provisions of the National Security Law provoked a storm of banal criticisms ranging from describing it as “gangster behaviour” and intimidation of HKSAR judicial personnel to likening the Congressmen and Senators to Triads.

It is a sad reflection on all these vociferous critics that they simply rose to the very obvious bait, instead of treating it with the lofty disdain that it actually deserves.

Considering the recent – and not so recent – antics of US lawmakers, perhaps they ought to remember that people in glasshouses should not throw stones.

Quite apart from the wholly indiscriminate lumping together of Hong Kong government security personnel who, technically can be held responsible for implementing the National Security Law, with Court of Final Appeal judges who are utterly blameless, the US lawmakers’ behaviour is a mindless exercise in futility.

Can anyone with a grain of intelligence imagine for a nano-second that any such pronouncement would influence the HKSAR government or judiciary, a fortiori the central government in Beijing?

Does the elephant even notice when bitten by a flea?

Worse, the ludicrous perception that it is an attempt to intimidate the HKSAR judiciary not to implement the NSL could lead to the illogical conclusion of intemperate officials invoking Article 55 of that Law, enabling the mainland to exercise jurisdiction over a Hong Kong case concerning offences allegedly endangering national security.

Once a judge has taken the judicial oath, regardless of whether he or she approves of or even positively disapproves of a law that has constitutional integrity within that jurisdiction, that law has to be followed.

One would hope that a legislator, even a US legislator, would be aware that this is the necessary concomitant of their own raison d’etre. Why pass laws that the courts can ignore?

But let me revert to the issue of futility.

Given that a snowflake has a better chance of surviving in Hell than of the Hong Kong Sanctions Act influencing the HKSAR’s government or judiciary, the question necessarily poses itself, what purpose is served by imposing these sanctions in the first place?

They have no real extraterritorial impact, consequently they must be for domestic consumption, in other words they are nought but empty grandstanding to a section of the US electorate.

But if that is so, are they not simply preaching to the converted?

Sanctioning individual members of a regime of which you disapprove may well prevent those individuals from visiting the sanction imposing country but set against their inherent political incompatibility they are unlikely to want to travel there in any event.

In theory, economic sanctions ought to be effective but the ease with which Russia has circumvented the sanctions against export of its oil demonstrates that sanctions are only as valid as the ability to monitor and enforce them.

At worst – or best viewed from the point of view of the one imposing them – most sanctions are no more than an inconvenience to those sanctioned.

Ah yes, someone will say, but sanctioning Carrie Lam prevented her from maintaining a bank account. Quite apart from the fact that this did not deter her from pursuing her chosen course, is it seriously suggested that no bank in the world would afford her their facilities?

If that were so, her mattress would surely be touching the ceiling by now.

Sanctioning London based Russian oligarchs may freeze their substantial assets but won’t deter Vladimir Putin from doing his utmost to extinguish Ukraine as an entity.

On the other hand, it may be a powerful disincentive to others to locate their assets in the UK if, by the all too simple device of an executive act, the government can side-step the fundamental protection of property guaranteed under English law.

Politicians of all colours have a suicidal myopia when taking decisions, a defect painfully obvious with regard to imposing sanctions.

Whether it is a case of domestic political expediency or an inadequately considered step on the international stage, the failure to consider the longer term effects of decision-making will come back, inevitably, to haunt the maker.

So it is with sanctions.

At a time when the leaders of China and the US are endeavouring to reach a level of understanding, what purpose is served by the US legislators empty threats or the equally pointless over-reaction of some Hong Kong worthies.

If I encounter a tone deaf street busker singing out of tune in the wrong key and too loud, I don’t waste my time by telling him something he’ll not understand anyway, I walk on by.

That, I suggest, is the appropriately mature response to the US proponents of the Hong Kong Sanctions Law.

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Neville Sarony

King's Counsel