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PUBLIC RECORD OFFICE

TULIT T

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PUBLIC RECORD OFFICE, LONDON

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vote intelligently (and we do not believe that there is any sort of general demand for the franchise) a considerable number of educated Ceylonese are quite capable of deciding by whom they wish to be represented. We consider that, if only for the purpose of removing the grievance which is now felt and to avoid the offence which is continually given when new nominations are announced, the principle of election should be conceded in all cases, unless a particular community prefers nomination.

8. The Official Majority in the Legislative Council.—We devoted much time to a consideration of this subject, and were to some extent divided at first in-opinion. It is beyond question that the automatic out-voting of the unofficials by official members who often take no part in the discussion, and may not even approve of the policy which they are required to support, is open to objection. The unofficial members may express their views, but the free expression of opinions must be con- tinually hampered by the feeling that, in the end, the automatic vote of the officials renders argument of little avail. The urban European member strongly expressed to the Committee his own objection to the system. When, however, the suggestion that there should be an unofficial majority is examined carefully, it appears to be an impossibility at all events, in a form of government such as ours now is. The objection may be explained in a few words. In parliamentary government, such as that obtaining in England, the administration which is responsible for the actual governing of the country, is always supported by a majority in the popular chamber. Legislation which it requires it can obtain, and no legislation to which it objects can be passed. When it ceases to have the necessary majority it must resign. In Ceylon the administration consists of a fixed body of officials, who cannot be allowed to resign. They must, therefore, have control of the legislative machine for the purpose of enforcing their decisions. Now if the elected unofficial members have a majority in the legislative body they may at any time refuse to provide the legislation and funds which the Government requires, or may themselves pass ordinances which the Government cannot, or will not, enforce. The whole machine of government is in danger of finding itself reduced to impotence. The experiment of an unofficial majority was tried in Malta, with the result that the legislature refused to vote supplies and a deadlock resulted, to remove which the British Government was forced to intervene by reinstating the official majority—a fact which has caused continuous ill-feeling and friction.

The memorial to which we have referred furnishes no evidence of reasoned thought concerning the constitutional results of such a government, nor any sug- gestion as to the manner in which it can be conducted. The chief argument in its favour appears to be one drawn from analogy with the Provincial governments in India The apparent resemblance between the position of the Ceylon legislature and that of the Indian Provincial governments is, however, superficial and the analogy a false one. The Provincial governments are subordinate bodies under the control of the Government of India, the chief officer of which, the Viceroy, is responsible to the Secretary of State, who, in turn, is responsible to Parliament. While it is possible to grant to subordinate legislatures a great measure of freedom, subject to safeguards which provide for the passing of essential legislation not- withstanding the opposition of the legislative chambers, it is constitutionally impossible for the supreme government of a country to be carried on if the executive cannot compel the enactment of legislation which it considers necessary. This fact is clearly recognized in the Montagu-Chelmsford report as the reason which made it impossible to grant an unofficial majority in the supreme Indian Legislative Council, without the establishment of a second chamber (which the report recommends) in which the Governor-General shall have a majority at his command.

Commenting on a similar proposal by the Indian National Congress, the report says (paragraph 167): "We find, then, in these proposals, no connecting rod between the executive and legislative wheels of the machine which will ensure that they will work in unison.... We must anticipate divergence, and the only question is, whether that divergence will be fatal to good government. Legislation is a necessary attribute of Government, because it is the means by which Government secures fresh powers, when it feels the need of them, for attaining its ends. But in the hands of the assembly it may become a weapon to paralyze the Government. This is a position into which no parliamentary government ever allows itself to be forced; and it would be an impossible position for a nominated Government of India. Wherever, as in Canada or Malta, attempts have been made to set up an irremovable executive and a popular assembly, acute conflict has ensued and has

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resulted in either an advance to popular government or a return to autocracy. Parliamentary government avoids deadlocks by making the executive responsible to the Legislature. Presidential government limits deadlocks, because all the organs of the State must ultimately submit to a superior tribunal, the electorate of the nation. But a Legislature elected by the people, coupled with a Governor appointed by a distant power, is a contrivance for fomenting dissensions and making them perpetual... We can see no prospect whatever ahead, along the road which we are invited by the Congress-League to take, but embittered and dangerous deadlock to be resolved, when it arose, only by a plunge forward into parliamentary govern- ment at once, or by reversion to autocratic methods." Again, the report says (paragraph 170): If we compel the executive to carry out instructions from the Legislature we bring the Government to an end by destroying its right of action. No Government can consent to remain in office and to put inte-effect orders of which it disapproves. If it is to be held responsible for government it must govern : and if it is not to govern it must give way to those who can."

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Now, the Ceylonese reformers appear to have lost sight of the fact that the Ceylon Government is in the position, not of a subordinate body but of the supreme Government, with a permanent nominated executive responsible to the Secretary of State, who, in turn, is responsible to Parliament. Any analogy which can exist between Ceylon and India must be an analogy between the Ceylon Government and the Government of India, not the Provincial governments. How is the executive government of the Colony to be carried on if the legislation and votes of supply which are considered essential may be refused by the elected Legislative Council or if that Council enacts measures which the executive considers it impossible to enforce? The Government cannot resign. There is no intermediate body to which it can appeal. The Secretary of State, Parliament, or His Majesty in Council cannot, in practice, be expected to have the necessary knowledge of detail to enable one of them to intervene, and even if any of them could, such a procedure would necessarily be inadvisable. To these questions the memorialists offer no reply: of them they do not even make mention: and if, with all the liberal and progressive purpose which Mr. Montagu brought to bear upon the subject in India, he could find no reasonable solution, we may safely assume that none is forthcoming.

It is, of course, the Government, both here and in England, that will point out constitutional objections such as these, but it would be futile for the Europeans to approve a scheme which from its very nature is impossible of fulfilment.

measure

We have carefully considered whether, by any satisfactory means, the neces- sary power of the executive can be maintained, while allowing an unofficial majority in the Legislative Council. The first expedient suggested was the creation of an upper house, by which the acts of the lower chamber would be revised. upper house the Government would have control.

In the The ultimate effect of such a Constitution is, of course, to vest the final authority again in the Government, but the system has the advantage of giving freedom to the popular assembly, not merely in discussion but in the actual recording of its opinion, a matter of considerable importance. Under the present system the Council can never reject a which the executive has decided to pass. In a two-chamber Government the lower chamber could actually throw out a Bill, a proceeding which would necessarily have an influence on the policy of the executive, even if the Bill could be reintroduced and ultimately carried. For the creation of such an upper house, however, it is necessary to find a sufficient number of men of not only outstanding position and mature views, but also of political or administrative experience. We do not think it would be possible to find such men in a small Colony like this at the present time, and that our opinion is endorsed by a section of the Press associated with the Reform League is evidenced by the following quotation: "Ceylon is much too young to have definite, permanent, established, and accepted leaders. Many take up the role and are gaily confirmed in it for a season. They play their part and are forgotten, leaving no permanent impression or lasting mark.”

It was suggested, as an alternative, that some system should be devised by which the Governor could have the power of certifying beforehand that a Bill was an essential measure, in which case it would be passed into law, even if the majority voted against it. The Committee, however, is of the opinion that great difficulty would be experienced in defining the nature of the measures which the Governor might so certify, and that if, as is probable, a large number of Bills were in practice certified, the helplessness of the unofficials would appear greater than it is even now, and continual exasperation would result. We are, therefore, of opinion