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Mainland legal experts said the demands made in the letter from the Hong Kong Federation of Students were unrealistic and unprecedented. Photo: Dickson Lee

Students' letter to Xi Jinping shows lack of understanding of mainland politics, scholars say

Students' letter to Xi urging poll decision be reversed shows ignorance of system, scholars say

Keira Huang

Last week's open letter from students to President Xi Jinping seeking the retraction of the National People's Congress Standing Committee decision on Hong Kong's electoral reform shows a lack of understanding of how the country's political system works, mainland experts say.

It also goes against the policy direction that Xi himself wants to promote, which puts emphasis on respect for collective decisions and laws.

Many people in Hong Kong consider the framework the NPC Standing Committee set out for the 2017 chief executive election too restrictive. Only two or three candidates would be allowed to stand and they would need at least 50 per cent support from a nominating committee stacked with Beijing loyalists.

But mainland legal experts said the demands made in the letter from the Hong Kong Federation of Students - co-organiser of the street protests that began late last month - were unrealistic and unprecedented.

"In the legislative process, the president's function is only to sign the presidential order and promulgate the law," said Zhu Jingwen, professor of jurisprudence at Renmin University. "As the supreme legislature, only the National People's Congress and its Standing Committee has the power to issue decisions and make laws."

Although the NPC is widely perceived by the outside world to be a "rubber stamp" legislature, its final decision represents the consensus of the Communist Party's top decision-makers.

"Never has a president of China retracted any law passed by the NPC using his personal power," Zhu said.

According to the constitution, the NPC has the right to retract inappropriate decisions made by its Standing Committee. But the NPC convenes only in March - too long for either the protesters or the government to wait. In its absence, the Standing Committee functions as the supreme legislative body.

While in theory any citizen or civil group can propose to the Standing Committee that it amend a decision, whether to accept such a petition is entirely at the discretion of the legislature.

Zhang Lifan, a Beijing-based historian formerly with the Chinese Academy of Social Sciences, agreed.

"It's impossible for the NPC Standing Committee to admit its decision is wrong. This has never happened in the history of the [Communist] Party," he said.

Zhu said when the decision came down on August 31, it was meant to be final, and more than just a "law".

Tong Zhiwei, a constitutional law professor at the East China University of Political Science and Law, said even though the Standing Committee had the power to retract its decision, that power had never been exercised. "If they change a decision once, they will come under pressure to do so again. What does that say about the Standing Committee's authority?" Tong said.

Some experts in Hong Kong, such as constitutional law professor Michael Davis of the University of Hong Kong, argued that the Standing Committee's decision was a political resolution rather than a law. There were therefore legal grounds for Beijing to retract it.

"If the NPC decision is a law that has amended the Basic Law, then it's done so without regard to the Basic Law's article on amendment," said Davis. "The [central] government has the ultimate power to do what it wants, but still, it won't mean that it's adhering to the rule of law," he said.

But Zhu said under the Standing Committee system, the laws and decisions it promulgates are legally binding.

"All legislation regarding the Basic Law and Hong Kong's electoral process is a matter for the National People's Congress and its Standing Committee, not [Hong Kong's] Legislative Council," Zhu said.

He agreed that the decision was a political resolution, because before it was submitted to the Standing Committee, the central leadership had already discussed and approved it. But this did not give grounds for it to be retracted.

Mainland scholars said using legal arguments to convince Beijing to reverse its decision was "unrealistic". Focusing on the decision's legitimacy would not help break the deadlock.

"Hongkongers are used to thinking from a legal perspective. However, politics, especially Chinese politics, doesn't follow the legal perspective … the Communist Party makes its own rules," said Zhang. "The ultimate solution will be through political means, not a legal one."

 

This article appeared in the South China Morning Post print edition as: Lesson in mainland politics
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