Chapter 6: The Soulbury Report

The Soulbury Report was published after Mr Senanayake had returned from London, but it was in proof when he arrived and should therefore be studied before an account of the London discussions is given. The first six chapters were written by Sir Frederick Rees. Detailed analysis shows that the Commission was not fully informed of the course of events since 1943.  Nor was it likely, unless something really important depended upon it, to deny the interpretation which the Secretary of State had placed upon the Declaration of 1943. Chapter V[1] does not tell us what was in the secret telegrams, and the strength of the Ministers’ case is not exhibited. The controversy is now of historical interest only, for its chief results were, first, that the Ministers neglected to enter into the controversy, which evidence before the Commission necessarily aroused and, secondly, that the Secretary of State invited Mr Senanayake to London.

Chapter VII[2] is a short explanation of the numbers and origin of the minorities ending with some general remarks on the difficulty of working a democratic system where there are racial divisions, and leading to an examination in Chapter VIII[3] of the allegations of “discrimination” made, mainly by the All–Ceylon Tamil Conference. The first was that the Buddhist Temporalities Ordnance had been so administered that the general population had to pay for the administration of Buddhist temporalities and that this was discrimination in favour of the Buddhists. The Commission found the allegation to be correct. The allegation that the Anuradhapura Preservation Ordinance was an example of discrimination was not upheld, nor was the Commission able to find discrimination in the development of the cooperative systems, the irrigation schemes, the medical service, education, or the public service. The Commission’s conclusion was that safeguards were necessary, “as indeed is recognized by the authors of S.P. XIV”, to reassure the minorities.

Chapter IX[4] deals with the Kandyan Problem. On the historical and legal controversy the Commission remarked that there was much to be said on both sides and that no useful purpose would be served by reviving it. The Kandyan Problem, in its view, was social and economic and could not be resolved by constitutional provisions.

The Commission thought that adult franchise, despite the abuses to which it had given rise, had been amply justified by the progress made since 1931 in the sphere of social reform. It considered any withdrawal of that franchise impracticable. Having rejected the “fifty–fifty” proposal of the Tamil Congress, the Commission reported as follows on the Ministers’ scheme of representation:–

  1. Under the Constitution in being before 1931, with thirty–four elected members in the Legislative Council, twenty–three were territorially elected and eleven communally. The Donoughmore Commissioners recommended the abolition of the communal seats and “consolidation of the people into a single territorial electorate”. They hoped that this alteration would “ultimately militate against the recording of votes merely on communal lines” and they further recommended that a local Commission should be appointed to redistribute territorial electoral areas on the basis of a population standard of 70,000 to 90,000, involving an increase in the number of members in the new Council to approximately sixty–five members elected territorially.

This recommendation was not fully carried out, for the State Council formed under the 1931 Order in Council consisted of no more than fifty territorial elected members. We are inclined to think that the reduction of sixty–five to fifty was detrimental to minority interests and was a mistake. As will be seen later, we are in favour of the proposal in S.P. XIV that the new Legislature should contain 101 members, of whom 95 should be elected territorially, and six nominated.

  1. There is, it is true, abundant evidence to show that the hopes of the Donoughmore Commission, that communal tension would eventually disappear as a result of territorial representation, have so far not been realised. For instance, no Sinhalese has any prospect of election in the Northern and Eastern Provinces where the Ceylon Tamils predominate, and in most of the Western and Southern portions of the Island a Tamil, whether Ceylon or Indian, has little or no chance. Language alone is a handicap to such candidates, but the electors undoubtedly tend to vote on racial and, to some extent, religious grounds. Many instances have been brought to our attention of unedifying appeals by candidates for support on such issues, but the alteration from communal to territorial representation in 1931 certainly did not originate, and, in our opinion, did not materially increase, communal differences. They are of far greater antiquity. But, as might have been expected, the electoral reforms brought out into the open and gave intensified public expression to underlying and deep–seated communal dissension. This is likely to continue so long as the electors allow themselves to be more concerned with racial preferences than with their material interests and prospects, and encourage candidates to lay stress upon the former. Indeed the impression we derived from some of the witnesses was reminiscent of the experiences of an envoy sent to report upon an Eastern country some two hundred years ago:–

Um bruit se répandit qu’il venu pour reformer toutes cesmaisons. Aussitôt il requt des mémoires de chacune d’elles; et les memoires disaient tous en substance; ‘Conservez–nous, et detruisez toutes les autres.

