Thursday, January 15, 2015

Congressional Action on Hong Kong Set to Roil US-China Relations

Hong Kong people demand genuine democracy during a seven-week civil disobedience campaign in 2014. Photo credit: news

Buried in the massive 1,600-page, $1.1 trillion omnibus spending bill that was signed into law by President Obama on December 16, 2014, is a provision requiring the Department of State to resume reporting under the terms of the Hong Kong Policy Act of 1992. A report on Hong Kong covering topics such as the development of democratic institutions, change in the exercise of sovereignty, and bilateral relations with the United States must be submitted to Congress no later than January 31. The Department of State is currently drafting the report and will submit it by the deadline imposed by Congress. The last time a report was filed under the Hong Kong Policy Act was in 2007.

Resumption of reporting as provided for in the omnibus spending bill applies only to 2015, but legislation being reintroduced to the House of Representatives by Congressman Chris Smith (R-NJ), co-chairman of the Congressional-Executive Commission on China, would extend reporting for many years to come. The legislation in question is the Hong Kong Human Rights and Democracy Act (HKHRDA), which was originally introduced in both the House and Senate in November 2014. Although it passed the Senate Foreign Relations Committee in the waning hours of the 113th Congress, both the Senate and House adjourned before further action could be taken.

The HKHRDA stipulates that the Department of State file annual reports on conditions in Hong Kong for 10 years, or until “the Secretary of State certifies that Hong Kong has held free and fair elections for two consecutive Chief Executive and two consecutive Legislative Council periods.” Of greater concern to Hong Kong and mainland officials is the stipulation that the Secretary of State issue an annual certification that Hong Kong is sufficiently autonomous to warrant separate treatment under US law. The Department of State has made clear that it is opposed to this certification requirement. The Hong Kong Policy Act does not require annual certification. It gives the president the discretion to decide whether Hong Kong enjoys the high degree of autonomy called for under both the Sino-British Joint Declaration and the Basic Law, Hong Kong’s mini-constitution. Between 1993 and 2007, no president exercised the discretion to deny Hong Kong separate treatment.

Congressman Smith is also putting together a Hong Kong Caucus in the House of Representatives. The caucus, which must be approved by Speaker of the House John Boehner (R-OH), is expected to hold its first meeting in the coming weeks. At some point, Congressman Smith, possibly accompanied by other caucus members, will seek to visit Hong Kong on a “fact finding mission.” Like all members of Congress, he travels on a diplomatic passport, which means that he will need to get a visa from the Chinese Embassy in Washington in order to do so. Long a critic of China’s human rights record, Congressman Smith has had his applications to visit mainland China rejected on several occasions. It remains to be seen whether the Chinese Embassy will issue a visa to allow him to enter the Hong Kong Special Administrative Region (SAR). In light of the recent refusal by the Chinese Embassy in London to issue visas to British members of parliament seeking to visit Hong Kong, chances are high that Congressman Smith will not get a visa, something likely to prompt a strong reaction in Washington.

Members of Congress are taking action on Hong Kong in part to support “genuine democracy” (i.e., universal suffrage and an open selection of candidates) in response to the Occupy Central protests that paralyzed parts of Hong Kong for seven weeks from late September to mid-December 2014. They may also be responding to how Hong Kong authorities handled the Edward Snowden affair in June 2013. When the SAR government allowed Snowden to leave Hong Kong for Moscow, it looked to many in Washington that it had done Beijing’s bidding, raising questions about the level of autonomy in Hong Kong.

Although the Chinese government has not made statements on the renewal of reporting and the introduction of the HKHRDA, it is certainly deeply opposed to both. The Ministry of Foreign Affairs’ spokewoman stated on September 29, 2014 that “Hong Kong affairs fall entirely within China’s internal affairs. [The ministry] urge[s] relevant countries to be prudent in their words and deeds [and to] refrain [from] interfering in Hong Kong’s internal affairs in any way.” Chinese leaders believe that foreign governments, led by the United States, were behind Occupy Central. Congressional action on Hong Kong will reinforce this belief.

For now at least, Beijing is content to let the Hong Kong government take the lead in lobbying Congress and the Obama administration not to enact the HKHRDA. The Hong Kong Trade and Economic Commission in Washington is actively meeting with state department officials and congressional staffers. It has enlisted the support of trade organizations who warn of dire consequences if Hong Kong is stripped of separate treatment under US law.

