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.

Chapter 5: The Soulbury Commission

Whatever criticism there may be of the Soulbury Commission, nobody could criticise its composition. It was smaller, but much better balanced, than the Donoughmore Commission. Its chairman, Lord Soulbury[1], had been educated in Uppingham[2] with Sir Andrew Caldecott, had been a scholar of University College, Oxford, and “had kept up his classics”, so that he could read a paper to the Classical Association almost without preparation. He had been Minister of Education in Winston Churchill’s Government and therefore (unlike the members of the Donoughmore Commission) had had Cabinet experience[3]. He got on very well with people, and this was important in the circumstances, because he would be able to meet socially some sections of opinion which would keep away from him officially. His Commission was bound to engender some excitement and much controversy. It was important that he could, and did, take part in social activities which had no direct reference to politics.

Perhaps the finer points were lost in Ceylon. Few seem to have appreciated the quotation from Voltaire in paragraph 266 of the Soulbury Report. Commenting on the evidence given to them, the Commissioners remark that the impression conveyed by some of it was reminiscent of the experiences of an envoy sent to report upon an Eastern country some two hundred years ago. There followed the quotation which may be translated somewhat as follows:–

A rumour was spread that he had come to reform all these houses. Soon he received memoranda from each of them; and in substance all the memoranda said: ‘Save us, and destroy all the others’

The origin of the quotation, told me by Lord Soulbury in London, delighted me even more. In Kurunegala Resthouse (I think) a European planter gave him an English translation, knowing only that it came from Voltaire. The resources of University College, Cardiff[4], were called upon to supply the Commission with the original.  I fear, though, that this is a piece of English humour – even though the quotation is in French – which will not be fully appreciated in Ceylon.

Sir Frederick Rees[5] was of a different type, though a type equally rare in Ceylon and therefore equally acceptable. He was a scholar and therefore highly appreciated in a country which welcomes scholars, or at least the holders of degrees. He was, too, extremely modest. To find a person who forgot that he was being knighted and did not even look at the newspaper until he had been congratulated by a civil servant, was strange to a country where every muhandiram[6] had to have a tamasha. Nor did he lack a sense of humour. Nothing could have been more delightful than his Convocation Address, in which he talked for twenty minutes about Wales before the audience realised that he was talking about Ceylon. His special quality, however, was deflate histrionics so dear to the Ceylonese politicians and therefore to the witnesses before the Soulbury Commission.  One does not preside over university committees for long without realising that most of those who talk the most talk through their hats. There was hardly a witness before the Commission who did not grossly overstate his case. These oratorical balloons were punctured by innocent little questions from Sir Frederick Rees.

Whoever chose Mr (afterwards Sir) Frederick Burrows[7] was another genius. I suspect that his contribution to the Soulbury Report was probably small. A Labour politician would probably have talked at enormous length and made agreement difficult. Mr Burrows contented himself with an occasional joke: but he did one extremely useful job – he stopped the “imperialists” (as the Ceylonese would call them) among the Europeans from spoiling the atmosphere by raising issues which had been decided against them. The five thousand Europeans in Ceylon formed the smallest of the communities but they were fundamental to its economy because they controlled the production of most of the wealth. They were not, as most young Ceylonese seemed to think, “ruddy capitalists”. Most of them were in fact comparatively poorly–paid employees of limited companies. They were, however, the type with which Mr Burrows was very familiar. They were “the bosses” because they managed estates and commercial companies and therefore controlled labour.  In most cases their education, on Ceylonese standards, was defective, but the education which they have received (in the public schools or in the harder school of experience) has taught them to be honest, efficient and hardworking.  In fact in a tight corner nobody could hope for better support than a handful of planters.  Their politics, perhaps, tend to be jejune and they are apt to say stupid things in their clubs.  They had no real concern with the Soulbury Commission because the Declaration had specifically provided for internal self–government, and the most they could hope for was some provision to prevent immigration legislation discriminating against Europeans. Somebody had to keep them quiet, however, and Mr Burrows did so.

It may seem strange that people who disliked trade unions should like a trade unionist: but Englishmen have a remarkable facility for opposing a reform until they have to access it and then pointing out how sensible their reform is. Trade unionism in England was hotly opposed until it became inevitable and now Englishmen take pride in their trade unions.  When a genuine trade union leader came to Ceylon he merely showed how feeble and indeed pernicious were Ceylon’s attempts at trade unionism. Besides, Mr Burrows had been a sergeant in the Guards[8], and there was nothing wrong with the Guards. Finally, he was skilled in handling “bosses”. In England a trade unionist dines with the directors, listening to their theories on economics, caps their best jokes, and remarks on leaving: “sorry, but I don’t agree with you”. Sir Frederick Burrows did all that.

It will be remembered that the Ministers declined to take part in the deliberation of the Commission and withdrew their draft Constitution, though when the request was made they did not hesitate to publish it. When they had declined they had hoped to persuade His Majesty’s Government to alter the terms of reference; after the 1st August, when the correspondence with Mr Ponnambalam was examined for the first time, it was seen that the hope was vain. It would not have been possible to withdraw their decision with any dignity, but in any case it was not desirable that they should. The Ministers had had no objection to consultation with the minorities; what they believed was that the Commission would worsen communal relationships by compelling the communal leaders to attack each other. It was better that they should stand aside from the process, which was sure to develop, by which the pot and the kettle accused each other of being black, provided that the result was not to convince the Commission that the minority leaders had a case. The Ministers’ Draft was the answer to most accusations, for it was obviously much more favourable to the minorities than the Donoughmore Constitution. It could not be alleged successfully as an example of “discrimination”. It was known from Mr Ponnambalam’s marathon speech in 1939 that he would allege discrimination in respect of irrigation schemes and Buddhist temporalities.[9] Memoranda on these points were prepared, and that on irrigation schemes, at least, was completely convincing.

At this stage, after the announcement of the personnel of the commission, Sir Oliver Goonetilleke discovered that he had to discuss food questions with the [unclear] officials of the Ministry of Food. Not merely common courtesy but also the diplomacy of the Colonial Office suggested that he should meet the members of the Commission. The gist of his conversations has not been recorded; but on his return to Ceylon he was able to suggest a plan of campaign which Mr Senanayake accepted. There was no intention of hiding anything; there was nothing to hide. The Commission’s formal sessions would be dominated by politics, recrimination, personal ambition and puerilities, a game of which, unfortunately, the Ministers were not to take part. Mr Senanayake’s task was to make certain that the Commissioners saw the real Ceylon. This was a matter which only the Civil Defence Commissioner could undertake. He knew the Commissioners and their secretary already[10] and could make suggestions to them; he could, on the other hand, initiate invitations which they would feel bound to accept. Their first four days were filled with what may be called” Goonetilleke invitations”; there was an interval of a couple of days while they stayed with the new Governor, Sir Henry Moore, in Nuwara Eliya; then followed more invitations, mainly inspired by Sir Oliver Goonetilleke, and then Mr Senanayake’s conducted tour, a nicely balanced mixture of culture and agriculture – Peradeniya, Minipe, Kandy, Dambulla, Sigiriya, Polunnaruwa, Mineriya and Anuradhapura. Not only did the Commissioners thus see the best that the old and the new Ceylon could produce, but also there were frequent talks with Mr Senanayake on any question that Lord Soulbury or the commission as a whole chose to raise, from the problem of cattle fodder to the content of the Ministers’ draft. Only after this tour did the Commission begin to take evidence. Later there were visits to schools with the Minister for Education and a visit to Jaffna with the Member for Jaffna, who was also Minister for Home Affairs.[11] Truly the Ministers did not make speeches, but they produced more valuable evidence than was enshrined in all the briefs. The evidence was designed to show a long historical evolution from a great civilisation of the type which a classical scholar would appreciate, through a series of dark ages leaving a legacy of social and economic problems with which a former professor of economics and a former President of the Board of Education would sympathise; and always when the Commission was in Colombo there was the cosmopolitan and westernized social life of the capital, in which Lord Soulbury and Sir Frederick Burrows, at least, enjoyed themselves. There was, too, the University, where it was noted that the Deans were two Sinhalese (one a Buddhist and one a Christian), a Burgher and a Tamil, and that the graduates came from every community in the Island.

 

Nor were incidental courtesies forgotten. The cars were provided by the Civil Defence Department and the Secretary soon learned that if he needed anything, from seats at the cinema to a supply of quinine or a pair of mosquito boots, the procedure was to telephone Dr D. M. de Silva at A.R.P. Headquarters. When the cars went on the long tour to the buried cities, they even carried a supply of liquid refreshment, though it is true that the case of beer came back unopened. It should be added that there were no audit queries about these items, for the cost was borne privately. The tours involved a great deal of organisation, for the government officers and private citizens en route had to be warned to provide a Ceylonese welcome. A.R.P. Headquarters was always telephoning ahead of the Commission to make certain that the arrangements were all in order and that nothing in the reception would be lacking. The Civil Defence Department did not intend the Commission to come to the conclusion that the Ceylon Government was not efficient.

The reward for Dr de Silva and his staff is to be found in paragraph 6 of the Report:–

At various periods during our stay we were afforded opportunities to travel throughout the Island and acquaint ourselves with the life of its people. Either together or individually we visited all nine Provinces and saw for ourselves the remarkable diversity of conditions to which the wide variation of physical features and climate gives rise. We visited both coastal and Inland town and villages, inspected village industries and factories, and gained some first–hand knowledge of all stages of tea, rubber, copra and plumbago production on which, with the growing of food crops, the Island’s economy is founded. The many major and minor irrigation works now under construction or restoration, and the surrounding land colonisation schemes with their agricultural, experimental and training centres, proved of particular interest. We were given facilities to inspect schools of different types and teachers’ training colleges, and to visit hospitals, maternity and welfare centres and dispensaries, in both towns and villages. We had the good fortune to see many of the ancient monuments and historic temples to be found in all parts of the Island, including the “buried cities” of Anuradhapura and Polonnaruwa. Throughout these visits and inspections, all classes of the community received us with marked courtesy and kindness, and everywhere we were overwhelmed with hospitality. Our thanks are due to the Ministers and Members of the State Council concerned and to the many private individuals whose ready cooperation made it possible for us in so short a time to see and experience so much.[12]

It can hardly be said, therefore, that “the breakdown gang” did not do its job efficiently, though the job consisted mainly in making certain that there was not a breakdown in the smallest detail.    The officials who do these things is behind the scenes are seldom mentioned; I had no hand in the process at all; for once, therefore, there is a witness to give evidence.

The only other effort made by or on behalf of the Minsters was on Mr Bandaranaike’s initiative. He obtained the sanction of the Board of Ministers to the introduction of the Ceylon (Constitution) Bill, afterwards known as the Sri Lanka Bill. It was the Ministers’ draft denuded of the restrictions on self–government required by the Declaration of 1943. What its legal effect would have been had it been enacted would have provided an interesting problem for constitutional lawyers. Clearly there were implicit limitations on the powers of the State Council notwithstanding their enlargement by the Colonial Laws Validity Act, 1865[13]. The Legal Secretary gave an optimistic interpretation that might not have been upheld in the Judicial Committee of the Privy Council[14]. There was however no hope or fear that the royal assent would be given to it, and its purpose was propaganda. Those members who did not give evidence before the Commission made their speeches in the Council, and the Bill was passed by 40 votes to 7 on the 22nd March 1945 while the Commission was still in the Island.

Persons were requested by public advertisement to submit constitutional schemes and memoranda, and were then invited to give evidence in public session. The wording of the advertisements must have been difficult, for it was part of Mr Ponnambalam’s case that the Ministers represented the Sinhalese, or perhaps a section of the Sinhalese; and some sections of opinion went so far as to point out that five of them were Buddhists and five were of the Govigama caste[15]. Inevitably the advertisements made it appear that they were one of the “various interests”. Their polite attention solved this problem and established a different attitude. The Commission heard the representations of “various interests”, for and against the Ministers’ scheme. It is true that the All–Ceylon Tamil Congress[16] submitted a scheme of its own which was published in full in the advertisement columns of the newspapers on the 22nd January 1945. It will be convenient to include the Commission’s analysis of this scheme:

  1. The main purpose of the scheme was to prevent the domination in the Legislature of any one community over another, in conformity with this principle, viz. that no single community should be able to impose its will on the other communities; and it was proposed that the voting powers in the Legislature should be “based on a balanced scheme of representation that would avoid the danger of concentration of power in one community but would ensure its equitable distribution among all communities and the people as a whole”.

The All–Ceylon Tamil Congress advocated that, in order to attain this position, the Island should be divided into 100 territorial constituencies for an assembly of 100 members, and that of constituencies 50 should be demarcated for the election of members to fill 50 general seats, while the remaining 50 should be allocated to members of the minorities (25 to the Tamils – Ceylon and Indian– and the rest to the other minorities).

It was pointed out in discussion that if 50 seats were assured to the minorities but the remainder left open to the contest, the Sinhalese, who had always been and still were the majority group, might by the loss of one or more of these seats, be converted into a minority, Accordingly, the scheme was amended to reserve these 50 seats for the Sinhalese in the same way as the other 50 seats, were reserved for the minorities.

  1. This scheme has been widely publicised in the Island under the title of “Fifty–Fifty”, and the following advantages were claimed for it:–

(a) The domination of any particular community in a country with a conglomerate population would be prevented, and self–government would become a reality for all racial communities in the Island.

(b) The minorities would be freed from the feelings of “subservience or frustration”, which resulted from being heavily outnumbered in the Legislature.

(c) Purely territorial representation, which meant simply numerical representation, could only result in placing in power a permanent racial majority that no appeal to the electorate was capable of altering. The present system made an alternative Government impossible and consequently had the effect of making those in power over bearing and autocratic. “Balanced representation” provided the only corrective.

(d) Such a scheme would help to compensate for the absence in Ceylon of any party system on Western lines. Where representative government was based, as in the United Kingdom, on the party system, public opinion, and the good sense of the party in power set a limit to despotic action by a majority.  The realisation by the Government and its supporters that “the Opposition was an alternative Government ever on the alert and ready to assume power by constitutional means” had no parallel in Ceylon.

(e) The scheme contained the seeds of growth and was a natural evolution from the form of government in existence before the Donoughmore “interlude” and a natural extension of past tendencies.

  1. We are not inclined to agree that the system of representation recommended by the All–Ceylon Tamil Congress contains the germ of development, and we do not regard it as a natural evolution from the Constitutions of 1921 and 1924. On the contrary, we should describe a system which purported to re–impose communal representation in the rigid form contemplated, as static rather than dynamic, and we should not expect to find in the seeds of a healthy and progressive advance towards Parliamentary self–government.

We are of course well aware that, unless and until parties in Ceylon become divided on social and economic, in place of racial, lines, a minority will have no reason to rely on the swings to the right or left that occur in Western democracies and, consequently, will have little expectation of taking over the reins of government. Despite the proposal in S.P. XIV for a re–distribution of electoral districts, which we shall presently examine, we are under no illusion as to the likelihood of a speedy reversal of the majority’s present predominance in the Legislature. But it seems to us that under the “Fifty–Fifty” scheme each General Election will inevitably produce a Legislature of the same complexion as its predecessor, and we cannot recommend a stereotyped cast–iron division of the communities from which it would, in our judgment, be very difficult, if not impossible, ever to develop a normal party system. But apart from a general consideration of this nature, we find it difficult to see how any stable Government could be formed or any head of a Government be able either to frame a policy or carry it out in a Legislature so constituted.

  1. We think it is highly probable that if the All–Ceylon Tamil Congress scheme were adopted action would be taken by the Sinhalese which would be by no means acceptable to the advocates of balanced representation. In a Legislature composed of 50 Sinhalese and 50 members of the minority Groups, the obvious course for the largest homogeneous group to adopt in order to recover its commanding position would be to make a pact with one or other of the minorities and thereby obtain once more a working majority for itself. No doubt the result would be advantageous to whichever section of the minorities induced to co–operate and, so long as the pact endured, the support of the minority group in question would be made worth its while. But the other minorities would be left to suffer the feelings of “subservience or frustration” with which, according to the Ceylon Tamil spokesman, they are at present afflicted and it might well be that the existing majority group, exacerbated by the statutory deprivation of its electoral predominance in the country, would be much less inclined than it is at present to pay regard to minority interests.
  1. This possibility was present in the minds of the All–Ceylon Tamil Congress, for their memorandum stated as follows:

“With the minorities as against the majority precariously balanced, any supporting group will really become the decisive factor. The majority group will naturally be much more cohesive than any other and if it can anyhow attract a single group or a number of individuals from different groups of the minorities, it can always retain power. In such a case the majority group and its supporters become the new oppressors.”

It was apparent, therefore, that the All–Ceylon Tamil Congress attached great importance to representation in the Executive than in the Legislature. For that reason they claimed that “communal non–domination should be translated into the Executive; for a balanced Legislature with an Executive that leaves power in the hands of any one community would be a mere delusion and a snare. Accordingly they proposed that:–

  • The present method of government by Executive Committees should be abolished and its place taken by a Council of Ministers so composed as to “enable the minorities to take their due share in the government of the country’’.
  • The Governor should choose the Council of Ministers in consultation with leaders of the various communities in the Legislature, but that it should be provided by Statute that less than half of the members of the Council of Ministers should be chosen from any one community.
  • The Council of Ministers should elect one of its members to be Leader of the House.
  • The Governor should have the right to preside at all meetings of the Council and the Leader of the House should be Chairman of the Council and preside over it in the absence of the Governor.
  1. These proposals seem to us to be open for grave objection. The result of the statutory injunction to be laid upon the Governor regarding his choice of Ministers would, according to the evidence given by the exponents of the scheme, be that a Council or Cabinet of, say, ten Ministers would consist of four Sinhalese, two or three Tamils, one or two Muslims, and perhaps a European or Burgher. Thus, the Sinhalese group would get less representation in the Cabinet than the “Fifty–fifty” system would justify. We think that any attempt by artificial means to convert a majority into a minority is not only inequitable, but doomed to failure. We have received no evidence to convince us that such a method would produce the collective responsibility of the Ministers to the Legislature which the witnesses professed to favour and the absence of which has proved detrimental to the successful working of the present Constitution.
  1. Our attention was drawn to the Constitutions of the Provincial Governments in India, where the instrument of instructions to the Governor enjoins him “to use his best endeavours to select his Ministers in the following manner, that is to say, to appoint in consultation with the person who, in his judgment, is most likely to command a stable majority in the Legislature those persons (including so far as is practical members of important minority communities) who will best be in a position collectively to command the confidence of the Legislature” and to “bear constantly in mind the need for fostering a sense of joint responsibility among his Ministers.” But it was submitted to us that in all cases where, in response to such an endeavour, minority members had been included in the Council of Ministers, they had been selected, not so much because they represented a minority community as because they were agreeable to the majority in the Council, and not considered to be likely to give trouble to their colleagues. The All–Ceylon Tamil Congress maintained that the inclusion of minority members in any Council of Ministers or Cabinet which might figure in the new Constitution should be mandatory.
  1. We have no reason to suppose that the head of the Ceylon Government would be devoid of the qualities and attributes of statesmanship, and indeed, if the scheme proposed in S.P. XIV for the delimitation of constituencies has the result which we understand it is intended to have, common political prudence, apart from statesmanship, will commend to him the course we have suggested. For as will be seen later, the additional weightage which it is proposed to give to the minority communities may reasonably be expected to diminish the present disparity between the majority and minority groups; and the majority group itself cannot be counted on always to remain of the same mind and the same allegiance. There is by no means complete unanimity among the Low Country Sinhalese and the Kandyans as to their respective interests and aspirations, and the growth of the left–wing opinion already constitutes a potential solvent of racial or religious solidarity. These considerations must inevitably present themselves to any Leader desirous of obtaining for his Government a stable and reliable basis of support in the Legislature.
  1. Considerable stress was laid upon the proposal that the Council of Ministers should elect the Leader of the House, but it seems to us improbable that this procedure would promote the choice of the most suitable person, for we think that negative rather than positive qualities would commend themselves to a body composed of compulsorily associated elements of the various communities. In any event, as in the case of the Legislature, the largest homogeneous section in the Council of Ministers, would have every inducement to secure support for their own candidate by making a deal with one or more of the other sections. We do not favour a system likely to produce arrangements of this nature.
  1. Nor do we favour the suggestion that the Governor should, after the consultation with the leaders of the minorities, choose the members of the Council of Ministers and himself to preside over the Council. It is not consonant with progress towards full responsible government under the Crown in all matters of internal civil administration; nor is it in keeping with the spirit of the Declaration of May 1943, which, as it appears to us, involves so far as is possible keeping the Governor “out of politics”.

