legal position unchanged.
The boundary amendments agreed
between Hong Kong and the Guangdong authorities would then be put to the Chinese side in the JLG with a request that they be
adopted by the National People's Congress as the boundary of the
future HKSAR. There are considerable legal and political
drawbacks to this route. Miss Brooks has pointed out that the
MOU would not be legally binding. The existing legal boundary
and the newly agreed administrative boundary would therefore exist side-by-side. Consequently the PRC's security forces would legally be entitled to enter areas which remain part of
the PRC but which, under the MOU, had been handed by the
Guangdong authorities to Hong Kong. Conversely, the Hong Kong authorities would remain legally responsible for enforcing the laws of Hong Kong in areas of Hong Kong given to Guangdong
without in practice being able to do so.
5.
A further legal problem is that the proposed MOU could not be signed without obtaining the Crown's approval. That would lead to an inconsistency between imperial legislation and Hong
Kong legislation. There is also the political drawback that the
Crown would in practice have ceded sovereignty over parts of
Hong Kong while receiving in return only a non-binding
agreement.
6.
On the other hand, the process of giving legal effect to the
new boundary would cause considerable difficulty in Hong Kong,
most notably in LegCo where this could become a highly emotional
and politicised issue. There is a danger that, if the Hong Kong
Government were unable to persuade LegCo of the benefits of the
new boundary, they would reject the product of our "secret"
talks with the Chinese side (in the manner of their rejection in
1991 of our agreement on the Court of Final Appeal). Such
action by LegCo would be particularly unwelcome to the Chinese side at the present time. We have enough problems at present without adding to them.
bound. FUT.JRB
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