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聯合立場書:促請美國國會儘快通過《香港人權與民主法案 2019》

2019/7/15 — 13:34

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高教公民聯同各傘後專團發表聯合立場書,促請美國國會參眾兩院全體議員儘快通過《香港人權與民主法案 2019》聯合立場書,以支持香港在《中英聯合聲明》和《基本法》下理應享有的自治、人權和民主。請支持和廣傳這份聯合立場書!

【TO ALL REPRESENTATIVES & SENATORS OF THE UNITED STATES CONGRESS】

Joint submission in support of the Hong Kong Human Rights and Democracy Act of 2019 (H.R. 3289/S. 1838),
United States House of Representatives and Senate of the 116th Congress

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by
22 post-umbrella professional groups in Hong Kong

A. Introduction

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1. Senators Bob Menendez, Jim Risch, Marco Rubio, and Ben Cardin reintroduced the Hong Kong Human Rights and Democracy Act (H.R. 3289/S. 1838, the “Bill”) on June 13, 2019, and that Representatives Jim McGovern and Chris Smith have introduced companion legislation in the House.

2. The Bill supports the autonomy, democracy and human rights as guaranteed to the people of Hong Kong by the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, done in Beijing December 19, 1984 (the “Joint Declaration”), and the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (the “Basic Law”).

3. One of the particular motivations behind the reintroduction of the Bill was the Hong Kong Special Administrative Region (the “HKSAR”) government’s proposed amendments to the Fugitive Offenders Ordinance (the “Hong Kong Extradition Legislation”), which would enable the extradition of persons in Hong Kong to stand trial in any other jurisdiction, including Mainland China, without adequate human rights safeguards. [1]

4. Following massive protests against the Hong Kong Extradition Legislation and unwarranted use of violence by the Hong Kong Police Force, the HKSAR government has suspended the legislative process. Nonetheless, we note that the HKSAR and PRC Chinese governments continue, through other acts, to endanger the autonomy of Hong Kong and the fundamental rights of its citizens, both ostensibly guaranteed by the Joint Declaration and the Basic Law pursuant thereto. We therefore write in support of the Bill, elaborating on how the Bill could safeguard the interests of the U.S. and the autonomy, human rights and democratic development of Hong Kong.

B. Grounds to Support the Bill

U.S. national interests and their relevance to the state of autonomy, democracy and human rights of Hong Kong

5. As the Department of State noted in its March 2019 Report pursuant to the United States-Hong Kong Policy Act of 1992 (the “Hong Kong Policy Act”):[2]

a. The United States “continues to have deep economic and cultural interests in Hong Kong”;

b. “U.S.-Hong Kong relations are based upon the continued substantial maintenance of the ‘one country, two systems’ framework,” as established by the Basic Law; and

c. The Hong Kong Policy Act is the basis of the U.S. policy of treating Hong Kong as a non-sovereign entity distinct from China for the purposes of U.S. domestic law, with such treatment being contingent on the maintenance of the “one country, two systems” framework.

6. We note that Congress made the following declaration in the Hong Kong Policy Act:

“(6) The human rights of the people of Hong Kong are of great importance to the United States and are directly relevant to United States interests in Hong Kong. A fully successful transition in the exercise of sovereignty over Hong Kong must safeguard human rights in and of themselves. Human rights also serve as a basis for Hong Kong's continued economic prosperity.”[3]

7. We also note the following concrete examples of the continued ties between the United States and Hong Kong:

a. An estimated 85,000 U.S. citizens live in Hong Kong, and a further 1.3 million visited or transited in 2018;[4]

b. U.S. institutions maintain extensive academic, cultural, educational, and scientific exchanges with Hong Kong;[5]

c. As of 2018, 290 U.S. companies maintained regional headquarters in Hong Kong;[6] 434 U.S. companies had regional offices in Hong Kong;[7]

d. In 2017 the U.S. was Hong Kong’s 7th largest investor country, investing almost HKD325,900 million (or USD41,548 million) in the territory;[8] and

e. In 2017 the U.S. was the 9th largest recipient of outward direct investment from Hong Kong, receiving an estimated HKD89,900 million (or USD11,461 million).[9]

