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【傘後專團聯合立場書】促請美國國會參眾兩院全體議員進一步完善《香港人權與民主法案2019》

2019/10/11 — 12:05

美國國會大樓(資料圖片)

美國國會大樓(資料圖片)

美國國會參眾兩院將於10月中召開全體會議,審議《香港人權與民主法案2019》。高教公民聯同各傘後專團再度發表聯合立場書,提出「加辣再加辣」的法律條文建議,包括要求日後美國國務卿年檢香港自治狀況時,需特別考慮23條立法、使用《緊急法》或人大釋法之影響,以及香港執法機關之行為是否符合國際人權標準;要求美國聯合G7盟友監察香港自治;將制裁對象由個人擴闊到公司實體(包括國企),以至涉事人的直屬親屬等等。

全文(只有英文版):

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

廣告

2nd joint submission in support of 

the Hong Kong Human Rights and Democracy Act of 2019 (H.R. 3289/S. 1838),

廣告

United States House of Representatives and Senate of the 116th Congress

by 

23 post-umbrella professional groups in Hong Kong

  1. Background
  1. We have indicated our strong support and provided our recommendations for the Hong Kong Human Rights and Democracy Act of 2019 (H.R. 3289/S. 1838, the “Bill”) in our first joint submission to all Representatives and Senators, dated 15 July 2019.
  1. The Amendment in the Nature of a Substitute that Senator Risch intends to propose (for himself and Senator Menendez) (the “Senate’s Mark-ups”) and the Amendment in the Nature of a Substitute to H.R 3289 offered by Congressman Smith (the “House’s Mark-ups”) were passed by the Senate Foreign Relations Committee and the House Foreign Affairs Committee respectively on 25 September 2019. We would like to express our heartfelt gratitude for your support to Hong Kong at this critical juncture, and particularly for taking into account our recommendations on the texts of the Bill as set out in our first joint submission.
  1. Our further recommendations on the texts of the Bill
  1. The Bill will be a powerful tool to protect the interests of the U.S. within Hong Kong as well as to safeguard the autonomy, human rights and path to democratization guaranteed to the people of Hong Kong by the Joint Declaration and the Basic Law. But the actual power of the Bill will depend upon the design of both the annual certification system on Hong Kong’s autonomy and the individual-targeted sanctions to be imposed on Chinese and HKSAR government officials who engage in infringements of Hong Kong’s autonomy.
  1. Having regard to the latest versions of the Bill as amended by the Senate Foreign Relations Committee and the House Foreign Affairs Committee and also the changing circumstances in Hong Kong, we would like to submit the following further recommendations on the texts of the Bill for consideration in the main chambers of the House and the Senate.

SEC.3. STATEMENT OF POLICY

  1. We note that SEC. 3 (5) in the Senate’s Mark-ups is missing in the House’s Mark-ups. We strongly recommend that SEC. 3 (5) in the Senate’s Mark-up be added to the Statement of Policy in the House’s Mark-ups to reflect the demand of Hong Kongers for a genuine democratic option to freely and fairly nominate and elect the Chief Executive of Hong Kong and direct democratic elections for all members of the Hong Kong Legislative Council by 2020. 
  1. We also note that SEC. 3 (11) in the Senate’s Mark-ups does not appear in the House’s Mark-ups. We agree that securing democracy and human rights in Hong Kong and indeed worldwide should be a multilateral effort. We therefore recommend that SEC. 3 (11) of the Senate’s Mark-up be adopted in the House text. 

SEC.4. AMENDMENTS TO THE UNITED STATES-HONG KONG POLICY ACT OF 1992

  1. In relation to the amendments adding SEC. 205. Secretary of State Certification/ Report Regarding the Autonomy of Hong Kong, we recommend that:-

(a) “Nonproliferation commitments” under SEC. 205 (a)(2)(C) of the House’s Mark-ups should be included in the Senate text; 

(b) when considering the autonomy of Hong Kong, universal suffrage, judicial independence, police and security functions, education, laws or regulations regarding treason, secession, sedition, subversion against the Central People’s Government of the People’s Republic of China or theft of state secrets, laws or regulations regarding foreign political organizations or bodies, laws or regulations regarding political organizations should also be addressed (SEC. 205 (a)(1)(B)(viiii) to (xiv) of the Senate’s Mark-ups);

(c) the inclusion, in SEC. 205(a)(1)(C)(i) to (iii) of the Senate’s Mark-ups, of an evaluation of the specific impacts to any areas of cooperation between the United States and Hong Kong and a list of any specific actions taken by the United States in response to erosions to Hong Kong’s autonomy are all welcome; 

