Chapter 9: The Constitution of 1946

Mr Senanayake mentioned in his speech on the White Paper that he had a new draft Constitution prepared. It was in fact the eleventh and last edition of the Ministers’ draft and was produced in case it was needed to persuade doubtful votes. It had been made plain from the beginning that the draft was a “complete constitutional scheme” and not a Constitution, for it would require redrafting before it could be enacted. The eleventh edition was forwarded to the Governor by Mr Senanayake so that the draftsman could make what use of it he thought fit. Sir Barclay Nihill invited Mr B. P. Peiris[1], of the Legal Draftsman’s Department, to prepare the formal draft. The basis of the draft was later explained by the Legal Secretary, as follows:

The document purports to reflect faithfully the recommendations of the Soulbury Commission as modified by the decisions of His Majesty’s Government, set out in the White paper published in the Ceylon Government Gazette of October 31, 1945. I have had before me, during drafting, the Ministers’ Scheme and the draft Order in Council prepared by Dr Jennings and forwarded to your Excellency by Mr Senanayake under cover of his letter of November 21, 1945.

As regards form, Your Excellency will notice that I have adopted a different set up to that followed by the Ministers’ Scheme and in Dr Jennings’ draft. The distinction between ‘a day of operation’ and ‘an appointed day’ disappears. Instead, the various parts of the Order will be brought into operation as they are required… In Part IX have been placed all those transitional provisions which will become spent once the new Constitution is in full working order, and this Part appears at the end of the Order. I consider that this set up has advantages over the method previously followed. The Constitution once fully established will not contain in its main Parts provisions which by then will have lost applicability and the disappearance of the terms ‘day of operation’ and ‘appointed day’ will I hope make the Order less difficult to follow particularly to laymen.

Mr Peiris did not, however, merely amend the draft. The Soulbury Commission had approved large parts of the ninth version of the Ministers’ draft and the substance of these parts had necessarily to be inserted: but the foundation of his draft was the Soulbury Report as amended by the White Paper. He therefore made a very full analysis of the Report which became, so to speak, his terms of reference. His first draft was discussed and amended by Sir Robert Drayton and Sir Barclay Nihill at a conference in the Chief Secretary’s Lodge at Nuwara Eliya during Christmas, 1945, and the New Year. I received a copy of the revised version on the 10th January 1946, and raised no less than 88 points, of which many were mere suggestions for improving the drafting. These were discussed at a two–day conference in Temple Trees, at which the Legal Secretary, Mr Peiris, and I were present. A considerable number of minor changes was agreed, but some 30 major points were left for discussion with Mr Senanayake. The second revised draft having been prepared, Mr Senanayake was added to the discussions, and the number of points of disagreement was reduced to 18.

These were discussed at a conference at Queen’s Cottage[2], Nuwara Eliya, at which the Governor, the Chief Secretary, the Legal Secretary and Mr Senanayake were present. I stayed in Mr Senanayake’s bungalow at Nuwara Eliya with his secretary and a clerk. Sir Barclay Nihill was leaving for London with the revised draft almost immediately, but by another happy and fruitful coincidence, Sir Oliver Goonetilleke had already left for discussions with the Board of Trade. What is more, Mr L. M. D. de Silva was appearing before the Judicial Committee of the Privy Council and so was available to advise Sir Oliver on legal questions. My task, therefore, was not only to advise Mr Senanayake on the legal points being raised in Queen’s Cottage, but also to send to Sir Oliver a very frank statement of the matters in dispute so that he could take them up with the Colonial Office.

By this time the draft had been much improved. In preparing the tenth and eleventh editions I had not only inserted the changes required by the Soulbury Commission and the White Paper but also made such incidental amendments as would, I thought, make the Constitution work with less friction and ease the transition. In particular, I provided for the amendment by administrative action of the Legislative Enactments, the Public Service Regulations, the Financial Regulations, and the Standing Orders. These changes were incorporated in the Legal Secretary’s official drafts. The discussions on those drafts had produced a more polished document, but Mr Senanayake desired Sir Oliver Goonetilleke to raise the following points, among others, in London:–

