CONFIDENTIAL
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possible, but only in Hong Kong has the Governor been able virtually to suspend the death penalty by persuading the unofficial members of his Executive Council (who have the right to advise) always to refrain, whatever the circumstances of the case, from advising him that the law should take its course.
7. From a constitutional point of view the situation in Hong Kong is anomalous and should be resolved either by changing the law or by allowing the law to operate normally.
8.
From a practical point of view, however, it may be prudent for HMG to submit to the belief prevailing outside Hong Kong that, as there is no elected element in the Hong Kong Government, HMG can always get their own way if they want to on a domestic matter(which is of course true) whatever local people may think. In other words one could say that as the Secretary of State has in practice wider effective powers over Hong Kong than over other colonies, he may wish, or feel obliged to, pursue rather different policies. I see the matter as one of expediency rather than principle, since it depends on the extent to which he defers to local opinion or to some outside opinion about the emotie issue of capital punishment.
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A.R.R.
28 August 1981
AR Rushford
Deputy Legal Adviser
CONFIDENTIAL
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