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over-rule the decision of the Council in executive matters, it would seem necessary to look elsewhere in the Order in Council than to that Article to discover what executive matters have been committed to the charge of the Council and whether these include matters of establishment.
By Article 32 (1) the Council is charged with the administration of the subjects and functions of government specified in the First Schedule and by Article 34 (1) Executive Committees are given the same responsibility to be discharged subject to the directions of the Council in that behalf. It is not, however, to either of these Articles that your despatch refers, but to Article 39 which gives to cach Executive Committee general control over departments concerned with subjects and functions in the Committee's charge.
21. While I am, of course, aware that the legal construction of Article 39 must be ascertained from the actual terms used, it may be helpful for our present purpose to refer to the origin of those terms. Article 39 is based upon the following statement at the beginning of paragraph 7 on page 48 of the report of the Special Commission on the Constitution: Each Committee would exercise general supervision over the Departments placed under its management." The word " supervision was used in all the drafts of Article 39 and was only changed to control" in consequence of representations made by unofficial Members of the Legislative Council who were consulted as to the form of the Statement of Administrative Procedure for Executive Committees which
9 of the Ceylon Government Manual of Procedure. appears at page Paragraph 1 of that statement, in its original form, mentioned the general super- vision of Departments referred to in Article 39 of the Order in Council. The word supervision was changed to "control" in consequence of representations made at the conference referred to above that "supervision "would not confer sufficient authority to direct the activities of departmental officers. A corresponding change was accordingly made in Article 39 of the Order in Council.
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Had the word " supervision" remained in the Order in Council I do not think it could have been maintained that Article 39 conferred upon Executive Committees any executive responsibility for the numbers and remuneration of staff. I certainly do not suppose that anyone concerned, either in suggesting or in approving, the substitution of control for supervision," primarily for the purposes of a subsidiary instrument relating only to procedure, contemplated that this change would effect an important transfer to Executive Committees of a responsibility in establish- ment matters which those Committees could not otherwise have claimed and which would consequently have remained in the Governor.
If the change in the wording of Article 39 has effected any such transfer it would seem to have been so entirely accidental that it would be inexpedient to conclude that such a transfer has been made unless that conclusion is clearly necessary. Upon this point I submit that there is no clear necessity to conclude that the control over Departments given to Executive Committees by Article 39 means anything more than the control necessary to enable them to discharge their responsibilities for the adminis- tration of the subjects and functions assigned to them, that is to say, the control of the activities of those Departments and of the manner in which they are to give effect to approved policy. This would seem to have been the meaning of the Article if the proposal of the Special Commissioners had been strictly followed and if the word supervision" had been retained. No essential change of meaning was intended to follow from the change of words and I can see no inherent necessity to conclude that such a change has been made.
.22. Article 86 of the Order in Council vests in the Governor powers of appoint- ment, promotion, transfer, dismissal, and disciplinary control of public officers and the limited delegation which the Article permits is confined to public officers. The only provision which expressly gives to Executive Committees any part in the exercise of those powers by the Governor is found, not in the Order in Council, but in Public Service Regulation 13 which gives to Executive Committees the right to make recom mendations in regard to the choice of persons for appointment to certain vacant posts concurrently with the recommendations of the head of the Department. This is a regulation made by the Governor, like the other Public Service Regulations, not under any express provision of the Order in Council, but by his inherent authority to declare the manner in which he will exercise the powers assigned to him by Article 86. The recommendation of the Executive Committee is given no greater authority than that of the head of the Department. Both are addressed to the Public Services Commission and ought, therefore, to be limited to those aspects of an appointment with which the Public Services Commission can deal. These do not include the salary of the appoint-
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ment, a subject which is allotted to the Financial Secretary, nor the question whether the post is necessary or not, a question which the Public Services Commission has no material to answer.
I assume, however, that Article 86 is mentioned in your despatch for the purpose of indicating certain powers vested in the Governor in the exercise of which he would normally be bound to follow the advice of the Executive Committee concerned. In the exercise of some of these powers, namely, the selection of a person for appoint- ment, promotion, or transfer, or the power of disciplinary control, there has never been any suggestion of any constitutional requirement that the advice of the Executive Committee concerned should normally be accepted. Indeed it is only in the selection of persons for appointment or promotion that Executive Committees are consulted, and then only in circumstances and by a procedure which I have already described. If, therefore, it is to be recognized that there is a constitutional requirement that in the exercise of his powers of appointment and dismissal the Governor should normally follow the advice of the Executive Committee concerned in regard to the numbers and remuneration of staff, it would seem necessary that the limitation of the Governor's responsibility in respect of those particular aspects of powers in other respects unfettered, should be clearly indicated in the Constitution.
It will be apparent from what I have already stated that I find difficulty in discovering that limitation anywhere in the Order in Council. On the other hand, every division of executive responsibility for establishment matters would seem to be assigned either to the Governor by Article 86 of the Order in Council or to one or other of the Officers of State in the Second Schedule.
23. I trust that I have sufficiently indicated earlier in this despatch the very serious practical difficulties with which the Governor will be faced in the maintenance of efficient administration if executive responsibility for the numbers and remuneration of staff is conceded to Executive Committees as a part of the present Constitution. No such claim has been expressly made by any Executive Committee until the last few months and then only by the Minister and Acting Minister for Agriculture and Lands, whose efforts to terminate the employment of European officers without regard to efficient administration I have felt compelled to restrict.
I do not believe that it is generally considered by Executive Committees that they have, or were ever intended to have, this responsibility. A particular Minister has recently perceived that the uncertainty of the position under the Order in Council may enable him to claim it, but, as I have stated in paragraph 4 above, the Board of Ministers, as recently as the 5th June, formally recognized the correctness of the procedure by which the numbers and remuneration of staff have been treated as subjects constitutionally in the charge of the Financial Secretary and have recognized that officer as my constitutional adviser on those subjects.
24. The Executive Committee for Agriculture and Lands now seeks to restrict the Governor to reliance solely upon the advice of the Executive Committee upon a question of the adequacy of staff for the performance of essential services and to exclude any comment by any Officer of State either to the Governor or even to the Executive Committee upon such a question. I can find nothing in the Order in Council which gives the Executive Committee the right which they claim and I can only say that, in my opinion, the concession of it will place the Governor in a position in which, for reasons indicated in paragraph 5 above, it will be practically impossible for him to discharge his responsibility for efficient administration and will result only in the progressive deterioration of the public service.
25. I have not, of course, omitted to take into account the possible argument that since the Constitution has vested the State Council with the Council and its Executive Committees and the Board of Ministers must necessarily
power of the purse, be allowed such a preponderating voice in the determination of questions affecting cadres and the remuneration of public servants, except where the Order in Council explicitly provides for protection of their interests by the Governor and the Secretary of State, that for all practical purposes the duty of advising the Governor on these matters may as well be regarded as if it were explicitly vested by the Constitution in the authorities referred to. I hope I have already shown that indisputable as it is that Executive Committees, the Board of Ministers. and the State Council are in a very strong position indeed to exercise pressure on the Governor in favour of their views on salaries and cadre questions, that position, already embarrassingly strong, wal be strengthened still further in an almost immeasurable degree if the contention of the Acting Minister for Agriculture and Lands is accepted by you.
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