ANNEX "A"
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THE COMMONWEALTH RELATIONSHIP
Constitutional Questions
I
The draft Constitution prepared by the Constituent Assembly in India is likely to be adopted in July and brought into operation on 15th August, the second anniversary of India's attainment of independence. By this new Constitution India will become a "sovereign democratic republic," and His Majesty's sovereignty over India will be extinguished. Over the past four months and more, numerous attempts have been made to persuade the Government of India to preserve India's connection with the Crown, in one way or another, after the adoption of her new Constitution. All these attempts have failed; and it must now be recognised that India will not be willing to accept any substantial link with the Crown.
i
If, therefore, the link through the Crown remains the essential qualification for Commonwealth membership, as stated in the preamble to the Statute of Westminister, it will not be possible for India to remain within the Commonwealth after she has adopted her new Constitution in August. On the other hand, India has affirmed her desire to maintain her association with the Common- wealth-cf. paragraph 8 of Pandit Nehru's Eight-Point Memorandum (Annex I) and the resolution passed by the Congress Party in December 1948 (Annex II). And Pandit Nehru has clearly indicated that India will not accept any form of special association short of full membership. India's attitude thus compels the other Commonwealth Governments to face the question are they prepared to agree that the constitutional basis of the Commonwealth connection should be so adapted as to enable the Commonwealth to include a republican country owing no allegiance to the Crown?
II
2. The purpose of this paper is to discuss whether such a change could be made and what risks it might involve.
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The
The immediate objective of making such a change would be to enable India to remain within the Commonwealth. But it should not be considered in relation to India alone. It might also meet the views of other peoples, now or formerly associated with the Commonwealth, who are disposed towards republican forms of Government. If the Commonwealth could include republican States, it would become constitutionally possible to receive Eire and Burma back into the Commonwealth if it was politically desirable and practicable to do so. change would certainly have the disadvantage that it might accelerate any existing tendencies towards republicanism within the Commonwealth, and possibly call them into existence in countries (e.g., in some of the dependent territories) where they have not yet shown themselves. On the other hand, it would have the result that a dependent territory in which a strong movement towards republicanism had developed would not, on attaining its independence, be faced with the dilemma of abandoning either its desire for a republican form of constitution or its adherence to the Commonwealth. For many years past British Colonial policy has been directed towards developing in the dependent peoples the capacity for self- government Bagefully ondependence. It is our natural desire that these peoples,
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when they reach 488 stage of independence, should Elagsel 77ndependence within the Commonwealth." Many of them may wish, when that time comes, to preserve their allegiance to the Crown. But some may find it easier to preserve the Commonwealth connection if this does not necessarily involve renouncing all ambition for a republican form of Government.
III
3. At present the Crown is the sole constitutional link between the fully self-governing members of the Commonwealth. In the words of the preamble to the Statute of Westminster, the Crown "is the symbol of their free association" and they are "united by a common allegiance to the Crown." If the Commonwealth is now to include a republican country which does not accept The King as part of its constitution, the allegiance to the Crown will cease to be the common element in the relationship between all the members of the Common- wealth. It will no longer be the central feature of the Commonwealth relationship or the essential test for Commonwealth membership.
What could be put in its place? From a legal point of view the only tangible constitutional link would be the Commonwealth citizenship, which is subject to various qualifications discussed in section V below. From the practical angle, however, there would be the stronger fact of the historical continuity of those practices of consultation and co-operation, in peace and war, by which this free association of independent peoples has been held together. The continuance of a special Commonwealth relationship could be justified by reference to the following:
(i) The de facto general acceptance by all civilised nations of the existence of the Commonwealth as a unit composed of nations bound together by a factual association of long standing, based up till now on the common sovereignty of the Crown, and still continuing..
(ii) Declarations by the Governments of all the members of the Common- wealth that they wished to be, and regarded themselves as, still bound in a special form of association.
(iii) The practice of consultation between member Governments on all matters of common concern-political, strategic, economic and finan- cial-and their practical co-operation in many such matters.
(iv) Their co-operation, to the extent desired and approved by each Govern-
ment, in the military defence of common interests.
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(v) The preferential treatment which they accord to one another in trade
and commerce.
(vi) The Commonwealth citizenship.
The rights and obligations involved under some of these heads may not be capable of precise definition. Moreover, the relations between Commonwealth countries in some of these matters may not be different in form from those between foreign States in close treaty relationship with one another. But, if they are taken together and viewed in relation to the historical association out of which they developed, this list of common features may well, in the aggregate, be held to amount to a relationship which is different in kind from any which subsists between foreign States.