  • He was anxious for some declaration about Dominion Status to be included in the preamble. The tenth and eleventh drafts had contained such a declaration, but it was modified by the Chief Secretary and the Legal Secretary. A slight amendment was approved in Nuwara Eliya, but eventually Sir Oliver Goonetilleke’s suggestion to have the whole paragraph 10 of the White Paper included was adopted. This gave it a more formal status and improved its publicity value.
  • Mr Senanayake wanted the Governor’s discretionary powers to be permissive and not compulsory: e.g. he did not want the Governor to be compelled to reserve Bills of the specified classes but only empowered to do so. What he had in mind was that the powers might become atrophied by disuse, and in fact the new Cabinet might face objections if the Governor used them too often. Sir Oliver was not able to get this accepted.
  • The Chief Secretary took the view that the Soulbury Commission wanted Members of Parliament to be disqualified from election or nomination to the Senate. Mr Senanayake took the view that it did not and that the Prime Minister should be able to get a person transferred to the Senate in order to make him a Minister or to leave a seat vacant for a Minister. Sir Oliver won this point.
  • Mr Senanayake was very insistent that “Defence” and “External affairs” should be defined and a specific provision inserted to prevent Orders in Council imposing charges on the revenue or controlling imports and exports. Our definition of “Defence” was accepted in relation to reservation but not to Orders in Council, and a phrase somewhat less vague than “external affairs” was accepted by the Chief Secretary. Further, charges on the revenue and control of trade were excluded. He thus won five–sixths of this argument.
  • Knowing the difficulties which had arisen in the United Kingdom I was anxious to extend the definition of “Money Bill”. The Chief Secretary and the Legal Secretary, however, felt bound to insert the definition of the Parliament Act, 1911[3]. I therefore advised Sir Oliver to consult Mr E. A. Fellowes, Second Clerk Assistant in the House of Commons. He did so, and this professional advice proved persuasive, the definition of the eleventh draft being incorporated with one slight omission.
  • Mr Senanayake was anxious to prevent the constituencies in each Province being too disproportionate. His proposal for a 15 per cent variation from the normal was not accepted, but the Colonial Office saw the point and reverted particularly to the language of the Ministers’ draft.
  • Mr Senanayake wanted the Governor to have a discretion to refuse a recommendation from the Public Service Commission, and though the Legal Secretary objected the proposal was accepted in London.

A good many changes were made in London, mainly of a drafting order, and the complete draft was not available in Ceylon until the end of April [1946]. Mr Senanayake and Sir Oliver Goonetilleke brought it to Bandarawela, where I was staying, and I read it through late at night.[4] There were minor points on which one might have quarrelled with the draftsman, but on the whole it was a good draft.  As always, the Colonial Office had been more elastic and readier to meet Mr Senanayake’s point of view than the Chief Secretary and the Legal Secretary, and Mr Senanayake went on to Nuwara Eliya after midnight in order that His Excellency might telegraph his acceptance of the draft.

In view of the controversy which has since developed over the disqualification of persons who have served terms of imprisonment [it is] convenient to trace the clause which became section 13(3)(f) of the Constitution. In the Ministers’ draft (Sessional Paper XIV of 1944) there was a disqualification for seven years for a person who had been sentenced to a term of imprisonment of three months or longer for an offence which was not in Chapter VI of the Penal Code (which deals with what are popularly known as political offences). The Soulbury Commission (paragraph 318) disapproved, but its suggestion for replacing it was obscure and I frankly did not know what it meant, in the eleventh draft I excluded any person [who] was serving a sentence of twelve months or more for any offence. The Legal Secretary in his first draft inserted what is in substance the present law, though drafting amendments were made in London. When the draft was examined at our conference at Temple Trees I drew attention to this divergence from my draft, and we examined the paragraph of the Soulbury Report. After some discussion I agreed with the Legal Secretary that his draft was more likely to be correct than mine, chiefly because my interpretation assumed that one sentence of the paragraph was a complete mistake, whereas Sir Barclay’s interpretation gave it a meaning. When Mr Senanayake attended next day, therefore, I mentioned this clause and said that I thought the Legal Secretary’s view was correct. Accordingly, it was never discussed by Mr Senanayake. Nor did anybody in my hearing discuss who would be excluded by it. Indeed I am quite certain that the Legal Secretary did not realise that any specified individual would be disqualified. After the Order in Council was enacted I was present when Sir Barclay was first informed of the allegation, that Dr S.A. Wickremasinghe[5] was disqualified. Sir Barclay said that he did not know whether this was correct, but that he would find out. The allegation that Mr Senanayake had this clause inserted in order to disqualify a political opponent is therefore incorrect. The clause was never discussed by Mr Senanayake but was agreed between the legal advisers as a correct interpretation of the Soulbury Report.