  1. But already we discern unmistakable signs of a change in the attitude of the electorate, brought about partly by universal suffrage and the resultant attention demanded from and paid by candidates to the social needs of their constituents, partly by the great increase in the powers of self–government under the 1931 Constitution, and partly by the dissemination of a world wider urge to provide a better standard of living for the poor and distressed. There are definite indications of the growth of a Left Wing movement more disposed to concentrate on social and economic than on communal issues. Nevertheless, we cannot expect any swift or immediate metamorphosis, and further development of the electoral conscience in this direction will depend largely upon the growth of education and representation, though superficially an attractive solution of racial differences and to some extent the line of least resistance, will be fatal to the emergence of that unquestioning sense of nationhood which is essential to the exercise of full self–government.
  1. We therefore reject any proposal calculated to reinforce the communal basis of election, and we prefer to develop the territorial method. We think, however, that there is force in the contention of the All–Ceylon Tamil Congress that territorial representation under present conditions tends to become simply numerical representation, and it seems to us that to that extent, and in the light of results, the recommendations of the Donoughmore Commissioners have pressed too hardly upon the minorities.
  1. This is recognised in the scheme of representation outlined in S.P. XIV. Its object is to give additional weightage to the minority communities, which it is claimed can be attained by giving weightage to area as well as to population. The scheme assumes a Legislature of 101 members, of whom 95 would be elected on a territorial basis and six nominated. It provides for each Province to have one member for every 75,000 inhabitants and an additional member for every 1,000 square miles of area. It proposes that a Delimitation Commission shall be appointed by the Governor with instructions to divide the Provinces so that each electoral district shall have as nearly as may be an equal number of persons; but also to take into account “the transport facilities of the Province, its physical features and the community or diversity of interest of its inhabitants. This community or diversity of interest may be economic or…social. On the average, each constituency would be about half the size of the present constituencies, and in the less thickly populated Provinces it would be much less than one half.” (S.P. XIV, Explanatory Memorandum, page 4, para 7.)
  1. We were furnished with statistics to illustrate the working out of this scheme, and we investigated it with the assistance of a number of witnesses who came before us. Its advocates estimate that the result would be that, of the 95 elected seats, 58 would go to Sinhalese candidates and 37 to the minority candidates (Ceylon Tamils 15; Indian Tamils 14, Muslims 8), making with the six nominated seats, a minority representation ion of 43 in a House of 101. Its critics – and notably the All–Ceylon Tamil Congress – describe the scheme as “a superficial attempt to satisfy the growing feeling behind the demand of the minorities for adequate representation and electoral self–preservation… its only virtue was that the electoral areas of Ceylon would come into measurable physical proportions.” It was their opinion that of the 95 elected seats, the minorities could best only secure 29, making with the nominated seats a minority representation of 35. They contended that the Northern and Eastern Provinces should consist of 25 constituencies so delimited as to ensure the return of 21 Ceylon Tamil members and four Muslims. The scheme in S.P. XIV proposes 16 constituencies for these two provinces, estimated to return 13 Ceylon Tamils and three Muslims.
  1. In the examination of the scheme in detail, the main objection raised was in regard to the instructions to the Delimitation Commission to provide that each electoral district should have as nearly as may be a given number of persons. It was pointed out that there were provinces where, On the basis of the seats allotted by the scheme and on the principle of one seat per 1,000 square miles and one seat for every 75,000 population, substantial minorities would be excluded from representation unless they reached a figure equal to the result of dividing the total population of the Province by the number of seats allotted to it. For instance, the estimate of results under this scheme forecasts one seat for the Muslim community, numbering some 21,000 in the Southern Province, to which 12 seats were allotted. But the population of that Province was, according to the incomplete census of 1931, 771, 000; and on the principle that each electoral district in the Province should have as nearly as may be an equal number of persons, the average population for each electoral district would be about 64,000.
  1. It was accordingly argued that there was no possibility under the scheme of providing a seat in this province for a representative of the Muslim community. It seems to us that this criticism has some substance, and indeed, in the forecast of results submitted to us by the sponsors of the scheme the exceptional character of three seats, including this Muslim seat, was recognised, although these seats were included in the estimated number of seats potentially available to the minorities. We think that this estimate cannot be upheld under the terms of reference proposed for the Delimitation Commission, and we are of opinion that the terms should be somewhat modified and enlarged, so that wherever it should appear to the Commission that there was a substantial concentration in any area of a Province of person united by a community of interests, whether a racial, religious or otherwise, the commission should be at liberty to modify the factor of numerical equality of persons in that area and make such division of the Province into electoral districts as might be necessary to render possible the representation of that interest.
  1. It was suggested to us that minority representation would be strengthened by the creation of multi–member constituencies on the ground that the only chance of representation for small minorities depended on their concentrating all their strength on candidates of their own choice in a multi–member constituency. It seems to us that it might be advantageous to adopt this method of representation in certain localities, for instance, in the City of Colombo a possibly in the Jaffna Peninsula, and particularly where divisions of caste in the same community are prominent. We therefore propose that the Delimitation Commission should be instructed to consider the creation of such constituencies in appropriate areas.
  1. The forecast of results also indicated 14 electoral divisions in which the Indian Tamils, principally estate labourers, would preponderate. At the moment they have only two elected representatives in the State Council. We think that this estimate should be accepted with caution, for it depends largely upon certain considerations affecting the franchise of those labourers, with which we have already dealt. Subject, however, to those considerations, we agree that a figure approximating to the estimated result could be achieved within the terms of reference which we propose for the Delimitation Commission.
  1. We admit, however that this scheme of representation by no means conforms to the strict canons of territorial election, and that it would not be unfair to describe it as a combination of territorial and communal representation. It should, however, be noted that there are precedents in the development of constituencies in the United Kingdom, where the boundaries of many constituencies appear to have been determined not only by factors of numerical equality, but geography and the common interests and associations of the inhabitants. Indeed, the British House of Commons took its name from “Communitates”, i.e. shires and boroughs, and had no reference to population at any rate, in the present circumstances of Ceylon we see no satisfactory way of securing a reasonable proportion of seats for the minorities, except by a method which combines territorial and communal elements.