(d) in considering the decision-making process within the government of Hong Kong, including executive, legislative, and judicial structures in upholding the rule of law, protecting rights under the Joint Declaration, the Basic Law, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights as stated under SEC. 205 (a)(3)(A) of the House’s Mark-ups, a non-exhaustive list of rights should be specifically enumerated in the text. Such rights include, but are not limited to, the rights listed in SEC. 205 (a)(1)(B)(vii) of the Senate’s Mark-ups, namely freedom of assembly, freedom of speech, freedom of expression and freedom of the press, including of the Internet and social media;

(e) the evaluation of the use of some outdated colonial laws and the state of rule of law in Hong Kong should be included immediately after SEC.205 (a)(1)(B)(xv) under SEC. 4 of the Senate’s Mark-ups or “upholding the rule of law;” but before “and” of SEC. 205 (a)(3)(A)(i) in the House’s Mark-ups:-

(xvi)/(i) Laws, orders or decisions that may undermine the democratic development, rule of law, judicial independence, human rights and freedom, including but not limited to any legislation relating to the Article 23 of the Basic Law, any legislation enacted prior to the year 1997 which was since amended and remains in force in Hong Kong, any regulations announced under the Emergency Regulations Ordinance (Cap 231 of the Laws of Hong Kong), including the Prohibition on Face Covering Regulation, and interpretations of the Basic Law by the Standing Committee of the National People’s Congress.” 

(f) evaluation of the conduct of the law enforcement authorities of Hong Kong should be included in the certification process, in light of concerns regarding the abuse of police power and the use of excessive force raised by the Hong Kong public and international human rights organisations during the anti-extradition bill movement. We therefore suggest adding the following clause immediately after the newly added SEC.205 (a)(1)(B)(xvi) under SEC. 4 of the Senate’s Mark-ups or SEC. 205 (a)(3)(A)(iii) under SEC. 4 of the House’s Mark-ups as proposed under the preceding paragraph (e):-

(xvii)/(iv) the conduct of the law enforcement authorities of Hong Kong with reference to:-

(I)the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China;

(II)the Universal Declaration of Human Rights, done at Paris December 10, 1948;

(III)the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; 

(IV)the United Nations Code of Conduct for Law Enforcement Officials;

(V)the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; or

(VI) any applicable international laws.”; and

(g) in light of the stated policy in SEC. 3 (8) of the Senate’s Mark-ups, the Secretary of State may consider contacting appropriate representatives of like-minded countries, such as Canada, France, Germany, Italy, Japan, and the United Kingdom in an appropriate international forum, such as the G7 Summit, to inform them of the United States’ policy in relation to the treatment of Hong Kong under US law and encourage them to make similar assessments, either separately or collectively, on whether Hong Kong’s autonomy, human rights, and freedoms are properly safeguarded, and whether Hong Kong’s democratization is progressing in accordance with the Joint Declaration and the Basic Law. Therefore, we recommend adding a new clause immediately after SEC. 205 (b) under SEC. 4 of the Senate’s Mark-ups or after SEC. 205 (c) under SEC. 4 of the House’s Mark-ups:-

(c)/(d) COOPERATION WITH LIKE-MINDED COUNTRIES. — The Secretary of State or his or her designee shall contact appropriate representatives of other democratic countries, particularly the members of the G7, to—

 

“(1) inform them of the United States’ policy regarding the treatment of Hong Kong under the law of the United States;

 

(2) encourage them to take similar steps, eitherseparately or collectively, to assess the status of the autonomy, human rights, freedom, and democratization of Hong Kong under the Joint Declaration and the Basic Law; and

 

(3) encourage them to take appropriate steps within the framework of the United Nations.”

SEC. 206. TREATMENT OF HONG KONG APPLICANTS FOR VISA TO ENTER THE UNITED STATES. 

  1. We welcome the amendments in both the House’s Mark-ups and the Senate’s Mark-ups, in which visa applicants from Hong Kong would not be denied visas solely on the basis of politically motivated arrests, detention, or other adverse government action. In particular, we welcome:-

(a) the absence of any time limit in the House’s Mark-ups; and

(b) the provisions under which the Secretary of State or his or her designee will inform representatives of like-minded countries of the policy of the United States in relation to visa applicants under this section and encourage them to take similar steps.

  1. To align with the amendments under SEC. 206, we recommend that “regarding arrests for participation in nonviolent protests in Hong Kong” under SEC. 206 (c)(1) be deleted. SEC. 206 (c)(1) should be revised and replaced in its entirety as follows:-

(1) to inform them of the United States’ Policy under this Section.

