The last fifteen years or so have been a time of general constitutional advance in the territories for which the Secretary of State for the Colonies is responsible and in that period a number of them have independence. attained

The process has naturally involved the making of a great number of new constitutions, which in turn have had to be amended or replaced—indeed, some territories have outgrown two or three constitutions on their way to independence.

These constitutions have not taken the form of Acts of Parliament. They are usually contained in Orders of Her Majesty in Council supplemented by Royal Instructions, though sometimes there are also Letters Patent establishing the office of Governor and defining certain of the Governor’s powers.¹ Most of the Orders in Council are made in the exercise of the Royal Prerogative or of the powers conferred on Her Majesty by the British Settlements Acts, 1887 and 1945 or the Foreign Jurisdiction Act, 1890. Some are made under special Acts, such as the Jamaica Act, 1862. Where I refer to a particular Order in Council as the instrument containing a constitution, it is to be under­stood that this is the main instrument. There may also be amending or supplementary Orders, Letters Patent and Royal Instructions.

When the policy for a constitution has been settled, the preparation of the instruments is normally the responsibility of the legal staff of the Colonial Office. I do not know how many constitutional instru­ments have been drafted in the Colonial Office during this time but, as an illustration of what the output can amount to during a period of exceptional activity, between June 15,1959 and June 23, i960, no less than ninety-two constitutional instruments of one kind or another

* An exception was the Malta Constitution of 1947 which was contained in prerogative Letters Patent and Royal Instructions, with no Order in Council.

(including amending instruments) were produced, amounting to about 500 printed pages.

I propose in this paper to survey constitutions drafted at the Colonial Office since 1944.

It will help if, before embarking on my survey, I define one or two terms and give one or two general explanations.

Where I refer to a member of a legislative or executive body as an ‘unofficial’ member, this convenient though inelegant piece of jargon indicates that the person in question is not a civil servant, while the label ‘official’ means that he is.

The statement that a Governor has ‘reserved legislative powers’ means that he has power in certain circumstances to make a declaration that a Bill which the legislature has failed to pass shall be deemed to have been passed; but the exercise of this power where it exists is, of course, very exceptional.

Where I speak of the Crown’s power of disallowance I refer to a power in the Crown to disallow a law that has been passed by the legislative chamber and assented to by the Governor—although I do not recollect a single instance of the use of this power in the period under review.

When I say that a Governor has ‘reserved executive authority’ I mean that the constitution obliges him generally to act in accordance with the advice of his Executive Council (or equivalent body) but that he has authority in exceptional circumstances (often only with the concurrence of the Secretary of State) to act against their advice.

the Premier or a Commission. (In less advanced constitutions a Governor has a general authority to act contrary to the advice of the Executive Council and consequently no question of reserved executive authority arises.)

I shall also be referring to a Public Service Commission and a Judicial Service Commission.¹ The former advises a Governor on the appointment, discipline and dismissal of civil servants and the latter on the appointment of judges. I shall refer to such a Commission as ‘executive’ or ‘advisory’ according to whether its recommendations are or are not binding on the Governor.

I shall not be referring in the context of any individual constitution to the power of the Governor of a dependent territory to assent to a Bill passed by the legislative chamber. The position varies. At one end of the scale a Governor has a discretionary power to assent or to refuse assent to a Bill or to reserve it for the signification of Her Majesty’s pleasure. At the other end, for example under the Con­stitution of Jamaica, a Governor exercises his power of assent on Ministerial advice except that, unless he has the authority of the Secretary of State to assent, he is required to reserve certain categories of Bill affecting matters, such as foreign affairs, in which Her Majesty’s Government has a direct interest.

Finally, I would say this: many people think of a ‘typical Crown Colony constitution’ as a constitution in which the Governor is advised by an Executive Council on which there is a majority of Official Members, and makes laws with the advice and consent of a legislative chamber where Official Members are also in the majority.

1944—1947

I have chosen to begin this survey with 1944, because, although general activity in the Colonial constitutional field did not begin until 1946, the constitution granted to Jamaica in 1944* really belongs to the general movement which got under way after the war. This constitution established a bicameral legislature consisting of an appointed Legislative Council with a majority of Unofficial Members

¹ In some cases this is a Judicial and Legal Service Commission with power to advise on legal as well as judicial appointments.

