463
TOPLI
RECORD OFFICE
Reference -
CO.882/12
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- | COPYRIGHT PHOTOGRAPH—NOT TO
6
of which the Resident is the authoritative adviser. Mosques, Political Pensions, Native Chiefs, and Penghulus all appear to be purely State matters neither of common interest nor affecting more than one State. The rights and prerogatives of any of the Rulers " can only mean the rights and prerogatives of the Ruler of the State concerned and are not a matter of common interest, though the rights and prerogatives of the Rulers as a class might be. It would thus appear that the subjects allocated to State Councils could never have been within the competence of the Federal Council at all, and if this is so it is difficult to assign any definite meaning to or to draw any satisfactory inference from this clause.
25. There are two further points arising out of the consideration of Clause 9. The first is that the subjects reserved to the State Councils all involve the expenditure of money, which conflicts with the inference which has always been drawn from Clause 10 that the Federal Council is to control State expenditure.
26. The second point is that the subjects are reserved to the State Councils. The theory of the Government, adopted by Sir John Anderson and set out in H.C.O. Conf. 12/1910, was that the State Councils were purely advisory bodies and had no powers, that a Ruler was absolute and could act with or without his Council as he chose. The allocation of certain subjects in the Agreement gave the State Councils definite powers, which they could only acquire at the expense of the Ruler, and this again is inconsistent with Clause 11. It is particularly noticeable in this connexion that questions affecting the rights and prerogatives of a theoretically absolute Ruler are made a matter for decision by his Council.
27 The sole provision supporting Sir John Anderson's statement that the Federal Council was established to control the finances is to be found in Clause 10, which has been already quoted. It provides for the "consideration" of State budgets by the Federal Council, thereby reversing the provisions of the Scheme of 1895 which laid down that each State should" after providing for federal charges as hereinafter speci- fied, spend its own revenue." Further, it seems open to doubt how far the purely local details of a State budget can be said to be "matters of common interest to the Federa- tion or affecting more than one State," and so within the competence of the Federal Council.
C
28 It may be noted that this clause has nothing to say about federal revenue considered " and expenditure, and that the word used with regard to State budgets is and not approved." There is a studied vagueness about the whole clause, but the inference that has been drawn and consistently acted upon, is that the Federal Council is the ultimate authority in all matters of finance. It has already been noted that in certain matters financial control appears to be given by the Agreement to State Councils.
29. The total effect of Clauses 9 and 10 is apparently-
(i) to make the Federal Council the main legislative body,
(ii) to make the Federal Council the only financial authority, and
(iii) to effect a division of powers by allocating certain questions to State Councils. The last clause of the Agreement reads as follows: Nothing in this Agreement is intended to curtail any of the powers or authority now held by any of the above-named Rulers in their respective States; nor does it alter the relations now existing between any of the States named and the British Empire as established by previous treaties."
30. These words are repeated from the Treaty of 1895, where they are in place and have a real meaning, but it is quite impossible to reconcile them here with Clauses 9 and 10 of the Agreement or with the establishment of a Federal Council at all. The clause does not refer to the personal" rights and prerogatives" of a Ruler, which are dealt with in Clause 9, but to his " powers and authority "as Ruler, i.e., to State rights. Before the establishment of the Federal Council the State laws were enacted by the State Council, that is, by the Ruler with the advice of his Council, and the State under the Scheme of 1895 after paying its share of Federal charges was free to spend its own revenue. The power of legislation was severely curtailed, the control of finance com- pletely removed, and certain subjects allocated to a State Council, thereby removing them from the sole control of the Ruler, and yet the powers and authority of a Ruler were not to be curtailed! The basic idea of a federation is the creation of a central authority and a division of powers, and how a clause maintaining State rights unim- paired could ever have been inserted into the document by which powers formerly exercised by a State are conferred on the central authority is quite incomprehensible. The inconsistency is so glaring that it is difficult to help an uneasy feeling that the presence of this clause ensured the signatures of the Rulers and that it was inserted for that object. It seems true to say that it has consistently been ignored and that it must be ignored if any effect is to be given to the other provisions of the Agreement.