4. Part II of the Report of the Balfour Committee, which was incorporated in the summary of the proceedings of the Imperial Conference of 1926 (Cmd. 2768 of 1926) contained a definition of the Status of Great Britain and the Dominions," which subsequently formed the basis of the statutory definition of the Commonwealth relationship in the preamble to the Statute of Westminster. The significant part of that statement reads as follows:-
They [Great Britain and the Dominions] are autonomous communities, within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations."
5. If that definition had now to be recast in a form applicable to a Common- weak including one or more republican countries, g, in a form in which the
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allegiance to ale Crown was no longer the essential constitutRage features i48 the mutual relationship between all the members, it might be framed as follows:-
are:
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The fully self-governing members of the British Commonwealth of Nations
(i) independent sovereign States which owe, or have owed, allegiance
to the Crown;
(ii) equal in status and in no way subordinate one to another in any
aspect of their domestic or external affairs;
(iii) not foreign in relation one to another; and
(iv). freely associated as members of the Commonwealth and united with one another [some by their allegiance to the Crown, and all] by their acceptance of the principle of consultation on all matters of common concern and by the rights of common citizenship which the nationals of each enjoy in the territories of the others." There are four separate aspects in this definition: (i) The affirmation of inde- pendent sovereignty and the restriction of membership to countries which historically formed part of the British Empire; (ii) the conception of equal partner- ship and autonomy; (iii) the declaration that the members do not regard them- selves as foreign inter se; and (iv) the positive tests of their association.
6. It may not be necessary to proceed by way of issuing, in a public state- ment made on behalf of all Commonwealth Governments, a formal redefinition of the Commonwealth connection in such terms as these. The earlier definition of 1926 was designed to mark a stage in the orderly development of the Common- wealth relationship and was embodied in a report of the proceedings of an Imperial Conference which covered a number of other subjects. A new definition, announced in isolation and obviously designed to keep India within the Common- wealth, would attract far more attention and provoke far greater controversy.
Nor is it suggested that a new basis for the Commonwealth connexion should be embodied in a statutory instrument comparable to the Statute of Westminster. As a matter of law, no such statutory declaration would be required. For the preamble to the Statute of Westminster only purports to set out the constitutional position as it existed in 1931. The Commonwealth connection has developed by a steady process of evolutionary growth, not by successive stages of formal defini- tion. If a further change has now to be made, it is important that this should appear to be no more than another stage in that process of continuous development. In the interests of historical continuity, any appearance of a major change in the constitutional position should be avoided.
7.
As a matter of procedure it might be possible to limit public announcements to a solemn declaration of the fact that India remained a member of the Common- wealth despite her adoption of a republican constitution. The main object of such a declaration would be to show that India's continuing membership of the Common- wealth rested on a common act of will; and there would therefore be need for reci- procal declarations on behalf of India and on behalf of the other Commonwealth Governments. The declaration by the Government of India might take the form : India, on becoming an independent republic, solemnly declares and proclaims that it confirms and renews its membership of the British Commonwealth of Nations." The corresponding declaration on behalf of the Governments of the other Commonwealth countries might take the form : "The self-governing members of the British Commonwealth of Nations (the United Kingdom, Canada, Australia, New Zealand, South Africa, Pakistan and Ceylon) solemnly declare and proclaim that India, on becoming an independent republic, is and continues to be a member of the Commonwealth."
8. The initial public announcement might perhaps be limited to declarations in these terms. But the fact would remain that, once India had been allowed to continue in full membership of the Commonwealth despite her adoption of a republican constitution, the basis of the Commonwealth relationship would have been changed. The allegiance to the Crown would no longer be the essential constitutional feature in the relationship. This could not be concealed. In the public discussions which would follow upon any such declaration as is suggested in the preceding paragraph, all Commonwealth Governments would be pressed to explain what in the new circumstances was the essential constitutional link between the self-governing gmembers of the Commonwealth.Pabe dog fs488ey would probably find themselves compelled to use statements describing the new
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bassage relationsh88 which, though not textually ileptical won 1488 broadly on the lines indicated in paragraph 5 above. In the following paragraphs of this paper the validity of the new relationship is therefore tested by reference to the statement in paragraph 5.
IV
9. Would there be an effective defence if the continuance of preferential treatment for trade or nationals between the republican members and the other members of the Commonwealth were challenged in the International Court as inconsistent with the most-favoured-nation clause of a commercial treaty?