But unlike the scheme of “balanced representation”, the weightage proposed in S.P. XIV does not guarantee the return of a candidate belonging to a particular community, and the electorate is free to exercise its own judgment and choose the best candidate irrespective of his race or religion. Yet without doubt it gives the minorities a better chance of representation than they would be entitled to on a strict basis of population. For this reason, we recommend that the proposal should be given a trial. We are informed that it is intended to hold the next census in April, 1946. For the purpose of the new Constitution it will be necessary to appoint a Delimitation Commission as soon as possible thereafter.

  1. Article 12 of S.P. XIV prescribes that “The Governor–General shall appoint a Delimitation Commission consisting of the Chief Justice or a Judge of the Supreme Court, who shall be Chairman and two other persons who shall not be members of the State Council”. We feel some doubt whether it is advisable to appoint a member of the Judiciary either as Chairman or member of a Commission whose findings would inevitably have far–reaching political consequences. We realise that the intention is to secure impartiality, but we should prefer the Governor–General to be unfettered in his selection of the members of the Delimitation Commission.
  1. Article 14 (i) of S.P. XIV proposes to appoint another Delimitation Commission within one year after the completion of every census. We agree with this proposal but we think that prior to the census following that of April, 1946, it would be desirable to set up a Select Committee of the Legislature to examine and report upon the working of the scheme of representation which we have recommended, with a view to formulating appropriate terms of reference for the Delimitation Commission due, on the assumption of a decennial census, to be appointed in or about 1956.

(NOTE: The figures supplied to us by the advocates of the scheme were the 1921 Census figures, being the only figures available to show the distribution of population by race.)

The following points should be noted:–

  • The estimate in paragraph 271 was not provided by the Ministers. My estimate had been 35–45 though this had never been shown to the Ministers. The number in 1947 was 33. If the Ceylon Tamil members had asked for 25 constituencies in the Northern and Eastern Provinces [unclear] they could probably have obtained them by some devices or other. But they asked for “fifty–fifty”.
  • The language suggested in paragraphs 271 and 272 made not the slightest difference. No Muslim seat could in fact have been provided in the Southern Province.
  • Paragraph 27 was based on a complete misunderstanding. Multimember constituencies benefit the majority unless the voting system is changed. This was in fact done by the Ministers after the publication of the Report, but it did not help the minority cases of Jaffna, which are too scattered to secure separate representation.
  • The estimate referred to in paragraph 274 was exaggerated because it referred to population and not electorates. In 1947 the Indian Tamils obtained seven seats.
  • To describe the Ministers’ scheme as a combination of territorial and communal representation, as is done in paragraph 275, is not entirely fair. It we recognized that electors prefer candidates of their own race, religion and caste, just as in Great Britain. Scottish constituencies prefer Scots, Welsh constituencies prefer Welshman, Nonconformists prefer Nonconformists, and Roman Catholics prefer Roman Catholics. The precedent was however provided not by the United Kingdom but by South Africa[5], though the Commission was evidently unaware of the fact.

The reference to the census of 1946 was ambiguous. Owing to the large increase among the Sinhalese, a distribution made on the census of 1946 would have been less favourable to the minorities than that based on the census of 1931. It was suggested to Mr Senanayake that in the circumstances it would be wise to retain the census of 1931 on the basis for distribution in 1947, since this would help the minorities. He and Lord Soulbury, who was consulted by the Secretary of State, agreed; and the new Constitution was drafted accordingly.

The Commission expressed very definite views about a second Chamber and since this was the Commission’s real contribution, it will be desirable to quote the sections of the Report dealing with the subject:–

  1. A considerable number of witnesses from all communities advocated the creation of a Second Chamber. The following were the principal reasons given in support of this proposal:–

(i) A Second Chamber would serve as [a check] upon hasty and ill–considered legislation to which a unicameral legislature, with a very short experience of responsibility and apt to be swayed by strong emotion and excitement, would be prone. Moreover, in view of the substantial reduction in the present classes of Reserved Bills contemplated by the 1943 Declaration such a check would become more necessary.

(ii) Persons of eminence and position, with high educational and intellectual attainments and possessing notable professional or administrative qualifications, were, under existing circumstances and the prevailing methods of electioneering, or for reasons of age or occupation, deterred from entering political life. Their services were lost to the counsels of a nation not blessed with a superfluity of persons of that calibre, and in their absence the Legislature was not fully representative of the country.

(iii) Unicameral government was contrary to the practice of every self–governing member of the British Commonwealth and of most major States in the world.

(iv) It would be easier in a Second than in a First Chamber to make adequate prevision for minority representation.