How a Bill Becomes a Law

The HKHRDA has a long way to go before it passes both chambers of Congress and lands on President Obama’s desk. A person involved in the drafting of the bill told Dui Hua that it is not expected to pass both houses of Congress until the summer of 2015—around the time that Hong Kong’s Legislative Council will vote on the political reform package based on the National People’s Congress Standing Committee decision issued August 31, 2014.

Once Congressman Smith introduces the HKHRDA, it will receive a number and be referred to committees with jurisdiction, almost certainly the House Foreign Affairs Committee but possibly, since the legislation touches on economic and trade issues, the House Ways and Means Committee as well. Hearings on the bill would likely be held before passage by the full committees, after which it would head to the House for a vote.

The HKHRDA was co-sponsored in the 113th Congress by Senator Marco Rubio (R-FL), but has yet to find a Senate sponsor in the 114th Congress. Assuming a senator does introduce the bill in the Senate, it would follow a path similar to that in the House. Opposition by the Department of State could cause some Democratic senators to oppose the bill and affect its chances of passage. Assuming the bill does pass both chambers and the version that passes the Senate is different from that which passes the House, a conference of members from both chambers would hammer out a bill that merges the two. Both chambers must in turn pass that bill before it goes to the president for his signature or veto. If President Obama vetoes the bill on the grounds that it removes his discretionary power, two-thirds of the members of both the House and Senate would need to vote to override the veto.

The long process of hearings and debates, denial of visas to American congressmen bent on visiting Hong Kong, and strong statements by the Chinese government that are expected to ensue should make human rights and democracy in Hong Kong a bone of contention in US-China relations for the months ahead. Weeks after the Department of State issues its report at the end of January, the department will issue its country report on China’s human rights record, which contains a section on Hong Kong. In the words of an official involved in writing this year’s report, it will be a “scorcher,” guaranteed to raise hackles in Beijing.

Wednesday, January 7, 2015

State Security Indictments, Cult Trials Up in Xi Jinping's 2013

Zhao Haitong, seen in a detention center, was reportedly arrested in August 2013 and sentenced to 14 years in October 2014 for crimes including inciting subversion. Zhao was one of many arrested for ESS crimes during 2013, Xi's first year as party secretary. Photo credit: RFA

Statistics recently released in China Law Yearbook (CLY) call into question earlier data reported by the Supreme People’s Procuratorate (SPP) and indicate that in 2013 indictments for crimes of endangering state security (ESS) reached the second highest level on record. The authoritative compendium typically includes arrest and indictment data for ESS—the category of crimes that comprises the most serious political offenses including subversion, splittism, and their incitement—and for the first time, provides data on the number of trials for cult offenses used to prosecute Falun Gong and other banned religious groups.

In contrast with past editions, the CLY published in 2014 does not refer explicitly to ESS in its accounting of arrests and indictments approved or made by the SPP. These numbers are not difficult to calculate, however, since the SPP work report for 2013 states that ESS statistics are aggregated with those of endangering national defense interests (ENDI) and dereliction of military duty (DMD), and the CLY provides disaggregated data for the latter categories.

This arithmetic shows that in 2013 the SPP indicted 1,384 individuals in 607 ESS cases, up 32 and 57 percent year-on-year, respectively. The number of individuals indicted for ESS in 2013 is the second highest figure reported in the CLY since reporting began in 1998. The highest figure was reached in 2008 when Tibetan protests contributed to a total of 1,407 indictments. Dui Hua’s previous estimate of ESS indictments for 2013 was based on a SPP work report released in March 2014, which may significantly underreport this figure. The higher numbers provided in the CLY are not only more authoritative but more in line with the conditions on the ground. Despite the discrepancy in figures, Dui Hua maintains that in 2013 the procuratorate frequently used other crimes (e.g., “picking quarrels and provoking trouble” and “illegal assembly”) as proxies for ESS crimes making the increase in ESS indictments all the more staggering.

The change in the number of arrests was less dramatic. We calculate that the SPP authorized public security and state security organs to arrest 937 individuals involved in 532 ESS cases in 2013. Compared with 2012, this represents an 18 percent decrease in individuals arrested but a 12 percent increase in cases. An average of 1.76 and 2.33 individuals were arrested in each ESS case in 2013 and 2012, respectively.

