TNAG-0722-FCO40-920-Capital-punishment-in-the-Dependent-Territories-1978 — Page 103

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Aton

Mr Stratto

Sir I Sinclair

Mr. Rushjud fift.

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RUSHFORD See (264)

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- 7 AUG 1978

DESK OFF..... INDEX

PA

EUSTRY ction Taken

CAPITAL PUNISHMENT IN THE DEPENDENT OVERSEAS TERRITORIES

219 1. Thank you for sending me with your minute of 19 April your

note on capital punishment in the dependent overseas territories 228) and thank you also for your minute of 25 April. I apologize for

not replying sooner. This was due to my absence in Hong Kong.

I have the following comments.

The Note

2. With great trepidation I would like to suggest that the parenthetical comment in paragraph 10, line 7, that amendment of the Constitution of Bermuda by Order in Council would, in Bermuda's case, be unconstitutional, is not quite correct. The Government of Bermuda were given an assurance at the latest Constitutional Conference in 1966 that the British Government would not attempt to further amend the Constitution of Bermuda without the agreement of the Bermuda Government. I suggest that this is a political commitment and not a constitutional exigency. case I suggest that if HMG's commitment is regarded as a constit- utional one, it would apply equally to the proposition in paragraph 16 of the Note that the only "proper and effective method of securing a suspension or abolition of the death penalty is by means of legislation".

In any

3. I am not sure that I would agree with the comment in paragraph 11 of the Note that a withdrawal of the delegations of the Royal Prerogative in capital cases would be "much resented" in the DOTS concerned. There is some evidence, for example, in the representations made by the Governor of Belize during the previous deliberations in GEN 99, that Governors of DOTS will be pleased to be relieved of the burden of the final decision in capital cases. With great respect, I would suggest that most of the arguments rehearsed in this paragraph and also in the first part of paragraph 17 are political rather than strictly legal or constitutional considerations. My understanding from Sir Clive Rose's letter and my previous discussions is that the Note would be restricted solely to legal and constitutional matters. I make this comment because if political and other non-legal considerations are to be included in your paper, then I suggest that they should necessarily be balanced by the other political considerations which were argued in GEN 99, GEN 103 and Cabinet.

4.

The argument in paragraph 15 is that the fact of abolition in the United Kingdom and abolitionist views expressed in the House of Commons could be regarded as a relevant circumstance that would justify a policy of invariable commutation of the

CONFIDENTIAL