CO885-(11-12) — Page 524

444

FORLIC RECORD OFFICE

Reference --

WWWWWC.O.822/12

ALLY WITHOUT PERMISSION OF THE BY REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO|

PUBLIC RECORD OFFICE, LONDON

110

5. The state of the finances is the primary concern of the Board of Ministers who have to devise ways and means of providing revenue. The Governor is not called upon to perform this service except in accordance with the provisions of the Order in Council, by giving his prior consent to certain kinds of proposals.

6. The State Council having rejected the procedure set out in the Bill, the matter, should have been allowed to drop, unless the Governor was willing to assist the Board of Ministers constitutionally by permitting amendments in the Bill in accord- ance with the wishes of the Council.

7. The failure of the Board of Ministers to devise ways and means would entail consequences according to the Constitution which the Governor should not seek to circumvent by pressing emergency powers into service.

8. The Donoughmore Report and the Royal Instructions are clear on the point that the administration is to be carried on by the Council, and the paramount and emergency powers of the Governor are provided as safeguards against misgovern- ment. As long as a Board of Ministers is functioning the Governor's powers are to be merely supervisory. Action by the Governor, therefore, to provide revenue, with- out the sanction of the Council, to a Board of Ministers however lame is altogether unwarranted.

9. If the Governor wished to carry on the Government he should declare a state of emergency under Article 49 of the Order in Council if he thought the cir- cumstances justified such a course. It was never intended that the Governor was to carry on the Government as he pleased with or without a Board of Ministers, in normal times, by the use of his extraordinary powers.

10. This Bill was no real taxation proposal. It purports to grant the Governor power to tax any part of the Public Service, to such extent and during such periods, as he pleased. As such it is contrary to the Order in Council. The Council cannot delegate its powers of taxation to anyone, even to the Governor whose own powers are clearly defined and cannot be increased except by a fresh Order in Council.

11. The Public Services, however much they may favour the proposal, cannot be handed over completely, even to their legally constituted guardian, to be taxed at will. The Council would have considered the exemption of the lowest classes of

salaries from the levy.

12. It is against moral law to allow the Governor to employ provisions in the Constitution to increase his own power.

"

13 The two Ordinances above referred to were rejected by the State Council, either before and the Financial Secretary who moved them made no declaration or after the votes of the members have been taken," under Article 22 of the Order in Council. Mr. Speaker, quite correctly therefore, announced that the Bills were lost after the votes had been taken.

14.

A Bill absolutely dies on rejection by the Council and it is so minuted by the Clerk of the Council. No report is made to the Governor on a rejected Bill. The report the Governor mentions, therefore, is private information conveyed to him by the Financial Secretary.

15. No procedure is provided whereby a rejected Bill could be revived and no further steps could be taken on it. If the Governor wished to declare the Bill of paramount importance he should have instructed the mover to do so before rejec- The tion or addressed a message to Mr. Speaker to announce his declaration. Governor could, of course, bring up the matter again afresh and regularize the procedure.

16. A Bill to be certified under Article 22 must be before the House, or officially before the Governor. It was never intended that he should certify it when and where he pleased. The Donoughmore Commission's recommendation clearly intended that the Bill should be declared whilst in the House, whilst dispensing with the old procedure of counting the official votes only.

17. If the procedure adopted by the Governor is countenanced then there would never be any certainty as to the finality of any Bill rejected under Article 22. There would be no time limit to the declaration. It might also lead to the absurdity of the Governor being considered still empowered to declare the other provisions of the Income Tax Ordinance which he has not yet declared to be of paramount importance.

111

18. A Bill declared under Article 22 does not become law until signed by the Governor. What can he sign as he has no Bill before him either actually or con- structively? The fact that he had so signed has to be conveyed to the House. This cannot be, and has not been, done.

being

19.

Supplementary Vote of Rs. 250,000 for Passages of Officers, their Wives and Families, &c.

Supplementary Vote of Rs.470,000 for Holiday Warrants.

These two Supplementary Votes have been declared under Article 22 as "essential to give effect to the provisions" of the Order in Council.

20. The Order referred to is the Order granting a Constitution, and giving effect to its provisions can only mean enabling the Constitution to be put in working order. The same words are used in Article 97 enabling the Governor to make order by publi- cation in the Gazette to enable the Constitution to be first established. It is clearly intended that under Article 22 by a declaration of this kind the Governor should be empowered to take such steps as may be necessary to ensure the working of the Constitution; he has now to come before the Council to legislate as by this time the Constitution has been established.

21. To interpret the underlined words as granting a power to be used in cases other than of paramount importance would reduce the paramount provisions to an absurdity. It would mean that "the Governor may do as he likes on all occasions."

22. The declarations as regards these two votes are an admission that Passage Allowances and Holiday Warrants are not matters of paramount importance. They cannot be, for they are votable under our Constitution, and so even under the Indian Constitution where salaries and pensions of public officers are placed on the non- votable list.

23. Among the safeguards adopted in the Order in Council votes such as these are not provided for, as indeed they should not be under any Constitution. If the Governor wished to insist on these votes he should have referred the Annual Appro- priation Bill back with the necessary amendments.

24. Generally with reference to these matters it must be stated that the Governor's action leaves very unpleasant impressions on our minds as well as in those of the general public. Public opinion is dead against the Donoughmore Constitution on the grounds always urged by the vilifiers of the Constitution that the paramount powers reserved for the Governor were intended to be put into everyday use, as in fact they appear to be done.

25. The Constitution was accepted on the firm understanding that the para- mount powers were merely safeguards to be used in emergency only and in an entirely reasonable manner. The Constitution can be worked satisfactorily if the necessary co-operation is forthcoming on the part of the Governor, but if the present campaign of wilful and illegal use of safeguards is continued it would be entirely useless to continue the experiment any longer.

While submitting the foregoing for the consideration of the Secretary of State, I would request Your Excellency to be pleased to recommend a course of action which would enable the State Council with self-respect to give Your Excellency its whole-hearted co-operation.

Colombo.

22nd March, 1932.

To His Excellency

1 remain, &c.,

G. K. W. PERERA, Member of the State Council, Matara.

Sir Graeme Thomson, K.C.B., G.C.M.G,

Governor of Ceylon.

!