  1. All witnesses were agreed that the number of members in the Chamber should be smaller than that of the first and, on the assumption that under a new Constitution the latter would consist of about 100 members, opinions ranged from 30 to 50 as a suitable figure for membership of the former.
  1. Divergent proposals were put forward for the election of members to the second Chamber, varying from election on a restricted franchise, election by Provinces on the analogy of election to the Senate in the United States of America, by electoral colleges composed of local authorities or of associations representing law, medicine, commerce, industry and agriculture – i.e. functional or vocational election – to partial election by one or other of the above methods or by the First Chamber under the system of the single transferable vote, combined with nomination by the Governor, as in the case of Burma.
  1. The qualifications suggested were based mainly on educational attainments, certain scales of income and property, record of service and experience in public life, education, medicine or standing and authority in banking, commercial, industrial or agricultural, commercial, industrial or agricultural circles.
  1. The majority of the advocates of a Second Chamber were prepared to reserve to the First Chamber powers of legislation in matters of finance, but otherwise contemplated equal powers for each Chamber, provision being made for the solution of a deadlock by the device of joint sittings. A few witnesses recommended powers of delay like those possessed by the Second Chamber in the United Kingdom under the Parliament Act of 1911.
  1. It would seem that similar proposals were put, for similar reasons, before the Donoughmore Commissioners, though with less unanimity, but found little favour with them, The grounds for rejection are set out in their Report (pages 39 and 40) and may be summarised as follows:–

(i) In so far as the proposals submitted to them involved election to a Second Chamber on a communal basis, the Commissioners were unwilling to retain what they described as “a canker on the body politic” and expressed themselves as unable to appreciate “what useful purpose would be served by its abolition in the Lower and its perpetuation in the Upper House”.

(ii) They were less critical of election to the Second Chamber on a functional or vocational basis, but considered that it would “serve to perpetuate cleavages in the population which are largely artificial and would, by the identification of different classes with particular interests, obstruct those unifying tendencies which it must be the aim of true statesmanship to foster and to cherish.”

(iii) In either case and holding that a Second Chamber was always a potential source of friction, they were of opinion that, though inferior in scope and power, it “would neutralize to a large extent the transfer of responsibility to the elected representatives of the people”.

(iv)They clinched their arguments against the creation of a Second Chamber by two considerations –  financial and physical. It seemed to them that the minority communities were mainly apprehensive of financial discrimination and that fear of hasty legislation usually meant fear of taxation. But as it was impracticable to invest the Second Chamber with powers to initiate, amend or reject measures dealing with finance or taxation, it could afford little or no protection to minority interests against hasty legislation.

Furthermore, they had received “weighty evidence” that there was little likelihood of obtaining candidates of sufficient standing or authority for election to a Second Chamber without at the same time impairing the channel of supply to the Lower. In short, they concluded that a Second Chamber could not be established without a lowering of the standard and quality of members of the First Chamber and would be a constitutional luxury which the country could not afford.

  1. Before we come to our own conclusions and recommendations on this matter, we propose to examine first the decision reached by the Donoughmore Commissioners, and secondly the objections raised by certain witnesses who desired the retention of a unicameral legislature.

It appeared to be the general opinion that the outcome of the efforts of the Donoughmore Commissioners to remove the “canker of communal representation from the body politic” had been disappointing. We are not disposed to disagree, for it is abundantly clear to us that no alignment of the communities on party lines has yet emerged to take the place of communal division. We do not, however, subscribe to all the sweeping assertions made in evidence as to the extent of communalism, nor do we admit the existence of all the evils that are alleged to result from it. But in view of the failure to abolish communal representation in the State Council, the inconsistency of its perpetuation in a Second Chamber becomes less apparent. In any event, communalism in a Second Chamber, except perhaps to a limited extent, is by no means inevitable.

  1. We received no evidence to suggest that that functional or vocational basis of election would produce cleavages in the population, or would militate against unifying tendencies, and we are not aware that say such consequences have ensued elsewhere.
  1. Whether or not a Second Chamber must always be a potential source of friction, we are unable to say. But the fact that a bicameral legislature has been established by all the self–governing members of the British Commonwealth and most major States in the world suggests that the risk of friction is not widely regarded as serious. As if a Second Chamber were debarred from dealing with Finance Bills and, in regard to other Bills, were invested only with powers of delay, we do not feel that the responsibility of the elected representatives of the people need be appreciably impaired.
  1. The Donoughmore Commissioners thought that the minorities, in their fear of “hasty legislation”, usually had in mind measures of taxation, and they took the view, with which we agree, that it would not be practicable to invest a Second Chamber with power to protect minorities in the ease of such measures without giving to it a share in the responsibility for Finance.
  1. But we do not think that the power to delay measures other than financial, and thereby check hasty legislation, should be dismissed as of little account. In any event, it seemed to us from the evidence that the minorities were nervous, not so much of the methods of raising taxation, as of distributing the proceeds of it; not so much of legislation, financial or otherwise, as of administrative action, e.g. favouritism in the making of appointments to the Public Services and so forth.
  1. As regards the difficulty of finding suitable candidates for the Second Chamber without impairing the supply to the Lower, we do not know the number of members which the witnesses recommended to the Donoughmore Commission, but we find it very hard to believe that Ceylon is so short of persons of standing and ability that not even 30 suitable members could be found for the Second Chamber without detriment to the quality of the First. Moreover, it was part of the case of those advocating a Second Chamber that there were a number of eminent men prepared to play their part in a Second Chamber but unwilling to encounter the rough and tumble of popular election to the First.
  1. Some of the minority witnesses were disposed to be critical of a Second Chamber, but apparently their attitude was due to the fact that a Second Chamber might be treated as a substitute –– in their view, inadequate –– for increased representation to the First chamber, which was their main desire.
  1. The out–and–out–opponents of the proposal prodded the following grounds for their objection:–

(a) A Second Chamber was anti–democratic and would act as a check on all progressive measures and would result in the “whittling away of democratic rights already achieved”.