These points are discussed in detail in a separate paper on Most-Favoured- Nation Questions. Reference should, however, be made here to a consideration which has influenced the form of the statement in paragraph 5 above. If this new conception of the Commonwealth relationship were challenged in the Inter- national Court, and we had to argue in support of the contention that it was something different from an association of foreign States, we should be forced to rely largely on the argument that the Commonwealth had evolved, not by the adoption and modification of constitutional formule, but by a continuous process of organic growth. And it is on the historical continuity of this develpment that the main strength of the argument would have to be founded. It is with this in view that the statement in paragraph 5 lays stress on the long historical associa- tion between the republican members of the Commonwealth and the other members, and places correspondingly less emphasis on the link of Commonwealth citizenship. It is also for this reason that the statement contemplates that membership of the Commonwealth should be restricted to countries which have in the past owed allegiance to the Crown and formed part of the British Empire. It would be much more difficult to sustain the argument that the members of the Common- wealth are not to be regarded as foreign to one another if foreign countries which have not at any recent time owed allegiance to the Crown were admitted, or regarded as eligible for admission, otherwise than by submitting to that allegiance. It is also desirable, though not perhaps essential, that the historical association should have been uninterrupted; and it would therefore be expedient that, if this new conception of the Commonwealth relationship were adopted, it should be brought into effect before the King's sovereignty over India is finally ended. This consideration need not prevent the return of Eire or Burma to the Commonwealth; but it is desirable, from this point of view, that the interruption of their member- ship should be as short as possible.
V
10. What value can be attached to the Commonwealth citizenship as a constitutional tie between the countries of the Commonwealth?
A true common citizenship between two countries would confer on the citizens of the one a right to enter the territory of the other and to share in its government. These rights are at present conceded by the United Kingdom Government to all Commonwealth citizens as such. In the United Kingdom a Commonwealth citizen has a special position as compared to an alien in several important respects. He enters the United Kingdom as of right, whereas an alien may be refused the right of entering; when there, he is not subject to deportation, he is eligible for membership of Parliament and of municipal bodies, and for office under the Crown, civil and military, is free to follow certain occupations, from which aliens are excluded, and may acquire a Parliamentary or municipal vote on the same terms as a United Kingdom citizen; he may own a British ship or British aircraft; he is, under certain extradition treaties (but not all), free from liability to extradition; he can claim in certain circumstances to be registered as of right as a citizen of the United Kingdom and Colonies; if, outside the United Kingdom, he suffers violence, e.g., on the high seas, at the hands of servants of the Crown, he cannot, if he sues for damages in the United Kingdom courts, be defeated by the bare plea of "Act of State "; and he has certain other rights of less practical importance. He has, too, at present, one serious liability to which an alien is not subject, viz., he may, in certain circumstances, be liable undeghe existing law to be called up for service in age Armed Forces after two years' residence in the United Kingdom.
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11. Thẞagakeso formable list. It is true that thesPrights and fialties are not necessarily permanent: Parliament is free to vary them. This, however, would not affect the matter if it could be said that the position which obtains in the United Kingdom obtained in substance all over the Commonwealth. But this is not so. The most important of the rights mentioned in the last paragraph, viz., the right to enter and remain in a country and to influence, by vote and membership of its governmental or public institutions, the way in which it is governed, is not generally conceded in Commonwealth countries outside the United Kingdom to Commonwealth citizens as such.
Most of the self-governing countries of the Commonwealth, being countries of immigration, withhold rights of entry into their territory from Commonwealth citizens who are not citizens of the territory. In general, it could be argued that this is a reasonable precaution for countries of immigration to take; and, further, that their immigration restrictions are in practice applied less stringently to other Commonwealth citizens than to aliens. In addition, however, in some countries Commonwealth citizens of non-European descent are in practice subjected to discriminatory treatment. Thus, in South Africa, an immigration requirement related to economic standards and habits of life is in practice used to bar the immigration of Cypriots, Maltese and Asiatics. As a consequence, in India, persons of non-Indian origin domiciled in South Africa have been declared "prohibited immigrants" and as such are not allowed to enter India without special permits.
Similar restrictions on the immigration of Commonwealth citizens are also in force in British Colonial territories. Some of these, which are related to economic standards, may in practice operate more severely against Commonwealth citizens of non-European descent.
Again, outside the United Kingdom Commonwealth citizens do not enjoy an unqualified right to share in the government of other Commonwealth countries in which they reside. There is, in general, a substantial residence qualification for the franchise which applies to Commonwealth citizens from other parts of the Commonwealth as it applies to aliens. Thus, in Canada, the franchise is not exercisable until Canadian domicile has been obtained by five years' residence in Canada. And in South Africa, though Commonwealth citizens of European descent may obtain the franchise after one year's residence, the franchise is wholly denied to Commonwealth citizens of Asiatic origin.
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12. It is not yet known what rights India is likely to accord in future to Commonwealth citizens who are not Indian nationals. It is true that Pandit Nehru has offered (paragraph 2 of Annex I) to incorporate in a Nationality Act the relevant provisions of the British Nationality Act, 1948, which will have the effect of making Indian nationals Commonwealth citizens and the nationals of any Commonwealth country Commonwealth citizens when they are in India. The Indian Government contemplate that this will be on a basis of reciprocity; but they have not yet given any indication of the practical content of Commonwealth
citizenship in India.