It will be seen that it was unnecessary for the Ministers to persuade the Commissioners to reject this scheme. Though cleverly drafted there was not the slightest chance of its being accepted by a Commission which contained a former Cabinet Minister.  Mr Senanayake felt, however, that few Ceylonese would actually read the scheme in full, and so Mr Dudley Senanayake contributed an analysis to the Ceylon Daily News which held the scheme up to ridicule and emphasised that it conferred a less measure of self–government than the Donoughmore Constitution itself. After Mr Ponnambalam’s evidence on the 15th and 16th February it was clear that “fifty–fifty” was dead and that the only question was the extent to which the Commission would recommend modifications of the Ministers’ scheme.

No other complete scheme was submitted. Altogether 165 memoranda were submitted and a large number of persons or group of persons gave oral evidence. It is not easy to clarify the groups because an association which claims to be political may in fact be racial, religious or even all of one caste. Roughly, however, the division was as follows:–

 

 

Page 78 table

It should be added that none of the left–wing groups gave evidence. The Lanka Sama Samaja Party (or Bolshevik–Leninist Party)[17] was still “underground”, the Communist party and its subsidiaries imposed a complete boycott. In other words the groups which, as the election of 1947 showed, were the strongest on the west coast were virtually unrepresented, and it may even be doubted whether the Commission was more than vaguely aware of the existence of this large body of opinion.

[1] The head of the Commission was Herwald Ramsbotham, Baron (later Viscount) Soulbury. He later served as Governor–General of Ceylon, 1949–1954.  Soulbury had been a British Conservative Cabinet Minister who served as President of the Board of Education, 1940–41.

[2] As did Sir John Howard, Chief Justice of Ceylon, 1939–49 and the architect Sir Patrick Abercrombie, who IJ consulted on the design of the Peradeniya campus.

[3] The 6th Earl of Donoughmore did, however, have a brief and junior ministerial career in Arthur Balfour’s administration.

[4] See footnote below.

[5] Sir (James) Frederick Rees, Principal of University College, Cardiff, 1929–49.

[6] Colonial era rank bestowed to Ceylonese notables.

[7] Sir Frederick Burrows, British Trade Unionist; former President of the National Union of Railwaymen; later Governor of Bengal, 1946–47.

[8] The Grenadier Guards of the British Army.

[9] Ponnambalam was long concerned of Sinhalese “colonisation” of areas considered Tamil majority provinces.

[10] Sir Oliver Goonetilleke’s second wife from 1968 was Phylis Miller who he had met when she was on the staff of the Soulbury Commission.

[11] Sir Arunachalam Mahadeva.

[12] Soulbury Report, p. 4

[13] This Act confirmed that legislation passed in colonial legislatures had full effect unless ‘repugnant’ and in contradiction to any Act of the British Parliament that covered the colony.

[14] The London based court of final appeal that historically served the British Empire and later the Commonwealth.  It remained Ceylon’s final court of appeal till 1972.

[15] The highest caste group of the Sinhalese.

[16] Party founded in 1944 by G. G. Ponnambalam to represent key Ceylon Tamil groups.

[17] Leftist party founded in 1935 and often referred to as the L.S.S.P.

 

Chapter 4: The Appointment of the Soulbury Commission

Until the files of the Colonial Office are made available to scholars the reasons for the appointment of the Soulbury Commission will remain obscure.[1]  I felt very strongly on the subject, perhaps too strongly.  Mr Senanayake and through him the Ministers had acted on advice given by me which appeared, in July 1944, to be based on false premises.  When the documents were examined afresh, however, it seemed that the only premise which might be false was the good faith of His Majesty’s Government.  Those in Ceylon who never accepted this premise, and they were very numerous because nobody in India had accepted it, were thus able to triumph; and this appeared to me to be a more serious matter than the appointment of a commission.  It is essential to remember, however, that I can give only one side of the story.  The only contribution on the other side is a casual remark made by Colonel Oliver Stanley, after he had ceased to be Secretary of State, that the affair had been very badly handled. It is necessary to emphasise again that the Ministers had no information of the intentions of His Majesty’s Government other than the curiously phrased Declaration of May 1943 and such scraps of information as came from casual conversations, with the Crown representatives in Ceylon. It was however a favourite game of Sir Oliver Goonetilleke’s to chew over such morsels of information as we had in order that we might discover what were the motives which inspired the decisions. This game, which was played at A.R.P. Headquarters in the watches of the night, may on this occasion have led us astray.

It was obvious that the Declaration of May 1943 was intended primarily to keep the Ministers quiet for the duration of the war and to secure their assistance towards the building of a base for winning the war against Japan. We knew that the representations made by Sir Andrew Caldecott, the Governor, were being supported by Sir Geoffrey Layton, the Commander–in–Chief. Even so we did not believe, as so many in Ceylon believed, that the whole thing was a hoax and that the undertaking of May 1943, whatever it was, would be repudiated as soon as the aim had been achieved. On the contrary, we thought that the scheme of the Declaration had been cleverly designed – and we gave Sir Andrew Caldecott and Sir Robert Drayton full marks –  for producing a satisfactory solution to the constitutional problem. It was no longer possible to have a Constitution designed by a commission, because it would clearly be repudiated by the Ministers and the State Council. It was not possible to secure an agreed Constitution, because this would place an absolute veto in the hands of the minority leaders. In India the desire for agreement between the Congress and the Muslim League enabled the League to put up its price until in the end India was divided. In Ceylon too an agreed scheme would not be a compromise but an acceptance of Ponnambalam’s scheme of “balanced representation”. In Ceylon, however, there was an executive and a legislature in being. If the Ministers were to get 43 votes in a legislature of 58 they had to devise a scheme which went a considerable way to placate minority opinion.  Mr Ponnambalam would not get “fifty–fifty”, but the Tamils, the Muslims and the Indians would not get “Sinhalese domination”. We knew– and we thought that Sir Andrew Caldecott and Sir Geoffrey Layton knew – that Mr Senanayake was not a communal politician but a patriotic Ceylonese anxious to put an end to communalism and to create a system of government in which all patriotic Ceylonese could combine. If in fact he did secure approval in London of a Constitution which considerably enlarged the scope of self–government, and if the constitutional arrangements were not unfair to the minorities, he would certainly obtain 43 votes or even more: and here we may anticipate events by pointing out that in November 1945 he obtained a vote of 51 in a Council of 54.

Towards the end of 1943 we were compelled to modify our picture somewhat. During one of his frequent walks with me Sir Robert Drayton took occasion to emphasise the need for an attempt by the Ministers to secure agreement with Mr Ponnambalam and his Tamil followers. He put his case, however, on the somewhat curious ground that if the scheme broke down it was necessary to show that the extreme demands of the Tamils were the cause. It was evident that these remarks were intended to be passed to Mr Senanayake and they were so passed: but we found it difficult to grasp the implications. The scheme as we saw it compelled the Ministers to produce a draft Constitution which was so intrinsically fair that it would secure at least 43 votes in the State Council. Mr Senanayake would have been glad to agree if Mr Ponnambalam would compromise; he raised no objection to an attempt by Mr Bandaranaike to secure agreement; he gave every support when Mr Mahadeva tried to get his own people to agree on a formula; but he did not believe that Mr Ponnambalam could compromise. On the contrary he feared that if negotiations were conducted on the basis of the Ministers’ draft not only Mr Ponnambalam but also the other Tamil members would pledge themselves against it, whereas if after agreement with the Colonial Office they were faced with a choice between the Donoughmore Constitution and the Ministers’ draft they would choose the latter. In any event, the time to put the Tamils in the wrong, if unfortunately that had to happen, was when the Ministers’ draft was laid before the State Council.

Our second conclusion was therefore that Sir Robert Drayton had invented the idea of the Declaration in the hope that it would produce an agreed scheme. What is more, it soon appeared that he had a scheme, or at least an outline of a scheme, of his own in which a second chamber played a fundamentally important part. At one point he went so far as to declare in writing that a second chamber was essential and that the Ministers’ scheme as drafted would never come into operation. Finally Sir Andrew Caldecott, in his reply to Mr Senanayake’s letter of the 2nd February 1944, claimed that the Ministers had not produced a “complete constitutional scheme” because such crucial questions as to the form of the legislature, the franchise and representation were left for consideration otherwise than by the commission or conference.

The Ministers did not pay much attention, to criticisms from Mumtaz Mahal, Queen’s House and Temple Trees[2] because by now they were satisfied of the good faith of the Secretary of State and believed that they were carrying out the Declaration of May 1943 in the letter and in the spirit. Mr Senanayake early in the discussion had said that for the first time in his life he was on the side of “the Governor’s Government”. His first memorandum to the Board of Ministers had been declared by the Chief Secretary to be “quite fair”. The Ministers’ interpretation of June 8 had been drafted in collaboration with the Chief Secretary, and had been seen by the Governor. The Secretary of State had said that he had not found anything “essentially irreconcilable” with the Declaration in that document. The Ministers had carried out the procedure there laid down by formulating “detailed proposals…in the way of a complete constitutional scheme”. They were ready to submit the scheme to a “commission or conference” in order to show that conditions (2) to (6) of the Declaration were satisfied. When the commission or conference had agreed on this point they were prepared to submit the draft to the Senate Council and secure at least 43 votes for it. There were only two qualifications on the Declaration. First, they proposed to submit the representation clauses separately and to be ready with an alternative motion if they did not get 43 votes. Secondly, they asked for immediate consideration instead of when victory was achieved. They had however given notice of such qualifications in their interpretation of June 8, 1943.

On the 16th November Mr Ponnambalam asked a series of questions in the State Council with the aim of securing an assurance that the Ministers’ draft would be brought before the State Council before it was sent to the Secretary of State.  Mr Senanayake in his reply made it plain that the draft would not be produced before it had been approved by the Secretary of State; and he justified this procedure by saying that this was the obligation which the Ministers had undertaken under the Declaration. A “finished product” and not an “unfinished product” would be put to the Council. Thus Mr Senanayake merely repeated what the Ministers understood to be the procedure laid down for them.

Mr Ponnambalam and the other minority leaders were obviously afraid that the Sinhalese Ministers were concocting an instrument for “Sinhalese domination” but they never contended that the procedure was contrary to the Declaration. What is more, the Secretary of State seemed to agree with the Ministers. On the 3rd November a person who is described in the published documents as “Mr X” sent a protest to the Secretary of State[3]. In reply the Secretary of State merely said[4]that the detailed proposals formulated by the Ministers would in due course be examined by a suitable commission or conference, and that he could not anticipate such examination. On the 4th December the Governor forwarded correspondence with the Ceylon Indian Congress which showed that the Secretary of State replied[5] that one of the conditions of acceptance of the Ministers’ scheme was that it should eventually be accepted by three–quarters of all the members of the State Council, and that he was not prepared to interfere with their discretion. Both replies accorded with the Ministers’ interpretation. They would submit draft proposals which would be examined by a commission or conference to see that conditions (2) to (6) were complied with. Then the proposals would be put to the State Council and would require a 75 per cent majority.

When the Ministers asked on the 7th December for conferences with the minority members, most of the latter asked for copies of the Ministers’ draft. As I have mentioned, the draft did not at this stage contain anything which would have interested them, but Mr Senanayake’s reply merely stated that the Ministers would follow the procedure laid down in the Declaration, On the 17th January 1944 Mr Ponnambalam and other members asked for a Round Table Conference to consider the draft and on the 31st January Mr Senanayake again refused. On the 15th February Mr Ponnambalam and other minority members sent a telegram to the Secretary of State through the Governor asking[6] that consideration of the draft be postponed until it had been submitted to the State Council. This time the Secretary of State combined the replies to Mr X and the Ceylon Indian Congress and said[7] that acceptance of the Ministers’ scheme was conditional on the scheme being examined by a suitable commission or conference and being eventually accepted by three–quarters of all the members of the State Council; and that he could not interfere with the procedure adopted by the Ministers. Once more this accorded with the Ministers’ interpretation, and the only odd circumstance was that the Governor kept the reply until he had called the Ministers together and read the telegram and the reply. As we shall see presently, the oddity was due to the fact that the Governor gave the reply a very different interpretation. The Ministers had no idea why he had taken up their time with such correspondence.

Mr Ponnambalam understood the reply in the same sense as the Ministers. On the 4th April he wrote to the Governor[8] enclosing a resolution by the minority members protesting strongly against the appointment of a commission or conference to consider only the Ministers’ scheme and saying that this was contrary to the spirit of the Secretary of State’s earlier declarations. Sir Andrew Caldecott artlessly (or perhaps artfully) replied[9] asking for elucidation, because he could not find anything in the telegram inconsonant with the letter or the spirit of the earlier declarations and requesting information about the insertion of only Mr Ponnambalam giving the necessary elucidation, Sir Andrew replied:[10]

I have been unable to discover anything in the Declaration…or in the message from the Secretary of State…which would justify an inference that the promised examination by a suitable commission or conference of the Ministers’ constitutional scheme will be without consideration of the position generally or without opportunity being afforded for examination of the conflicting views of the various interests concerned.

Had the Ministers known anything of this correspondence, they would at once have pointed out that, even if the Declaration itself was obscure, this reading was inconsistent with their interpretation of June 8, 1943. This interpretation was based on the memorandum of May 30, which the Chief Secretary had read and had pronounced to be a fair interpretation and which had been discussed in the Board of Ministers when the Chief Secretary, the Legal Secretary and the Financial Secretary were present. The Ministers’ interpretation had been approved by the Chief Secretary before it was circulated, was discussed in the Board of Ministers with the same Officers of State present, had been amended by the Chief Secretary, and had been forwarded by the Governor to the Secretary of State. The Secretary of State had not been able to find in it anything “essentially irreconcilable” with the Declaration. Yet the Governor, who was presumably advised by the Chief Secretary and the Legal Secretary, was now, nine months later, unable to find in the Declaration anything which denied the exact converse of the Ministers’ interpretation.

Actually the Ministers did not know anything about this correspondence. This time the Governor did not send for them and read it to them. Nor did he follow the usual practice and send copies to Mr Senanayake for information.  Had that happened there would have been an explosion in A.R.P. Headquarters, for the chemical composition of the Minister of Agriculture and Lands[11] was known to be unstable in such conditions. What happened was that one copy of the correspondence was placed in a folder with eighteen other documents dealing with such high matters of State as the departure of Mr Y from Liverpool on his return from leave. This folder started its round on the 2nd May 1944, and was initialled by all the Officers of State and the Ministers, the last of them, Colonel Kotelawala, initialling it on the 30th June. Mr Senanayake had it on his table for three weeks – a fact which was given high political significance in at least one quarter. The only person who attached importance to the folder was apparently the Chief Secretary, who not only initialled it on the 6th May but also sent for it again (while it was lying unopened on the table of one of the Ministers) about three weeks later. The correspondence was actually read by one of the Ministers, who thought it “fishy”, but since it was six weeks old and was in the Leader’s province he thought that Mr Senanayake must have secured a satisfactory explanation. It must be confessed that the other Ministers initialled the fold without reading its contents. There was nothing unusual in this, for documents were normally sent to the responsible Ministers “f.e.a” (for early action) or “f.i.” (for information) and were circulated in folders in addition only to keep the other Ministers informed. They could thus assume that they had already seen all documents which concerned them directly. Mr Senanayake himself admitted that he must have initialled the folder without opening it, for he first learned of this correspondence on the 1st August, 1944, when the above facts were ascertained and Sir Oliver Goonetilleke and I were sent for hurriedly to hear the confession.

While this curious procedure was being followed the Ministers were anxiously awaiting news of their request for immediate consideration of their scheme. On the 16th June the Governor sent for Mr Senanayake and informed him that His Majesty’s Government had decided to accede to the request by the appointment of a commission which would visit Ceylon at the end of 1944. This step did not involve any qualification of the conditions set out in the Declaration of May 1943. The precise wording of the statement would require time to compose, but the Secretary of State had authorised the Governor to inform Mr Senanayake and through him his colleagues. The statement was confirmed by letter the same evening[12] and the Ministers were naturally elated. As they understood the position, the commission would discuss with them the provisions of their draft and would report to the Secretary of State. If he agreed that the Declaration of 1943 had been satisfied, the Ministers would lay the draft before the State Council and the Ministers felt certain that they could get 43 votes.

On the morning of the 5th July a copy of the promised statement was sent by hand to Mr Senanayake. It followed the general lines of the Governor’s letter of 16th June but contained one additional sentence:

It is the intention of His Majesty’s Government that appointment of Commission should provide full opportunity for consultation to take place with various interests including minority communities concerned with the subject of constitutional reform in Ceylon and with proposals which Ministers have formulated.[13]

It took the Colonial Office 19 days to draft that sentence, though it was not very different from the sentence written by Sir Andrew Caldecott to Mr Ponnambalam on the 20th April:

I have been unable to discover anything…which would justify an inference that the promised examination by a suitable commission…will be without consideration of the position generally or without opportunity being afforded for examination of the conflicting views of the various interests concerned.

When Mr Senanayake read the statement the expected explosion took place (though not in A.R.P. Headquarters). He at once asked for an interview, lodged a personal and emphatic protest against the wording of the announcement and requested that publication be deferred. Sir Andrew replied that he would forward any representation made by Mr Senanayake or the Ministers but that the announcement, which was to be made in the House of Commons that afternoon, could not be delayed. The announcement was made accordingly.

I was requested to draft a reply and Mr Senanayake’s secretary to prepare a memorandum incorporating the documents. The latter, it need hardly be said, contained no reference to the correspondence of April with Mr Ponnambalam, nor did I know anything about it. My draft was somewhat emphatic and was toned down by the Ministers, who apparently thought (as I did not) that the Secretary of State might be persuaded to resile. The draft as approved[14]stated the case and ended with the assertion that the Ministers would decline to take any part in the deliberations of the proposed commission.

Before a reply was received somebody (I think the Chief Secretary) produced the ace of trumps, the correspondence of April with Mr Ponnambalam. It then became clear that the reference to “various interests” was not a sudden aberration but a carefully matured plan; the Ministers came to the conclusion that the cause was lost and that they must start the whole process of agitation for constitutional reform again in an atmosphere embittered by the controversies which the commission would arouse. The reply of 6th August[15] was a clever answer but it naturally did not touch the main point, that the Ministers gave a clear interpretation in June 1943, acted on it consistently, and were told in July 1944 that they had misunderstood the whole procedure.

This reply also gave the Ministers for the first time the information that the conference on the 14th March, at which Mr Ponnambalam’s telegram and the reply were read by the Governor, had some significance. The Governor apparently explained that the correspondence “could only mean that the minorities need not be apprehensive because the contents of the Ministers’ scheme would be examined by a commission or conference which would ascertain their views and that any Constitution that might emerge…would still require acceptance by 75% of the State Council”. The clause now italicised was ambiguous, but it would certainly have impressed itself on the minds of the Ministers had it been emphasised. It is in any event extremely difficult to understand why a Constitution should require a 75 per cent vote if it was to be produced by a commission. The majority for the Donoughmore Constitution was two votes.

The Ministers’ battle was evidently lost. A complete survey of the documents was made in case the Ministers wanted it to go as an appendix to their reply, but they decided that it was not worth the bother. A comparatively short reply was made, notifying that the Ministers withdrew their scheme. In September a request was made in the State Council for the Ministers’ scheme to be published. The Ministers agreeing, it was published with an explanatory memorandum in the document which the Soulbury Commission called “Sessional Paper XIV of 1944”.  The Ministers were no longer interested in it.

To explain these decisions, it is necessary to recreate the atmosphere of August 1944. The body of opinion which had reluctantly accepted the Declaration of May 1943 naturally said: “we told you so”. The Declaration had kept the people of Ceylon quiet for twelve vital months. The war had taken a turn for the better, but it was still necessary to beat the Japanese. A commission was to be appointed to keep things going for another twelve months, during which communal antagonism would rise and would provide an excuse for doing nothing, or perhaps nothing much. The British would never relax their control over the Island and never intended to do so. They had expected that the Ministers would squabble among themselves for a couple of years. Instead they had produced a draft in six months and there was a possibility that they would get a 75 per cent majority. This was the moment for the old game of “divide and rule”. His Majesty’s Government therefore proposed to send out a commission and, of course, every little group, communal, caste and religious, would start attacking every other little group, with the result that the commission would recommend that the British Government continue to accept responsibility for the management of these quarrelsome people.