(b) Experience elsewhere had proved Second Chambers to be ineffective and impotent.

(c) In the words of Abbe Siéyès, “If a Second Chamber dissents from the First, it is mischievous; if it agrees, it is superfluous.”

(d) The Secretary of State for the Colonies and the Governor already constituted in themselves a Second Chamber. The Governor’s powers of overriding the Legislature provided an alternative to a Second Chamber, or, as one witness put it, “There is an Upper Chamber already existing for us in Whitehall”.

  1. In arriving at our conclusions, we have given very careful consideration to three factors:–

(i) The prospective changes in the Constitution arising from the greatly enlarged powers of the Government of Ceylon envisaged by the Declaration of 1943, and a corresponding reduction of the powers of the Governor.

(ii) The composition and character of the State Council.

(iii) The interests of the minority communities.

  1. Seventeen years ago, in view of the powers of the Governor at that time, and subsequently under the 1931 Constitution, there was little risk of hasty and ill–considered legislation reaching the Statute Book, and the urge for a Second Chamber was not insistent. But in view of the Declaration of 1943 and our proposals, the situation in due course become very different and we think that a Second Chamber will therefore be advisable – not only to fill the gap greeted by the diminution of the powers of the Governor, but as a means of averting – or minimising any conflict that might arise between the Governor–General and the Lower House in respect of those powers still left to him.
  1. Having studied many of the Debates in the State Council, we think that, in the particular circumstances of Ceylon, a Second Chamber can make a valuable contribution to the political education of the general public. As already pointed out, there are in Ceylon, as in other countries, a number of eminent individuals of high intellectual attainment and wide experience of affairs, who are averse to entering political life through the hurly–burly of a Parliamentary Election. But it would be an advantage to the country to enjoy the services of men upon whom party or communal ties may be expected to rest more lightly, and who can express their views freely and frankly without feeling themselves constrained to consider the possible repercussions upon their electoral prospects. In this connection, it may be useful to recall the observations of Walter Bagehot regarding the Legislature of the United Kingdom, “With a perfect Lower House it is certain that an Upper House would be scarcely of any value…but though beside an ideal House of Commons the Lords would be unnecessary…beside the actual House of a revising and leisured legislature is extremely useful…” (Bagehot: The English Constitution, Third Edition, page 107).
  1. As regards the minority communities, we have reason to hope that the element of communal representation will not figure largely in the composition of a Second Chamber, and we trust that in the First Chamber an increase in the number of seats, coupled with a fresh delimitation of constituencies, will put the minorities into a better position to resist the domination of which they profess to be apprehensive.
  1. But in any case, a Second Chamber will still be of value to the minorities, for, in the words of John Stuart Mill “a majority in a single assembly when it has assumed a permanent character –when composed of the same persons habitually acting together and always assured of victory in their own House – easily become despotic and overweening if released from the necessity of considering whether its acts will be concurred in by another constituted authority.” (John Stuart Mill: Representative Government Chap. XIII). Furthermore, we think that those who, rightly or wrongly, feel themselves menaced by majority action, may regard a Second Chamber not merely as an instrument for impeding precipitate legislation, but as a means of handling inflammatory issues in a cooler atmosphere.

We are fortified in our conclusions by the adoption of a bicameral Legislature in all the self–governing members of the British Empire and in most of the large States of the world. The investment of unicameral Legislatures with sovereign rights has become the exception and not the rule.

  1. Thus the balance of argument seems to us to be definitely in favour of a second Chamber, and it now remains to consider the number of its members, their qualifications, the method of selecting them, the powers to be conferred on their House and its duration.

NUMBER.

  1. We agree with the witnesses that membership of the Second Chamber should be substantially smaller than of the First, and we think that it should consist of 30 members.

QUALIFICATION.

  1. We think that a proportion of the members should be specifically chosen on the ground that they either possess a record of distinguished public service or are persons of eminence in professional, commercial, industrial, or agricultural life. We think it both unnecessary and undesirable to impose an income and property qualification.

SELECTION.

  1. After careful consideration of the various methods proposed to us, we have come to the following conclusions;–

(i) We do not favour an election on a restricted franchise, not only because it would involve complicated machinery and administration, but because the canvassing and other adjuncts of electioneering inevitable at an election, whether on restricted or universal franchise combined with the distance and difficulty of transport, would in our opinion act as a deterrent to my suitable candidates.

(ii) There is no provincial organisation in Ceylon comparable to the States of the United States of America, and no immediate prospect of establishing one.

(iii) There is more to be said in favour of an election by electoral colleges composed of local authorities. These consist of Municipal, Urban District and Village Councils. But we think that this method of election would not produce the results we have in mind, for it would tend towards the choice of members on local rather than national considerations. Furthermore, as in the case of elections on a restricted franchise, candidates for the Second Chamber would find themselves compelled to undertake electioneering campaigns.

(v) There is much to be said for election by associations on a functional or vocational basis, but we think that election cannot be confined to such associations, though we propose to make use of their services in a simpler fashion.