‘ Jamaica (Constitution) Order in Council, 1944 (S.R. & 0.1944, No. 1215).

and a wholly elected House of Representatives. In the event of dis­agreement between the two Chambers, the Legislative Council could delay the passage of a Bill into law for a year, and it is interesting to note that for this purpose no distinction was made between money Bills and other Bills. The Governor had reserved legislative powers, but he could not exercise them without the approval of the Executive Council and of the Secretary of State. The Crown retained a power of disallowance. The Governor was advised by an Executive Council with an unofficial majority, which contained members elected by the House of Representatives from among their own number. The latter could be removed from the Council by the vote of two-thirds of the House of Representatives—a device adopted in later constitutions elsewhere. It was expressly provided that the Governor would consult the Council in the formulation of policy, and he was given reserved executive authority.

An old body styled the Privy Council was kept in existence to advise the Governor on discipline and the exercise of the prerogative of mercy.

In 1946 a new constitution was conferred on Ceylon* which estab­lished a bicameral legislature, half the members of the Senate being elected and half of them appointed, while the House of Representatives was wholly elected.

The year 1946 was an important year for the Far East for it saw new constitutions for Malaya, Singapore, Sarawak and North Borneo * Ceylon (Constitution) Order in Council, 1946.

—the last two having been ceded to the Crown in that year. I shall not spend time on the constitution of the Malayan Union, for it lasted less than two years. The Singapore (Colony) Order in Council, 1946¹ established a Legislative Council with equal numbers of Officials and Unofficials—assuming the maximum permissible number to have been appointed or elected in each category. The Governor had reserved legislative powers and the Crown a power of disallowance. The Executive Council had an official majority and the Governor had general authority to act contrary to its advice.

In 1946 new constitutions were also given to the Gold Coast² and to Nigeria.³ In both territories there was a Legislative Council with an unofficial majority.

The year 1947 saw the establishment of joint institutions for the three East African territories of Kenya, Uganda and Tanganyika.⁴ These were, on the executive side, a High Commission comprising the Governors of the three territories, and on the legislative side a central Legislative Assembly with an unofficial majority, the High Commis­sion being the authority empowered to assent to Bills passed by the Assembly. The High Commission was given reserved legislative powers corresponding to those of a Governor, and the Crown a power of disallowance. The executive and legislative authority of these central institutions extend to such matters of common interest as

¹ S.R. & 0.1946, No. 464.

¹ Gold Coast Colony and Ashanti Letters Patent, 1946; Gold Coast Colony and Ashanti (Legislative Council) Order in Council, 1946 (S.R. & O. 1946, No. 353).

¹ Nigeria Letters Patent, 1946; Nigeria (Legislative Council) Order in Council, 1946 (S.R. & 0.1946, No. 1370).

⁴ East Africa (High Commission) Order in Council, 1947 (S.R. & O. 1947, No. 2863).

defence, civil aviation, posts and telegraphs, railways, harbours and inland water transport.

In 1947 a system of Ministerial Government was restored to Malta.¹ The constitution was in the form of a diarchy, that is to say the field of government was divided into reserved matters (roughly defence and foreign affairs) and non-reserved matters. On the reserved side the Governor was empowered to enact Ordinances and in the exercise of this function, as well as in the exercise of his executive authority on the reserved side, he was advised by a Nominated Council of Officials. On the non-reserved side laws were made by the Governor with the advice and consent of a wholly elected Legislative Assembly. The Governor had no reserved legislative powers, though the Crown had a power of disallowance. On the non-reserved side the Governor was advised in executive matters by an Executive Council consisting of Ministers appointed from among the members of the Legislative Assembly.

1948—1953

In 1948, by an Agreement between the Crown and the Rulers of the Malay States, provision was made for a federation of those States and the Settlements of Penang and Malacca; and the unitary constitution of 1946 was revoked. The Agreement contained the constitution of the Federation and in addition certain provisions with regard to the constitutions of the States and Settlements; it was given die force of law by the Federation of Malaya Order in Council, 1948? This Order was the Crown’s final exercise of the full powers that had been granted to it by the Rulers in 1945 and thereafter the Crown retained jurisdic­tion in the Malay States only in respect of defence and foreign affairs. The federal constitution made provision for a High Commissioner to be appointed by the Crown, whose advice the Rulers undertook to accept in matters connected with the government of the Federation. Federal authority extended to a long list of important matters; and federal laws were passed by a Legislative Council, which contained an unofficial majority, and assented to by the High Commissioner and the Rulers. Power to disallow federal laws was vested in the Crown and, in the event of die exercise of that power, the Rulers could withdraw their assent to the law in question.