7
31. It will be seen from this that the Agreement which is our main constitutional document is far from being a document that is open to no misapprehension and that it is self-contradictory in practically every provision. A further deficiency appears to lie in its failure to deal with the existing situation as Sir John Anderson saw it. His speech of 2nd November, 1910, recognizes that a central authority had in fact established itself and had encroached upon State rights, but the Agreement contains no hint of this. It is drafted, indeed, as though the arrangements contemplated by the Treaty in 1895 had been carried out and remained in force, and no central authority had established itself. While depriving the States of legislative and financial powers that still nominally remained to them it did nothing to check the administrative encroachment of the central authority which Sir John's speech admitted. It should be said that the establishment of the Federal Council was only one of Sir John's remedies. His second remedy was the change of the title of Resident-General to that of Chief Secretary to Government. It is not possible to say how far this would have been a successful remedy in Sir John Anderson's hands as he did not remain in the country long enough to work his policy out. The absorption of State Departments by Federal Departments certainly continued, one of the latest instances being the transfer of the State Customs Departments to the control of the Chief Secretary in 1920.
32. The conclusions to be drawn appear to be the following:-
-
(1) The Treaty of 1895 did not contemplate federation at all and the term was misleading.
The system contemplated by that Treaty could not last as-
(i) it was designed to meet temporary conditions which have since changed, and
(ii) its terms were vague and extremely meagre, and inadequate provision was made with
regard to the new Federal Officers.
(3) A central authority established itself and assumed direct control of many of the functions of Government, withdrawing them from the States in spite of the last clause of the Treaty. (4) The establishment of the Federal Council did not affect this situation, but created u
encroachment of a different nature on State rights.
new
(5) The Agreement for the constitution of the Federal Council is not a satisfactory constitutional
document, being incomplete, obscure, and self-contradictory.
(6) The last clause of the Treaty of 1895, which is also Clause 11 of the Agreement for the con- stitution of a Federal Council, has not been honoured and cannot be honoured while the present system continues.
33. It may perhaps be assumed that it is not practicable or desirable to return to the days of the early 'nineties and of four States independent of each other, and that some form of union must be maintained. In considering how a more satisfactory constitution can be contrived the main lessons to be drawn from the conclusions to which a consideration of past history has led would seem to be three.
34.
The first is that in any form of union there must be some sacrifice of State rights.
The Union may be for certain purposes only, e.g., Railways, Posts, and Customs, but the mere fact that there is a union for such purposes postulates a central authority and a sacrifice to that authority of some portion of a State's sovereign powers. That portion may be comparatively small. For example, membership of the Inter- national Postal Union is compatible with the organization and maintenance of the Post Office as a State Department, but there is a surrender of the individual right to fix postage rates. And similarly, with any form of union, whatever name it is given.
35. Both our constitutional documents ignore this and profess to maintain State rights unimpaired. If the Treaty of 1895 was, as has been argued, an attempt to secure uniformity only and not to create any form of union, its inconsistency lies in its use of the term federation "' and not in its last clause. But the inconsistency of the Agree- ment of 1909 cannot be explained away.
64
36. A second lesson in the absolute necessity for what Mr. Dicey calls definition." The vagueness of the Treaty of 1895 led to the Resident-General assuming rigorous the powers of a central authority and encroaching on State rights, and the Agreement of 1909 did nothing to cure this. In so far as this Agreement contained any definition at all it deprived the States of the rights remaining to them, but it did this in an inferential and therefore unsatisfactory manner and stultified itself by its self-contradictions. The sacrifice of State rights is a matter which should be determined in the constitutional documents themselves since these are the guardian of the States against encroachment by the central Government.
37. Thirdly, the fundamental documents of the Constitution should be as clear and definite as it is possible to make them, should leave nothing to inference and be free from ambiguity and contradiction in order that both parties may realize their obligations. An obscure and contradictory agreement may stand for a time by tacit consent. The parties may not realize or wish to assert their rights. But when the time comes and the Rulers point to the Agreement of 1909, and especially its last clause, it will not be easy to answer them.