  1. We prefer the proposal that the Second Chamber should be selected partly by the First Chamber by means of the single transferable vote, and partly by nomination by the Governor–General; and we think that this method would ensure adequate representation of minorities in the Second Chamber. We understand that it has been adopted in Burma with satisfactory results.

POWERS.

  1. We ate not in favour of joint sessions as a means of setting a conflict between the two Houses. Not only do we think that such a device is more likely to encourage disagreement than agreement between them, but we cannot envisage with equanimity a situation in which a measure that has pressed the Lower House can be destroyed by means of the votes of the Second Chamber. We prefer that the powers conferred upon the Second Chamber should be powers of delay for the purpose of giving time for reflection and consideration, and we think that these powers should be somewhat similar to those possessed by the House of Lords in the United Kingdom under the Parliament Act of 1911.
  1. We propose that there shall be power to originate Bills other than Finance Bills in either Chamber. It will therefore be necessary for the Government to be represented in the Second Chamber, for we are not in favour of permitting Ministers who are members of the First Chamber to sit and speak in the Second.

Article 45(1) of S.P. XIV provides that Deputy Ministers not exceeding the number of Ministers may be appointed to assist the Ministers in the exercise of their Departments and Parliamentary duties. We prefer the term “Parliamentary Secretaries” and we think that not less than two Ministers and not more than two Parliamentary Secretaries, if such be appointed, should be members of the Second Chamber.

DURATION

  1. Whether the Second Chamber should be coterminous with the First, whether it should be subject to dissolution but at longer intervals than the First, or whether, as for example in the case of the United States Senate, it should not be subject to dissolution, but should renew itself at regular intervals by the retirement and replacement of a proportion of its members in rotation, are questions of great importance and considerable difficulty to which we have devoted much time and thought.
  1. Since there are in Ceylon, as we have pointed out earlier in this Chapter, important sections of opinion both in favour of and against the establishment of a Second Chamber it is necessary in forming our conclusions to take into account the reactions of each section. If a large measure of permanency and therefore independence is given to the Second Chamber, its opponents will regard it as a constant, threat to the First. If on the other hand the Second Chamber is subject to fear of dissolution and the vagaries of election (at least in so far as a proportion of its members are concerned), it will fail to provide the safeguard against hasty or discriminatory legislation which is one of the main desires of its supporters. If these considerations are applied to a Second Chamber coterminous with the First, it is apparent that in such a Chamber the fear of dissolution will be strong, especially among the elected members. Moreover, the election of these members, who form one half of the total personnel of the Chamber, will fall immediately after the General Election, i.e. precisely at the moment when political feeling is at its peak. We consider that a Second Chamber suffering from these disadvantages would not commend itself to those who would wish to see in it some safeguard against hasty action by the First Chamber.
  1. On the other hand a Second Chamber having a life of say seven years, as compared with the five year life of the Lower House, might be criticised as having too great a degree of permanency and being too irremovable to be sensitive to the current trend of political opinion. We are therefore inclined on balance to advocate the adoption as best suited to the conditions of Ceylon of the third of the courses we have mentioned, and to recommend that in a Second Chamber of thirty members, fifteen elected and fifteen nominated, five of each category should retire every three years in rotation, so that once normal working had been established each member would sit for nine years. The length of this period would ensure to individual members a feeling of security and of freedom of action and opinion, thus satisfying those who desire a Second Chamber primarily as a safeguarding body: while on the other hand contact with current political trends and sensitivity to popular feeling would be secured by the renewal of one third of the membership every three years, on occasions when, generally speaking, comparative political calm in between General Elections would exist.

On the constitution of the first chamber, the nature of the executive, and the public and judicial services, the commission accepted the Ministers’ scheme with slight amendments. It should however be noted that the assumption in paragraph 379 that the promotion, transfer, dismissal and disciplinary control of public officers were intended by the Ministers to be exercised on the advice of the Public Services Commission is unfounded; in fact, it is difficult to understand how the Soulbury Commission could have read any such intention into the draft which specifically mentions “appointments” only.

It will be seen that, so far as the machinery of government was concerned, the controversy with the Secretary of State, the volumes of briefs, the days of evidence in public and in private, the hospitality, the tours of the Island, and the rest, had produced approval of the Ministers’ draft with slight amendments (not always happy) and the addition of a Senate on the Burma model, a weak but not entirely impotent revising chamber.[6]

Very little of the evidence was directed towards what the Ministers regarded as the essential function of the Commission, to ascertain whether the Minister’s draft satisfied conditions (2) to (6) of the Declaration of 1943. What is more, the Commission was ill composed to exercise this particular function. In the discussions in A.R.P. Headquarters had always been assumed, until July 1944, that the method of conference would be chosen, i.e. Mr Senanayake would be summoned to London, that I would be cross–examined by the legal advisors to the Colonial Office would argue on the legal aspects, and that then Mr Senanayake would argue the case for the narrowest possible interpretation of the restrictions in the Declaration. The Commission contained no legal expert, however, and I was not asked to give evidence on the technical aspects of the draft.  The result was to use a colloquialism that Mr Senanayake “got away with” more than he had anticipated.