SEC. 7. SANCTIONS RELATING TO UNDERMINING FUNDAMENTAL FREEDOMS AND AUTONOMY IN HONG KONG

  1. We recommend that the definition under SEC. 7 (h)(2) of the Senate’s Mark-ups and the House’s Mark-up of “Foreign Person” should extend to cover any entity not organized solely under the laws of the United States or existing solely in the United States, but does not include a foreign state. Having said that, we think the term should be extended to cover the state-owned enterprises (SOE), regardless of whether the country which controls such SOE recognises absolute sovereign immunity (hence, in that sense, no distinction is made between sovereign activities (acta jure imperii) and commercial activities (acta jure gestionis)). Therefore, we propose the following definition of “Foreign Person” adapted from the definition given in section 595.304 of title 31, Code of Federal Regulations:-

(2) FOREIGN PERSON.—The term “foreign person” means any citizen or national of a foreign state (including any such individual who is also a citizen or national of the United States), or any entity not organised solely under the laws of the United States or existing solely in the United States, or any state-owned enterprises not organised or controlled by the United States’ government, but does not include a foreign state. For the purpose of this act, any state-owned enterprises carrying on commercial activities shall not be entitled to invoke a sovereign immunity protection”.

  1. We recommend that “Repeated acts or decisions which contravene the shared obligations of China and Hong Kong under the Joint Declaration and the Basic Law and undermine the national interests of the United States in Hong Kong’s autonomy and the rule of law” under SEC. 7 (a)(1)(B) of the House’s Mark-ups be included in the Senate text. This part enumerates specific grounds for sanctions and holds both officials of China and Hong Kong accountable for their violations of the Joint Declaration and the Basic Law. 
  1. We welcome the extension of sanctions under SEC. 7 (c)(2) of the House’s Mark-ups to include the immediate family of designated officials. In our previous submissions on 15 July 2019, we urged the inclusion of family members in both SEC. 7 (c)(1) and (2). In order to maximise the effect of SEC. 7 (c) and for the purpose of consistency, we recommend that SEC. 7 (c)(1) adopt the same approach and extend sanctions to the immediate family members of the foreign person. Accordingly, we recommend that SEC. 7 (c)(1) of the House text be amended as follows:-

(1) ASSET BLOCKING. — The President shall exercise all of the powers granted to the President under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) to the extent necessary to block and prohibit all transactions in property and interests in property of (i) a foreign person identified in the report required under subsection (a)(1); (ii) in case of the foreign person is an individual, his or her immediate family members; or (iii) any entity (including a non-governmental organization and a state-owned enterprise) in which a person referred to in (i) or (ii) holds a controlling interest; if such property and interests in property are in the United States, come within the United States, or come within the possession or control of a United States person.

  1. Due to the recommendation to amend the definition of “Foreign Person” under paragraph 10, we recommend that SEC. 7 (c)(2)(A) and (B)(i) of the House’ Mark-ups be amended as follows:-

(A) VISA, ADMISSION, OR PAROLE.—In case a foreign person is an individual described in subsection (a)(1) and his or her immediate family members is.— ”; and

(B)(i) IN GENERAL.—In case a foreign person is an individual described in subsection (a)(1) is subject to revocation of any visa or other entry documentation regardless of when the visa or other entry documentation is or was issued.”.

Alternatively, the use of a different term “alien” under of SEC. 7 (2) of the Senate’s Mark-ups could be adopted in this section.

  1. Lastly, we support the adoption of SEC. 9 and SEC.10 in the Senate’s Mark-ups. We propose that when considering granting visas for travel and work in the United States under SEC. 9, the Secretary of State should include not only journalists from the People’s Republic of China who are affiliated with any such media organization, but also any person affiliated with any such media organization under SEC. 9 (3). Therefore, we propose that SEC. 9 (3) be amended as follows:-

The Secretary of State should take any activities described in paragraph (1) or (2) into consideration when granting visas for travel and work in the Untied States to journalists or any person from the People’s Republic of China or Hong Kong who are affiliated with any such media organization.

 

  1. Conclusion
  1. Hong Kong’s autonomy, human rights, and democratization as guaranteed by the Joint Declaration and the Basic Law will be better preserved and fostered with the support of the international community. The Bill will reaffirm the commitment of the U.S., as an important stakeholder in Hong Kong’s autonomy, to the people of Hong Kong.
  1. We therefore respectfully urge you to consider our further recommendations and 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. Surveyor Conscience(量心思政)
  5. Planners’ Voice(規言劃政)
  6. HKEd4All(全民教育局)
  7. Progressive Teachers’ Alliance(進步教師同盟)
  8. Insurance ARISE(保險起動)
  9. Nurse Politik(護政)
  10. Reclaiming Social Work Movement(社工復興運動)
  11. Act Voice(精算思政)
  12. Financier Conscience(思言財雋)
  13. Engineer Frontier(工程思政)
  14. Médecins Inspirés(杏林覺醒)
  15. CMDoctorsCure(本草匡時)
  16. At-grade(園境願景)
  17. HK Psychologists Concern(良心理政)
  18. Physio Action(物理治療起動)
  19. OccuFocus(職療同行)
  20. Democratic Action Accountants(民主進步會計師)
  21. ArchiVision(思政築覺)
  22. Radiation Therapist and Radiographer Conscience(放射良心)
  23. IT Voice(IT呼聲)

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