TNAG-2284-FCO40-3285-Capital-punishment-in-Hong-Kong-1991 — Page 114

CONFIDENTIAL

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B The Constitutional Position

In the Caribbean DTS and Bermuda, judicial appeals are made from the

local Supreme Courts to the local Courts of Appeal, and ultimately to the Judicial Committee of the Privy Council. Thereafter, an

appeal for clemency may be made to the Governor, advised by his Mercy Committee. (The Mercy Committee in Bermuda consists of local

ministers and representatives of public opinion. In most Caribbean DTS, the Mercy Committee is formed by the Executive Council ie

Ministers and senior officials). The Creech Jones doctrine, which

dates from the 1940s, places the onus of the ultimate decision on

the Governor. The Governor acts in loco majestatis;

UK Ministers

would not advise The Queen to intervene except in the exceptional

circumstances of a manifest miscarriage of justice.

C Bermuda

—

A referendum on capital punishment took place in Bermuda on 30

August 1990. This resulted in a 4:1 majority in favour of retention, though the turnout of 33% was low. Despite this result it is possible that the Bermuda Government may decide in the light

of the Caribbean Order to introduce legislation of its

own. The

Cabinet contains abolitionists, the government majority is relatively slender, and the Opposition are committed to abolition.

The narrowness of the Parliamentary majority in favour of capital

punishment is a strong argument for the Governor not to implement

any execution. But we cannot rely on this. If Bermuda decided not

to take action we would be faced with a choice between relying on

the Governor to commute, or introducing primary legislation in the

UK.

All this argues for a watching brief on Bermuda in the hope that the

Bermuda Government will decide to introduce its own legislation when

it becomes clear that we propose to take action with regard to the Caribbean Dependent Territories. It should not, in any case, be

necessary to

to contemplate legislation in the United Kingdom in this

Parliament.

D - Hong Kong

Administrative action has been sufficient to deal with the problem

in Hong Kong because of the constitutional position. In 1973 (when

/abolition

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