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Reference

C.O.882/12

PUBLIC RECORD OFFICE, LONDON

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than that of the Legislative Council. They bitterly resent this position, and much of their time has been spent in protesting against it, and in trying to exercise, by various means, power which they do not possess. They profess to accept the position that the final decision in all matters regarding pay, conditions of service, &c., rests with the Secretary of State, but they maintain that they should have the full right of discussing any proposals and putting forward any suggestions which they like, and they object strongly to the power given to the Governor by Article 87 (1) of the Order in Council to prevent suggestions of a certain nature from being made or discussed. The position that they seek to establish is that they should have the right to record decisions in all these matters, and that the "final decision" of the Secretary of State is, or should be, nothing more than a power of veto only to be used in exceptional circumstances. In order to establish this position they have voiced, on several occasions, a deliberate misinterpretation of the Constitution, a misinterpretation which affects not only this particular right of the Secretary of State, but other rights and duties of the Governor. They see, or profess to see, no difference between a case in which the Governor, by the use of his reserve power, upsets a decision reached by them in the legitimate exercise of their powers, and a case in which the Governor, in the exercise of powers reserved to him by Statute or otherwise, records a decision against the advice of an Executive Committee or the State Council. In other words they maintain that the Governor's rights to exercise his authority according to his own deliberate judgment in matters in which the authority is reserved to him (paragraph 1 of the Royal Instructions) is fettered by exactly the same restrictions as his right to use his reserve powers. In fact, they go further than this and in one case (the Egoda Uyana case, to which I refer later) sought to establish that even when the Governor has exercised his statutory powers in accordance with the advice of the Executive Committee concerned, the State Council have the right to step in and say that he has acted wrongly, and he must bow to their decision unless he can show that it is a matter of paramount importance that he should maintain his own decision. This is, of course, a constitutional issue of the first importance. As I see it, the Governor's authority can be divided into three categories:- (1) His authority to veto, amend, or enact legislation in matters not affecting the public services. Here his power to veto or amend can only be used to prevent something definitely wrong (from certain clearly specified aspects) being done. His power to enact would only be used in altogether exceptional circumstances.

(2) His authority in regard to action both legislative and executive, affecting the public services. Here his powers are of a much more positive nature than those coming under the first category, as it is his duty to preserve & contented and efficient service, and the decision between the rival claims of economy and the interests of the services must rest in his hands, or rather in those of the Secretary of State acting on his advice.

(3) His authority when exercising his own Statutory powers. This authority is defined in Article 1 of the Royal Instructions. Unfortunately the last four lines of that Article are very obscure. It is quite impossible to say in respect of, e.g., the nomination of members to Urban District Councila exactly what the principles of Our said Order, or his own responsibility thereunder" require. It would, I suggest, be a fair statement of the posi- tion to say that the Governor's duty in these cases is not merely to refuse to make a decision which he considers definitely wrong, but to make a decision which he considers, in view of all the circumstances, not necessarily the best, but at any rate reasonably sound. The maintenance of the distinction between these three categories is essential. But the State Council are determined to assert the position that in all three categories the Governor's authority is purely negative, or at any rate purely over-riding, and only to be asserted in exceptional circumstances. They even go further, and question the right of the Governor, or the Secretary of State, to decide whether the circumstances are exceptional.

Apart from this major issue, the Council makes no secret of their determination to usurp, by all possible means, powers which the Constitution does not assign to them. In connexion with the Income Tax Bill, the institution of a Board of Income Tax was openly admitted to be an attempt to get the control of the working of the Ordinance out of the hands of the Secretary of State; and the charge, made by the Financial Secretary, that the taxation of the sum received in partial commutation of pensions was an attempt to get round an unpopular provision of the Pensions Minute was admitted, by one member at least, to be perfectly correct.

One entirely unexpected development of the tendency to interfere in matters of detail which has resulted directly from the grant of executive authority to the State Council has been a tendency to interfere with the actions of local bodies. The Local Administration Committee have displayed towards local bodies an autocratic spirit which would have aroused howls of execration had it been exhibited by the old Local Government Board, and the Executive Committee of Education have also been inter- fering in details of the work of Education District Committees. So much for the spirit of democracy!

