CO885-(11-12) — Page 520

440

FELIC

PCCORD OFFICE

Reference

11111C.O.882/12

COPYRIGHT PHOTOGRAPH-NOT TO

Br

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE REPRODUCED PHOTOGRAPHIC-

102

would be. The motion with regard to Holiday Warrants though moved by the Financial Secretary on the 16th March, was not declared to be essential to give effect to the provisions of the Order in Council until the following day owing to the fact that a number of members of the Council left the Chamber while the motion was being introduced with the object, which was successful, of depriving the House of a quorum whereupon the Speaker ruled that the declaration could not be made in the absence of a quorum, a ruling which in my opinion was entirely wrong-see lines 6 and 7 of Article 22 (i) of the Order in Council.

3. Since the above declarations were made I have received a letter from Sir Henry de Mel, member for Puttalam, forwarding to me under Article 23 (2) of the Order in Council a joint statement subscribed to by himself and twenty-four other members of the State Council setting out their reasons for objecting to the declarations made in respect of the Enabling Bill and the votes for Passages and Holiday Warrants. I have also received from Mr. G. K. W. Perera, member for Matara, a separate state- ment of his objections to all four declarations. I enclose copies of both these state- ments as required by Article 23 (3) of the Order in Council and it will be convenient if I comment upon them separately:-

Joint Statement forwarded by Sir Henry de Mel.

""

4. The Enabling Ordinance.-The statement asserts, with reference to the the vesting of any such powers conferred on the Governor by this Ordinance, that power in the Governor is not contemplated by the Order in Council, 1931, and is a As regards the definite deprivation of a power which the Council now possesses.' first point, the absence of provision in the Order in Council prescribing a procedure to be adopted on the introduction of such an entirely exceptional and (in Ceylon) unprecedented measure as a levy on the salaries and wages of Public Servants for the benefit of the public revenue creates no presumption against the procedure laid down in the Enabling Ordinance and is quite irrelevant to the issues raised. The second statement, that the vesting of the power to prescribe the extent and duration of the levy in the Governor is a deprivation of a power which the Council now possesses, is supported by extracts from the report of the Donoughmore Commission and Sir Herbert Stanley's despatch on that report. It is obvious, however, from the context of these extracts that they relate to the right of free and unfettered discussion of The Enabling requests made to the Council for funds for payment of salaries. Ordinance bas in no way modified or impaired this right which remains now exactly what it was before that Ordinance was enacted.

5. If the signatories to the statement are to be understood as claiming that the Council at any time had power to impose a levy on the salaries and wages of Public Servants they have failed to establish such claim. On the other hand, the Governor representing the Crown in Ceylon, indisputably has and always has had the power, subject in certain cases to the approval of the Secretary of State, to reduce the salaries or wages of a Public Servant without the consent of the Legislature, while the Legisla- ture has not and never has had power to do this except in so far as the exercise of its power to refuse or reduce a money vote for the payment of salaries or wages might operate to force a reduction of a salary or wages. Moreover, this power of refusal or reduction of a money vote is subject to limitations imposed upon it by the Order in Council. The Enabling Ordinance has abstracted nothing from such power of refusal or reduction of a money vote as the Council possesses under the Order in Council and has neither increased nor modified the limitations under which it is exercisable.

6. All that the Enabling Ordinance has done is to enable the Governor instead of reducing the salaries and wages of Public Servants, which he has power to do independently of the Enabling Ordinance, to require from them a contribution to the public revenue equivalent to the reduction which otherwise he would have been disposed to make in their salaries or wages, and the necessity for the Ordinance arose entirely from the Governor's inability to exercise the powers of reduction inherent in him without at the same time prejudicially affecting the pensions of the Public Servants concerned and the pensions of their prospective widows and orphans. The Ordinance has enabled the Governor to do something less drastic than he might have done by the exercise of the powers he already possessed and has in no way affected the powers of the State Council. It is further urged in the statement that the certification of this measure as a matter of paramount importance under Article 22 is an unreasonable As to this contention it is exercise of the Governor's powers under this Article.

103

difficult to imagine that anything could be of greater importance than a measure which with others was deemed to be essential to ensure the financial stability of the Island.

7.

As regards the justification for the act of certification it is also worthy of note that by throwing the Bill out at the First Reading the Council themselves refused to discuss it and put forward their views. It is true that after the Board of Ministers had withdrawn their support to the Bill the Council was informed that it would be certified in "substantially the form in which it was presented, but their action would have been much more reasonable had they entertained the Bill fully on its first introduction and later made suggestions for recasting it in a form more acceptable to themselves.

"

S. The Supplementary Estimates for Leave Passages and Holiday Warrants.- Four statements are made by way of reasons for the protest against the certification of the vote for Passages. The first statement is that "Leave Passages were first granted as a temporary measure during the War and the difficult times immediately after the War." This statement need not be disputed, but it contains no proof that the withdrawal or reduction of passage privileges is justified by the circumstances which now prevail. The second statement refers to a guarantee that the question of the further payment of thes passages would be reconsidered by the Legislative Council" and is followed by the third statement that the Legislative Council having decided to grant the passages once in five years, "the Government was guilty of a breach of faith in refusing to accept the considered view of a Salaries Committee and the Legislative Council." No guarantee has been given at any time that the decision of a Salaries Committee or the Legislative Council in regard to passages would be accepted by the Governor and the accusation of breach of faith is entirely without foundation. The fourth statement is that the signatories to the document under discussion "fail to see how the payment of these passages is essential to give effect to the provision of the Order in Council." The reply to this statement is that Article 87 (4) of the Order in Council provides that—

66

Any ... vote the

passage of which shall be necessary in order to preserve any rights or privileges which by this Article, may not be varied without the approval of the Secretary of State shall, to the extent required by the decision of the Secretary of State upon any such proposal, be deemed to be essential to give effect to the provisions of this order within the meaning of

Article 22."

Passage and Railway Warrant privileges are included in the privileges which, under Article 87, may not be varied without the approval of the Secretary of State. The decision of the Secretary of State in regard to passage privileges is that they sball not be varied, and it follows therefore the provision of funds to meet the cost of preserving these privileges is essential to give effect to the provisions of the Order in Council.

Mr. G. K. W. Perera's Statement.

9. Income Tax Amendment Ordinance.-The only point in Mr. Perera's remarks under this head calling for comment is his expression of opinion that it was not fair of the Governor to certify Clause 5 of the Amending Bill after he had put it beyond the power of the State Council to reject the Bill altogether." No action of the Governor placed it beyond the power of the State Council to reject the Bill altogether. It was the Council's own action in passing the Third Reading of the principal Ordinance that had this effect. It was the Governor, not the State Council, who had the power to reject the Bill after its third reading. It is true that an alternative to rejection of the Bill, or the introduction of an Amending Bill, was open to the Governor. That alternative was the recommittal of the Bill to the Council under Standing Order 95 with a statement of the amendments which he recommended, but that course would not have provided the Council with an opportunity for rejection of the whole Bill or for making any amendments other than those referred to by the Governor. The reason for not adopting this alternative, and for the introduction of an Amending Bill instead, was the overriding necessity for immediate enactment of the Bill to enable the tax to be introduced in 1932-33.

10.

The Enabling Ordinance. Mr. Perera's observations under this head in paragraphs 4 to 9 of his statement show a complete misapprehension of the extent of the Governor's responsibility for ensuring the financial stability of the Island. Having satisfied himself that a levy on salaries was both necessary and justifiable for purposes