that there was much room for argument as to the circumstances which might legitimately be taken into account. A broad view was taken in the consultative
ocument to provide a comprehensive new ground for preclusion of return.
Mr. C.C. Manyema (Zambia) said that Zambia supported the view taken in the consultative document and the opening up of the clause to make it, in effect, open-ended. There
certainly were
additional considerations which could legitimately be taken into account, and the Scheme should allow for these. He wondered, however, whether the Clause might not be a little too wide. He drew the attention of the Drafting Committee to the question of whether the wording was satisfactory. His reservations were really confined to the drafting style and he expected that the Committee would be able to sort this out.
The Hon. G. Chidyausiku (Zimbabwe) said that Zimbabwe had already gone some distance in the direction contemplated by providing as a circumstance precluding return, the state of health or other personal circumstances of the person concerned. It related only to facts personal to the fugitive. Zimbabwe accepted the proposal.
Mr. D. Tupou (Tonga) supported the proposal.
Mrs. S. Miller, QC (Jamaica) supported the recommendation, with one suggested amendment. She drew attention to the fact that the proposal retained the words "having regard to all the circumstances under which the offence was committed". These words were in the 1966 Scheme. The UK Act of 1967 used less restrictive and, she felt, more appropriate words namely "having regard to all the circumstances". Not, she noted, only the circumstances under which the offence was committed. Jamaica suggested that the proposal be reworded along these lines.
Mr. J. Gara (Uganda) supported the proposal but suggested that it be rephrased as "(d)any other sufficient cause".
Mr. I.C. Jain (India) found some difficulty with the new clause but only because under(a), (b) and (c) one knew precisely what the position was, whereas under (D) the exceptions might be too broad. He supported the sentiment, and appreciated that the fact would have to be one which led to the conclusion that it would be unjust or oppressive or be too severe a punishment to return the fugitive. He would prefer a more precise wording.
Dr. Shearer reaffirmed that the proposal was not simply "any facts at all", but facts which may render return unjust, oppressive or too severe a punishment. These were words of limitation and the suggested paragraph (d) should not be seen as a blank cheque. He drew attention to what Lord Diplock had said in the case of Kakis, where he described what was understood by "unjust" and "oppressive".
The Chairman expressed the view that the proposal might not be as generous as the delegate for India had feared. The crucial governing phrase remained.
Mr. R. Rose (Kenya) supported the proposal and endorsed the Chairman's comment. The important principle was that return would be unjust, oppressive or too severe a punishment. Paragraphs (a), (b) and (c) simply provided examples.
Mr. A.Q. Choudhury (Bangladesh) suggested that paragraph (a) might be more specific, perhaps by including reference to the health or physical condition of fugitives. There were advantages in Governments knowing precisely where they stood when they came to make requests for return. The Chairman observed that the health of the fugitive was a proposition which deserved consideration by the meeting. As Dr. Shearer had drafted the proposal, it obviated the need to be too specific.
Mr. R. Dolsingh (Trinidad and Tobago) asked whether the "bad faith" provision in para. (b) could really be invoked within the Commonwealth. That apart, the proposed new para. (d) was acceptable.
The Hon. G.E.K. Aikins (Ghana) said that Ghana supported the amendment but insofar as political offences were concerned, would be speaking in some detail when Agenda Item 9(j) was reached.
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