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4. THE ELECTORATE.

It is, I think, probably correct to say that, except in Colombo itself, where three representatives of labour were elected, the great extension of the franchise has made little difference to the type of candidate who has been successful. An ignorant and largely illiterate electorate voted for persons more than for policies, but that would have been the case even under the old limited franchise. But the great increase in the size and change in the nature of the electoral gallery on which members have to keep their eye when speaking in Council has, I think, make a considerable difference to the nature of their speeches. Popular claptrap of a socialist and nationalist type has been distinctly more in evidence than in the old Legislative Council, and the percentage of members who did not intend to speak, but feel, Sir, that I cannot record a silent vote upon this important question "is probably higher. At any rate the time wasted by futile verbiage has been colossal, and there is little doubt that the increased size and altered nature of the electorate is largely responsible.

Any alteration in the type of representative produced is likely to be more marked on the occasion of the next election.

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5. THE OFFICERS OF STATE.

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Beyond stating that, while the already exceedingly onerous duties of the Attorney General and Financial Secretary have been considerably increased by the new Con stitution, the Chief Secretary has considerably less work than the Colonial Secretary had, I do not propose to comment on the posts of the two other Officers of State. But I must express my opinion that the duties of the Chief Secretary are in many ways badly defined and badly devised. I will deal first with his position in regard to the public services. The Donoughmore Commission referred to his "responsibility matters of establishment and personnel." They also allotted as one of his subjects, "Public Service Administration; discipline, appointments, and transfers." The schedule to the Order in Council gives him " The Public Services, and in the more detailed list given in the schedule to the statement of administrative procedure he is given "Granting of leave to Public Officers, Government quarters,” and “Adminis- tration of the Public Services. On the other hand the Schedule to the Order in Council gives "Establishments" to the Financial Secretary and under that heading in the schedule to the Statement of Administrative Procedure are included salaries, allowances, and cadres of staffs. It is clear from the Donoughmore Commission Report (page 51, page 70. and Appendix VI) that they intended that the duties of the Financial Secretary in regard to these items should be " supervisory." When drafting the constitution it was found impossible to maintain the division of the duties of the Financial Secretary into Executive,' Supervisory," and Advisory," which will be found in Appendix VI to the Report. Shortly after the new Constitution came into force the Financial Secretary minuted to Your Excellency direct in regard to a personal allowance of an officer in the Defence Force. He suggested that before passing orders Your Excellency might wish to consult me, the Defence Force being one of my departments. I took exception to the Financial Secretary's action, and considered that the case should have been submitted to Your Excellency by me, after I had consulted the Financial Secretary. After considerable correspondence and discussion with the Financial Secretary, and after racking my brain in vain to discover what the Donoughmore Com- mission meant when they suggested that the duties of the Financial Secretary in regard to salaries, allowances, &c., should be " supervisory," I was obliged to surrender my position, for I realized that to maintain it would mean either that the powers of the Financial Secretary in regard to the salaries and allowances of officers in departments under the control of Officers of State were different to his powers in regard to the salaries and allowances of officers in departments under the control of Executive Committees, or that the Executive Committees must be given powers in this regard which it was never intended that they should have. Exactly the same arguments apply to the question of cadres. The Financial Secretary will, I feel sure, maintain that the final advice as to whether a vacancy in any department (including the Civil Service and the General Clerical Service, which are under the control of the Chief Secretary) should be filled or not should be tendered to Your Excellency by the Financial Secretary. I am not pre- pared to deny that that is a correct statement of the interpretation of the position in which I have, so far, acquiesced Whether or not this state of affairs is desirable, I will now discuss.

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To recapitulate, the "Administration of the Public Services" has been allotted to the Chief Secretary. Two important divisions if this subject are appointments (i.e., the personnel of appointments) and discipline. Under the terms of the Order in