CODE 18-77
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Doctrine, though it has prevailed, has been viewed with unease because, in dealing with a question as fundamental as this, it is undesirable to have to justify the fact that our policy in the DTS differs from our domestic policy;
b)
The difference in policy between Hong Kong and the other DTs causes us further difficulties. I frankly find our justification for this rather spurious. We are answerable to Parliament for all our Dependent Territories, whether or not they have representative government. It is well known, and we acknowledge it publicly, that the majority of people in Hong Kong favour the use of the death penalty. Local wishes are therefore the same as they are in the other DTs. I assume the reason we have not abolished the death penalty in Hong Kong, despite the absence of representative government, is in recognition of local opinion. How do we think that our policy in Hong Kong will be affected by the development of representative government in the run up to 1997? At what point would we judge there to be enough directly elected members of the Legislative Council to make our present policy on commutations untenable and perhaps warrant the application of Creech - Jones to Hong Kong? I am sure it would be undesirable to permit executions to take place in Hong Kong shortly before 1997 (the Chinese being possibly the most enthusiastic users of the death penalty in the world). It would, of course, be nonsense to suggest that the life of a person in Hong Kong is intrinsically more valuable than that of, say, a Bermudan. In short, the difference in policy between Hong Kong and the other relevant DTS strikes me as dubious.
c) as I mention above, it is anomalous for us to appeal for clemency on behalf of British protected persons in third countries while permitting the possibility of execution in territories for which we have responsibility;
d) last but certainly not least, it seems to me that, as each year passes in which nobody in Britain is required to grapple with the awful burden of exercising the prerogative of mercy, it becomes increasingly unacceptable for us to demand that our Governors should take the sole responsibility for such decisions in the DTs. We are forcing on them decisions which may be morally abhorrent to them; intense local pressure which is likely, for reasons of race and zenophobia, to be biased; and the knowledge that their decision may result in local disturbances (the last execution in a Dependent Territory - Bermuda was greeted by riots which caused extensive damage), "threats" of independence and even personal physical danger. I note from the 1986 review of this subject that the decision to delegate the prerogative of mercy to the Governors derives from the view that, for the Secretary of State to act in such a case, would be a matter of great difficulty and could put him in an impossible position. I do not believe that the position of our Governors is any better.
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