A second and more instructed section of opinion put the blame on Sir Robert Drayton.  He had worked out for himself the sort of the Constitution he considered desirable and he thought he could get the Ministers to accept it.  He had therefore collaborated with them until he found them producing a Constitution quite unlike that which he had anticipated.  In the hope of getting them to agree he warned them in writing that “their Constitution would never come in to operation”.  When they persisted, he proved the truth of his forecast.  First, he drafted a reply for the Governor in which it was complained that the Ministers’ draft was not a “complete constitutional scheme”.  Later he found a more fruitful line of attack through the protests of the minority members.  The “commission or conference” should be a commission.  It would consider not only the Ministers’ drafts but any other proposals.  It would then produce a Constitution and the Secretary of State could declare magnanimously that after all a bare majority was enough.  He had to play a careful game, however, because he dare not antagonise the Ministers and obstruct the war effort.  In reply to Mr Ponnambalam’s first protest he had drafted a reply which emphasised the “commission or conference”. Sir Andrew Caldecott had summoned the Ministers and emphasised the point, suggesting somewhat obscurely that the minorities could state their case to the “commission or conference”.  There being no reaction.  Sir Andrew on Sir Robert’s advice had gone further in April and had given a categorical assurance to Mr Ponnambalam.  The correspondence was circulated in the queitest manner possible, as though there was nothing of any importance to it.  After three weeks the Chief Secretary sent for the folder and found that the Ministers were taking it without protest.  The Governor then advised the Secretary of State to include the obnoxious sentence but took care not to inform Mr Senanayake until it was too late to stop the procedure. 

Another interpretation is possible. I am prepared to deny flatly the whole theory of “divide and rule”. What the Colonial Office had upheld is the tradition that it was trustee on behalf of His Majesty, for all sections of his people. This was shown, for instance, by the great care with which all petitions were studied whether they were written by semi–imbeciles, by people whose minds have been turned by real or imagined grievances, or by anybody else. When the minority members asserted that the procedure of Ministers had “aroused strong misgivings and resentment among minority communities”[16] the assertion could not be ignored: it was the duty of the Colonial Office to enquire into the matter. If we ask what the Colonial Office meant by the Declaration of May 1943, the correct answer is probably that it knew little more than we did. The Colonial Office is not a person but an institution: probably a dozen persons had a hand in drafting that document. It cannot be denied and so far as I know nobody has denied – that the procedure actually followed was contrary to the Ministers’ interpretation. But if it was at all possible to meet the views of the minorities without antagonising the Ministers it should certainly be done. After consulting Sir Andrew Caldecott, who was no doubt impressed by the fact that the Ministers had not raised objections to his talk on 14th March on to the correspondence circulated in the folder, the Colonial Office decided to take the risk. Actually, it had been badly advised, though in all good faith, with the result that the Ministers decided not to assist the Commission and withdrew their scheme. His Majesty’s Government could not withdraw with dignity however, and Sir Robert Drayton was set the difficult task of justifying a procedure which could not in fact be justified.  He did it very cleverly, and I congratulate him on it, for it could not have been a pleasant duty.

 

[1] See documents in chapter 3, BDEEP, vol. I

[2] During the Colonial era these were the Official residences in Colombo of the Commander–in–Chief, the Governor and the Chief Secretary respectively.

[3] Sessional Paper XII of 1944, p. 8.

[4] ibid.

[5] ibid. p. 9.

[6] ibid.

[7] ibid.

[8] ibid.

[9] ibid. p. 13.

[10] ibid.

[11] D. S. Senanayake.

[12] Sessional Paper XII of 1944, p. 14.

[13] ibid. p. 3.

[14] ibid. pp. 3–4.

[15] ibid. pp. 5–6.

[16] ibid. p. 12

Chapter 3: The Ministers’ Draft

The Declaration of May 1943 stated that the Ministers’ proposals would be examined “once victory was achieved”. Mr Senanayake never intended to abide by the condition; and, true to his policy of making his intention plain, the Ministers said so in paragraph 9 of their interpretation.[1] What Mr Senanayake intended was to push on with the drafting as soon as possible to submit not merely “proposals in the way of a complete constitutional scheme” but a draft Constitution, and then to ask why it should not be brought into operation immediately.

There was much discussion as to the manner in which the Constitution should be drafted. The first suggestion was that there should be a committee consisting of the Chief Secretary, three Ministers, Mr L. M. D. de Silva, Sir Oliver Goonetilleke and me. It was however not easy to bring in the Chief Secretary nor to select two representative Ministers in addition to Mr Senanayake; and the Chief Secretary, who was consulted, agreed that it was impracticable. The next suggestion was that there should be a drafting committee consisting of Mr L. M. D. de Silva, Mr Mervyn Fonseka[2] and me. This seemed to be an admirable body. The initiative would probably come from Mr Senanayake through me, but the proposal would be thoroughly examined by the others and Mr Fonseka would do the drafting. Mr L. M. D. de Silva was not very anxious to be associated formally, though he offered to criticise anything put up. Mr Fonseka was very willing to help, but as Attorney–General he was responsible to the Legal Secretary, who apparently thought that he should be brought in formally or not at all. Mr Senanayake decided against associating the Officers of State. They were responsible to the Governor who would be at liberty, and perhaps in duty bound, to report to the Secretary of State what was going on. The final stage in the negotiations, however, would be a commission or conference at which the Ministers’ proposals would be examined. It would not be wise to keep the Officers of State, the Governor, and the Secretary of State informed of the divisions of opinion which were sure to arise among the Ministers. Accordingly, it was decided that the Ministers without the Officers of State should take all decisions, but that the Offices of State should be consulted from time to time on the more technical matters. Further, I should do the drafting under Mr Senanayake’s instructions and in consultation with Sir Oliver Goonetilleke. Mr Senanayake would then put the agreed drafts before the Ministers. Since I was at that time neither a draftsman nor a Ceylon lawyer the final draft would be sent to the Legal Secretary for formal drafting.

I began to draft early in June. On the 16th, when the storm was raging over the Ministers’ interpretation, I decided to stop. Two days later I came to the conclusion that it was a storm in a teacup which would subside, and I told Goonetilleke that I would continue drafting as a “academic exercise”. Goonetilleke informed Mr Senanayake who agreed that it might be worthwhile for me to carry on. By the 28th June I had completed the first draft.

My instructions were exiguous. Mr Senanayake was not at this stage very concerned with the details of the Constitution, because what he wanted was a Constitution which went as near Dominion status as the Declaration would allow and was framed in such a manner as to be capable of conversion into a Dominion Constitution as quickly and as simply as possible. On certain points it was however necessary to take preliminary decisions. These were as follows:–

  • On the franchise there was not much argument at this stage. Whatever the Ministers thought about the enfranchisement of Indians[3], they could not afford to start an argument with the Government of India. Accordingly it would probably be necessary to maintain the status quo. The Donoughmore Constitution did not deal with the franchise, which was governed by a separate election Order. That Order could remain in operation subject to the power of Parliament to amend it.
  • Nor was there argument about the need for Cabinet Government. The Declaration referred to “responsible government.”, and though this was probably a synonym for self–government and was not used in the technical sense as a Government responsible to Parliament, the Ministers were not disposed to take the risk. They had had experience of the executive committee system and did not like it. They had no experience of a presidential system but they did know how Cabinet Government worked.
  • The most difficult problem, though as it happened not the most contentious, was that of representation. In one respect my instructions were precise: there was not to be communal representation and all elected members were to represent territorial constituencies. When I asked if I was to give the Ceylon Tamils increased representation Mr Senanayake replied: “I don’t care if they’re all Tamils provided they are elected as Ceylonese”. He went on to explain that he did not mind how the various parts of the Island were represented provided that representation was based on a principle and that principle did not involve communal representation. He did not want a numerical formula like “fifty–fifty”, or “sixty–forty”, or anything of that kind, because everybody would haggle about it and it would be Communal haggling.

Lying in bed next morning I thought over this problem and ran rather idly over the precedents. In Great Britain in 1918 the unit had been one seat for 75,000 population, with some variation to prevent constituencies being too large in area. In Canada Quebec had been the unit, the other Provinces being represented in proportion to population, with a minimum for small Provinces. In Australia there had been a minimum for small States and also larger representation for country districts: there was something in that – one might under–weight the densely populated (mainly Sinhalese) areas on the west coast. In South Africa there had been weightage for sparsely–populated areas. What were the sparsely populated Provinces in Ceylon? North Central Province, Uva, Eastern Province, much of the Northern Province. At that point I shot out of bed: the sparsely populated Provinces were those in which the Ceylon Tamils, the Muslims, the Indians and the Kandyan Sinhalese were strong. Since I am a person of odd tastes the Ceylon Blue Book for 1938 was in my bedroom. After a little experimenting I found that if one seat was given for 75,000 inhabitants and one seat for 1000 square miles of area, there would be (on the 1931 census figures) 70 seats for population and 24 for area. I was disappointed with the Northern Province, which had 3 seats for area only; but it could get 4 seats if the Jaffna Lagoon was included. I worked out the details and showed them to Sir Oliver Goonetilleke that morning. He showed them to Mr Senanayake, who agreed that this scheme satisfied his requirements, but asked that the Jaffna Lagoon be included so as to give an extra seat to the Northern Province.

There was some delay in securing a directive about a second chamber. It was not a problem of first importance, but it was highly contentious. The terrifying ease with which the State Council had accepted all kinds of motions and the extraordinary laxity of its procedure for amending Bills made the case for bicameral government somewhat stronger than in most other countries, but the younger men had been convinced by reading Harold Laski[4] and others that a second chamber was a means for enabling the propertied class to obstruct popular legislation. There was too, a section of opinion which thought that there was a case for it if it was to provide communal representation but none if it was to be merely an older and wealthier replica of the first chamber.

Mr D. R. Wijewardene and the Ceylon Daily News had strong views on the subject and eventually Mr Senanayake, without pledging himself – for he wanted to do nothing to obstruct the attainment of self– government– requested me to draft a scheme. It seemed to me that South Africa provided the best, or least objectionable, model, and accordingly I produced the scheme published as Appendix[5]. It was never circulated in this form, for Mr Senanayake approved in principle and requested me to incorporate it in the draft Constitution.

It will be convenient to explain the subsequent developments. Though a vote was never taken, it appeared that the Ministers were divided by four to three. Since one member was vacillating, neither side had a real majority. This division of opinion was a good reason for postponing the issue, for it was essential that the Ministers should be agreed. There was, however, an even better reason. Since the Ministers were divided it was clear enough that the State Council would be divided. Some members would vote against a Constitution which contained a second chamber; some would vote against a Constitution which did not. If this was so, the three–quarters majority stipulated by the Declaration was unattainable.  To this dilemma I supplied the solution.  The draft provided that the Constitution should be amendable by two–thirds majority: why not let the new legislature provide a second chamber by simple majority? This solution would, incidentally, provide a non–communal issue for first general election; what was more important, both those who wanted a second chamber and those who did not could vote for the Ministers’ Draft.

It was therefore amusing to find that the Governor, in acknowledging acceptance of the Ministers’ Draft in February 1944, complained that the Draft was incomplete because it did not provide for a second chamber but left the question to be decided by the first legislature. Sir Robert Drayton, I knew, felt strongly on the subject. He went so far as to tell me, in such a manner that I knew I was to inform Mr Senanayake, that the Draft might be rejected because it did not provide a second chamber. I did not pass on Mr Senanayake’s reply, that Sir Robert Drayton himself had prevented them from getting a second chamber because he had insisted on a three–quarters majority.

 

It was even more amusing to be told by Goonetilleke that Sir Geoffrey Layton had cursed “that fellow Jennings”, who was “a bit of a bolshy” and persuaded the Minister not to have a second chamber.  The first of my drafts to be circulated to the Ministers contained complete provisions for a second chamber, and they were struck out by the Secretary to the Board of Ministers in accordance with a decision of the Ministers.

Except on these four matters of great importance I had no instructions.  I had however discussed with Sir Oliver Goonetilleke two other questions, whether this opportunity ought not to be taken of converting the Departments into Ministries, and whether financial procedure should not be reformed.  He agreed that both should be done.

Under the colonial system, administration was vested in Heads of Departments responsible through the Colonial Secretary to the Governor. The Donoughmore Commission wished to destroy the bottleneck at the Secretariat but retained the separate Heads of Departments, who became responsible to the respective Officers of State and executive committees. In other words there was no coordination even among related Departments except at the political level – which of course meant that there was usually no coordination at all. What is more, the Heads of Departments, instead of being concerned with policy and its execution, had to spend most of their time on matters which ought to have been left to establishment officers and the finance branch. It was thought to be necessary to fuse the Departments into Ministries and to this end to have Permanent Secretaries appointed. In the end, however, all that was left in the Constitution on this point was the provision for Permanent Secretaries.

Though the State Councillors were always very pleased with their financial procedure, it seemed to be defective. The Estimates were compiled by Heads of Departments, approved or otherwise by Officers of State and executive committees, and pruned by the Board of Ministers. There was no effective pruning in the Treasury because, being under a mere Officer of State, it had no authority. These Estimates were divided into a multitude of heads and sub–heads, each of which was voted separately and separately accounted for. The Treasury had no power to transfer even between sub–heads, with the result that a supplementary estimate had to be introduced even if a sub–head was increased by Rs. 100 and even if there were large savings on other sub–heads in the same vote. This caused a huge mass of supplementary votes and broke down the theory that the Budget was a reasonably accurate forecast. Sometimes, in fact, the supplementary votes were 20 or 25 per cent of the original votes.

In consultation with Goonetilleke I drafted a series of detailed provisions on these and other financial matters. At an early stage Mr H. J. Huxham[6], the Financial Secretary, asked Mr Senanayake’s permission to discuss these matters with me, and at his suggestion some amendments and additions were made. Later however the Ministers decided that only provisions of the type usually inserted in Dominion Constitutions should be included, and so a great deal of the detail were cut out. Also when Goonetilleke went to London while the Soulbury Constitution was being drafted he consulted Mr E. A. Fellowes, Second Clerk Assistant to the House of Commons.[7]  Mr Fellowes made a number of valuable suggestions which considerably improved the draft, and most of the matter provided by the original draft is now included in Financial Regulations.

Finally, I was given a general but necessarily vague instruction to do everything possible to meet the fears expressed by minorities, but not to provide for communal representation. To carry out this mandate I inserted a clause against discriminatory legislation, provided for independent Public Service, Judicial Service and Delimitation Commissions gave some powers to the Governor to exercise” in his discretion”, and required a two–thirds majority for constitutional amendments. On none of these points was there any argument, whether on the part of Mr Senanayake or on the part of other Ministers. The story propagated in a section of the press that the opportunity was being used to secure “Sinhalese domination” was completely false. Naturally it was necessary to produce a draft which would prove acceptable to the Board of Ministers six of whom were Sinhalese and one Tamil, and at a later stage by as many as possible of the 39 Sinhalese State Councillors, but the final scheme had to be approved by at least 43 members of the State Council. All the provisions in which the minorities were specially interested, including those dealing with representation, were suggested by me and appeared in the final draft almost as I had recommended them. The Ministers were not in the least interested in “Sinhalese domination”; they were concerned with the utmost power into Ceylonese hands.  As Sir Robert Drayton put it to me after one of the meetings of the Board “they know that if they quarrel among themselves as to who is to get the swag there won’t be any swag”.

As is mentioned above, my draft was ready by the 28th June, and I showed it to Sir Barclay Nihill that evening in case he had suggestions to offer. He had none but remarked that it would “give the Ministers something to think about”. I touched it up during the next few days and produced a revised draft on the 4th July. This was actually the third draft, for the first had been a very rough sketch which nobody else ever saw. I explained the third draft to Sir Oliver Goonetilleke on the 4th July and left it with him. He waited until Mr Senanayake had completed the Budget and then discussed it with him in detail.

Mr Senanayake agreed with my suggestion that Mr L. M. D. de Silva and Mr Mervyn Fonseka should be consulted. Fonseka’s position was difficult. It was not clear at this stage whether the Constitution was to be drafted by the Board of Ministers or by the Ceylonese Ministers. My impression is that Sir Robert Drayton had originally expected that the Board of Ministers would take the decisions while the drafting would be done by the Legal Secretary’s office. The conversion of “the Breakdown Gang” into a Reforms Department upset this idea. It meant that there would be proposals submitted and decisions taken on which Drayton and Nihill would have subsequently to advise the Secretary of State. Both the Officers of State and the Ministers felt that the position was anomalous, and eventually it was agreed that the Ministers should sit alone, consulting the Officers of State from time to time, and further that in giving advice the Officers of State would be acting in their personal capacities not as persons responsible to the Governor.

The Board of Ministers discussed the procedure at its meeting on the 9th August. Mr Senanayake mentioned that I had produced a draft which had been placed in the hands of Mr Mervyn Fonseka and another lawyer (Mr L. M. D. de Silva) and it was hoped to produce an agreed draft which would thus be technically sound. There was no decision at this meeting, but the procedure was settled at a meeting of the Ceylonese Ministers on the 27th September, when a general but very discursive discussion took place about the proposed Constitution. Mr George E. de Silva[8], Minister for Health and president of the Ceylon National Congress[9], mentioned that a draft Constitution for a free Lanka[10] had been prepared for the congress, and it was agreed that it should be circulated at the same time as my draft.

On the 28th September I received through Sir Oliver Goonetilleke a careful analysis of my draft by Mr L. M. D. de Silva, and on the 29th Mr Fonseka sent a long memorandum. I examined these very carefully and produced a series of notes which Mr Senanayake, Sir Oliver Goonetilleke and I discussed for a couple of hours late on the night of the 30th. It became apparent that no very considerable alterations were necessary, and I undertook to make revisions in detail before the draft was circulated to the Ministers. More important was Mr Senanayake’s statement about the discussion at the meeting of Ministers. He felt that it was necessary to put both a second chamber and an alteration of the franchise into the draft. I then produced my draft for a Senate and it was agreed that it be incorporated into the main draft.    On the question of the franchise a separate Order in Council, because if the franchise was put into the draft Constitution and there was trouble with India the whole thing would get delayed, whereas if there were two Orders the proceedings on the Constitution could continue while the argument over the franchise was being settled.

Since the problem of the franchise became very controversial later, it may be convenient at this point to explain Mr Senanayake’s point of view. He thought that, on the whole, the introduction of Indian labour by the coffee planters and later by the tea and rubber planters had been inimical to the long–term interests of Ceylon. Though it has expanded the revenues of the country and enables services to be provided, it had deprived the Kandyan peasantry of their chenas[11] and their room for expansion. The rigid family system and caste system of the Indian always make an Indian migration different from, let us say, the European migration to North America after the early British settlements.  A German or a Czech migrating to North America becomes “American” within a few years. He speaks English and adopts the American way of life. His children grow up as “one hundred per cent American” and marry Americans. An Indian family, on the other hand, remains Indian for generations if not for centuries. The Ceylonese have much the same family and caste system. It is rather less rigid than the Indian, but the Ceylonese cannot absorb the Indians or the Indians absorb the Ceylonese. The Indian migration therefore created a new communal problem, which made the problem of representation particularly difficult, because a Sinhalese could not be represented by an Indian nor an Indian be represented by a Sinhalese.

Moreover, the Indian Tamils, unlike the Ceylon Tamils, did not occupy a specific area, which could be represented by Indians. Most of them lived on estates which were pockets in Kandyan territory. If a constituency had a majority of Indians it would be represented by Indians and the Sinhalese would be disfranchised. If it had a minority of Indians they could decide which Sinhalese should be elected. In 1947 they voted almost solidly for communists, with the result that some 13 or 14 communists were elected for seats which they might not have captured with Ceylonese votes alone.

The franchise of 1931 was based upon domicile though an Indian could also get the vote by taking out a “certificate of permanent settlement”. The Indians were, however, highly organized in a communal body, the Ceylon Indian Congress, which had close relations with the Government of India. Acting on the advice of this body, the Indians did not take out certificates of permanent settlement in large numbers; and in fact, the superintendents of estates, who compiled the lists, put down most of the Indian labourers as domiciled. The result was that many Indians were enfranchised in 1931 and subsequently who were not permanent settlers but were temporary migrants. In 1940 Sir Robert Drayton as Legal Secretary began the process of weeding the registers, and this led to discussions with the Government of India.