* Malta (Constitution) Letters Patent, 1947, and the Malta (Office of Governor) Letters Patent 1947.

¹ S.1.1948, No. 108.

The numbers of Officials and Unofficials in the federal Executive Council were equal, assuming the maximum permissible number in each class to have been appointed. The High Commissioner had a general authority to act in opposition to the advice of the Council.

In 1950 there were new constitutions for Trinidad* and the Gold Coast? The Legislative Council established for Trinidad contained only three official members. Of the remainder eighteen were elected and five nominated. The Governor had reserved legislative powers but could not exercise them without the agreement of the Executive Council or, if that was not forthcoming, the authority of the Secretary of State. The Crown retained a power of disallowance. In the Execu­tive Council there was an unofficial majority. All but one of the Unofficial Members were elected to the Executive Council by the Legislative Council from among its own members and could be removed by a vote of two-thirds of the Legislative Council—a device clearly designed, in the absence of a well defined party system, to secure an executive government that had the support of the legislature. The Governor had reserved executive authority. Members of the Executive Council could be charged with responsibility for depart­ments and any member charged with such responsibility was to be styled a Minister. An advisory Public Service Commission was also established and provision was made for a special committee of the Executive Council to advise the Governor on the exercise of the prerogative of mercy in capital cases.

The Gold Coast Constitution provided for a Legislative Assembly with a large elected majority and an unofficial majority in the Executive Council. The Governor’s reserved legislative powers and executive authority were on the same lines as in Trinidad. Unofficial members of the Executive Council could be removed not only by a vote of the Assembly, as in Trinidad, but also by the Governor with the approval of the Executive Council, on the ground that the member in question had failed to carry out the policy of the Council: a recognition of the principle of collective responsibility for government policy. Provision was also made for an advisory Public Service Commission and, as in Trinidad, for members of the Executive Council to be given responsi­bility for departments with the style of Minister.

In 1951 the new constitution granted to Nigeria³ was the first step

¹ Trinidad and Tobago (Constitution) Order in Council, 1950 (S.I. 1950, No. 510).

¹ Gold Coast (Constitution) Order in Council, 1950 (S.I. 1950, No. 2094). ¹ Nigeria (Constitution) Order in Council, 1951 (S.I. 1951, No. 1172).

towards federation. The constitution established a central legislature and a central executive for the whole country and a legislature and executive for each of die three Regions. This constitution, however, fell short of true federal government in view of the unrestricted authority of the Centre and its powers of control over the Regions.

Sierra Leone also received a new constitution in 1951,^[I] the Legisla­tive Council containing a majority of elected members and membership of the Executive Council being equally divided between Officials and Unofficials.

The year 1953 saw the grant of a new constitution to British Guiana¹ and the creation of the Federation of Rhodesia and Nyasaland.³ The British Guiana Constitution established a bicameral legislature comprising a House of Assembly and a State Council. Except for the Speaker and three official members, the House of Assembly consisted of elected members, while the State Council consisted of nine members appointed by various procedures. The Governor was given reserved legislative powers similar to those contained in the Trinidad Con­stitution of the previous year and the Crown retained a power of disallowance. It is interesting to note that alternative methods were provided for resolving a conflict of views on a Bill between the two chambers. The Bill if passed by the House of Assembly in two successive sessions and rejected by the State Council could be presented for assent. Alternatively, the Governor could summon the two chambers to meet in joint session and vote on the Bill. On the executive side the Governor was advised by an Executive Council containing three Officials and seven Ministers. The Governor had reserved executive authority.

The constitution of the Federation of Rhodesia and Nyasaland does not strictly come within the scope of my survey, but I would like to mention two of its features. The federal principle is applied in the manner found in Australia, that is to say the legislative and executive powers of the Centre extend to matters set out in a Federal and a Concurrent Legislative List; subject to the overriding authority of the Centre, the Territories are given powers over matters in the Concurrent Legislative List; and matters in neither list are exclusively the concern of the Territories. An institutional safeguard against

discriminatory legislation is established, namely the African Affairs Board—a committee of the federal legislative House with power to cause a Bill to which it objects to be reserved for the signification of Her Majesty’s pleasure.

^I954~^I957

In 1954 Nigeria entered upon a system of true federal government. This constitution,¹ which sets out the arrangements for botii the Centre and the Regions, lasted until Nigeria attained independence on October 1, i960. It did not, however, remain static, for the years from 1954 to i960 were years of steady constitutional advance and the original constitution of 1954 was during that period amended, sometimes very extensively, no less than fourteen times. It will, I hope, be instructive to look at this constitution in its original form and then follow up the more important of the amendments that were made to it.

