G.F. 323
CONFIDENTIAL #
II)
- 2
AN INSTRUCTION TO GOVERNORS TO INTRODUCE LEGIS-
LATION TO ABOLISH CAPITAL PUNISHMENT.
IN BERMUDA AND BELIZE THE GOVERNOR HAS NO POWERS TO INTRODUCE SUCH LEGISLATION HIMSELF. IT MAY BE THAT THERE IS NO SIMILAR LIMITATION IN LESS CONSTITUTIONALLY ADVANCED TERRITORIES. SUCH LEGISLATION WOULD BE OF A TRANSCIENT NATURE, CAPABLE OF REPEAL, PERHAPS ON CONSTITUTIONAL. EVOLUTION AND CERTAINLY ON INDEPENDENCE.
III)
ACT OF PARLIAMENT TO ABOLISH CAPITAL PUNISHMENT.
THE UK PARLIAMENT COULD LEGISLATE UNILATERALLY TO A BOLISH CAPITAL PUNISHMENT IN THOSE DEPENDENT TERRI- TORIES WHERE IT IS STILL RETAINED. IT WOULD OVERCOME THE PRESENT SITUATION WHEREBY THE DEATH PENALTY IS RETAINED ON THE STATUTE BOOK IN DEPENDENT TERRITORIES, ITS EXERCISE BEING ADMINISTRATIVELY AVOIDED IN THE UK, IT WOULD ALSO HAVE THE ADVANTAGE OF MAKING IT CLEAR TO THE GOVERNMENTS AND PEOPLE OF THE DEPENDENCIES
THAT THE DEATH PENALTY WILL BE IN SUSPENSE WHILE THEY REMAIN DEPENDENCIES OF THE UK.
IV)
LEGISLATION BY ORDER IN COUNCIL,
AS AN ALTERNATIVE TO AN ACT OF PARLIAMENT LEGISLATION MAY BE ENACTED BY ORDER IN COUNCIL TO ABOLISH CAPITAL.. PUNISHMENT IN RELATION TO ANY OF THE TERRITORIES CON- CERNED.
V)
PARLIAMENTARY STATEMENT BY SECRETARY OF STATE ABROGATING THE QUOTE CREECH JONES UNQUOTE DOCTRINE,
HENCEFORTH THE QUOTE CREECH JONES UNQUOTE DOCTRINE WOULD NO LONGER BE REGARDED AS THE CRITERION GOVERNING THE FUTURE EXERCISE OF THE PREROGATIVE OF MERCY, WHERE THE GOVERNOR OF A TERRITORY DECIDES NOT TO EXERCISE THE PREROGATIVE THE SECRETARY OF STATE WOULD HIMSELF CON-: SIDER ALL THE RELEVANT CIRCUMSTANCES, INCLUDING THE RE- PUGNANCY OF PARLIAMENTARY TO CAPITAL PUNISHMENT, BE- FORE MAKING A RECOMMENDATION TO THE QUEEN.
CONFIDENTIAL
機密:
G.F. 323
CONFIDENTIAL
機密
ANNEX B TO XCC(77)64
It is the belief of the overwhelming majority of the population here that the application of the death penalty is a moral duty of Govern- ment and that failure in recent years to use it has not only been morally wrong but in practice imposed an unnecessary handicap in the fight against crime. Members of Executive Council personally remain deeply troubled in their consciences about the present situation. There would therefore be a deep and widespread reaction to any new and negative move by HMG in this field. A small minority would probably welcome abolition either on normal abolitionist grounds, or because it removed- a contradiction between the decisions of the courts and the action of the executive.
2
It has gradually come to be understood here that failure to use the death penalty is not the fault of the Hong Kong Government. Furthermore the people have become accustomed though not reconciled to commutation in all cases. The success of the Police and Government in stopping the rise in crime and in beginning to reduce it has somewhat detracted from the urgency of people's demand that the death penalty must be used to protect them. For all these reasons there is no longer so much surface heat in this issue, and commutations are no longer regularly criticised in the press. However the strong conviction is still there underneath and would certainly boil up to the surface if the issue were given renewed publicity by any of the initiatives you propose. It is inevitable that the reaction would take the emotive form that Hong Kong wishes and interests were being overriden by UK attitudes and/or political expediency.
3
ho.utao0 96
My first comment is therefore a strong plea to leave things alone and say and do nothing. The issue might eventually be resolved either by a change in sentiment in Parliament that would allow the Creech Jones doctrine to be applied, or by sentiment here changing and thus enabling the death penalty to be abolished by a decision that was seen to be local.
4
Of the alternatives suggested in your paragraph 3, (v) is the least objectionable because it amounts to no more than an admission of what has been the case for the last 5 years, and since it could be presented as such here would trouble the public least.
5
3(i) to (iv) would all be deeply resented here.
6
Between (iii) and (iv) my preference is for Order in Council because it is an act of the Executive and could not give rise to speculation
CONFIDENTIAL
機密
CONFIDENTIAL # 機密
2 -
here about the possibility of Parliament legislating for Hong Kong in other fields. I suggest that a precedent for the exercise of that constitutional power in a controversial area might also prove em- barrassing to HMG as well as alarming to the public here.
7...
(ii) is a non-starter, since there is no majority to pass such legislation. It is thus a recipe for confrontation.
8
Finally I would advise against (i) since its effect would be similar to (v) but would involve the laborious procedure of appeals for mercy formerly made to the Governor in Council being forwarded to the Secretary of State and then passed back to the Governor in Council for decision on a prison sentence. The odium that previously attached to the Governor in Council and which is now dormant would be trans- ferred to the Secretary of State, and would be renewed with each commutation at least until the public became accustomed to the new situation, with consequent demage to HMG's public image here.
9
The foregoing is based on the advice of the Executive Council. However I understand I may expect to be consulted again formally before any final decision is taken as a result of the work of the official committee.
G.F. 323
CONFIDENTIAL **