Discussions in India produced no agreement, but in 1941 Sir Girja Bajpai[12] who led a delegation which met a Ceylon delegation in Colombo, of which Mr Senanayake was the most influential member. Some of the extremists wanted all the Indians removed, and therefore considered that none of them should be enfranchised. Mr Senanayake was not an extremist, and he appreciated that those who have become permanent residents of Ceylon ought to be given the franchise, though there should be no more mass immigration and nobody would be given the franchise unless he was already a permanent resident in 1941. On these lines a compromise agreement was reached between the two delegations.

What Mr Senanayake proposed in 1943 was to put the Bajpai–Senanayake agreement into law. He might even have been willing to allow any Indian whose name was on the register in 1943 to continue to exercise the franchise. I had in fact drafted franchise clauses on those lines though they had not been approved by Mr Senanayake or circulated to the Ministers. Unfortunately the Government of India thought fit to step in. The Indian Representative informed the Governor that the Ministers were not to assume that the Bajpai–Senanayake agreement was acceptable to the Government of India. Mr Senanayake’s essential aim was to get self–government from the United Kingdom. He feared that if the Ministers’ draft contained franchise provisions the Government of India would oppose it in London. It was therefore decided to leave the franchise of 1931 unchanged, but to empower the Ceylon Parliament to deal with the problem after self–government was attained.

When the question was taken up in 1948 the problem was not to give the franchise only but to confer citizenship.  I had no hand in the legislation of 1948 and 1949 [13]; but obviously what the Ceylon Parliament did was to put the compromise of 1941 into law with some amendments [unclear], without any transitional provisions allowing existing voters to remain on the registers.  The explanation was, no doubt, that the Ceylon Indian Congress had used its block vote in 1947 to try and overthrow the Ceylon Constitution as by law established.  The Indians would probably have got better terms in 1943 if the Government of India had not butted in.

Mr Senanayake was anxious that the complete draft be circulated to the Ministers on the 2nd October so that they would have ample time for its consideration before their meeting on the 11th October. This fourth draft was the third draft including amendments suggested by examination of the memorandum prepared by Messrs L. M. D. de Silva and Mervyn Fonseka and adding provisions relating to the Senate.

Mr Senanayake decided that it was desirable as a matter of courtesy to let the Governor have a copy “off the record”. Courtesy apart, if Sir Andrew Caldecott found in it anything inconsistent with the Declaration of May 1943 he might find it convenient to point out the discrepancy informally and so avoid difficulty when the draft was considered by the commission or conference. Actually, Sir Andrew expressed high appreciation of it. No conclusion can be drawn from this, for I do not believe that anybody in “the Governor’s Government” or the Colonial Office had analysed carefully what the conditions of the Declaration really meant. It is, however, significant that Sir Andrew expressed pleasure at finding provisions for a second chamber.

When the Ministers met on the 11th October they had before them the fourth draft, the Congress draft, and a note by Mr S. W. R. D. Bandaranaike on the problem of the second chamber. The Congress draft was a mere skeleton in which the more controversial questions were disposed of by blanks, presumably because no decisions had been taken. There was a careful formulation of fundamental rights, somewhat on the Irish style[14] but, as I thought, inappropriate for Ceylon.  The draft was put aside and never brought up again.

Mr Bandaranaike’s note was a more serious contribution. It quoted the Bryce Report[15] and gave the composition of a considerable number of second chambers. Mr Bandaranaike’s     contention was that in Ceylon a second chamber could be intended only for one or both of two reasons, to give minority representation or to impose legislative checks; and both problems might be solved in a single chamber. However, the Ministers decided to leave the whole question of representation, including that of a second chamber, for further discussion, and to examine in detail the more technical parts of the draft. A number of amendments was made, some drafted by Mr D. C. R. Gunawardena[16], the Secretary to the Board of Ministers, and some by me. The whole was then retyped, the provisions relating to representation and the second chamber being omitted, and circulated in what may be called the fifth draft to the whole Board of Ministers, including the Officers of State, for consideration at a meeting on the 10th November.

Except that Sir Barclay Nihill had seen my second draft, this was the first time that the Officers of State had been consulted. They were naturally surprised to receive a document which contained nothing about franchise, representation or a second chamber. Sir Robert Drayton therefore asked Mr Senanayake if he had any objection to their discussing the draft with me informally. There was, of course, no objection, and I had a conference with Drayton and Nihill in the latter’s room at the Galle Face Hotel. It was not very fruitful, for I did not feel at liberty to discuss the omitted matters. Nevertheless, I was able to give them a sufficiently clear idea to enable them to take part in discussions with the Ministers on the 10th, 19th and 23rd November, when numerous minor amendments were made. Fundamentally, however, the truncated Constitution remained unaltered, the most important amendments relating to financial matters and the appointment of public and judicial officers.

On the 7th December the Ministers – this time meeting without the Officers of State– had a discussion about representation and the second chamber. There had previously been unofficial attempts, in which Messrs Bandaranaike and Mahadeva[17] had taken part, to secure agreement among the leading members of the State Council. There had been much debate over “sixty–forty”, “fifty–five– forty–five” and so on, which had led nowhere. Talking with Sir Oliver Goonetilleke while this was going on, I pointed out that the draft scheme would probably produce something like “sixty–forty”. He suggested that I work this out and I did so, my calculations giving the minorities a minimum of 35 and a maximum of 45. This was over–optimistic because I worked on the population figures of the Provinces. In some Provinces the minorities are so scattered that the Delimitation Commission could not give them representation. Also, the Indian vote much smaller than the number of adult Indian residents counted in 1921. My analysis was shown to Mr Senanayake but was not circulated to the Ministers. The figures produced to the Soulbury Commission and referred to in the Report were not mine and were not produced by the Ministers. The number of minority members in the first House was in fact 33.

What the Ministers decided on the 7th December was to invite the minority members (including the Kandyans) to discuss with the Ministers, in six groups, any proposals which they might wish to make with respect to the future Constitution of the Island. It was known to the minority members that the Ministers were considering a draft, but the security precautions had been sufficiently good to prevent any hint of its contents leaking out. Nine of the minority members therefore asked to be supplied with a copy of the draft. What the minority members did not know was that the draft then under discussion, the fifth draft, contained nothing relating to the franchise, representation or the second chamber. In other words, it contained nothing on the subject–matter of the proposed talks. Thus the Ministers were quite honest in their invitation. They wished to discuss with the minority members questions which they had not decided even tentatively. Possibly the Ministers might have explained this, but they did not, and accordingly their invitation was refused.

It was at this stage, too, that the Government of India showed that it was interested. The Indian Representative in Ceylon, Mr Aney[18], called on the Governor on the instructions of his Government and informed him that in the opinion of that Government the Joint Report on Indo–Ceylon Relations of September, 1941, should not afford any guidance for determining the status of Indians in Ceylon. This showed the danger of tampering with the franchise and was a material factor in the decision to leave the franchise as it stood.

On the 4th January 1944 the Ministers came at last to the fundamental problems, and they were quickly disposed of. It was agreed that the franchise should not be altered and that the scheme of weighted representation should be inserted. It was however agreed that if a 75 per cent majority could not be obtained a motion should be moved for the whole question of representation to be handed over to the Delimitation Commission. If a 75 per cent majority could not be obtained for that resolution, then the whole problem of representation should be handed over to His Majesty’s Government for decision. Mr A. Mahadeva dissented on the question of representation and considered that the question should be decided by the Royal Commission.

After this decision I produced a revised draft, the sixth, which was discussed at meetings of the Ministers on the 11th and 12th January. Mr D. C. R. Gunawardena and I had a conference on the amendments then made, and I produced a seventh draft. This was circulated to the Officers of State for their observations. They replied within a few days and I summarised their views, using their own words where necessary, in a memorandum. It was emphasised that their opinions were personal and secret, and I do not feel at liberty to quote them. On minor points they made many valuable suggestions which were included in the eighth draft, which was discussed and amended by the Ministers on the 27th and 28th January. These amendments were included in the ninth and final draft, which was ready, together with a letter to the Governor, on the 1st February.

Mr Senanayake had hoped to sign the letter on Mrs Senanayake’s birthday, 31st January. When he mentioned this to me I remarked jokingly that the next “auspicious day” was my wedding day, the 2nd February. The letter to the Governor enclosing the ninth and final edition of the Ministers’ Draft was therefore signed on that day. The letter mentioned that this was a “complete constitutional scheme” but that it had not been checked by a legal draftsman. “Any legal pruning that may be necessary can be undertaken after His Majesty’s Government has been satisfied that it is within the four corners of the Declaration”. The letter further asked for early consideration and expressed the hope that the new Constitution would be brought into operation without a further extension of the life of the State Council: i.e. it asked for enactment in 1944. Mention was made of the fact that the Constitution was unicameral, but that it was desired to give the Ceylon Parliament power to establish a bicameral system. There was finally a reference to the proposals for representation and a statement that Mr A. Mahadeva would prefer a different procedure.

[1] See Sessional Paper XIV of 1944 for the Ministers’ Draft and Explanatory Memorandum.

[2] Mervyn Fonseka K.C; leading Government of Ceylon lawyer.

[3] The Indian plantation workers, sometimes called Estate or Indian Tamils, did not endear themselves to the Sri Lankan Establishment since they formed a sizable minority in multiple electoral constituencies, especially in the Kandyan area that could determine the outcome and, even more worryingly for the U.N.P., they favoured Marxist candidates.

[4] Harold Laski, British Labour politician; Professor at the London School of Economics, 1926–1950 where he was a colleague of IJ’s.

[5] Not found.

[6] H. J. Huxham, Financial Secretary of Ceylon, 1937–45.

[7] Sir Edward Fellowes, Assistant Clerk and later Clerk of the House of Commons, 1954–61.

[8] George E. de Silva, senior Ceylon National Congress and U.N.P. politician (see note below)

[9] Founded in 1919 with Sir Ponnambalam Arunachalam as its first President it was the Island’s major political organisation of Ceylon that advocated greater self–government and later independence for Ceylon.  It paved the way for the U.N.P.

[10] The United National Party was founded in 1946 drawing support from a broad spectrum including minorities in the run up to the 1947 general election preceding independence and was founded and led by D.S. Senanayake until his death in 1952.

[11] A “slash and burn” form of cultivation historically used in the area.

[12] Sir Girja Shankar Bajpai, senior Indian Civil Servant during both the colonial and independence eras.  The talks were held in Colombo in September 1941.

[13] This refers to the Ceylon Citizenship Act No. 18 of 1948 and related laws that followed, which effectively stripped or denied citizenship to many tea plantation works of Indian descent.  This was a group of largely illiterate and property–less people whose families had often been working on the island often for generations. Their inability to get citizenship was coupled with the removal of any right to vote. Therefore almost 12% of the population lost their ability to choose their representatives.

[14] Section 5 of the Government of Ireland Act 1920 prevented legislation from discriminating on religious and community grounds. The 1937 constitution also contained a section on “Fundamental Rights”, which had extensive provisions related to individual rights.

[15] This refers to a conference chaired by Viscount Bryce in 1917–18, which advocated reforms to the House of Lords and in its investigations examined international forms and styles of bicameralism.

[16] D. C. R. Gunawardena, Ceylon Civil Servant and Clerk of the State Council, 1940–47.

[17] Sir Arunachalam Mahadeva, Tamil U.N.P. politician; Minister of Home Affairs, 1942–47.

[18] Dr Madhao Shrihari Aney, Government of India Agent to Ceylon from July 1943. Such Agents were mainly responsible for scrutinizing the working conditions of Indians overseas working, particularly in plantations, across the British Empire.

Chapter 2: The Declaration of 1943

The Declaration of 1943[1] was a curious document. It recited the Declaration of 1941[2], which the Ministers had already rejected, and stated the decision of His Majesty’s Government to give it greater precision “with the object of removing any doubts”(though there were no doubts). It then stated that the Governor had been asked to convey to the Board of Ministers the following message, the message being enclosed in quotation marks and consisting of eight numbered paragraphs. These paragraphs could be analysed as follows:–

(1) The post–war examination of the reform of the Constitution would be “directed towards the grant to Ceylon by Order–in–Council of full responsible government in all matters of internal civil administration”.

(2) and (3). Defence and external relations would be matters for His Majesty’s Government.

(4) The Governor would be given legislative power for (2) and (3) and would reserve local Bills on (2) and (3).

(5) The Governor would also reserve Bills of three other classes

(6) Ceylon could make trade agreements within the British Commonwealth with the consent of His Majesty’s Government.

(7) The Constitution could not be drafted during the war but, once victory was achieved, His Majesty’s Government would examine by a suitable commission or conference any proposals which the Ministers might in the meantime have been able to formulate in the way of a complete constitutional scheme: subject to the clear understanding that acceptance by His Majesty’s Government would depend, first, on His Majesty’s Government being satisfied that the proposals complied with paragraphs (1) to (6); and secondly upon their subsequent approval by three–quarters of all the members of the State Council excluding the Officers of State and the Speaker.

(8) His Majesty’s Government appreciated Ceylon’s contribution to the war effort.

The procedure seemed clear enough, and so far as is known there was no argument about it at all. The Ministers would draft a constitutional scheme which provided for full responsible government in internal matters and which complied with paragraphs (2) to (6). There would then be a commission or conference to examine these proposals to see if they so conformed. The scheme as approved was then to be put to the State Council and would be accepted by His Majesty’s Government if at least 43 members voted for it.

Discussions on this procedure were limited to the problem of so drafting as to get 43 votes. There were 39 Sinhalese members of varying shades of political opinion and it would not be easy to produce a draft which satisfied them all. Nobody intended to produce a communal Constitution, but any attempt to meet minority opinion would tend to lose some Sinhalese votes. Also, some would probably vote against because of the limitations in paragraphs (2) to (6). It would thus be necessary to produce a draft which gave reasonable satisfaction to all sections but did not meet the views of extremists on either side. It seemed to be a clever scheme to overcome the communal problem which was attributed to Sir Andrew Caldecott and Sir Robert Drayton. They had evidently realised that to require the majority and the minorities to agree would be to enable any minority to refuse to collaborate unless it got exactly what it wanted. A three–quarters majority, on the other hand, required only that the scheme be a reasonable compromise of opposing these. Mr Senanayake thought it could be done but was anxious to safeguard the position if he failed, perhaps by a few votes.

There was never any suggestion that the “commission or conference” was to be another Donoughmore Commission, taking evidence from communal and other organisations. If the idea had occurred to us we should have rejected it as inconsistent with the Declaration itself. Obviously the Ministers could not be expected to get a three–quarters majority for a scheme which was produced by a commission, and it was clear that what was to be put to the State Council after examination by the commission or conference was the Ministers’ scheme.

The difficulties of interpretation were not in paragraph (7) of the Declaration but in paragraphs (1) to (6). It seemed to me that the United Kingdom was proposing something like the “Dominion status” of 1900[3] or the status of Newfoundland before 1933[4]. Mr Senanayake was more doubtful, and he was strengthened in his doubts by his consultations with D. R. Wijewardene and others derived out of the distrust of British policy and the propaganda led by the leaders of the Indian National Congress suggesting that Britain’s objective was “imperialist exploitation”. Britain became wealthy, it was argued, through “exploiting” Ceylon and other politically backward countries.  Clearly her leaders would not give up without a struggle the sources of their country’s wealth.

There must be something in the Declaration to preserve Britain’s economic control. Paragraph (6) showed that external relations in paragraph (3) included trade relations. The reference to trade and shipping in Paragraph (5) showed that Ceylon legislation on these subjects would be subject to Imperial control.

There was indeed an influential section of opinion, usually known as the “freedom group”, which favoured the rejection of the offer as quite inadequate. It is not easy to describe because its ideas seemed inconsistent.  It was profoundly influenced by the attitude of the Indian National Congress: but whereas the Congress proposed to obtain “freedom” by revolutionary, though non–violent, measures, Ceylon’s “freedom group” seemed to think that it could be obtained by constant nagging. The Indian politicians could afford to refuse all offers and to continue the struggle until they got what they wanted – though ultimately what they did accept was a truncated India. The Ceylonese politicians of “the freedom group” were merely talking and passing resolutions, and there was no evidence that this presence would produce more rapid results than that of taking what was offered, if it was an improvement, and then asking for more. It was apparently not suggested that the State Council should withdraw from the executive committees[5] and so cause the Donoughmore Constitution to break down. Nor would such a measure have been effective, for the Commander–in–Chief had full powers under his Directive to take over the civil government of the Island. It is therefore surprising that this group was so strong; nevertheless it was strong in numbers. Had Mr Senanayake supported this group, the Declaration would have been repudiated and the subsequent history would have been quite different. He was already inclined to acceptance and our discussions in the Civil Defence Department convinced him that, if our interpretation was correct, he could carry the State Council with him. The Declaration was issued on the 26th May 1943.  I provided Mr Senanayake with a comprehensive memorandum on the 28th. On the 30th of May we met in Sir Oliver Goonetilleke’s room and Mr Senanayake said that he proposed to go ahead. It was, he said, a matter of urgency, for it was necessary for him to persuade the Ministers before opinion had crystallized against the Declaration. He asked for a less technical memorandum which could be circulated to the Board and I completed this memorandum in time to read it to Mr Senanayake and Sir Oliver Goonetilleke in the former’s bungalow that evening, and it was agreed with slight amendments.

At this point the Civil Defence Commissioner pointed out that there was one danger. Mr Senanayake was proposing to advise the Board of Ministers to accept the offer made by the Government of the United Kingdom; but the Chief Secretary would preside over the Board and would have his own views about the meaning of the document, which probably he had himself drafted. If Sir Robert Drayton differed from Mr Senanayake on any point the Board would clearly refuse to accept the Declaration as it stood. Mr Senanayake was now on the side of “the Governor’s Government”. It was therefore necessary to make certain that the Governor’s Government agreed with him. Mr Senanayake thereupon made an appointment with the Chief Secretary, and at 8.45 p.m. the three of us called on Sir Robert Drayton in his bungalow, where Mr Senanayake handed over the memorandum. Sir Robert read it in silence and then asked Mr Senanayake what he wanted him to do about it. Mr Senanayake replied that he hoped the Chief Secretary could say whether there was anything in it that was not a fair interpretation. Sir Robert answered that it was “quite fair”, and the conversation then proceeded to the question of the procedure in the Board of Ministers.

The memorandum was circulated to the Board on the 31st May. It interpreted paragraph (7) of the Declaration in the following manner:

“(a) If the Ministers draft a scheme of responsible government which satisfies paragraphs (2) to (6) (of the Declaration), that scheme will be accepted by a commission or conference.

(b) The commission or conference will meet immediately after the termination of hostilities.

(c) The scheme will be put into operation by Order–in–Council if it is accepted by three–quarters of all the members of the State Council excluding the Officers of State and the Speaker”.

It will be seen that there was no ambiguity about the procedure and that a Commission like the Donoughmore Commission was ruled out.

Though there was no controversy over the procedure, that procedure was very relevant to the decision to accept the Declaration. The “freedom group” distrusted the intentions of the Government of the United Kingdom but considered that, if the Ministers were to draft the Constitution, there could be no harm in accepting. They would not put forward a draft which gave less self–government than the Donoughmore Constitution and at least it was worthwhile to try to find out whether the Declaration meant what it was said by Mr Senanayake to mean; in other words, it was a bluff, it was wise to call it. It seems probable that the Declaration would have been repudiated if there had been any notion of a second Donoughmore Commission.

It must be emphasized, too, that the memorandum passed lightly over the procedure because none of us thought that there was any doubt about it. Our task, as we saw it, was to explain what was meant by the conditions (2) to (6), to balance the restrictions which would disappear against the restrictions which would remain. It contained ten long paragraphs of which only the first dealt with procedure. Special attention was paid to Defence and External Affairs. It was clarified that these functions were not taken away from the State Council but that over–riding powers were vested in the Governor and the Secretary of State. It ended with the following paragraph:–

The above considerations suggest that the Declaration provides for a system very different from that now in operation. That system will not be a step[6] towards self–government, but self–government itself, subject only to qualifications already indicated “by me[7]. The proposal does not provide for Dominion Status, but that term has a meaning varying from that of Eire to that of Newfoundland. The status of Ceylon will not be very different from that of Newfoundland in 1933. Nor will it be very different from that of any other of the Dominions before 1914”.[8]

The memorandum, supported by the personal advocacy of Mr Senanayake, whose interpretation was naturally not denied by the Chief Secretary, proved convincing, and the Board of Ministers decided that Mr Senanayake should make a statement to the State Council accepting the offer on behalf of the Board. This statement would set out the interpretation which the Board gave to the Declaration and would be telegraphed to London.

