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FORLU

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1. Is le le leh

RECORD OFFICE

Reference -

C.O.882/19

COPYRIGHT PHOTOGRAPH-NOT TO)

AD

| PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE

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11. No one would deny that since Executive Committees are charged with the framing of policy on executive matters, and with the execution of that policy when approved, they must be given a voice in decisions affecting the structure and the cost of the staff which the execution of their policy requires: The constitutional position will, however, differ very materially according to whether executive responsibility has in fact been assigned by the Order in Council to Executive Committees or whether it remains primarily, as well as ultimately, in the Governor. In the first case the Governor would be bound by Clause I of the Royal Instructions, in considering the advice of Executive Committees on such matters, to regard the Committees as his principal constitutional advisers and the introduction of any other adviser between the Committee and the Governor might with reason be resented. In the second the Governor would accord to the recommendations of Executive Committees the consideration due to authorities whose functions it is his duty to aid by the exercise of executive powers vested primarily as well as ultimately in himself and he would be free to seek the direct advice of the Officer of State to whom the subject of establishments has been assigned.

12. If Committees are vested with the primary executive responsibility for the numbers and remuneration of the staff of departments under their control, it will be difficult to define precisely the authority of the Officers of State to whom divisions of the subject of staff have been assigned in the Second Schedule to the Order in Council, "Estab- and, in particular, the authority of the Financial Secretary in the matter of lishments" allotted to him in that Schedule, a subject which has been declared by the Governor under Article 33 (2) of the Order in Council to include "Cadres of Staffs," and this difficulty will almost certainly result in the Officers of State being completely ignored by Executive Committees in regard to establishments, to the serious prejudice of the Governor's responsibility for the maintenance of the efficiency of the Public Service Moreover, it would follow that the Governor's authority would be different in respect of the staffs of departments under Executive Committees and of those under the Officers of State and it would be difficult to deal with questions of establishment with due regard to their effect upon the public service as a whole.or to ensure consistent and equitable treatment as between one That difficulty would be very greatly branch of the public service and another. increased by the difference in the attitude of different Committees to establishment matters

13. Whether executive responsibility for establishments has been assigned to Executive Committees or not, the means available to the Governor to give effect to his decision in the last resort are the same. To provide a post or a salary which the Executive Committee concerned and the State Council refuses to support, the Governor must over-ride the vote of the legislature by the use of his reserve powers. There would, however, be a great difference in the strength of his position according to whether he could claim that he did so in the discharge of a responsibility vested primarily as well as ultimately in himself, or whether his decision clearly involved the rejection of the advice of the constitutional authority primarily responsible. It may be assumed that the Governor would be as reluctant to act in opposition to the vote of the Legislature in the one case as in the other; it is in the strength of his position and in the nature of the attack to which he would be exposed that the practical difference lies.

14. Indeed, my experience of the last two years, and more particularly in recent months, has forced upon me a growing conviction that the maintenance of efficient administration will be so difficult as to become practically impossible if the Governor is to be repeatedly forced, as he inevitably will be, to choose between acceptance of the recommendations of Executive Committees in establishment matters and exposure to the charge of unconstitutional action in having rejected the advice of his properly constituted advisers.

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15. Only a few days ago I felt compelled to inform the Minister for Agriculture and Lands in an interview that I believed that his proposals for the reduction of services and retrenchment of staff in the Irrigation and Forest Departments were dictated largely, if not primarily, by a desire to accelerate the Ceylonization of the services by terminating the employment of European officers without regard either to the efficiency of administration or to justice to the officers concerned in other words, that he was prepared to adjust his policy to suit preconceived ideas as to the number of officers there should be in the departments concerned and the proportion of Euro- peans which those numbers should include. It is, of course, impossible to accept such

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proposals. Yet if, in such a case, the reply can properly be made that constitutional responsibility in establishment matters is vested in the Executive Committee, some colour is inevitably given to the charge of unconstitutional action which will certainly be made when the proposals are rejected.

16. It may be desirable that at this point I should summarize my reasons for apprehending more serious consequences from the dependence of the Governor upon Executive Committees as his sole advisers and only source of information in regard to salaries and cadres than from dependence on the same authorities in matters of general executive policy. Salaries and cadre questions have been for many years and, as I have already stated, have continued under the present Constitution to be the most burning political topics in Ceylon and there is no doubt at all that success in replacing European by Ceylonese officials, by whatever means that end may be achieved, is considered to be the most effective method of establishing a reputation in local politics. Speaking generally, responsible Ceylonese politicians are not likely to formu late policies with intentions prejudicial to Ceylon or seriously embarrassing to the Empire. They are, however, quite capable of doing serious and lasting harm to the efliciency of the machinery of Government in pursuit of the popular aim of Ceyloniza- tion of the services. I believe that a Minister who could show sensational results in the reduction of the number of European officials, even though in the process of achieving these results he had done irreparable harm to the efficiency of the public service, would win greater popularity than a Minister who adopted a moderate attitude towards the question of Ceylonization and in consequence maintained his Departments in a state of efficiency which enabled them to render valuable service to the country. So long as this strange phenomenon is present in the political life of Ceylon any diminution of the powers now in fact exercised by the Governor in regard to salaries and cadre questions will involve the risk of very serious consequences

17. The question accordingly arises whether the terms of the Order in Council make it necessary to say that there has been transferred to Executive Committees and to the State Council in its executive capacity not only the dictation of executive policy and the control of the manner in which that policy is to be carried into effect, but also responsibility for the structure and remuneration of the staff required for its execution. It does not appear inherently necessary that responsibility for the first two subjects should include the third and if it were held that it does I submit that efficient administra- tion would become so difficult to secure that it would be inexpédient to accept that conclusion unless the terms of the Constitution made it necessary to do so.

18. I turn now to paragraph 6 of your despatch in which certain conclusions regarding the constitutional position are drawn from Articles 39, 86, and 22 of the Order in Council and from Clause I of the Royal Instructions. It is in regard to these that I wish to place some additional considerations before you in order to obtain your further guidance. I wish to add that I fully recognize that since the precise bearing of these provisions upon the conclusion expressed in your despatch has not been stated, I may have misunderstood their place in the argument upon which that conclusion is based.

19. If the exercise of the Governor's responsibilities in establishment matters affecting Departments under the general control of Executive Committees is in fact governed by Clause I of the Royal Instructions, there can, I think, be little doubt that the position would be generally as it is described in your despatch. It will be seen, however, that the clause mentioned prescribes the manner in which the Governor shall exercise. his reserve powers in regard to matters in which powers and functions are assigned by the Order in Council to Executive Committees and to the other authorities there named. The clause does not itself prescribe those matters and it would accord- ingly seem that before it can be decided that the exercise of the Governor's responsi- bilities in establishment matters is governed by that clause it would be necessary to show by reference to the Order in Council, and independently of the Royal Instructions, that powers and functions in regard to those matters have been assigned to authorities other than the Governor, mentioned in that clause.

20. Article 22 relates to the Governor's power to over-ride the decisions of the State Council in matters of paramount importance to the public interest and when he considers that a particular decision is essential to give effect to the provisions of the Order. In paragraph 6 above I considered the effect of this Article in so far as it relates to the legislative functions of the Council and suggested that no guidance as to division of executive responsibility in establishment masters could be obtained from that aspect of the Article. In so far as Article 22 relates to the Governor's power to