[Analytics] Will Washington agree on new Hong Kong human rights and democracy act?

Hong Kong bill enjoys bipartisan support on Capitol Hill, but minefield of congressional committees, lawyers, diplomats and the whims of a president lie in wait. Senate source says House needs to realise legislation is an urgent matter. Mark Magnier specially for the South China Morning Post.

A US bill designed to support democratic freedoms in Hong Kong by increasing pressure on Chinese authorities has received strong bipartisan support in Washington, but questions remain over how to define the city’s “autonomy” and whether violent protesters should be allowed US visas.

The passage of the Hong Kong Human Rights and Democracy Act of 2019 will need the signature of President Donald Trump, who may use it as a chip in his trade negotiations with Chinese counterpart Xi Jinping.

Another balancing act is how to preserve the best of the 1992 Hong Kong Policy Act that grants the city special trading privileges while creating enough pressure to help it to greater democracy.

“The question becomes, how well are the two chambers, and the two parties in the two chambers, working together,” said a congressional source. “You’re making sausage.”

The House and Senate foreign relations committees are working on the language in their respective versions this week. With the number of co-sponsors up to 20 in the Senate and 33 in the House, the bill could become law by mid-October.

Senior lawmakers in both parties regard passing the bill as urgent given events in Hong Kong. Senate majority leader Mitch McConnell, the Republican who sponsored the 1992 Hong Kong Policy Act, and House majority leader Nancy Pelosi, a Democrat from California and since 1989 a strong advocate of human rights in China, both hold strong views.

The bill enjoys broad bipartisan support because many of China’s traditional allies in the US, including the business community, have soured amid growing concern over intellectual property theft, cyber espionage, and South China Sea expansion.

To many, the contest between Hong Kong protesters and Beijing has the air of a David-and-Goliath clash to it.

“Congress tends to favour David,” said Richard Bush, who was a congressional staff member during passage of the 1992 policy act. “The narrative is of freedom-loving people in Hong Kong versus a totalitarian China. Whether that is the correct narrative, that seems to be the common view.”

But this is the fourth time the bill has been introduced since 2013, and it faces a dysfunctional Congress that has struggled to pass two laws a month since January.

Washington watchers said that three House committees have claimed jurisdiction over the bill, which may slow things down further. In addition to foreign affairs, the chamber’s financial services committee is demanding a role given the bill’s inclusion of sanctions against anyone seen using excessive force against protesters, as well as its judiciary committee.

“My hope is that the House starts noticing that this is something that shouldn’t sit around,” a Senate source said.

Among the differences lawmakers are trying to work around include outmoded language. Past versions of the bill written after the largely peaceful 2014 “umbrella movement” ensured that Hong Kong residents arrested for non-violent protest were not penalised when applying for US visas.

But today’s protests are more violent, and this calls for more flexible wording over visas, even as some lawmakers worry that a US law could end up spurring demonstrators to take greater risks.

Another concern is that given the importance of the rule of law to Hong Kong, how should US consular officers weigh heavy-handed detention against petrol bomb-throwing protesters in making their decisions. Congressional staffers said given the support for the demonstrators in Washington, however, they expected the bill’s final language to place a greater burden of proof on the Hong Kong government in terms of establishing wrongdoing.

“[In] our view, no person should be denied a visa for expressing themselves in Hong Kong resulting in some sort of detention,” a House staffer said. “Still, this section of the bill, should it remain intact, spells out how consular officers should work.”

Also being parsed behind chamber doors is an updated definition of what “sufficiently autonomous” from Beijing or a “high degree of autonomy” means, a key annual test for Hong Kong to maintain its preferential trading status. When the 1992 policy act was written nearly three decades ago, and shortly after the bloody Tiananmen crackdown, autonomy was focused on ensuring tanks did not roll into Hong Kong.

While those concerns remain, equally important is creeping totalitarianism and the need to tailor autonomy standards to many areas of US-Hong Kong relations.

“This is a declaration that things have changed, and US law and our posture to Hong Kong should respond to that change,” the House staffer said.

Among the strengths of the 1992 act are its general acceptance and longevity, which may have played a role in convincing Beijing to maintain a hands-off approach in the years immediately after handover from Britain in 1997.

Other lawmaker differences centre on the annual review process. The 1992 law did not anticipate a White House half-hearted in advocating for Hong Kong human rights, apparently more focused on the US-China trade war. That has left Congress struggling to strengthen its role and make the review more than just another annual report that is largely ignored.

On Tuesday, during an address to the United Nations General Assembly, Trump urged restraint from Beijing.

“The world fully expects that the Chinese government will honour its binding treaty made with the British and registered with the United Nations in which China commits to protect Hong Kong’s freedom, legal system and democratic ways of life,” Trump said, adding that China’s handling of the situation will “say a great deal about its role in the world in the future”.

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A related concern among lawmakers, given Trump’s apparent admiration for forceful leaders, including Xi, is that Trump might veto any bill that results. Supporters take some solace in the explicit support of McConnell, who rarely differs publicly with Trump. Any violent Beijing move against Hong Kong would be “completely unacceptable”, McConnell wrote in a tweet last month. “The world is watching.”

But the best way to prevent a presidential veto would be overwhelming bilateral support, congressional staffers say, or attaching it to an appropriations or defence spending bill Trump cannot afford to block. The human rights act also could be combined with another bill aimed at blocking sales of certain public security equipment to the Hong Kong authorities.

That bill, which is less advanced but more focused and therefore easier to pass, would ban exports of tear gas, munitions and such non-lethal crowd control items as rubber bullets, pepper spray and water cannon trucks to Hong Kong police, immigration and correctional departments, among others.

“Hey, you’re making sausage, so just put everything in,” the congressional source said.

Further slowing the process are differing lawmaker visions shaped by who they are speaking to, staffers said. In recent weeks, US business leaders, Hong Kong-born academics, pro-democracy lawyers, singer-actress Denise Ho, and campaigner Sunny Cheung have descended on Capitol Hill, all differing on how far to push and in their concern over potential damage to Hong Kong’s economy.

Staffers said they fully expect their members and committees to suffer adverse reactions no matter what emerges, but that that goes with the job. “Some of this is messaging, to the people in Hong Kong and in DC,” the House staffer said. “We’ll get criticism anyway. But hopefully we’ll achieve consensus.”