This decision was taken on May 31. On the following day I completed a first draft of the Ministers’ statement. It was discussed with Senanayake and Sir Oliver Goonetilleke on the 2nd June. It was heavily amended partly by me and partly as a result of the discussion. On 3rd June a second draft was ready. It was accepted after further discussion and shown to Sir Robert Drayton, who again offered no criticisms. Some verbal amendments were then made and a third draft was circulated to the Board on the 6th June.

All the drafts dealt with the procedure in precisely the same manner, the appropriate paragraphs being as follows:–

  • “It is in essence an undertaking that if the Board can produce a Constitution which, in the opinion of a Commission or Conference, satisfies the conditions set out in paragraphs (2) to (6) thereof and if that Constitution is subsequently accepted by three–quarters of all the Members of the State Council excluding the Officers of State and the Speaker, His Majesty in Council will put that Constitution into operation”
  • “It is important, too, that we should be able to draft our own Constitution and not be compelled to accept a Constitution thrust upon us by some Commission sent from overseas”
  • “We propose to draft a Constitution and, after His Majesty’s Government have satisfied themselves that it lies within the four corners of the Declaration, to submit it to the State Council…..”

The only one of these paragraphs amended by the Board of Ministers was the third, which was expanded. Since Sir Robert Drayton presided over the Board, Sir Barclay Nihill[9] the Legal Secretary was present, and the Governor read both the draft as submitted to the Board and the statement as approved by the Board, it is clear that there was no dispute in Ceylon about the procedure which was to be followed. What is more, Sir Robert took a hand in the drafting of other paragraphs.

The third draft, that circulated to the Board of Ministers, had been shown by Mr Senanayake to Mr D. R. Wijewardene, who called Mr L. M. D. de Silva[10] into consultation. They discussed it for most of the morning of the 6th June, and Mr de Silva then telephoned Sir Oliver Goonetilleke to say that Mr Wijewardene and he could not agree with the draft as it stood. I was called to the Civil Defence Commissioner’s Office and Sir Oliver suggested that the four of us should meet to thrash out the difference. Sir Oliver telephoned the suggestion to Mr de Silva, who replied, after some delay, that Mr Wijewardene was going to lunch and could not see us. Later in the day, however, Sir Oliver found out what was wrong. Mr Wijewardene did not accept the interpretation about trade agreements, and he also wanted the Board of Ministers to say positively that they would not proceed with the arrangement unless their interpretation was accepted. There were a few other minor points, but these could be met by omitting certain phrases. I sat down there and then and drafted paragraphs to meet Mr de Silva’s views. The new paragraph about trade agreements I did not like because it seemed to me to stretch the Declaration too far: in other words, it was not an interpretation but a counter–offer. Still, it was absolutely essential that Mr Senanayake should have the support of the Ceylon Daily News[11], for the opposition to acceptance was strong and if it was supported by the press rejection was certain. Mr Senanayake saw Mr Wijewardene and, as we discovered later, pledged himself not to carry on if the interpretation given by the Board was not accepted by the Secretary of State. Sir Oliver Goonetilleke took my draft paragraphs to Sir Robert Drayton, who at once raised objections about trade agreements and himself drafted a paragraph which was, in his opinion, less obnoxious.

Mr Senanayake took to the Board of Ministers the following day (7th June) the drafts of the amendments so prepared. In the published statement they appear in the middle of paragraph 5 and as paragraph 10. The Board met at 9 a.m. and sat until 1 p.m. They met again at 3 p.m. and sat until 7 p.m. Some Ministers began with the assertion that the document was quite unsatisfactory and must be scrapped, but in the end they accepted the draft with the addition of a few phrases and the deletion of a few others. At 8 p.m. Sir Oliver Goonetilleke telephoned me to say that there was a revised draft which Sir Robert Drayton wished me to see. He – Drayton – had “tried to keep the drafting straight”, but it was necessary that I should examine it carefully. Accordingly Sir Oliver and I met Mr Senanayake in his bungalow. I thought that the document had been weakened as an instrument of propaganda both in Great Britain and in Ceylon. The Board, I considered, was so anxious to stake a claim that it was forgetting that it had to persuade. However, there was nothing objectionable in it and I advised Mr Senanayake to accept.

The Board of Ministers met again at 9.30 p.m. and sat until 11.30 p.m. Again there was objection, but eventually the draft was agreed. The chief change was the insertion of paragraph 7. The Statement was read to the State Council on the afternoon of the 8th June and was favourably received by the press and the nationalist movement, which was indeed surprised that so much could be read into the Declaration.  On reading it again after four and a half years I would say of it what the Chief Secretary said of my second draft, that it was a “fair interpretation”.  I could have drafted a better paragraph 7, but the paragraph as drafted served its purpose.

There is no doubt that this was the most difficult passage in the history of the negotiation. Henceforth the Ministers and at least the majority of the opinion were solidly behind Mr Senanayake. There were differences over minor points but nothing requiring long meetings of the Ministers. The Declaration of May 26 was badly drafted because it did not say simply and plainly what was intended. Ceylonese opinion was suspicious of anything that came from Whitehall, and the suspicion could be overcome only by taking care that all promises were carefully and simply drafted and then carried out both in the letter and the spirit. It is however necessary to remember that such documents followed a complicated procedure. They were, usually, drafted in Ceylon by the Governor on the advice of the Chief Secretary and the Legal Secretary. They were then cabled to London and discussed in the Colonial Office. Suggestions for amendment would be made by several officers and an amended version prepared for the Secretary of State: when approved by him they would go to a Cabinet Committee and perhaps be again amended. In the interval there might be further communications with Ceylon with suggestions for amendment passing to and fro. In the result a simple statement might become complicated.

We assumed that Sir Andrew Caldecott and Sir Robert Drayton had initiated this movement to satisfy Ceylon’s aspirations at least for the time being. They knew how necessary it was that the Ministers should work with the Government of the United Kingdom, for Ceylon was clearly to be one of the bases, if not the main base, for the attack on Malaya.  Though Sir Robert was most circumspect, I thought that I knew the general nature of his views, and I agreed with them.  Sir Oliver Goonetilleke was in close touch with Sir Geoffrey Layton[12], the Commander–in–Chief, and had reason to believe that he also was in agreement and was indeed supporting Sir Andrew Caldecott’s representations. Mr Senanayake was more suspicious, and in any event his was the most difficult task. I can honestly say, however, that with the exception of paragraph 7, we thought the Ministers’ interpretation to be a correct interpretation, though carefully dressed up to appeal to Ceylonese opinion.

Even so, it was touch and go. Had Mr Senanayake hesitated the offer in the Declaration would not have been accepted, there might have been strenuous agitation in Ceylon, and in all probability the conferment of Dominion status would have been long delayed. At this stage, however, even his authority was weak, while the suspicions were strong. Sir Robert Drayton’s support was the deciding factor, and it was a stroke of genius on Sir Oliver Goonetilleke’s part to bring him in. That support enabled Mr Senanayake to persuade the Ministers and to overcome the doubts of Mr D. R. Wijewardene.

It is necessary to repeat that there was never the slightest controversy over the procedure. On this point my second draft stood unaltered, except for the addition of paragraph 10, which was a compromise intended to meet Mr Wijewardene’s views without threatening the Secretary of State. It will be seen that Sir Robert Drayton accepted the statement about procedure without criticism, that he was quick enough to object to the revised draft about trade agreements, and that he took part in the drafting in the Board of Ministers. It astonished us later on that it was on the question of procedure, and on that point alone, that controversy developed.

Meanwhile an unexpected obstacle arose. On the 12th June a reply came from the Secretary of State. This reply was drafted by Sir Andrew Caldecott and Sir Robert Drayton and was intended to be innocuous[13]. It was not an acceptance of the Ministers’ interpretation but stated that the Secretary of State had read the document with “great interest” and that the Ministers would not expect him to make any comment on their interpretation at this stage. This document was shown to Mr S. W. R. D. Bandaranaike, who had called at Queen’s House[14] on other business, on the morning of the 13th. Mr Senanayake also called later in the day and was not shown the document. Mr Bandaranaike informed Mr Senanayake that it was a rejection, and when the latter saw it he read it in the same sense. It would not be an exaggeration to say that he was furious. He had been careful to consult the Chief Secretary, who had helped to draft the Ministers’ interpretation. He had overcome opposition in the Board of Ministers and outside and, relying on the advice which we had given and which the Chief of Secretary had not repudiated, he had pledged his political reputation. What is more (though none of us knew this) he had agreed with Mr Wijewardene that he would not continue unless his interpretation was accepted. He sent a strongly worded note to the Governor which was of course not drafted by me nor seen by Sir Oliver, and this note in turn angered Sir Andrew Caldecott.

I gave a very different interpretation of the reply from the Secretary of State. I had never expected a formal acceptance. The Declaration of May 26 was a Cabinet document which the Secretary of State had no power to interpret. If he knew definitely that the Ministers’ interpretation was incorrect he would no doubt say so; but he could not accept that interpretation without going to the Cabinet again. It was enough for Ceylon that Drayton had not disapproved and that the Secretary of State had raised no objections. We could proceed to draft constitutional proposals and argue the precise limits of the Declaration at the “commission or conference” to which the Declaration referred. Had the reply been sent to Mr Senanayake in the usual way I should no doubt have seen it and explained the constitutional position to him.

Instead, it was merely shown to leader of the “suspicious” group and, for once, Mr Bandaranaike’s quick and incisive mind had let him down and he assented to the Ministers’ statement with some doubts because he, more than other Ministers, suspected British intentions. Giving his own interpretation of the colourless reply, he had been able to say in effect, “I told you so”. The fact that Mr Senanayake was not shown the document suggested, to suspicious mind, that Sir Andrew Caldecott had intended the reply to be taken as a polite rejection.  In other words, Mr Senanayake had been led up the garden path.

I did not see Mr Senanayake during the following week and it was clear that I was included in the group of untrustworthy Europeans. Sir Robert Drayton’s position was difficult, for we knew that he had drafted the reply, and he was in effect being accused of rank duplicity. I decided not to see him, but it was easy for me to meet Sir Barclay Nihill the Legal Secretary casually. I did my best to explain why there was so much fuss and I informed Sir Oliver of Nihill’s explanations, which entirely accorded with my own assumptions. Goonetilleke was able to calm the storm somewhat. On the 21st June the Ministers sent a formal protest and on the 28th they had a conference with the Governor. On the 6th July they sent a message declining to draft a Constitution without an indication that their statement was in accord with the Declaration.[15] Eventually, the problem was solved by a very woolly reply from the Secretary of State stating that he could find nothing “essentially irreconcilable” with the Declaration in the Ministers’ interpretation[16].

The problem would never have arisen if Mr Senanayake would have had five minutes’ conversation with the Secretary of State. The latter could have explained somewhat on these lines:–

This Declaration is a Cabinet document and I cannot tell you precisely what it means because I do not know, and in any case I cannot pledge the Cabinet. All I can say, off the record, is that I see nothing objectionable in your reply. I suggest that you draft your constitutional proposals and we can then discuss later what are to be the precise limits of your powers. I can assure you that it is our intention to give the widest possible powers to Ceylon, retaining in our own hands only those powers which we feel to be absolutely necessary: but we can argue that question in detail when you submit your proposals.

That, I believe, was the intention of the Colonial Office: but business was not done in that way under the colonial system. Mr Senanayake had never met Colonel Oliver Stanley[17]: for him the Colonial Secretary was not a person but an institution usually known as “H. M. G.” or more popularly “British Imperialism”. In the popular view the Colonial Office was a gang of thugs, clever thugs no doubt, thugs who used soft words and hidden weapons when convenient, but still thugs. In July 1945 he met Colonel Stanley, and the two men liked each other immediately. He also met Mr Hall and Mr Creech Jones[18], Colonel Stanley’s successors, and for the first time the whole Colonial Office understood who Mr Senanayake was and what he stood for. Henceforth the negotiations were conducted not by formal declarations through the Governor, but by personal telegrams addressed to “Creech Jones” and “Senanayake”. The whole spirit was altered. Nor was it possible under the colonial system for the Governor to take the place of the Secretary of State. He could forward Mr Senanayake’s views or Colonel Stanley’s views, but he was neither authorised nor sufficiently informed to give adequate explanations off the record. He could say that he thought Mr Senanayake misunderstood the position, but inevitably he had to admit that Mr Senanayake must draw his own conclusions from the documents.

[1] Declaration of 1943 (Reform of the Constitution, S.P. [Sessional Paper] XVII of 1943, Document I.

[2] Declaration of 1941 (Correspondence of the Board of Ministers with the Secretary of State and the Governor, S.P. XIII of 1943, Document 10A).

[3] Jennings is perhaps referring to how Dominions operated before the passing of the Statute of Westminster Act 1931 when Dominions acted almost entirely independently save for major subjects such as defence, indigenous affairs, imperial trade and diplomatic policy where the Imperial parliament retained powers in these areas and others to legislate on behalf of the territories.

[4] Following the collapse of Newfoundland’s economy and civil unrest following the “Great Depression” a Commission was setup in 1933 and requested Britain to intervene, which then effectively suspended self–government.  This led the way to the end Newfoundland’s separate status and the eventual inclusion into the Canadian Federation in 1949.

[5] See footnote 36.

[6] IJ notes “The MS shows that Sir Oliver Goonetilleke had underlined this word.”

[7] IJ notes “Mr Senanayake”.

[8] By the end of World War I the Dominions were becoming more assertive in their objective of having a greater say in Imperial affairs including defence.  See footnote 69.

[9] Sir (John Harry)Barclay Nihill, Legal Secretary of Ceylon, 1945–1947.

[10] L. M. D. de Silva, leading Ceylonese legal personality who held key public and private positions.  De Silva was a key adviser to Senanayake on legal matters.

[11] An important English language Lake House run newspaper of D.R. Wijewardene’s.

[12] Admiral Sir Geoffrey Layton, Commander–in–Chief of Ceylon, 1942–45.  During wartime Layton exercised key responsibilities and rivalled, during this period, the Governor in terms of power and influence.

[13] IJ notes “One paragraph drafted by Sir Robert was, however, left out by the Secretary of State.”

[14] The official Colombo residence of the Governor (and, after independence, Governor–General) of Ceylon.

[15] IJ notes “Sessional Paper XVII of 1943, p. 6”.

[16] IJ notes “ibid.”

[17] Oliver Stanley, British Conservative Cabinet Minister; Secretary of State for the Colonies, 1942–45.

[18] Arthur Creech Jones, British Labour Cabinet Minister; Secretary of State for the Colonies, 1946–50.

Chapter 1: The Breakdown Gang

On the outbreak of war against Japan in December 1941 it became necessary for the Ceylon Government to organise civil defence on a more intensive scale. There was already a small A. R. P.[1] organisation in Colombo under Dr D. M. de Silva[2]. On the 1st January 1942 the Auditor General, Mr O. E. Goonetilleke (now Sir Oliver Goonetilleke) was appointed Civil Defence Commissioner. The new Department moved into a bungalow in Union Place, Colombo, and an organisation of 64,000 persons, mainly voluntary workers, was suddenly built up.  For reasons which need not be explained I became honorary Deputy Civil Defence Commissioner in March 1942, and I believe that I still have the honour to hold that post; for though I sent in my resignation in March 1945 I received no reply.

The Civil Defence Department became much more than a Department dealing with civil defence. It in fact adopted the motto of one of its subsidiary organisations “Go anywhere, do anything”. For three years a staff was kept on duty day and night and there were never fewer than two staff officers in Union Place. The Commissioner himself rarely left the premises before midnight, and indeed the nightly inspection of the control rooms just before he went off duty was known as “the dawn patrol”. As head of the Department most closely in touch with the armed forces in the Island, he made it his business to smooth the relations between the civil and the military authorities, and both soon discovered that if anything out of the ordinary was required, whether by day or by night, the simplest plan was to telephone the Civil Defence Commissioner. After some months experience of the many jobs that fell to him the Commissioner christened his organisation the “breakdown gang”.

Among the functions which the Department collected were those of Food Supply and Control, and the charges which followed in Union Place are relevant to our present theme. Since the Minister of Agriculture and Lands, the Hon, D.S. Senanayake, M.S.C.[3], was in charge of Food and the Commissioner could not be constantly away from Union Place, the Minister was provided with a table in the Commissioner’s room. The Minister came in for a consultation nearly every evening and stayed for an hour or so. I usually came over from the University about the same time in order to deal with such papers as were referred to me as Deputy Commissioner and to be at hand in case the news from “Fighter Operation” suggested the need for a longer spell of duty. Nearly every evening I had a talk with the Commissioner at which we discussed not merely civil defence but the problems of the Island, past, present and future. Sometimes in fact the Commissioner called me in when the Minister was there so that we might discuss any matters that might have arrived.

When I arrived in Union Place on the evening of the 26th May 1943 the Minister was already there and a message to see him was awaiting me. Mr Senanayake handed me the Declaration by His Majesty’s Government on constitutional reform and asked me what I thought of it. I glanced at the document and saw that one would not answer that question off–hand, so I asked him what he thought of it. He said that he would like my views on exactly what it meant, but so far as he could see the offer ought to be accepted. What he wanted was Dominion status and clearly the Declaration did not go so far. It was however a step in that direction and he believed that it should be accepted as an instalment.  He was, he explained, “all for the British Empire” if the British Empire would grant freedom; and he believed in obtaining that freedom by peaceful persuasion, not by methods which Jawaharlal Nehru and others were using in India.  He would be most grateful if I would study the Declaration and let him have a note of it the next day.

No doubt Mr Senanayake knew that, privately, I have shared some of his views on constitutional reform, for I had frequently discussed them with Goonetilleke. The Colonial Office theory of self–government by evolution was admirable as a conception but broke down in practice because there was necessarily a difference of opinion about the speed of evolution which led to antagonism between the Colonial Office on the one side and the Ceylonese politicians on the other. In Ceylon as in India, too, opposition led to the assignment of mixed and more or less corrupt motives. Few believed that British reluctance was due to honest doubts about the experience of Ceylonese politicians, the absence of parties, the prevalence of racial and caste prejudice, and other characteristics which might make self–government unworkable. The common explanation was summed up in the word “imperialism”.[4] Britain was, it was said, a country which became rich, through “exploiting” colonial peoples. She had not the slightest intention of giving up control but was clever enough to mask her intention under a cloak of hypocritical phrases. Racial and caste differences were magnified, if not created, by the British so as to stimulate the Ceylonese, like the Indians, to quarrel among themselves and so put off the necessity for “freedom”: in other words, and the words were used, it was a policy of “divide and rule”. It seemed that in the conditions of South–East Asia this was an almost inevitable result of the doctrine of self–government by evolution. It was not desirable to keep a stiff upper lip and carry on the development unperturbed, for the result would be antagonism between Britain on the one hand and unperturbed Ceylon on the other which would make Dominion status unworkable and world problems more difficult. Once the process of development had begun it must be continued rapidly whatever the risks. Further, the agitation for constitutional development distracted attention from the social and economic problems of the Island.  The Ceylonese politicians took the trouble to analyse and find solutions.  They gave a highly imaginative historical account so as to “blame the British”, protested their inability to deal with the matter because the people were not “free”, and went off to a party in the belief that their job as patriotic citizens was done.

I was thus in sympathy with Mr Senanayake’s aim to secure Dominion status at the earliest possible moment, though my reasons differed from his. It had to be Dominion status, for Ceylon was neither large enough nor rich enough to dispense with such help as the Commonwealth could give by agreement. Had I not been in sympathy, however, I should have given the assistance: and indeed I was not in agreement with every sentiment that I put into the documents during the next four–and–a–half years. The university tradition in these matters is very clear. Universities are public corporations containing experts on most branches of knowledge who regard themselves as holding that knowledge in trust for humanity. If, therefore, the Government of the country, or indeed any country, requires assistance it is the duty of the university to provide it. My knowledge would have been at Mr Senanayake’s disposal even if I had not agreed with his objective, though no doubt the association was the more fruitful because I did agree.