8. As U.S. Consul-General Kurt Tong noted in a speech on “Hong Kong’s Role in the Indo-Pacific Economy” on February 27, 2019, Hong Kong’s continued success is based on its maintenance of free economy principles, including in particular the rule of law and good governance. In particular, Mr. Tong highlighted the pivotal position of Hong Kong as a “change agent” for driving China’s liberalization, “my hope is that Hong Kong will make full use of what I call its ‘demonstration power’ — its power to show just how much prosperity is possible when global best practices are applied, in China as they are elsewhere.”[10]

Threats to autonomy, democracy, and human rights in Hong Kong

9. As we noted in paragraph 4 above, consideration of the Hong Kong Extradition Legislation has been suspended indefinitely. Nonetheless, there remain continuous and numerous threats to the autonomy of Hong Kong, and to the exercise of civil liberties by its residents.

10. As the Department of State noted in its March 2019 report:[11]

a. Certain acts of the mainland and Hong Kong authorities were “at the expense of” our human rights and fundamental freedoms, covering the democratic electoral processes, freedom of expression and association such as the disqualification of pro-independence candidates;

b. Citing the “redlines” precluding advocacy of independence for Hong Kong and the subsequent denial of visa to Victor Mallet, the “growing political restrictions in Hong Kong may be straining the confidence of the international business community” and the American Chamber of Commerce expressed concern as to whether “free speech and free flow of information in this world city is still sound enough for business to consider Hong Kong as an important hub”.

11. The Congressional-Executive Commission on China (the “CECC”) has repeatedly noted threats to the rule of law and fundamental freedoms in Hong Kong, including:

a. “Abduction and forced repatriation of critics”, namely, disappearance of certain Hong Kong booksellers known for publishing books banned in mainland China and their “coerced confession”;[12]

b. “Political prosecutions intended to curtail freedom of expression” as well as applications for harsher jail terms for the activists involved in the Umbrella Movement, being “evidence that Hong Kong’s cherished autonomy is precipitously eroding” and “another severe blow to Hong Kong’s reputation as a city governed by the rule of law”; and [13]

c. “The proposed amendments to Hong Kong’s extradition laws” which if approved, will “erode Hong Kong’s reputation as a center of commerce governed by the rule of law” protecting Hong Kong people and foreigners residing in Hong Kong from the mainland Chinese legal system that is “regularly employed as a tool of repression.”[14]

12. The U.S.-China Economic and Security Review Commission (the “USCC”) has also repeatedly warned of threats to the “One Country, Two Systems” framework:

a. The disappearance of the Causeway Bay Booksellers has led many to question Hong Kong’s autonomy and “caused a chill” to publishers, manifesting in the form of bookstore closures and self-censorship”;

b. The interpretation of the Basic Law on Hong Kong lawmakers’ oaths of office while a legal case on the matter was ongoing has “raised widespread concerns about the level of autonomy in Hong Kong’s judiciary” and “caused apprehension in Hong Kong about the implications for political life and freedom of speech in the territory.”

c. Most recently, it commented that a Hong Kong government extradition bill, if passed into law, would enable rendition to mainland China and “increase the territory’s susceptibility to Beijing’s political coercion and further erode Hong Kong’s autonomy”.

The needs for going beyond territory-wide sanctions and incorporating individual-targeted sanctions

13. Under the existing Hong Kong Policy Act, the U.S. President can impose territory-wide sanctions by suspending part or all of the differential treatments granted to Hong Kong should it be deemed “not sufficiently autonomous.”. While territory-wide sanctions could be quickly executed under the existing Hong Kong Policy Act by way of presidential executive orders, they are “nuclear options” because once implemented not only Chinese and HKSAR government officials who are directly responsible for the erosion of Hong Kong’s autonomy will be sanctioned, but also all the innocent citizens of Hong Kong will receive unwarranted punishment.

14. Therefore, we support the Bill because it will enable individual-targeted sanctions on those Chinese and HKSAR government officials for their infringements of Hong Kong’s autonomy under the “One Country, Two Systems” framework. Such individual-targeted sanctions, which are modelled on sanctions pursuant to the Global Magnitsky Human Rights Accountability Act (P.L. 114-328) such as freezing U.S.-dollar assets and denying entry to the U.S., will then help distinguish Chinese and HKSAR government officials from the harmless citizens of Hong Kong. Individual-targeted sanctions will also help increase the cost for Chinese and HKSAR government officials when executing Beijing’s interventions to the territory, therefore providing an effective check against further erosion of Hong Kong’s autonomy.