In the Ministers’ interpretation of June 8, 1943, the Declaration had been pressed as far as it could possibly go. If reference be made to the text it will be seen that the Ministers made the following assumptions:–

  • That paragraph (5)(a) of the Declaration could be expressed in the much narrower traditional formula and would be limited to Bills “of an extraordinary nature and importance” see paragraph (3);
  • That the Ceylon legislature would determine whether it would contribute to the cost of defence and, if so, how much: see paragraph (5);
  • That subject to the powers of the Governor, the Government and legislature of the Island would deal with defence and external affairs: see paragraph (6); and
  • That the composition of the population, protective duties and trade and shipping (subject to the qualification in the Declaration) were matters of internal civil administration: paragraph (7)

It seemed reasonably certain that His Majesty’s Government would not accept the last of these, because clearly protective duties (for instance) have both an internal and an external aspect and it was felt that if economic policy was used a political weapon His Majesty’s Government would insist on exercising some control. However the Ministers insisted on paragraph (7) being inserted. On the other points there was doubt. I thought a fair interpretation had been given, but naturally that which was not unfavourable to Ceylon.

In the Ministers’ draft the same principle was followed, that is every power was claimed for Ceylon that could reasonably be squeezed out of the Declaration as interpreted by the Ministers. The following points are worthy of special notice:–

  • Narrow definitions of “defence” and “external affairs” were inserted. The former was in the Declaration, though it may be doubted whether His Majesty’s Government intended it to be a definition. The Soulbury Commission (paragraph 353) recommended the amendment of the definition but not its deletion. The Chief Secretary and the Legal Secretary nevertheless advised its deletion, but Mr Senanayake in Ceylon and Sir Oliver Goonetilleke in London insisted on its retention in section 37 of the Order in Council. The definition of “external affairs” was not approved by the Soulbury Commission, which recommended that it be not defined at all (paragraph 357). When the Order in Council was under consideration, a slightly less vague phrase than “external affairs” was suggested and this was accepted. The real check on vagueness was, however, the qualifying clauses referred to below.
  • The Declaration did not state who was to bear the cost of defence, though the Ministers’ interpretation asserted that it must necessarily fall on the United Kingdom in so far as it was regulated by Governors’ Ordinance, Clause 39(2) of the Ministers’ draft accordingly provided that a Governor’s Ordinance should not impose a charge on the people of Ceylon. The Soulbury Commission’s recommendation was ambiguous (paragraph 354). As will be explained in the next chapter, Mr Senanayake in London secured the substitution of Orders in Council for Governors’ Ordinances, but the restriction inverted by the Ministers was in section 30(3) of the Constitution.
  • The Ministers also provided that a Governor’s Ordinance should not authorise the appointment or dismissal of any person to or from the public service. The Soulbury Commission disapproved (paragraph 354). The point was not particularly important, because in any case the cost had to fall on United Kingdom funds and Governors’ Ordinances were abolished. It was therefore dropped.
  • The Ministers provided in clause 39(3) that a Governor’s Ordinance should not enable the Governor to give instructions to a public officer except through a Minister. The Soulbury Commission disagreed (paragraph 355) and the point was not pressed because if the Ministers did not propose to collaborate the whole scheme would necessarily break down.
  • In clause 39(4) the Ministers required the Governor to consult the legislature before making a Governors’ Ordinance. The Soulbury Commission accepted the restriction in principle (paragraph 356) but it became irrelevant when Governors’ Ordinances were abolished.
  • In clause 39(5) the Ministers empowered the Ceylon legislature to repeal Governors’ Ordinance, Bills for this purpose being reserved. The Soulbury Commission accepted this proposal (paragraph 332), but the abolition of Governors’ Ordinances made it irrelevant.
  • In clause 40(a) the Ministers provided that defence and external affairs should not include immigration. Somewhat to our surprise because this was a matter in controversy with India and had caused difficulties in other parts the Commonwealth – the Soulbury Commission agreed (paragraph 235) provided that Ceylon legislation did not unreasonably restrict the re–entry of residents. The proviso was accepted and the provision appeared as section 37(2) (b) of the Constitution.
  • In clause 40(b) it was provided that defence and external affairs should not include the declaration or definition of citizenship rights. This seemed vague, and unnecessary if it was meant to include only matters like the franchise, but it was required by the Ministers. The Soulbury Commission agreed (paragraphs 237 and 238) but approved a qualification relating to the franchise which became section 37(2) (c) of the Constitution, and was later extended to include the whole of election law.
  • In clause 40(c) it was provided that defence and external affairs should not extend to the control of imports or import duties. The Soulbury Commission agreed, that differential duties were not imposed (paragraph 332) and Mr Senanayake accepted the proviso. Section 37(2) (d) of the Constitution provided accordingly.
  • The Ministers were anxious to have power to establish shipping services and provided accordingly in clause 40 (d). The Soulbury Commission considered (no doubt rightly) that this was not within the Declaration paragraph 338). Mr Senanayake took up this question in London and secured sanction in the White Paper. Section 37 (2) (e) was therefore inserted in the Order in Council.
  • The Ministers had claimed in their interpretation that defence and external affairs would be the jurisdiction of the Ceylon Government and legislature. To make certain of this the functions were specifically referred to in clause 44 of the Ministers’ draft as those of Ministers. The Soulbury Commission accepted this implicitly, but said that the functions should be exercised by the Prime Minister (paragraph 358). No objection being raised from Ceylon, provision was made in section 46 (4) of the Constitution.
  • There was a provision of the Ministers’ draft (clause 41) to make the exercise of the Governors’ special powers subject to interpretation by the courts. I did not think that His Majesty’s Government would agree, but the idea was that the more restrictions there were in the draft the more there were likely to be in the final Constitution: i.e. the compromise would be more favourable to the Ministers if there were provisions without precedent (which was true) and objected (paragraph 339). Mr Senanayake again raised the point on the draft Order in Council, but did not press it when objections were raised.
  • The Ministers gave the Ceylon Parliament power of extra–territorial Legislation (clause 11). The Soulbury Commission objected (paragraph 336) but as their reason was a poor one Mr Senanayake pressed the point. The legal advisers at the Colonial Office gave the better reason that the clause was of doubtful legal validity. It was not a matter of sufficient importance to justify a legal argument, and so it was dropped.
  • I had drawn the attention of Mr Senanayake to the fact that the Declaration had said nothing about constitutional amendments or disallowance of legislation, and advised him that His Majesty’s Government would probably want to retain powers for these purposes. Naturally the Ministers’ draft did not propose to give such powers. On the contrary it gave amending powers to the Ceylon Parliament. The Soulbury Commission allowed this amending power and said nothing about disallowance. It required, however, that the King in Council also have amending power (paragraph 337). This being less than we anticipated and constitutionally almost inevitable, no objection was raised and the appropriate provision was inserted in section 30 (4) of the Constitution.