The association of the “breakdown gang” continued throughout the four–and–a–half years between the Declaration of May 1943 and the end of December 1947. It was modified when one of us was out of the country, and after the general election of August 1947 and the establishment of the Senanayake Government with Sir Oliver Goonetilleke as Minister of Home Affairs I became a mere consultant, called in when questions of some difficulty arose. Until then, the three of us might have been described as the nucleus of a Reforms Ministry, with Mr Senanayake as Minister, Sir Oliver as Permanent Secretary, and myself as the constitutional adviser “on tap”.  The key to this unusual arrangement was, in fact, that Ceylon unlike India had no Reforms Department. Mr Senanayake as Leader of the State Council and Vice–Chairman of the Board of Ministers had no Department, while the Ministry of Agriculture and Lands, of which he was head, was not suitably organised and staffed for dealing with constitutional matters.  The Civil Defence Department as such was not involved.  Dr D. M. de Silva knew what was going on and gave such administrative assistance as we needed. The typing was done by Mr Basil Candappa, a member of the Clerical Service who had become confidential clerk to Sir Oliver and who could be relied upon to do a quick and efficient job at any hour of the day or night: what is more, he knew how to keep his mouth shut, and never once was there any sort of leakage from the Civil Defence Department. The rest of the Department could have had only the vaguest idea of what was going on.

Mr Senanayake had the good politician’s unconcern with detail.   In consultation with Sir Oliver – and the relationship was so close that it was rarely possible to say whether an idea came from the one or the other – he had worked out the grand strategy. The aim was Dominion status. Any proposal which seemed to be a step in that direction should be accepted, though an effort should first be made to make it go a little further. In working out the details, the proposal should be pressed to its limits and just a little beyond. Having gone some way towards Dominion status, a suitable opportunity should be sought for presenting a demand for the next step, and if it proved impossible then to secure Dominion status, any offer which nevertheless went further should be accepted and pressed to its utmost limit.

This strategy probably owed its inception to Sir Oliver Goonetilleke. The politicians, including Mr Senanayake himself, had been bred to the “imperialist” theory which came from Marx and Engels via Lenin[5] and the Indian National Congress, though apparently none of them knew its origin. Mr Senanayake, whose greatest asset had always been his sturdy common sense, had doubts about its validity. He tended rather to the belief that British politicians were ordinary politicians and the Colonial Office a collection of ordinary civil servants. Their motives were certainly under suspicion, but they were probably not clever enough to be confidence–tricksters. They might even be honest people, doing their best by their country, but willing to help Ceylon towards “Freedom” if it could be proved that they would not get into trouble if they did. Sir Oliver had no doubt at all. He tended to treat the whole affair as a game of bridge in which Mr Senanayake had quite good cards. The British would obey the rules, and Mr Senanayake would win the rubber if he played his cards properly. Mr Senanayake was quite willing to play, though he kept a wary eye for cheating.  The analogy is of course not exact. Mr Senanayake had to carry the Ministers and the rest of the State Councils with him. A draft intended to persuade had often to be modified because the best arguments would be disliked by local politicians. We had to persuade Englishmen who had no idea that they were “imperialists” by arguments which could be read in Ceylon as if they were.

The tactics required by the strategy were thus complex and difficult to work out. The team–work was, however, highly efficient because our qualities were complementary. Mr Senanayake had a remarkable intuition which led him straight to the core of a problem. No matter how technical a question might be he would seize its essence after a short explanation. One of my advantages was that, as a university lecturer, I had long since learned to state a complicated case reasonably simply and shortly. I have seen him handle lawyers who wrapped up simple ideas in compound clauses and conditional phrases. He would say something like “As a matter of fact if you climb a coconut tree you’ll have to climb down again sometime”. I have no recollection whatever of his failing to grasp difficulty on the first explanation. What is more, he was ready with a solution immediately. It was always a sensible solution. Sometimes, though, it would not work as it stood. Frequently Goonetilleke or I could suggest a modification there and then. If not, I would take time to think it over, come back with a proposal next day, argue it with Goonetilleke, and then put it to “the Boss”. Goonetilleke himself had an uncanny knowledge of the way in which the people’s minds worked. He knew “everybody” in Ceylon, and he and the Leader together could at once say how a proposal would be received, who would oppose it, and how long he would keep the opposition going. Sir Oliver did not know my fellow–countrymen so well, but when he became too clever for simple–minded Englishmen I simply broke in with “No, No. That won’t work”.

Usually Mr Senanayake started with a germ of an idea which Sir Oliver and I would work out in a rapid cross–fire of suggestions and counter suggestions. We also produced alternative ideas which, if Mr Senanayake thought them fruitful, would again be worked out by cross–talk. In the end we developed some sort of scheme which I was left to express in words. The drafting was done either in Dr de Silva’s room next door or in my room at the Galle Face Hotel. Often I read my manuscript draft to Sir Oliver first, deleted my best phrases at his request, added precautionary clauses, and perhaps struck out whole paragraphs for re–drafting. My second draft was then typed by Mr Candappa and read to Mr Senanayake. At times Sir Oliver broke in to explain why I used a particular line of argument. Frequently Mr Senanayake began an objection with “I mean to say” or “As a matter of fact”. Such a phrase portended a deletion or an amendment, for though Mr Senanayake was not good at telling what to say he knew precisely what could not be said.

The partnership was broken for a time when Mr Senanayake went to London in July 1945. With him went Mr A.G. Ranasinghe (now Sir Arthur Ranasinghe)[6] and Dr D. M. de Silva as secretaries. Dr de Silva’s main contributions were in respect of organisation, and very valuable they were. Ranasinghe was a distinct acquisition. Having being Secretary to Mr Senanayake as Minister for Agriculture and Lands he knew well the working of his mind. He also knew, as I did not, how to state a case without creating opposition in Ceylon. In this respect we had “the breakdown gang”. On many points we could do no more than state the alternatives with their advantages and disadvantages. Whom he consulted I did not always know, though clearly Mr D. R. Wijewardene[7] and, at a later stage, Mr H. H. Basnayake[8], had considerable influence. Many of the documents, too, were debated by the Ministers and, generally, improved by them.  The incisive mind of Mr S. W. R. D. Bandaranaike[9] was particularly useful.  He saw our weak point with remarkable speed and expressed them with ruthless logic.  He represented far more than Mr Senanayake the section of opinion which was suspicious of British intensions and therefore insisted on precautions that otherwise would not have been taken.

History drawn from documents is apt to mislead because the importance of personal influences is rarely placed on record and indeed such influences are difficult to assess. As will be explained later, the Minsters did not welcome the appointment of the Soulbury Commission.[10] They thought, and as I believe thought rightly, that the terms of reference were inconsistent with the Declaration of May 1943. It was nevertheless decided not to boycott the Commission but to refrain from giving evidence and to let the situation speak for itself. Here, too, “the breakdown gang” was not without influence. Sir Oliver was in his element. It is hardly an exaggeration to say that for the first few weeks the Commission’s social engagements were organised by him. Most of the invitations which poured in were instigated by him and every effort was made to enable the Commission to meet a representative selection of the educated classes.  Fortunately the Commission was a very sociable body and obviously enjoyed itself.  It was, too, obviously impressed by the intelligence, friendliness and cheerfulness of Colombo society.  “Sinhalese domination” began to look strange when in any odd corner of a party people of all races and religions were found calling each other by their first names and laughing at each other’s jokes.  These were not strangers gathered around to impress the Commission but people who knew each other intimately.  It was true of course that Colombo society was not typical of the people; but every country has its governing class and this was the governing class of Ceylon.  Mr G. G. Ponnambalam[11], the Tamil leader, had lost his case before he began to argue it. After all, Mr Ponnambalam himself was “Pon” to a great many Sinhalese.

The impressions of the Soulbury Commission were heightened by what they saw in the country. The visitor to Ceylon is impressed by the idleness of many of her people, but he is also impressed by their orderliness and [being] good [at] a difficult task. We had to persuade British politicians and civil servants by documents which might have to be published in Ceylon. We had therefore to use arguments which were convincing in London but which were not very remote from the ideas commonly accepted by politically–minded people in Ceylon. Political opinion in the Island had largely been moulded by Indian propaganda which, at least in my view, misrepresented British policy and not only delayed the attainment of independence by India but helped to lead to strife and disorder. Ceylon was seeking independence by a different road and therefore had to use different arguments, and yet many Ceylonese used the same arguments. I did my best to think of the impact on Ceylonese opinion of what was being said in London, but Ranasinghe was much more competent in this field than I, and between us we concocted documents which, when corrected and expurgated by Mr Senanayake, seemed to be reasonably satisfactory. What is more, though I was with the Ceylon delegation only for short visits – for I was living in Cambridge – Ranasinghe was on the spot the whole time, priming Mr Senanayake for his talks with the Secretary of State, Mr George Hall[12], and the officials of the Colonial Office. I shall mention presently the importance of these talks.

Ranasinghe’s association did not end with Mr Senanayake’s return to Ceylon. It was arranged that I should follow within a few days, the Colonial Office accepting the polite fiction that I was urgently needed in the University. Sir Oliver Goonetilleke was now Financial Secretary, and we generally met at his bungalow or at Mr Senanayake’s nearby. Ranasinghe was always present and saw the drafts in the rough state. He became even more necessary during the periods when Sir Oliver was in England. In July 1947, while Sir Oliver was negotiating in London Ranasinghe’s influence was decisive. On one point of considerable importance he disagreed with me. Mr Senanayake accepted my view but Sir Oliver agreed with Ranasinghe and cabled that a part of his letter of instructions was giving him difficulty in his negotiations. Mr Senanayake very properly changed his mind and revised instructions drafted by Ranasinghe. were sent off. On this basis Sir Oliver brought the negotiations to a successful conclusion.

Nor must it be assumed that Mr Senanayake consulted only humour. The irrigation schemes may have been costly, but they do show what serious efforts have been made to overcome the jungle. Many of the schools are poor in quality but it was obvious that great efforts had been made since 1931. The importance of all this lies not merely in what the Commission said in print, but also in what its members said privately in London. Lord Soulbury in particular was a consistent friend of Ceylon. It made no great difference that a Labour government came into office in July 1945. His opinions were still important and indeed they gained force from the fact that they would probably be the opinions of the Opposition.

Finally, emphasis must be laid on the personal influence which Mr Senanayake gained in London. This was a triumph of personality rather than of organisation, for though I have no reason to believe that he was not adequately briefed and I am quite sure that the administrative arguments for which Dr de Silva was responsible were up to Colonial Office standard, it was obvious that Mr Senanayake himself created a great impression. Officially I did not exist, and so I was present at none of the conferences, but it was evident from the casual remarks thrown out by the senior officials that “Jungle John” had surprised them by the strength of his character and the sincerity of his purpose. His sense of humour helped, for it had long been accepted that in relation to Ceylon a joke was a very serious thing.    It was perhaps an advantage that Mr Senanayake had not the facility of language of the England–trained Ceylonese graduate or the slick self–assurance of the professional advocate. A Ceylonese prototype of the English official would not have made such an impression because the Colonial Office was familiar with it. It had never met Mr Senanayake’s type before.

His line of approach, too, was quite different from what they had expected. He was far too experienced a politician to tell them that they were knaves and fools. What he said in effect – in language which I cannot reproduce – was:

We are an ancient people, accustomed to governing ourselves before England was heard of. We arc a friendly people. We welcomed you in 1795.[13] We vested the Sinhalese Crown in your King in 1815.[14] You have done things of which we do not approve, but we have also learned much from you. You gave us a most difficult Constitution, but we have worked it successfully. When you lost Malaya and Burma and met antagonism in India, you came to friendly Ceylon, and we helped you. We do not ask independence as a reward. We ask it because it is in your interest as well as ours. We want to keep your friendship. Do you not want to keep ours?

Such an appeal was both unexpected and unanswerable except by a gesture of equally friendly a nature. Mr Senanayake completely captured the Colonial Office and the Secretary of State. If he had been able to meet the Cabinet I am sure that he would have obtained independence in 1945.  My own position was anomalous and therefore amusing.  My assistance could not be kept secret because the hand of the constitutional lawyer was visible in the documents.  Sir Andrew Caldecott[15] named the draftsman of the first document circulated to the Board of Ministers, but I think that he nor Sir Henry Moore[16] could quite fathom how the “breakdown gang” was functioning.  I was anxious to avoid publicity because of the danger of a suspicion that my assistance was another example of the cleverness of the British in making certain that one of themselves did the drafting.  The nearest approach that came to a public disclosure was Mr Senanayake’s remark in the State Council in replying to the debate on the White Paper, that though he had not had a university education he had good university instruction.  The association soon became known to a wide circle, however, and I was occasionally saddled with the responsibility for proposals which were not referred to me.

The story which is told in the following chapters is that which became known to me. I was not present at meetings of the Ministers, nor at Mr Senanayake’s conferences with the Secretary of State or the Governor. It must be remembered, too, that the Government of Ceylon was dyarchic.[17] The Governor represented the Colonial Office and was advised by the Chief Secretary, Sir Robert Drayton[18]. We knew that some, at least, of the telegrams sent by the Secretary of State were drafted by Sir Robert; he was therefore blamed when the Colonial Office decided to appoint the Soulbury Commission in breach of what Mr Senanayake thought to be an agreement between the Ministers and the Secretary of State. The reader will probably gather the same impression from the story as I tell it and must therefore be warned that there is another section of the story enshrined in the telegrams which passed between the Governor and the Colonial Office. I have not seen those telegrams and cannot tell that part of the story. I have a very high opinion of Sir Robert’s ability and probity, and I have an uneasy feeling that an injustice may have been done to him. It may be that the mistake which almost wrecked the negotiations was not his but that he was set the unpleasant task of justifying it. I should therefore like to make plain that my judgments, and the reader’s judgments after he has read this book, are based on a partial view of the case. We shall not know the whole truth until the official documents are made available.

[1] Air Raid Precaution organisation set up across the British Empire to assist in civilian defence against air attacks during World War II.

[2] C.C.S.; confidante of Senanayake and Jennings.

[3] Member of the State Council.

[4] Jennings originally noted “an allegation which statistics show to be nonsense”.

[5] Leading European Communist thinkers Karl Marx, Friedrich Engels and Vladimir Lenin.

[6] Sir Arthur Godwin Ranasinghe, senior Ceylon Civil Servant.  Held key public positions before and after independence including Secretary to the Treasury and Secretary to the Cabinet.  During this period he worked closely with Senanayake and Jennings.

[7] Don Richard Wijewardene, press baron founder of Lake House Newspapers and ally of the U.N.P.

[8] Hema Henry Basnayake K.C., Ceylon jurist; Chief Justice in 1956.

[9] Solomon West Ridgeway Dias Bandaranaike, Sri Lanka Freedom Party (S.L.F.P.) Prime Minister, 1956–59.  Served as Minister of Health under Senanayake till 1951 when he crossed the House and founded the S.L.F.P.

[10] See chapter 4.

[11] Ganapathipillai Gangaser Ponnambalam K.C.; leader of the All Ceylon Tamil Congress.  Often referred to as “G.G.”  Ponnambalam controversially advocated that half the seats in the legislature should be guaranteed for minorities and the other half for Sinhalese members.  This policy was popularly known as “50–50” or “balanced representation”.

[12] George Hall (later Viscount Hall), British Labour Cabinet Minister; Secretary of State for the Colonies, 1945–46.

[13] The year territories ruled by the Dutch on the Island were ceded to the British, who in 1798 created the Crown Colony of Ceylon.

[14] An agreement between the Kandyan nobles and the British in March 1815 that replaced the Kandyan monarchy with the British one and completed British rule over the whole island.

[15] Sir Andrew Caldecott, Governor of Ceylon, 1937–1944.  For another personal and astute insight into local politics and negotiations with the British see Caldecott’s fifteen confidential reports, he labeled them “Things Ceylonese”, to the Colonial Secretary, which are reproduced in vol. I BDEEP.

[16] Sir Henry Monck–Mason Moore, Governor of Ceylon, 1944–1948; Governor–General of Ceylon, 1948–1949.

[17] This term refers to a policy practiced at one time in India especially where executive powers in certain administrative subjects were divided between the British appointed officials, like Drayton, and those sitting in the local legislature, like Senanayake.  The latter group was very often local politicians.

[18] Sir Robert Harry Drayton, Chief Secretary of Ceylon, 1942–1947.

Jennings’ Preface

Soon after Ceylon attained Independence in February 1948, there was a discussion in University of Ceylon about the need for more books, especially source books, on Ceylon History, and several of us agreed to start writing. My task was to cover the transition from the Donoughmore Constitution[1] to Independence. This task necessary fell into two parts. The first covered the period from 1931 to 1943, of which I had no personal knowledge. After making the attempt, I found that I could not improve on the first six chapters of the Soulbury Report[2], which are therefore reprinted with a few notes[3]. The second part covered the period from 1945 to 1948, during which I was advising the late Mr D.S. Senanayake[4]. Though this second part would be based on, and would contain extracts from, the published documents, the material would have to be seen together with a personal narrative, which it seemed desirable to write forthwith, while the events were fresh in my memory. This personal narrative was completed late in 1948 and has merely been edited since.[5] Publication was delayed because the events which it described were matters of political controversy in which I did not wish to be involved. No doubt there is still material which can be used as political ammunition, but that is true of all history.

My aim has been to give the Ceylonese reader the material needed for the study of recent constitutional history, though I have also kept in mind the reader abroad to whom the background and the personalities are unfamiliar. The narrative is based almost entirely on published and unpublished documents, including contemporary notes of my own.  It is, so far as I know, accurate. It does not, however, contain the whole truth because there are aspects of the story unknown to me. Though I have tried to keep autobiographical material to a minimum, the narrative describes events in which I took part or which I saw going on around me. Most of the documents referred to were addressed to or by Mr D.S. Senanayake. There were, however, other events and other documents unknown to me, or known vaguely. There were discussions outside Union Place of which, at best, Mr Senanayake gave only a bare outline. There were discussions involving the Commander–in–Chief, the Governor and the Officers of State which were unknown to us. There must have been a lengthy correspondence between Colombo and London whose contents are not likely to be disclosed for a generation.[6] There will be a file in the Colonial Office which would clear up many obscurities. When this material becomes available to the historian he will be able to provide a narrative which will be not only more complete but also more balanced. Even so, it is better to base history on incomplete material than on legends, and in the past six years the legends have grown.  Moreover the future historian will need my narrative even though all documents will be in the University Library. It is therefore inevitable that some autobiography is included, but at the same time it is necessary to warn the reader that the study is incomplete and out of balance. This is not constitutional history but a contribution towards constitutional history.

Mr Senanayake’s stature as a statesman will be evident from the narrative. What distinguished him was the degree to which he possessed that identifiable quality known as “judgement”. He could take a decision on a most complicated and difficult issue at a moment’s notice.  He rarely asked for memoranda. He liked to have a problem explained orally, and even then he needed no lengthy lecture. He was concerned with principles and not with details; and, being no orator, he never fell into the politician’s temptation of thinking that a problem could be solved by a speech. Those of us who have had a lengthy academic education dislike taking decisions until we get the problem into writing. With Mr Senanayake the opposite process was necessary. Most of the documents referred to in this book were read to him. He followed extremely closely and picked immediately on any point which seemed to him to be dangerous or any expression which might be misunderstood. “ ‘s a matter of fact”, he would remark, or “I mean t’ say” – and then a change was necessary for, even if explanation satisfied him that the point was good, the fact that he disliked it on first reading was a sufficient indication that a different mode of expression had to be used. If he grunted– an expression half–way between a slovenly Sinhalese “yes” and a slovenly English “yes” – all was well.

Though none of his advisers has the slightest difficulty in accepting his judgment, there were times when we thought him wrong. Then we never hesitated to say so. One of the advantages of the “Reforms Ministry”, as we were sometimes called, was that we were such senior and indeed independent people that we simply would not accept a decision merely because he took it. “No, Sir”, one of us would say, “You can’t do that”; and we went on arguing the point until we were all, or nearly all, convinced. We had to remember that in the last resort the responsibility was his, but he treated us as colleagues. Never, so far as I remember, did he give an order. If the rest of us were agreed while he was still unconvinced, he would simply say, “Well, I must rely on my advisers”. On the other hand, none of his advisers was so obstinate as to stand out alone. After all “the old man” was nearly always right. Though he was so inarticulate that he often found difficulty in explaining himself, his judgment infused confidence.