The Order in Council was made on the 15th of May 1946 and published in the Gazette two days later. Mr Senanayake felt that the Colonial Office had played the game with him. It could not go outside the Cabinet decision embodied in the White Paper, but within those limits it was willing to meet his views. It would be both unnecessary and tedious to examine the many variations between Sessional Paper XIV of 1944 and the Order in Council, but they were considerable and, except where specific recommendations had been made by the Soulbury Commission, they had generally resulted in an enlargement of the area of self–government. On the other hand, no attempt was made by Mr Senanayake to whittle down the protection given to minorities. In the eleventh draft I had inserted the provision in the eighth draft (Sessional Paper XIV of 1944) which made the distribution of seats dependent on the last census for the time being, though I pointed out that this would result in a modification of the distribution set out in the memorandum attached to the eighth draft, because the 1946 census figures would be available before the Delimitation Commission was appointed. The Legal Secretary later raised the same point, and it was agreed that Lord Soulbury should be consulted. Lord Soulbury considered, and the Secretary of State concurred, that since expectation had been founded on the distribution set out in the Ministers’ memorandum it would be better to retain the 1931 census as the basis. As soon as the 1946 figures were available I worked out a revised distribution on that basis and shared it [with] Mr Senanayake. Since it showed a higher proportionate representation for the Sinhalese areas, Mr Senanayake agreed that it would be better to leave things as they were and the 1931 basis was accordingly retained.

The administrative action consequential upon the new Constitution took three lines. First, a Delimitation Commission consisting of Messrs L. M. D. De Silva K.C., N. Nadarajah[6] K.C., and C. E. Jansz was set up. It then became necessary to decide whether the existing voting system should operate in multi–member constituencies. If in a two–member constituency each elector had one vote for each of two candidates the arrangement would benefit the majority. If each elector had only one vote minorities would be benefited but a section of the population would be virtually disfranchised. The Board of Ministers therefore decided that each should have two votes which he could cast either for one or for two candidates. This would encourage minorities to concentrate their votes. The new Election Order in Council, which retained the existing franchise but altered the method of voting from the coloured ballot box system to the illustrated ballot–paper system, was drafted accordingly.

Secondly, new registers of electors had to be compiled by the Legal Secretary, and Mr E. R. Sudbury[7], was placed in charge of parliamentary elections. It will be generally agreed that the arrangements were admirable, though it would not seem impossible at subsequent elections to reduce the period of elections.

Finally, Sir Charles Collins[8], was placed in charge of administrative changes and spent some months in England studying the working of the Cabinet system. On his return he produced a memorandum on Cabinet procedure, a draft Proclamation to amend the Legislative Enactments, Public Service Regulations, and Financial Regulations. The amount of work involved was immense and the documents when published fill a very bulky volume. The documents were forwarded to me by Mr Senanayake, but my task was merely to read, check and if necessary criticise. The draft Proclamation was also studied by Mr H. H. Basnayake K.C., the draftsman of the Legislative Enactments. The points of difference were settled at a conference which Sir Charles Collins summoned as Acting Chief Secretary. The new Standing Orders of the Senate and the House of Representatives required expert guidance and Mr E. A. Fellowes came to Ceylon for the purpose.

[1] Bernard Percival Peiris, Legal Draftsman; later Secretary to the Cabinet.

[2] The Governor’s official residence in Nuwara Eliya.

[3] Act of the United Kingdom Parliament, which covered the legislative role of the House of Lords in response to the political crises following the rejection of the Budget of Liberal Chancellor of the Exchequer, Lloyd George, by the House of Lords.  The Act effectively removed the upper house’s ability to veto “Money Bills”.

[4] IJ notes: If he ever reads this, a European who looked like a planter may welcome a belated apology. For greater secrecy, Mr Senanayake and Sir Oliver Goonetilleke came up to my room. I regret to say that we made a great deal of noise over our discussions, and the European, who was trying to sleep next door, came in three times to complain.  He obviously did not recognize my guests, and naturally I did not enlighten him. He was very good tempered about it, and he may like to know that his good temper contributed to the Constitution of Ceylon.”

[5] Dr Sugiswara Abeywardena Wickramasinghe, founder of the Ceylon Communist Party and member of the State Council from 1931; jailed twice for public agitation against the State.

[6] Namasivayam Nadarajah, Ceylon jurist; later Justice of the Supreme Court.

[7] C.C.S.

[8] Sir Charles H. Collins, C.C.S; acted as Chief Secretary and Financial Secretary during 1940s.

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