As at present drafted, and unless it is modified by the Constituent Assembly as a result of any agreement between other Commonwealth countries and India, the Indian Constitution will confer on Indian citizens legal rights enforceable by the courts which are much more extensive than any given by the law in this country to citizens of the United Kingdom. For example, the Constitution will provide that there shall be equality of opportunity for all citizens in matters of employment under the State. It can hardly be intended that these rights shall be extended in their entirety to Commonwealth citizens who are not Indian nationals.
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As regards the franchise, clauses 290 and 291 of the draft Constitution leave many things to be settled thereafter, but both these clauses are expressed as subject to the provisions of this Constitution and among these are the express provisions (clauses 67 (6) and 149 (2)) that elections shall be "on the basis of adult suffrage, that is to say, every citizen who is not less than 21 years of age, and who is not otherwise disqualified, shall be entitled to register as a voter at such elections." The implication appears to be that Indian citizens only shall have the vote.
As regards entry and expulsion, the special protection provided by the Government of India Act for United Kingdom nationals has been eliminated, and there is nothing to prevent the Indian authorities (though they have not yet done so) fromadegising 488restrict the right of entry Pigitis648ther Commonwealth countries or to give power to deport them.
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Pagsilbodian citizen
Page&tiflso provides that no person who is not an shall in future be eligible for appointment as a Judge.
13. The conception of Commonwealth citizenship is not, therefore, at present supported by any comprehensive system of equal and compensating citizenship rights and obligations applying evenly throughout the Commonwealth. And in the absence of such a system of substantial reciprocity, the Common- wealth citizenship could not alone and in itself be regarded as a sufficient constitutional link to justify the claim that the Commonwealth countries are not foreign to one another. On the other hand, it could be put forward as a secondary or supporting argument in a general case based mainly on the historical continuity of the Commonwealth connection. And it could fairly be added that the new scheme of Commonwealth citizenship launched by the British Nationality Act, 1948, is a recent development in the constitutional relationship which is at present in an early stage.
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14. If the basis of the Commonwealth relationship were changed on the lines indicated in paragraph 5 above, should India be urged to adopt any such
tenuous" links with the Crown as she may be willing to accept?
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Pandit Nehru, in his latest message, does not in fact place any weight on the
"" tenuous links with the Crown. He now puts forward only one point which could be regarded as constituting any kind of link with the Crown, viz., the suggestion (paragraph 6 of Annex I) that, for the purpose of fulfilling the obligations of the Crown towards Commonwealth citizens other than Indian nationals, the President of the Indian Republic should act on behalf of the King within the territories of India, and that a similar arrangement should be made on a reciprocal basis in respect of Indian nationals in the rest of the Common- wealth. It is suggested that this particular proposal should in any event be rejected on its merits. It is open to objection on two grounds. First, an Indian national-like any other Commonwealth citizen, or even an alien owing local allegiance—would have the right to the protection of the Crown while in any territory over which His Majesty exercises jurisdiction; and he could not be deprived of that right, or given any greater right, by virtue of any arrangement made at the request of the President of India. As the English Law Officers have stated: "It will, in fact, be by virtue of the United Kingdom law that the preferential treatment, if any, is accorded. If that law provides for it, the King will be bound to accord it. If that law withholds it, the King will be bound to withhold it. The request, therefore, can only be a fiction." Secondly, although Pandit Nehru's formula avoids saying so in terms, the proposal clearly implies that the King should act as the agent of the President of India. This is hardly a position which Ministers could advise His Majesty to accept.
15. Other" tenuous " links have, however, been suggested in discussions with representatives of the Indian Government. Thus, it has been suggested that the King might institute a new Commonwealth Order, comparable to the Order of Merit, for which citizens of any Commonwealth country would be eligible who had given outstanding service to the Commonwealth. This suggestion has not been finally rejected by Pandit Nehru; and it is possible that other similar links might be devised. From the point of view of easing the transition from one kind of constitutional relationship to another, there would be value in preserving some of the Commonwealth links with India through the Crown. Such links should not, however, be regarded as a basis on which a constitutional relationship can be founded. The reality of the existing constitutional link between the members of the Commonwealth is their allegiance to the Crown. Eire's recognition of the Crown through her External Relations Act is now admitted to have been unsatisfactory, if not derogatory to the true position of the Crown; and some of the "tenuous" links which have recently been discussed with representatives of India would in fact have afforded an even less substantial foundation for a constitutional relationship. The fact should be faced that India's continuing membership of the Commonwealth if it is accepted, will be rounded on the new conception of the Commonwealth relationship, not on
"tenuous" links which she may preserve with the Crown.
any