One cannot work with a man for five years without finding out whether he is honest. D.S. was fundamentally honest. He never posed, either in public or in private. It would not be true to say that he was a Sinhalese in the same way as an Englishmen is an Englishman. Communalism runs deep into the social history of Ceylon and cannot be eradicated by a generation of nationalism. Nevertheless, his professions of friendship and indeed affection for other communities were entirely sincere. He could quite easily have achieved “Sinhalese domination” had he wanted it; for he would have secured a sufficient following. In spite of the attacks made upon him while the Soulbury Commission was in the Island, he refused to retaliate. One example of his generosity, which had nothing to do with the Constitution, may be quoted. While some of his colleagues were attacking the Christian schools, he was asked to preside at the centenary of such a school. He came to my bungalow to ask if I would write a speech for him, expressing the thanks of the people of Ceylon for the educational work of the Christian missionaries. There could be no question of political advantage in this gesture. Obviously, too, he came to me because he thought me unlikely to be unsympathetic with his intention. That speech was read exactly as I wrote it. Nor must it be forgotten that in a country where caste divisions are still important, the minority castes went to him to ask for his assistance. After he became Prime Minister, in fact, reliance upon his judgment became too heavy. Far too many problems, having nothing to do with the government of the country, were presented to him, at all hours of the day and night.

In the preface of a book on the Ceylon Constitution, written in November 1948, I expressed the view that, but for Mr Senanayake and Sir Oliver Goonetilleke[7], “Ceylon would still be a colony”.[8] That opinion was criticised because it was said to ignore the efforts of other patriots and the influence of Indian agitation. I am unable to accept the criticism. It is no doubt true that, but for the efforts of other patriots, to which Mr Senanayake rendered thanks in his speech of November 1945[9], he could not have set the train which led to independence in 1948. It may even be true, though on this there is greater doubt, that the work of the Indian National Congress[10] helped Ceylon towards independence. Nevertheless, the achievement of independence was deliberately planned by Mr D.S. Senanayake, with the assistance of Sir Oliver Goonetilleke, in 1942. He formulated the strategy, and he worked out the tactics from week to week. He almost won in 1945, and his failure then was due to fact the Indian politicians were – at least in my opinion – using much less judgment in their methods, His efforts were bound to succeed because they depended on a correct appreciation of the attitude of my fellow–countrymen. He knew much less about them, in their home environment, than Mr Gandhi[11] or Mr Nehru[12], and yet he knew more about them because, generally speaking his judgments about men were as sound as his judgments about measures. He did make mistakes in individual cases, both among Ceylonese and among “Europeans”, but in the main he was right. No doubt Ceylon would have attained independence at some time or other if he had not taken the load. What I said was that Ceylon would not have attained independence in 1948 but for him and Sir Oliver Goonetilleke.

I am indebted to the Prime Minister (the Hon. Dudley Senanayake[13], M. P.) for permission to use confidential material, to the controller of Her Majesty’s Stationary Office, London, for permission to publish extracts from official papers of the United Kingdom; and to the Deputy Secretary to the Treasury, Colombo, for permission to publish extracts from official papers of Ceylon.

W.I. J.

University of Ceylon
Peradeniya
3rd April 1953.

[1] The Donoughmore Constitution was in operation from 1931 to September 1947. The key features of the Donoughmore Constitution were that it established universal adult suffrage (Ceylon became the first Asian country to do so); abolished communal representation, which was replaced by territorial representation to a legislature named the State Council; transferred substantial control over internal policy to elected representatives of Ceylon; and established a system of executive committees. Despite provisions for certain areas of legislative and executive power reserved for the Imperial power, the measures were substantial and as the Colonial Secretary eulogised at its passing in 1947, it was an ‘experiment in adult suffrage and in responsible democracy, and it contributed much to the political maturity and drive for effective democracy of the people of Ceylon’. It was, however, also notoriously difficult to operate due to its committee system especially since it deviated significantly from the “traditional” paths to responsible and cabinet government in the British Empire. 
The Donoughmore Commission’s report was published as Colonial Office, Ceylon: Report of the Special Commission on the Government of Ceylon, [Donoughmore Report], Cmd. 3131, London: His Majesty’s Stationery Office, 1928

[2] Formally Colonial Office, Ceylon: Report of the Commission on the Constitution, [Soulbury Report], Cmd. 6677, London: His Majesty’s Stationery Office, 1945.  The Soulbury Report will be covered extensively below.

[3] Reproduced in Appendix III

[4] Don Stephen Senanayake, commonly referred to as ‘D.S.’. First Prime Minister of Ceylon, 1948–1952; founder–leader of the United National Party (U.N.P.), which was created by him in 1946.   Senanayake was the leading local politician following the retirement of Sir Don Baron Jayatilaka from the Board of Ministers in September 1942.  In the period covered in the book he was recognized by many since the 1940s, including at Whitehall, as Ceylon’s prime minister in waiting.

[5] It seems Ivor Jennings (henceforth IJ) periodically returned and made changes and additions to this manuscript till at least 1956.

[6] These are largely contained in K. M. de Silva’s invaluable British Documents on the End of Empire, Series B – Sri Lanka, Part I The Second World War and the Soulbury Commission 1939–1945 and Part II Towards Independence 1945–48, K. M. De Silva (ed.) London: Her Majesty’s Stationery Office, 1997 (henceforth BDEEP)

[7] Sir Oliver Ernest Goonetilleke, leading Ceylon administrator and senior minister, who was a friend and colleague of Jennings; Governor–General, 1954–1962. Often referred to as ‘O.E.G.’.   In the pre–independence era he held key positions such as Civil Defence Commissioner and Financial Secretary.  None of these or his later positions fully explain his extraordinary influence.

[8] There are three editions of The Constitution of Ceylon, which was published by Oxford University Press.  They were published in 1949, 1951 and 1953 respectively. The first two were dedicated to D.S. Senanayake while the third was dedicated “To the memory of the late – the Right Hon. D. S. Senanayake M.P. – Prime Minister of Ceylon”.  The first edition’s preface written on 22 November 1948 ends by stating “Some day I hope to explain in print how much Ceylon owes to Mr Senanayake and to Sir Oliver Goonetilleke.  But for them Ceylon would still be a colony.”  Clearly this book edited here is Jennings’ attempt “to explain in print” that remarkable period in Ceylon’s history.

[9] Jennings mentions October in his draft, but the speech and reference is clearly to Senanayake’s speech on 8 November 1945.  See State Council Debates, vol. 1, 1945, col. 6918–6932 and reproduced in chapter 8.

[10] Indian National Congress, a leading Indian political party, founded in 1885

[11] Mohandas Karamchand Gandhi, 20th century Indian political leader.

[12] Jawaharlal Nehru, Indian National Congress leader; Prime Minister of India, 1947–1964.

[13] Dudley Shelton Senanayake, eldest son of D.S. Senanayake; U.N.P. Prime Minister of Ceylon, 1952–1953, 1960, 1965–1970.

Explanatory Note

As was my style and method with CM I have refrained from dramatically amending Jennings’ manuscript below and have tried to present it as he had left it in his papers.  I have had to make some changes as certain notes and sections were incomplete and obviously in the wrong order.  Due to the scarcity of reliable primary documents of the period in Sri Lanka key constitutional documents, speeches and letters are reproduced within the volume.  I have provided throughout the main text brief footnotes – though I have not done this for quotations from reports or for Jennings’ notes except to clarify the source of the text.  Readers will notice in the main body italicised text.  This indicates text that Jennings had originally added, but later crossed out or queried.  Due to the value of the information they contained I have made the decision to include them, but the reader should take them with caution.  It is my opinion that most of this text italicised here had been marked for omission due to political sensitivities.  None of the people mentioned in this book are alive and the negotiations for independence are no longer covered by official restrictions thus I believe it is worth including these valuable pieces once more in the manuscript.

Key recent texts have been written on Jennings since his death.  For further information on him, his writings and scholarly appraisals of his work the readers interested in his role in Ceylon are encouraged to consult the following:

W. Bradley, ‘Sir William Ivor Jennings: A Centennial Paper’, Modern Law Review, 67, no. 5, September 2004, pp. 716–733

M. de Silva, “Ivor Jennings and Sri Lanka’s Passage to Independence”, Asia Pacific Law Review, vol. 13, no. 1, 2005, pp. 1–18.

M. de Silva (ed.), British Documents on the End of Empire, Series B – Sri Lanka, Part I The Second World War and the Soulbury Commission 1939–1945 and Part II Towards Independence 1945–48, London: Her Majesty’s Stationery Office, 1997

H.A.I. Goonetilleke (ed.), The Road to Peradeniya: An Autobiography, Colombo: Lake House, 2005

H.A.I. Goonetilleke (ed.), The Kandy Road, Peradeniya: University of Peradeniya, 1993

Kumarasingham, “Eastminsters – Decolonisation and State Building in British Asia” in H. Kumarasingham (ed.), Constitution–Making in Asia – Decolonisation and State–Building in the Aftermath of the British Empire, London: Routledge, 2016

Kumarasingham (ed.), Constitution–Maker: Selected Writings of Sir Ivor Jennings, Cambridge: Cambridge University Press, 2015

Kumarasingham, A Political Legacy of the British Empire – Power and the Parliamentary System in Postcolonial India and Sri Lanka, London: I.B. Tauris, 2013

Mara Malagodi, ‘The Oriental Jennings: An Archival Investigation into Sir Ivor Jennings’ Constitutional Legacy in South Asia’, Legal Information Management, 14, no. 1, March 2014, pp. 33–37.

Laksman Marasinghe, “Sir William Ivor Jennings (1903–1965)”, in Law & Society Trust (ed.) Legal Personalities of Sri Lanka, Colombo: Law & Society Trust, 2005

Asanga Welikala, “ ‘Specialist in Omniscience’? Nationalism, Constitutionalism, and Sir Ivor Jennings’ Engagement with Ceylon” in H. Kumarasingham (ed.), Constitution–Making in Asia – Decolonisation and State–Building in the Aftermath of the British Empire, London: Routledge, 2016

Asanga Welikala, “The Failure of Jennings’ Constitutional Experiment in Ceylon: How ‘Procedural Entrenchment’ led to Constitutional Revolution” in A. Welikala (ed.), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, Colombo: Centre for Policy Alternatives, 2012

Editor’s Introduction

S. Senanayake, despite his patrician background and highly educated kinsmen, could claim little formal education beyond the selective school lessons at S. Thomas’ College, Mt. Lavinia, under Warden the Rev. W. A. Buck. Nonetheless, while moving a resolution on 9 November 1945 to accept the Soulbury Report’s recommendations on a new constitution the future prime minister of Ceylon informed the State Council, a legislative body full of Ceylonese educated in Britain’s ancient universities:

Although I have had no University education I have had “University instructions”, which are very good.[1]

Renowned for his straightforward and bucolic manner this was no riddle for those assembled.  Hansard does not record the name of the person who gave Senanayake his “University instructions”, but all knew that it was the Englishman and Vice–Chancellor of the University of Ceylon, Dr W. Ivor Jennings.  After Senanayake’s death in March 1952 Jennings publically recorded in a memorial issue of the Ceylon Historical Journal ‘[t]here have been few greater statesmen in the history of the British Commonwealth, and Ceylon owes a debt to his memory that will be difficult to repay’.[2]  The two made an odd couple.  Senanayake with his prosperous frame and background was a genial, near inarticulate Buddhist Sinhalese squire happiest working and tending his lands while Jennings was an austere, sardonic, cadaverous scholarship boy of English working–class stock invariably surrounded by piles of academic texts and plumes of cigarette smoke.  Together, however, they were formidable and the relationship was clearly symbiotic.  Almost on arrival in Ceylon on 22 March 1941 to take up his new post Jennings became Senanayake’s constitutional confidante.  One other story may illustrate the intimacy of their relationship, as privately noted by Jennings, as well as their personalities.

The “sundowner” much impressed D.S. though himself a teetotaller, he was always tolerant of other people’s opinions and habits, and he considered that, if I liked a “sundowner” I ought to have one … “The Boss” wanted me at once [to help with drafting a letter to the CO] and would I bring a bag to stay at least a week? … On the table was a full bottle of whisky. Now, a bottle of whisky was unprocurable in London in 1945, and I had not had a “sundowner” for four months. Naturally I enquired where the bottle came from. I discovered that D.S. had made friends with the barman of his hotel and asked his advice. The barman had pointed out that the only way to get a bottle of whisky was to buy all the drinks in his bottle across the counter. D.S. did so, and so that bottle cost something like £5. It was a gross extravagance – which came out of his own pocket – and I would have stopped it had I known. Nevertheless, the story is worth the telling as an example of his tolerance and generosity.[3]

The question arises of why did Jennings come to Ceylon in 1941 at the age of 38?  The Cambridge educated intellectual had forged a highly successful career at the London School of Economics (LSE).  By the time of his arrival at Colombo harbour he had already completed four of his most prominent works The Law and the Constitution (1933), Cabinet Government (1936), Parliament (1939) and The British Constitution (1941), which would see multiple editions and indeed some remain in print to the present day.  With such an impressive publishing record, hardworking reputation and intellectual capability the possibility of future laurels seemed bright with prestigious posts awaiting, which the Colombo position, at first sight, did not at all provide.  The candidate was tasked with not only upgrading the University College to full University status and moving the campus from the capital to the countryside, but also functioning in an Asian environment far removed from the political buzz of global London or the cerebral assuredness of the Cambridge common room.  Such an educational role in the East was made further problematic by relying on all things British when the majority of students and Faculty naturally found difficulty acclimatizing to unimaginative syllabi dutifully drawn from afar in the North Atlantic.

The pupil was not asked to work out the profit on a transaction in copra at so many rupees a candy, but the profit on a transaction in cotton at so many pence a pound. If a man cycled from London to Brighton . . . History was, of course, English history, and Ethelred the Unready was more important than Parakrama Bahu the Great. The student knew all about the English coalfields and had not the least notion where plumbago was found in Ceylon, still less why.[4]

However, for Jennings comfortable university life, despite his natural inclinations towards academic existence, was not what he craved.  The commotion of war had stirred his long–held objective to be “involved”. He had offered to leave his LSE post for the duration of the war and contribute through government service not only to Britain, but also the colonial empire.  This had been refused.  Jennings took the post in Ceylon with these expectations in mind. In his posthumously published memoir Jennings added ‘I knew something about the constitutional problems of the Island, and in fact I think I was the only person in the world who was lecturing on them’.[5]  He explained to the eager reporters on his arrival at Colombo.

He had applied, he said, for the post of Principal of the Ceylon University College because he felt that there was very little for him to do at the London School of Economics and Political Science under war conditions.  On the other hand, they would not give him permission to go into Government Service until the end of the war.  He felt that the post in Ceylon was one of responsibility, giving anyone scope for activity in real public learning.[6]

Soon as Deputy Civil Defence Commissioner he was actively helping with Ceylon’s defence against the feared Japanese invasion. However, another more political and less official role awaited.  His self–reported expertise on Ceylon made the “scope” for political public service very real when Jennings arrived.  The Ceylonese political leaders, soon to be under the leadership of D. S. Senanayake on the retirement of Sir Baron Jayatilaka in November 1942, were in the midst of negotiating further constitutional concessions from Britain with the clear goal of joining Canada, Australia, South Africa and New Zealand as an autonomous Dominion within the Commonwealth. “Dominion Status Senanayake” was quick to grasp that he had on the island one of the world’s foremost experts on British and imperial constitutional politics.  One of Senanayake’s skills, according to Jennings, was that ‘he could distinguish between a thorough–bred and a hawk, whether human or otherwise’ and rightly or wrongly the constitutional beast he chose was the new vice–chancellor.[7] As Sir Oliver Goonetilleke proclaimed from the newly created Senate in December 1947:  ‘We have the advice of the greatest living authority on Constitutional Law regarding the British Commonwealth – Dr Jennings’.[8] The new vice–chancellor could provide the intellectual and legal expertise Senanayake needed for his parley with the CO for independence.  As A.W. Bradley notes in his academic life of Jennings using his subject’s autobiography

The Colonial Office, having initially appointed him Principal of the University College, were displeased by his role in constitutional affairs as adviser to the local Ministers. Jennings justified his role by saying that what he had done was ‘in strict accord with the university tradition’, but he later accepted that he ‘went a little further’ than merely giving technical advice when the First Minister asked for it.[9]

Thus a relationship was shaped of critical importance not only to each other, but also to Ceylon’s future.   Jennings recognised this and said in his broadcast on the eve of his departure, almost 14 years after arriving, on 19 January 1955 “My most important unpaid job was that of constitutional adviser to Mr D.S. Senanayake. Some day I must tell that story at length, for it resulted in the independence of Ceylon”.[10]  Senanayake and Jennings both prided themselves as sensible pragmatists and looked somewhat askance at the passions and protests seen across the Palk Strait.  The negotiations and advice reflected this supposed realism.  There was, for example, no question of Ceylon breaking its link with the Crown. To do so would be an ‘emotional luxury’.[11]  As Jennings explained when discussing why Ceylon saw the need to include defence agreements with Britain as part of the independence “package” to the chagrin of the Leftists:

Ceylon is by tradition forty miles from Heaven, but forty miles may be a long way if communications get interrupted[12]

Ceylon was unquestionably Jennings’ most important assignment in a career that would later take him outside his native Britain across the globe as a constitutional adviser and expert including Australia, Burma, Canada, Cyprus, Eritrea, the Gambia, Ghana, Gibraltar, Hong Kong, India, Jamaica, Kuwait, Malaya, the Maldives, Malta, Nepal, New Zealand, Nigeria, Pakistan, Rhodesia and Nyasaland, Singapore, South Africa, Sudan, and Uganda.  Jennings spent over a third of his career in Ceylon and he clearly enjoyed an influence and political intimacy at the highest levels there that was never reproduced, including in Britain, anywhere else.  Ceylon was to many the model to follow and Jennings was effective through his writings and role in promoting this view.  This confidence and “gentlemanly” transfer of power constitutionally underwritten by Jennings enabled Sir Oliver Goonetilleke, as Governor–General, to cockily proclaim to the Manchester Guardian in early 1956 before the heavy U.N.P. defeat that not only was Ceylon ‘the best Colony ever’, but added ‘with a happy smile’, the ‘safest bet in Asia’.[13]   In Problems of the New Commonwealth Jennings outlined four conditions for the successful transfer of power, which are clearly based on his experience in Ceylon.

  1. There must be a sufficiently large group of educated politicians to whom power can be transferred.
  2. The balance of power should be settled before independence
  3. There should be a transitional constitution, under which the local politicians should be able to gain experience while Britain maintains law and order and economic stability.
  4. Time must be allowed for the permeation of the public service with local men.[14]

The above typology was written in 1958, the year the country, no longer under D.S. Senanayake, experienced its first Sinhalese–Tamil riots.  Jennings nonetheless, like many thought this was an aberration and that the constitution and country would recover the equanimity it enjoyed under its first prime minster.

I find it difficult to believe that the average villager, who always seemed a very sensible fellow really wanted the present Government.  This may be a mere prejudice, based on preference for the compromise which I helped to establish in 1948, and dislike of some of the forces which seemed to be operating in 1956.  However, we shall know more in 1960 [when the next election was scheduled].[15]

Just prior to his death in 1965 Jennings looked back at Ceylon and could see that the abuse of ethnic–linguistic divisions was no aberration. In fact it crippled the constitution he crafted and exposed its flaws, particularly the weakness of not having stronger protections for the public expression of all communities’ identities.  Reflecting on the period covered in this book he dolefully admitted ‘all that seemed necessary, when the first drafts were made in 1943, was a fairly broad non–discrimination clause’;[16] a verdict echoed more forthrightly and sorrowfully by Lord Soulbury two years earlier in 1963.  Soulbury, who Jennings of course worked with, saw that if only their mutual friend “D.S.” had lived longer things would have been different.  In addition, as will be seen below in the book, their earlier confidence in inter–communal unity and corresponding belittling of firmer constitutional recognition of minority rights unravelled.