The 2014 CLY does not provide disaggregated data for ESS trials, and unlike the SPP, the Supreme People’s Court does not provide notation that indicates how to arrive at this data. Given substantial growth in the number of ESS indictments nationwide and ESS trials in Xinjiang, where most of these trials occur, Dui Hua believes that there was an increase in the number of ESS trials concluded in China in 2013. We previously estimated that the number of ESS trials in Xinjiang grew 10 percent to 300 trials of first instance in 2013. Nationwide, 369 ESS first-instance trials were concluded in 2012.

A lack of transparency in ESS cases continues to be a serious hurdle to protecting the rights of prisoners of conscience. Of the hundreds of people who faced ESS charges in 2013, only 31 made it into Dui Hua’s Political Prisoner Database (PPDB) as arrested, indicted, or tried. More than half of them are Tibetans implicated in self-immolation protests. Others are Han Chinese activists who called on government officials to disclose their assets through small-scale street protests. Although Xinjiang typically accounts for the majority of the ESS cases nationwide, we have discovered the names of just three Uyghurs sentenced for inciting splittism in that year.

Known Individuals Facing Endangering State Security Charges, 2013
Name Type (Arrested: A,
Indicted: I, Tried: T)
Province Charge(s) Sentence Release
Abdusalam Abulat
T Xinjiang Inciting splittism 10 years Apr 2023
Abulkerim Mehmet
T Xinjiang Inciting splittism 4 years Apr 2017
A Qinghai Inciting splittism - -
T Sichuan inciting splittism 4 years 2016
T Tibet Inciting splittism 13 years 2026
T Qinghai Inciting splittism 2.5 years May 2015
Gu Yimin
I Jiangsu Inciting subversion 1.5 years Nov 2014
T Qinghai Inciting splittism 4 years Feb 2017
Hortsang Tamdrin
T Sichuan Inciting splittism 4.5 years Oct 2017
Jigme Tanke
T Qinghai Inciting splittism 5 years 2018
Kelsang Dangzhi
T Qinghai Inciting splittism 6 years 2019
Kerem Mehmet
T Xinjiang Inciting splittism 10 years 2023
Kunchok Choephel
T Tibet Inciting splittism 6 years Nov 2019
Liu Benqi
I Qinghai Inciting subversion 3 years Jul 2015
Liu Jiacai
A Hubei Inciting subversion - -
T Qinghai Inciting splittism 6 years 2018
T Qinghai Inciting splittism 4 years 2017
Huang Wenxun
A Hubei Inciting subversion* 4 years Jun 2017
Pema Trinley
T Sichuan Inciting splittism 4 years 2016
T Qinghai Inciting splittism, murder 13 years 2025
Tenzin Rangdol
T Tibet Inciting splittism 5 years Oct 2018
T Tibet Inciting splittism 5 years Oct 2018
Trinley Tsekar
T Tibet Inciting splittism 9 years 2021
T Tibet Inciting splittism 3 years 2016
Wang XX
T Hunan Inciting subversion 3 years Jul 2015
Yang Lin
A Guangdong Inciting subversion - -
Yuan Bing
A Hubei Inciting subversion* - -
Yang Wei
A Guangdong Inciting subversion - -
Yuan Xiaohua
A Hubei Inciting subversion* - -
Zhao Haitong
A Xinjiang Inciting subversion** 14 years Aug 2027
*This charge was later changed to gathering a crowd to disrupt traffic.
** May include other charges. Source: Dui Hua

Known Cult Crime Sentences by Group, 2013

Source: Dui Hua Foundation

Expanding the official picture of prisoners of conscience, the 2014 CLY provides a first-ever accounting of trials of first instance for Article 300: “leading or using a cult to undermine implementation of the law.” The yearbook said that the number of so-called cult trials rose nearly 60 percent year-on-year to 1,554 trials in 2013.

As compared with information on ESS cases, information on Article 300 cases is typically more accessible. Dui Hua’s PPDB documents about a third (517) of the individuals tried in 2013. Falun Gong accounted for 65 percent of known cases, with Almighty God accounting for 32 percent and unorthodox Protestant sects such as Spirit Sect and Society of Disciples making up about 3 percent.

2013 was Xi Jinping’s first year as party secretary, and in that year, he oversaw roughly three times as many ESS arrests and indictments as Hu Jintao did in 2003, Hu’s first year as party secretary. In Xi’s second year even more people are likely to have faced ESS charges, as policing increased in Xinjiang and the nationwide crackdown on dissent continued.