C. Our recommendations on the texts of the Bill

15. In relation to the proposed section 206 of the Hong Kong Policy Act, to be added by section 4 of the Bill:

a. The wording of the proposed section 206(a) is confined to ensuring that the visa applications of otherwise qualified applicants who resided in Hong Kong in 2014 shall not be denied on the basis of “any arrest, detention or adverse government action as a result of participation in nonviolent protests related to the electoral process, internationally recognized human rights, protecting an independent judiciary or the rule of law.”[15]

b. Whilst we applaud the endorsement of the Umbrella Movement as a nonviolent protest in pursuit of the internationally recognised right to political participation, we are concerned that these protections may be too restrictive in practice.[16]

c. In particular, we note that, due to the continued erosion of basic freedoms in Hong Kong, the ambit of the proposed section 206(a) may exclude individuals deserving of protection. For instance, protesters in similar position of Ray Wong and Alan Li, two political activists who were granted asylum by Germany last year, or those who stormed into the Legislative Council on 1 July 2019, may not be qualified for such protection under the proposed section 206(a). Therefore, we suggest that the reference to “in 2014” should be deleted.[17]

16. In relation to section 7(a) of the Bill, which sets out the criteria for identifying persons responsible for abductions and other actions suppressing basic freedoms in Hong Kong:

a. The material definition is a person responsible for “the rendition to the mainland of the People’s Republic of China of any individual, or the arbitrary detention, torture, or forced confession of any individual after rendition, in connection with the exercise by that individual of internationally recognized human rights in Hong Kong”.

b. It appears that this section will not be triggered unless a specific person is extradited to the PRC by reason of exercising internationally recognised human rights in Hong Kong. In other words, those responsible for the passing of the extradition bill per se would not be caught by this provision.

c. More generally, we observe that the individual-targeted approach seems to be only a small part of the multiple measures under the Bill, being confined to the Causeway Bay Bookstore victims and, under the latest draft, any individuals actually being extradited. In view of the heading to this section “…other actions to suppress basic freedoms in Hong Kong”, this section should be more emphasized and drafted more widely.

17. Therefore, we propose to rewrite section 7(a) by covering the original subsections (1) and (2) in a more widely termed subsection (1) and adding new subsections (2) and (3)(changes emphasized):

“IDENTIFICATION OF PERSONS RESPONSIBLE FOR INFRINGEMENT OF AUTONOMY WITH RESPECT TO AND SUPPRESSION OF BASIC FREEDOMS IN HONG KONG

IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, and annually thereafter in conjunction with the publication of the report required under section 301 of the Hong Kong Policy Act of 1992 (22 U.S.C. 5731) the President shall submit, to the appropriate congressional committees, a list containing the name of each person who the President determines, based on credible information, is responsible for—

1. the actual or threatened rendition or unlawful abduction to the mainland of the People’s Republic of China of any individual, or the arbitrary detention, torture, or forced confession of any individual before or after such rendition or abduction, in connection with the exercise by that individual of internationally recognized human rights in Hong Kong, including but not limited to such individuals extradited to the mainland of the People’s Republic of China under any amended fugitive offenders ordinance in Hong Kong;

2. the passage of bills in the Hong Kong Legislative Council which erodes Hong Kong’s autonomy or restricts the exercise of internationally recognized human rights in Hong Kong, including but not limited to the rendition to the mainland of the People’s Republic of China of any individual in connection with the exercise by that individual of such internationally recognized human rights in Hong Kong; or

3. any other acts or decisions which erodes Hong Kong’s autonomy by the Government of China that are inconsistent with its commitments in the Basic Law and the Joint Declaration identified in the report under section 205 of the Hong Kong Policy Act of 1992 (22 U.S.C. 5731) to be added by this Bill, or causes further restrictions of internationally recognized human rights in Hong Kong and the exercise thereof.”

18. Further, in relation to section 8 of the Bill:

a. The heading of the section is titled “Inadmissibility of Certain Aliens and Family Members”, but the section only says “Any alien included in the list submitted by the President under section 7(a) of the Hong Kong Human Rights and Democracy Act of 2019 is inadmissible.” We suggest the wording be amended to refer to family members of any such persons expressly.

