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.