EXECUTIVE POWER
I think I have said all that is required on the subject of legislative authority. Of greater fundamental importance, perhaps, is the executive power. The Government of a dependent territory is the Crown; the Queen is the head of the Executive and if the territory is to remain in the Commonwealth and does not immediately become a republic, she so remains after independence, but with an obvious, though vital, difference.
In her government of United Kingdom dependent territories she acts with the advice of United Kingdom Ministers; after independence she will act on the advice of the local Ministers. The product of our constitution-making machine does not say so in so many words; it is not the practice for a legal instrument expressly to require the Sovereign to act in accordance with the advice of anyone. The key to the situation is the common form declaration in Independence Acts, which I have already mentioned, that the United Kingdom Government shall have no responsibility for the government of the newly independent country, from which it follows that the United Kingdom Government cannot advise Her Majesty as Queen of that country. This seems to leave a void, but established conventions are quite sufficient to fill it. The constitution vests the executive power in the Queen. Her Majesty is a constitutional monarch in the United Kingdom and its dependent territories and in other Commonwealth countries which are monarchies, and no one could sensibly suggest that she would be otherwise in a country which has just become independent. She will continue to act on the advice of Ministers; the United Kingdom Government’s responsibility having been withdrawn, advice can be tendered only by the Government set up by the new Constitution. It is therefore unnecessary for the Constitution to say more. The Constitutions of Ceylon and Ghana, however, provided that both the Queen and the Governor-General should perform their functions in accordance with United Kingdom constitutional conventions, which clearly imports an obligation to act on the advice of Ministers. Though one cannot, of course, criticize these enactments on the ground of redundancy, there can be little, ifany, doubt that they were unnecessary, at any rate so far as the Queen is concerned.
The position may not be quite so obvious in the case of a GovernorGeneral, or the Governor in a Nigerian Region, and the Constitutions of Nigeria, Sierra Leone and Tanganyika lay down that in the exercise of his functions he shall act in accordance with ministerial advice. But even if they did not, there could be no room for reasonable argument. It is expressly provided that the Governor-General or Governor is the representative of Her Majesty, in whom the executive authority is vested, and that that authority is exercisable by him on her behalf. The agent could not exercise personal discretion which would be unconstitutional for his Royal principal.