It will be seen that the Commission accepted the main line of the scheme designed to satisfy conditions (2) to (6) of the Declaration, and that the general effect of their amendments was to complicate still further a series of provisions – mainly clauses 36 to 41 of the Ministers’ draft– which were already complicated. Elsewhere in the draft the Ministers’ aim had been simplicity and elasticity, which in a Constitution are cognate qualities: in dealing with these clauses the Ministers did not care how complicated and unworkable– again cognate qualities – they were. Mr Senanayake certainly knew that the scheme as drafted would never work. The precautions insisted upon by His Majesty’s Government were designed mainly for an emergency such as a war, internal disorder, or severe economic disturbance. If the Governor and the Cabinet worked together the powers would be unnecessary; if they did not they would be inadequate. What the Ministers hoped, as the interpretation of June 8, 1943, said, was that the power would “decay through disuse”; but if the Governor did in fact use his extraordinary powers they had not the slightest objection to his finding himself in constitutional difficulties. In drafting these clauses our task was not to produce an arrangement which would work but to cut down the extraordinary powers to the bare minimum required by the Declaration of 1943. It should be realised, too, that we contemplated a “commission or conference” at which the Ministers would negotiate an agreed scheme, and some of the restrictions, particularly in clause 30 of the draft, were put in so that the Ministers could compromise without conceding much. The Soulbury Commission was not the sort of “commission or conference” contemplated by the Ministers, but Mr Senanayake’s tactics were equally successful. He pointed out to the Secretary of State that the system of Governors’ Ordinances was so complicated that it could not work and all that was necessary, if His Majesty’s Government insisted on limitations on self–government, was the power vested in His Majesty’s Government at the Commission’s suggestion to issue Orders in Council. Thus the Ministers produced a complicated scheme; the Commission made it more complicated; and then the Secretary of State agreed that it could not be worked.

The only other change of importance recommended by the Commission was a considerable enlargement of the powers of the Public Service Commission. Clause 64 of the Ministers’ draft empowered the Commission to recommend all appointments to the public service. In paragraph 379 of the Soulbury Report it was “assumed” that it was the intention of the framers of the Ministers’ draft that the Governors’ powers in respect of promotion, transfer, dismissal and disciplinary control should be similarly exercised. If the framers so intended they would have said so; and in fact what they intended was that these functions should be exercised on ministerial advice in accordance with clause 36(1) of the draft. There were grave doubts whether the Public Service Commission could work successfully if it had these enlarged powers, for questions relating to personnel are more difficult in Ceylon than in the United Kingdom. Since these provisions were designed to protect minorities, however, it was decided not to raise objections to the Commission’s proposal.

Taking the Commission’s report as a whole, it will be seen that the only considerable change in the Ministers’ scheme was the addition of a Senate.  In fact, one of the modified versions of the Ministers’ draft, produced to enable Mr Senanayake to see the effects of the Soulbury Report and the White Paper, was taken by the draftsmen of the Orders in Council as their basis. The whole was redrafted, but essentially the Order in Council of 1946 was the eleventh edition of the Ministers’ draft.

[1] Soulbury Report, Chapter V: “The Donoughmore Constitution: Developments since the 1943 Declaration”.

[2] Soulbury Report, Chapter VII: “The Minorities”.

[3] Soulbury Report, Chapter VIII: “Discrimination”.

[4] Soulbury Report, Chapter VIII: “The Kandyan Problem”.

[5] The South Africa Act 1909 provided for the Cape Colony to have distinct franchises that provided limited electoral participation of non–whites in the Union.

[6] The Government of Burma Act 1935 created in 1937 a Senate for Burma of 36 members with limited powers in relation to the 132 member House of Representatives.

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