19. With respect to section 9 of the Bill, concerned with financial sanctions upon such persons:

a. The operative section only empowers and requires the President to exercise his powers under 50 USC 1701 et seq. to the extent necessary to prohibit all transactions in property of a person on the list required under section 7(a). Again, as discussed above, such person named in the list under section 7(a) likely does not include his family members.

b. Thus, there is a risk of such persons evading this section by offloading assets to family members and/or holding assets through offshore trusts and/or nominee companies. Whilst it would be difficult to detect such evasion in the latter case, at least the Bill should provide a legal basis to target the property not directly held by such persons under section 7(a). We thus recommend that either (1) such “persons” expands to their family members, associates, companies on which they exercise effective control; or (2) section 9 itself refers to property beneficially owned by such persons named in the list under proposed section 7(a).

D. Conclusion

20. Notwithstanding our observations on the text of the Bill above, we consider that the Bill will be a powerful tool to protect the national interests of U.S. within Hong Kong as well as safeguarding the autonomy, human rights and democratic development as guaranteed to the people of Hong Kong by the Joint Declaration and the Basic Law.

21. We therefore respectfully urge you to act quickly to pass the Bill within the 116th Congress, so that it can be signed into law as soon as possible.

 

This joint submission is agreed upon by the following post-umbrella professional groups in Hong Kong:
1. Progressive Lawyers Group(法政匯思)
2. Progressive Scholars Group(高教公民)
3. Frontline Tech Workers(前線科技人員)
4. Progressive Teachers’ Alliance(進步教師同盟)
5. Financier Conscience(思言財雋)
6. Surveyor Conscience(量心思政)
7. CMDoctorsCure(本草匡時)
8. Democratic Action Accountants(民主進步會計師)
9. OccuFocus(職療同行)
10. Radiation Therapist and Radiographer Conscience(放射良心)
11. HK Psychologists Concern(良心理政)
12. Engineer Frontier(工程思政)
13. Nurse Politik(護政)
14. Médecins Inspirés(杏林覺醒)
15. HKEd4All(全民教育局)
16. IT Voice(IT呼聲)
17. Reclaiming Social Work Movement(社工復興運動)
18. Act Voice(精算思政)
19. Insurance ARISE(保險起動)
20. ArchiVision(思政築覺)
21. Physio Action(物理治療起動)
22. At-grade(園境願景)

 

[1] For further information, see our Brief on the Extradition Bill here: https://drive.google.com/file/d/1dk56uvRnVvUpuW2uLhlSKxOM3H6WgjAl/view?usp=sharing.
[2] https://www.state.gov/2019-hong-kong-policy-act-report.
[3] §5701, 22 USC.
[4] https://www.state.gov/2019-hong-kong-policy-act-report.
[5] https://www.state.gov/2019-hong-kong-policy-act-report.
[6] https://www.censtatd.gov.hk/hkstat/sub/sp360.jsp?tableID=133&ID=0&productType=8.
[7] https://www.censtatd.gov.hk/hkstat/sub/sp360.jsp?tableID=134&ID=0&productType=8.
[8] https://www.censtatd.gov.hk/hkstat/sub/sp260.jsp?tableID=048&ID=0&productType=8.
[9] https://www.censtatd.gov.hk/hkstat/sub/sp260.jsp?tableID=050&ID=0&productType=8.
[10] https://hk.usconsulate.gov/sp-2019022701.
[11] https://www.state.gov/2019-hong-kong-policy-act-report.
[12] https://www.cecc.gov/media-center/press-releases/president-xi-tightens-grip-cecc-cochairs-say-no-one-is-outside-his-reach.
[13] https://www.cecc.gov/media-center/press-releases/statement-by-chairs-on-the-%E2%80%9Cpolitical-prosecutions%E2%80%9D-of-umbrella-movement.
[14] https://www.cecc.gov/media-center/press-releases/hong-kong-serious-concerns-about-amendments-to-extradition-laws.
[15] https://www.uscc.gov/sites/default/files/annual_reports/2016%20Annual%20Report%20to%20Congress.pdf.
[16] https://www.uscc.gov/sites/default/files/annual_reports/2017_Annual_Report_to_Congress.pdf.
[17] https://www.uscc.gov/sites/default/files/Research/USCC%20Issue%20Brief_HK%20Extradition%20Bill.pdf.

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