CO537-6046 — Page 303

I think SO too.

(Intld.) C.J.J.

I am asked to comment on paragraph 4 of Mr. Sidebotham's minute of the 11th January. As a matter of law the common form clause giving the reserve powers is about as wide as it could possibly be see for instance section 27 of the Mauritius (Legislative Council) Order in Council, 1947, which enables the Governor to use his power if he considers it "expedient in the interests of public order, public faith or good government". Many years ago the terms of the clause used to be narrower

see for instance section 15 of the British Hon- duras Constitution Ordinance which gives the Gov ernor reserve powers if he considers it "necessary in the interests of public order, public faith or other essentials of good government". The scope of the Order was deliberately made wider. It is a matter of surprise that we have never met with objection. If we were pressed to adopt a more restrictive wording I feel that we should probably have to do so and, indeed, that from the practical point of view it would make no difference because, in fact, the reserve power is only used for matters of prime importance.

It follows from what I have said that the question whether the reserve power should actually be employed is a matter of policy rather than of law, and this is so to a large extent even where the clause is in a more restricted form as, e.g. in British Honduras. At the same time it has been the practice, and I think rightly so, for legal advisers to be consulted with regard to any proposal to authoris the Governor to use his reserve power.

Assuming that there have not been a number of occasions upon which the reserve power has been used without my knowledge, I can confirm Sir Charles Jeffries' statement that in practice it is used very sparingly indeed. It has not, for instance, been used in Jamaica on more than one occasion since the commencement of the 1944 Constitution. Moreover, I think (I am not sure about this) that it has been publicly stated in relation to two or three particular constitu- tions that occasion for its use would rarely arise.

In the light of past practice I agree that if it is intended that control should be not only retained but also exercised in matters of secondary importance, it would be preferable to have something different from the common form reserve power clause.

(Intla.) K.O.R.W.

2nd February, 1950.

Mr. Sidebotham

(Intld. J.B.S.)

This is useful ammunition.

(Intld.) C.J. J.

2nd February, 1950.