But had Mr D.S. Senanayake, the first Prime Minister of independent Ceylon, lived I cannot believe that the shocking events of 1958 and the grave tension that now exists between the Tamils and Sinhalese would ever have occurred.  Mr Senanayake would have scorned the spurious electoral advantages that a less far–sighted Sinhalese politician might expect to reap from exploiting the religious, linguistic and cultural differences between the two communities, for it was his policy to make Ceylon a united nation and, as he told the State Council in November 1945 in his great speech recommending the proposals of the British Government, ‘The Tamils are essential to the welfare of this island’.  Unhappily…the death of Mr D. S. Senanayake led to the eventual adoption of a different policy which he would never have countenanced.  Needless to say the consequences have been a bitter disappointment to myself and my fellow Commissioners…I now think it is a pity that the Commission did not also recommend the entrenchment in the constitution of guarantees of fundamental rights…Nevertheless the reconciliation of Tamils and Sinhalese will depend not on constitutional guarantees but on the goodwill, common sense and humanity of the Government in power and the people who elect it.[17]

M. de Silva believes Jennings was the one who had dissuaded Senanayake, who had been sympathetic, not to include an explicit and entrenched Bill of Rights as it would be unnecessary and unfaithful to the traditions of Westminster as espoused by Jennings.[18] The Ceylon press carried a review by Henry Fairlie, which ‘pilloried’ Jennings’ poorly received Party Politics. Fairlie ended his contemptuous review ‘Sir Ivor has helped to give constitutions to Ceylon and Pakistan.  It is no wonder that such countries doubt the relevance of parliamentary democracy to their problems if this is what they have been taught about British politics’.[19]   Whatever else for Jennings, like Soulbury and many others, the prevailing political calm conditions of the mid 1940s made communal separatism and identity rights advocacy seem a debating argument not to be taken seriously, particularly with the bonhomie balm of pan–Ceylonese unity as exhibited and expressed by their friend Senanayake.

It is no accident that Dr W. Ivor Jennings became Sir Ivor Jennings K.C. during the Senanayake premiership.[20] Jennings, Senanayake and Goonetilleke formed a negotiating triumvirate that was nearly unbeatable and they remained thoroughly dedicated to each other and rarely operated in the years leading to independence without consulting each other on constitutional and political matters. Famously Jennings never held a formal or paid post as Senanayake’s adviser, but all whether in admiration or contempt in Ceylonese political circles knew of Jennings’ constitutionally ubiquitous role.

[Jennings noted] I once asked a Sinhalese lady…what people could possibly find to talk about in their gossip on verandas which is I find the major industry of the Island.  With conscious exaggeration she said “We first talk about scandals which have happened and then about the scandals which might possibly have happened; finally we invent scandals”.[21]

For many in Ceylon it was a scandal that Jennings was acting as Senanayake’s Svengali. As the local press commented on his departure ‘There were many deeply suspicious of his close association with Mr D.S. Senanayake and Sir Oliver Goonetilleke, and believed that he was there as a part of an unholy trinity to provide legality for international horse–trading in Ceylon’s freedom.  There were others like Dr N. M. Perera who stung into anger by Sir Ivor’s nimble and rather cruel wit, retorted that he was a “specialist in omniscience”’.[22]   Naturally this ‘tall, bent, slightly moth eaten figure’, as the Ceylon Observer described him, attracted many such comments that with varying accuracy attempted to belittle Senanayake’s eminence gris. The Balliol educated and future Cabinet minister and Tamil firebrand C. Suntharalingam was a particular bête noir who resigned as the first chair of Mathematics because he believed Jennings’ ‘appointment was an insult to Ceylon’ due to his being an Englishman and continued in press or in person to attack the role of Jennings in the country.[23]   The redoubtable Mervyn de Silva used his columns across the English press with cutting effect to denigrate the man who ‘betrays the insularity of the Englishman and the sophomoric wit of the third speaker in a Union Society debate’.  Jennings had presided over the university when de Silva was an undergraduate.   

As Vice–Chancellor Jennings went from success to success in this country, from Commission to Commission, and finally to the exalted position of one of the architects of Ceylon’s independence, and thence to a knighthood, the patronising air with which he looked upon the campus was extended to cover the whole nation.  And when, with Ceylon as a base, his influence broadened out to cover neighbouring countries Pakistan, Malaya, the Maldives which consulted him on constitutional matters, he found it possible to patronise a whole continent.  It is a fact that at least two of these countries have been riddled with constitutional crises and catastrophes since Sir Ivor left their shores.  But to match Sir Ivor’s own manifest modesty if for no other reason, we refuse to credit our ex–Vice–Chancellor with responsibility for these historic events![24]

Nonetheless, it is possible to detect occasional dull rays of respect for Jennings’ authority and deftness with his intellectual skill and provocations ‘provided you can stomach his air of Olympian infallibility which often makes it appear that he is not so much expounding the law as laying it down’[25] – a sentiment most likely shared by some local legislators and CO officers.  The Left in particular distrusted Jennings, along with Senanayake and Goonetilleke, not so much for him being an Englishman, but more for his firmly advocating what they saw as “sham independence”. This was a gradualist and passive path to self–government within the Commonwealth under the Crown in the Dominion tradition of the settler states.  This method to them and others was comparably dull and made any claim of freedom illegitimate as opposed to mass agitation and socialist revolution.  The erudite and epicurean Leftist elite that mesmerised Ceylon and captivated campus politics would not have been amused by the Vice–Chancellor’s

supercilious smile with which he was accustomed to discuss Union Society politics. When Samasamajists fought Stalinists and Stalinists punched Bolsheviks.  Sir Ivor just shrugged his frail shoulders and remarked with a supposed pained bewilderment: “I’m sorry, gentlemen, I can’t distinguish the sheep from the goats nor the salmon from the mackerel”.[26]

Not only did Ceylonese locals disparage his influence.  The CO was deeply suspicious of Jennings.  Ceylon Civil Service hands like the Governor, Chief Secretary and Legal Secretary criticised, privately, the man they believed was undermining their own influence and relegating their role in constitution–making to checking drafts.  As Caldecott complained to Whitehall

[T]he Ministers have never once mentioned to me, much less discussed with me, the progress of their deliberations. They received, I have reason to believe, the constant co–operation of Dr. Ivor Jennings who, however great an authority on the British and other constitutions, naturally knows less about Ceylon politics than the Ministers themselves and is not a legal draughtsman. I understand also that the Ministers sought the views of the Officers of State but that these are not reflected in the draft scheme.[27]

The CO often agreed and commented that one of Jennings’ drafts ‘would be quite useless as a Constitution, despite the fact that it was drafted by Dr. Ivor Jennings’.[28]  The Vice–Chancellor was more than capable of returning such barbs and often insulted and shocked in order to improve the reply.  Though this taunting method did not always work.  In a report of a talk he gave to a joint meeting of the Curia Historica and Economic Society of the University he said nationalism was a lower middle class emotion that would be dead in Ceylon in 50 years.

Sinhalese, he said, was an ineffective means of communication because it lacked a great literature.  “All that Sinhalese literature consisted of, was the output of three novelists.”  ‘No questions were asked of Sir Ivor at the end of the talk.  Sir Ivor then asked: “Are there no nationalists bold enough to question me?”[29]

How many across the world, including Sri Lanka, would echo then or now the following prayer from his memorial service?

“Let us give thanks to God for the life and work of William Ivor Jennings, for his unsparing labours in the cause of justice and government throughout the Commonwealth”

*****

Jennings’ prolific publishing skills ensured his travels and unique international experience figured highly in his writings.  However, in his works on Ceylon (and elsewhere) beyond prefatory platitudes there was little substantial evidence or information of his personal involvement in the constitution–making.  In the main text of his important The Constitution of Ceylon, for example, the reader would have to know from other sources that the elliptical line ‘Experimental drafting of a Constitution had already begun’[30] refers to work carried out by Jennings himself.  As was mentioned above in his broadcast on leaving the Island Jennings promised to write down his personal account of the transfer of power, which he repeated in the preface to the first edition of The Constitution of Ceylon.  Unlike India and Pakistan where both Jawaharlal Nehru and Mohammad Ali Jinnah left massive volumes of documents and correspondence on their time as the pre–eminent leaders of their states Senanayake left nothing for posterity.[31]  In addition to these rich editions are not only Nicholas Mansergh’s magisterial twelve volume Constitutional Relations Between Britain and India – The Transfer of Power 1942–7 (1970–83) documenting the high politics and negotiations with Britain for independence, but also key reference texts publishing first hand accounts from other local sub–continent perspectives in the Indian Council of Historical Research’s Towards Freedom (1999–) series giving voice to those on the ground and beyond the Lutyens–Baker imperial metropolis of New Delhi.

Ceylon/Sri Lanka has not been so well served.  Michael Roberts has collected in his four volume Documents of the Ceylon National Congress and Nationalist Politics in Ceylon 1929–50 (1977) significant primary documents of the main organ of elite constitutionalists in the island.  K. M. de Silva has added immensely to our understanding of Ceylon’s path to independence by expertly editing two volumes of documents taken from the British National Archives, mainly from the Colonial Office, in the British Documents on the End of Empire Project series run from the Institute of Commonwealth Studies, London as well as a long introduction that skilfully elucidates the complex negotiations for Ceylonese self–rule.  However, as de Silva recognizes a major gap exists when compared to India (and elsewhere in Asia) of not having significant accounts from key Ceylon based personnel on the transfer of power.  De Silva had used the Jennings papers housed at the Institute of Commonwealth Studies in Russell Square, London.  The collection contained through Jennings a key first hand resource both in terms of primary documents and personal accounts of a figure directly involved with Senanayake and the approach to power.  Though far from being his amanuensis, Jennings did “write up”, a process he describes below, Senanayake’s thoughts and objectives into a form able to be sent to the legislature, Queen’s House or London.  According to Jennings this extended to the Board of Ministers: ‘With I think one exception, I drafted every formal document sent by the Ceylon Ministers to the Secretary of State between 1943 and 1948’.[32]  De Silva noted in his introduction that Jennings had unusual access to a great deal of confidential information and he used it to good purpose in drafting the book on the transfer of power that he had in mind… it is indispensable for any serious study of the transfer of power in Ceylon…[Jennings] knew more than anyone else that Senanayake and Goonetilleke could not have negotiated so successfully with the CO mandarinate and British politicians, to say nothing of the governor and the officers of state in Colombo, without the expertise on constitutional matters which only he could have provided. That rich expertise he placed at the disposal of Senanayake and Goonetilleke with a dedication and generosity unmatched by any expatriate adviser on constitutional affairs in any other colony seeking independence from Britain. It would also be true that few constitutional advisers, indigenous or expatriate, had as great an influence in determining the shape of the post–independence constitutional framework of a colony as Jennings had in the case of Ceylon. Governor Caldecott (and to a lesser extent his successor) and the officers of state were distinctly unhappy about the extent of Jennings’s influence in the negotiations on the transfer of power. In giving guarded but occasionally pointed expression to their feelings in this regard they reveal a facet of the negotiations on the transfer of power not generally noticeable in the CO records published in this volume – the extraordinary role of Jennings as Senanayake’s unofficial constitutional adviser … Had Jennings’s two books, presently in draft form, been published, a substantial amount of new information on the Ceylonese side of the story of the transfer of power would now be available, even if provided by an unusual Englishman. As it is considerably more information exists on British policies and initiatives – although the information is admittedly rather slight in comparison with that which is available for the cognate process in India and Burma – than material illustrating the independence movement in the island from the Ceylonese viewpoint.[33]

H.A.I. Goonetilleke brought to publication two key texts of Jennings’ never published in his lifetime. The Kandy Road (1993) narrates his substantial contribution to the creation of the University at Peradeniya and The Road to Peradeniya is his autobiography.  While valuable in a biographical manner they are light in their revelations of his role in Ceylon’s independence.  Constitution–Maker: Selected Writings of Sir Ivor Jennings (2015) contains useful material, but this mainly covers Jennings’ post–independence phase in Ceylon.  De Silva mentions two books in draft – one is The Road to Peradeniya – the other is Donoughmore to Independence – A Contribution to the Constitutional History of Ceylon, 1931–48.  This forms the most substantial manuscript Jennings left on the transfer of power and gives his personal account on independence negotiations.   Here he is openly in the pages in a way he is definitely not in The Constitution of Ceylon.  This forms the basis for the text of this book, with the addition of other key primary documents.

Unlike most of his academic works this book has gossip, informality and personal anecdotage along with serious constitutional and political discussion.  As argued above the great lacuna of Sri Lankan independence historiography has been the dearth of private papers and personal accounts covering this crucial period.  This book goes someway to filling in some details previously unknown or surmised without evidence.  The release of tranches of colonial era documents from British archives made available well after the death of Jennings and those involved in Ceylonese high politics allows scholars and students significant primary information of crucial importance.  However, this does not and cannot give enough to understand the approach to power since it misses the critical perspectives of the Ceylonese dramatis personae.  As an illustration of this an examination outside of de Silva’s introduction of the official documents contained in the BDEEP two volumes approaching 900 pages brings just a few brief mentions of Ivor Jennings in just seven documents – despite his massive role in the transfer of power, which compelled later legal luminaries like Neelan Tiruchelvam to describe the first constitution the “Jennings Constitution”.[34]  Similarly, formal documents of the Ceylonese ministers unmistakably carry his imprimatur, but never his signature. Perhaps his “unofficial” status prevented further mention – though his importance was nonetheless enough to merit the Governor, Sir Andrew Caldecott, instructing the Government Censor to intercept Jennings’ mail and on one occasion forward its contents to the CO.[35] As Jennings himself observes below ‘History drawn from documents is apt to mislead because the importance of personal influences is rarely placed on record and indeed such influences are difficult to assess’.

Jennings left on the Anora for Karachi on 19 January 1955 generating neither fanfare or brickbats that one might have expected from the departure of this seminal figure in Ceylon’s history.  As the Ceylon Observer commented

We would have liked to see Ceylon showing her appreciation to Sir Ivor’s work in a much more ‘marked’ manner…when a representative cross section of the people of this country could have expressed their sense of awareness of the debt of gratitude we owe to him.  The fact that only the University Dons were sufficiently moved by the occasion to do honour to him is a sign of the times.  Even those people who wait with bated breath for the slightest opportunity of organising ‘farewells’ and ‘welcome banquets’ have taken a vacation…It is a matter of deep regret for us that even those men high up and deep in Government, who must surely be aware of Sir Ivor’s massive contribution to the attainment of our independence, have not been sufficiently grateful or gracious in this matter.  But we know that Sir Ivor himself will be inclined to treat the whole thing as a bit of a joke – in rather bad taste – and to file it away in his capacious memory as a possible titbit for a half–amused, half–rueful footnote for a pithy volume of Ceylon.  Perhaps his next literary venture will be a history of Ceylon since Independence – there is no one better to chronicle it.[36]

The episode is not found in a footnote or elsewhere in the Road to Temple Trees, but the “pithy” personal volume on Ceylon is here, finally, fifty years after his death as a resource to get one, but exclusively insightful, view of the complex, unique and shrouded steps to freedom.

Kumarasingham

19th December 2015

[1] Parliamentary Debates, vol. 1, 1945, col. 7101.

[2] IJ, “D.S. Senanayake and Independence”, The Ceylon Historical Journal, D.S. Senanayake Memorial Number, Vol. V, Nos. 1, 2, 3 & 4, July & October 1955 and January & April 1956, p 22

[3] CM, p 20.  On signing the agreements at Queen’s House where Ceylon ceased to be a Colony Senanayake was told that by tradition champagne was drunk for the first toast.  He obliged, but ‘pronounced it to be poor stuff, not up to the standard of sweet toddy’. Ibid. p 21

[4] IJ, ‘Universities in the Colonies’, Political Quarterly, vol. 17, no. 3, 1946, p 234

[5] RP, p 90

[6] Sunday Observer, 23 March 1941

[7] CM, pp 252–253

[8] Parliamentary Debates, Senate, vol. 1, col. 172, 1947

[9] A. W. Bradley, ‘Sir William Ivor Jennings: A Centennial Paper’, Modern Law Review, 67, no. 5, September 2004, p 728

[10] Ceylon Daily News, 20 January 1955

[11] IJ, The Commonwealth in Asia, London: Oxford University Press, 1951, p 92

[12] IJ, “The Dominion of Ceylon”, vol. 22, no. 1, Pacific Affairs, 1949 p 33

[13] Manchester Guardian, 2 April 1956

[14] IJ, Problems of the New Commonwealth, London: Cambridge University Press, 1958, pp 25–32

[15] ibid. p 18

[16] CM, p 280

[17] Lord Soulbury’s “Foreword” in B.H. Farmer, Ceylon – A Divided Nation, London: Oxford University Press, 1963, pp vii–ix

[18] BDEEP, p lxi

[19] Times of Ceylon, 22 January 1962

[20] IJ was knighted in the 1948 and became a K.C. a year later.

[21] IJ note, 20 September 1949  in Sir Ivor Jennings Papers, A.1, ICS 125, University of London

[22] Ceylon Observer, 17 January 1955

[23] RP, pp 90–91

[24] Ceylon Daily News, 13 June 1957

[25] Ceylon Observer, 20 May 1958

[26] Ceylon Daily News, 13 June 1957

[27] Sir Andrew Caldecott to G.E.J. Gent, 6 February 1944, CO 54/986/5/1, no. 104, in BDEEP, vol. II, p. 282.

[28] Note by J.B. Sidebotham, 14 November 1945, CO 54/986/6/4, in BDEEP, vol. II, p. 164.

[29] Morning Times, 20 November 1954

[30] IJ, The Constitution of Ceylon, 3rd edition, Bombay: Oxford University Press, 1953, p 4

[31] Jawaharlal Nehru, Selected Works of Jawaharlal Nehru, Second Series, Volumes 1– , S. Gopal et al (ed.), New Delhi: Jawaharlal Nehru Memorial Fund, 1984 –;  M. A. Jinnah, Jinnah Papers, vol. 1–18, Z. H. Zaidi et al (ed.) Islamabad: Quaid–I–Azam Papers Project/Government of Pakistan, 1993–2001

[32] CM, p 252

[33] BDEEP, vol. I, pp. lxx–lxxii

[34] Daily News, 23 October 1989

[35] Sir Andrew Caldecott to G E J Gent on the ministers’ proposals for a new constitution, 21 February 1944, CO 54/986/5/1, no 1OA, BDEEP, vol. I, p. 285

[36] Ceylon Observer, 17 January 1955.

Acknowledgements

Once again it gives me great pleasure to acknowledge with sincere gratitude the permission of Jennings’ surviving daughter, Mrs Shirley Watson, for allowing the use and publication of her father’s papers as well as the reproduction of two wonderful photographs in her possession – the first being Jennings in his robes as vice–chancellor and the second an autographed commemorative photo of the signing of agreements with Britain at Queen’s House in November 1947, which paved the way for independence the following February.   The Director of the Institute of Commonwealth Studies, Professor Philip Murphy, and eminent Sri Lankanist, Emeka Anyaoku Professor Emeritus of Commonwealth Studies, James Manor, with the Librarians at the University of London’s Senate House Library in Russell Square, where the Jennings Papers are held, have been consistently supportive, helpful and knowledgeable.  I happily acknowledge permission to use the papers and images in the Library’s custody.  I am grateful to the National Archives of the United Kingdom for confirming allowance to reproduce large parts of British official documents under Crown Copyright such as the Donoughmore and Soulbury Reports.

In Sri Lanka for all other remaining illustrations reproduced here thanks are given to Associated Newspapers of Ceylon Ltd (Lake House).  Dr P. Saravanamuttu, Executive Director of the Centre of Policy Alternatives (CPA), has provided a genial and generous publishing home for this project and much else.  Without Sara projects like this one and others more worthy would never reach fruition.  CPA’s Heshanthi Madugalle undertook sterling work on my behalf in the Lake House archive and found debates from the Ceylon legislatures, which are harder to retrieve than they should be.  Shehara Athukorala has been a wonderful and efficient helper to me at the CPA, particularly in transcribing swathes of text.  Her cheerful and swift responses to all my many requests made my task all the easier.  Despite the considerable pressures of his own work, Sanjana Hattotuwa stepped in graciously and efficiently to execute the technical aspects in the production of this book, and that too within a very tight deadline. Without Dr Asanga Welikala this book would never have been published.  I owe Asanga a spry apple cider.  I would like to blame Ivor Jennings for any mistakes herein, but if some are found they are likely to be mine.

My parents, Geetha, Karolina and Maks have been formidable in their love and solid in their loyalty.  For their robust sufferance this book exists.

 

H.K.