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PUBLIC RECORD OFFICE

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TLC.O.882/11

PUBLIC RECORD OFFICE, LONDON

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

C. 73230/7/30 '[No. 24].'

172

No. 131.

THE OFFICER ADMINISTERING THE GOVERNMENT to

(Confidential.)

THE SECRETARY OF STATE. (Received 18th August, 1930.)

[Answered by No. 133.]

MY LORD,

Queen's House, Colombo, 30th July, 1930. I HAVE the honour to enclose herewith a revised draft of the Order in Council* which will be necessary to introduce the new Constitution. The draft, which for facility of reference I have headed" First Revise," has been prepared under my direction by Mr. Jackson, the Attorney-General, who was placed on special duty for this purpose. I have not considered it practicable to consult my Executive Council upon a measure of this complexity, but the whole of the provisions of the draft have been reviewed by an informal Committee consisting of myself, the Acting Colonial Secretary, Mr. Jackson, Sir Robert Johnson, and Mr. T. Reid, who has been engaged with Sir Robert Johnson in studying the details of the application of the new Constitution. Sir Wilfrid Woods was present at our deliberations when we were discussing the financial provisions of the draft and those relating to the Public Services. The draft represents the agreed conclusions of all those mentioned above. I also enclose an exhaustive comparative table,* prepared by Mr. Jackson, in which he compares the provisions of this draft with those of the Colonial Office draft (headed third draft) which was received under cover of Your Lordship's Confidential despatch of 6th February, 1930.† In order to facilitate consideration of the draft in the Colonial Oflice I am sending to Your Lordship 12 copies of this despatch and its enclosures. I have also sent one copy direct to Sir Herbert Stanley.

2. Mr. Jackson's comparative statement is so thorough, and states with such clearness and accuracy my reasons for the very substantial departure from the Colonial Office draft which I have found necessary, that any further explanation of those reasons may seem almost superfluous. I propose, therefore, in this despatch to deal only with I shall, however, the more important questions of principle involved in the draft.

find it necessary in some cases to go beyond the provisions of the Order in Council itself and to discuss the lines on which it is proposed, in other documents, to make provisions subsidiary to and arising from those contained in the Order. The references in the headings of subsequent paragraphs of this despatch are to clauses in the draft enclosed herewith.

Clause 4 (2).

3. The term "Head of a Department" has, in Ceylon, come to be used in a somewhat anomalous sense. It is, in fact. regarded almost as a title, carrying with it the right of direct correspondence with the Colonial Secretary. Government Agents, District Judges, and Fiscals, are, for example, known as Heads of Departments. although they clearly do not come within the ordinary connotation of the term. I propose that in future the term should be strictly confined to officers administering Departments. It is, however, necessary to apply to Government Agents the provisions of this Order relating to Heads of Departments. In this connexion I would invite a reference to paragraph 10 of this despatch.

Your Lordship will observe that I have made no general provision, such as appeared in Clause 3 (3) of the Colonial Office draft, for the revoking by the Governor of appointments made by him under the Order. I see no reason, in a constitution of this nature, for giving the Governor the power to dismiss Ministers. Provision for revoking other appointments is made in the Clauses authorizing such appointments.

Clause 6.

4. I have throughout the draft given the Treasurer the title of Treasurer and Financial Adviser. The reasons for advocating this change were given in my despatch No. 379 dated 9th May, 1930.‡

Clauses 11 to 15.

5. I consider it of great importance that there should be no distinction whatso- ever, save in the manner of their appointment, between nominated and elected members. With the disappearance of the official vote. it is of no importance that

* Not printed here.

+ C. 63230/29 [No. 21]: not printed.

↑ No. 55.

173

nominated members should support the Officers of State if the latter happen to differ from the majority of the Council, and we should endeavour to remove any ground for suspicion that they are under an obligation to do so. All we are concerned to secure is that they should be sound representative men who will take a full share in all the activities of the Council. I do not conceive it as likely that any of them will be elected as Ministers, at any rate in the first instance. But to create the impression that they are in any way beholden to the Governor, and, in particular, to render them liable to removal at his pleasure, would do away with the last chance of their being so elected.

Clauses 22 to 96.

6. I presume that clauses dealing with the registration of voters and with election procedure were included as a substantive part of the Colonial Office draft because this procedure had been followed in the draft Order in Council submitted to Mr. Amery under cover of Sir Hugh Clifford's despatch No. 111 dated 22nd February, 1927.* I can see no advantage in this procedure; in fact, it appears to me quite unsuitable that details of this nature should form one-half of an Order in Council introducing a new Constitution. Further, so long as the nature of the franchise is laid down in the Order, I consider that the method of registration of voters and the details of election procedure might well be left at the discretion of the local Legislature. It would be impracticable to pass a local Ordinance for this purpose before the introduction of the new Constitu- tion. But it is quite probable that the experience of the first election under the extended franchise may prove that considerable modifications in the procedure now suggested are desirable. The State Council itself appears to me to be the proper body to introduce such modifications. While, therefore. I have for the present included these clauses in the draft of the main Order in Council. I propose that they should form the subiect of a separate Order in Council, to be replaced by a local Ordinance if and when the State Council desire to substitute other provisions which the Secretary of State could advise His Majesty to accept. In anticipation of Your Lordship's approval of this procedure I am causing fresh drafts of two Orders in Council to be prepared, and will forward them as soon as Your Lordshin's approval is intimated to me. I should

be grateful if Your Lordship's instructions on this point could be communicated to me by telegram. I have nothing to add to the comments on these clauses which are con- tained in Mr. Jackson's comparative table.

Clause 102.

7. This clause, which refers expressly to the executive as well as to the legislative acts of the Council, introduces an important principle which did not find a place in the Colonial Office draft. It makes it possible for the Governor to initiate proposals in the State Council. This is in accordance with the report of the Special Commissioners, who recommended (page 75) that "the Governor should be vested with power to enact legislation himself " and (page 76) that in executive matters "he should be given similar powers to those advocated in the legislative field." The Commissioners, how- ever, only considered the possibility of the Council refusing to pass a measure which had been brought before them. They did not consider the more likely event of the Board of Ministers or Executive Committees concerned refusing to bring forward a motion considered by the Governor to be of paramount importance or essential to give effect to any of the provisions of the Order in Council. This possibility clearly cannot be overlooked. The only action open to the Governor in this event, under the Colonial Office draft, would be to dissolve the Council, with no certainty, and indeed little likelihood, that its successor would prove more amenable. The absence of any pro- vision enabling the Governor to initiate proposals in the State Council would, in my opinion, render his reserve powers less effective than the Donoughmore Commission intended that they should be.

Your Lordship will observe in Clause 102 (b) I have made provision for the Governor to declare that any Bill, &c., is essential to carry out the provisions of the Order in Council. The Colonial Office draft (Clause 119) provided that the Governor might declare any such Bill, &c.. to be of paramount importance. The difference in drafting involves no principle of great importance, but I am inclined to the opinion that it would be desirable to preserve, in the declaration by the Governor, a difference between matters of paramount importance and matters essential to the carrving ont of the provisions of the Order in Council.

*No. 3 in Eastern No. 146.