In this federation, too, the division of powers is according to the principle applied in Australia. The central legislature is unicameral and the legislative chamber (the House of Representatives) contains only three Officials. The Northern and Western Regions have bi­cameral legislatures, the chambers being a House of Chiefs and a House of Assembly, the Northern House of Assembly containing four official members and the Western House none. The legislature of the Eastern Region is unicameral, the chamber being a House of Assembly which, like that of the West, contains no Officials.

The Governor-General and the regional Governors have reserved legislative powers and the Crown retains a power of disallowance.

On the executive side a federal Council of Ministers is presided over by the Governor-General and, except for three Officials, consists of Ministers appointed from the House of Representatives. At regional level there is an Executive Council presided over by the Governor, and only in the Northern Region does it contain Officials. Each regional Council contains a Premier, on whose recommendations the other Ministers are appointed. Both the Governor-General and the Governors have reserved executive authority. Control of criminal prosecutions is not within the portfolio of any Minister but is assigned at central and regional level to civil service Attomeys-General.

There are advisory Public Service Commissions at both federal and regional level; and the Governor-General and each regional Governor ¹ Nigeria (Constitution) Order in Council, 1954 (S.I. 1954, No. 1146).

has a Privy Council to advise him on the exercise of the prerogative of mercy.

The amendments to this constitution between 1954 and independ­ence were mainly directed to die attainment of what was referred to as ‘internal self-government’. The Western and Eastern Regions attained that status first. ‘Internal self-government’ is not an exact expression, but in the context of a Nigerian Region it involved the following changes—the Governor’s reserved legislative powers disappeared; his reserved executive authority was restricted to matters for which Her Majesty’s Government had a special responsibility; the Premier replaced the Governor as president of the Executive Council; the Crown’s power of disallowance was restricted to a few special categories of law which involved matters of special concern to Her Majesty’s Government; the Public Service Commission became ‘executive’, and an ‘executive’ Judicial Service Commission was established; the Attorney-General ceased to be a civil servant and a special office of Director of Public Prosecutions was created, the holder of which was not responsible to Ministers.

Other important changes made during this period included the addition of a second chamber to the legislature of the Eastern Region and to the federal legislature; provision to secure that a Judge of die Superior Courts could be removed from office only if the Judicial Committee of the Privy Council recommended his removal on grounds of inability or misbehaviour; and the inclusion of a long and elaborate list of fundamental rights enforceable in the courts.

The Gold Coast also got a new constitution in 1954? The Legis­lative Assembly became wholly elected. The Governor retained reserved legislative powers. These were exercisable only with the agreement of the Cabinet or, failing that, the agreement of die Secretary of State. The Crown retained a power of disallowance. On the executive side there was a Cabinet of Ministers in which the Governor was replaced as president by a Prime Minister. Certain subjects, however, (roughly defence and external affairs) were the personal responsibility of the Governor. The Public Service Com­mission, initially ‘advisory’, was to become ‘executive’ after a certain period.

1955 saw a new constitution conferred on Singapore by the Singapore Colony Order in Council, 1955? The former Legislative Council was replaced by a Legislative Assembly with an unofficial

* Gold Coast (Constitution) Order in Council, 1954 (S.1.1954, No. 551).

¹ SJ. 1955, No. 187.

majority, mainly elected. The Governor retained reserved legislative powers and the Crown a power of disallowance. On the executive side there was a Council of Ministers containing only three Officials. The Governor had reserved executive authority.

In 1957 Ghana (formerly the Gold Coast) and the Federation of Malaya became independent. The Ghana constitution was contained in the Ghana (Constitution) Order in Council, 1957,¹ and that of Malaya was scheduled to the Federation of Malaya Independence Order in Council, 1957.² The latter is not strictly within die scope of this survey, for the draft was prepared by a Constitutional Com­mission? Having concerned myself so much with the stages of constitutional development in these territories, I have time to say very little about the end result, i.e. the independence constitutions them­selves. In both Ghana and Malaya the system of government estab­lished on independence was a Cabinet system with Ministers appointed from, and responsible to, the legislature, which was unicameral in Ghana and bicameral in Malaya. Both constitutions provided for executive Public Service and Judicial Service Commis­sions and the constitution of Malaya made express provision for the protection of fundamental liberties, though less elaborately than in Nigeria. In Ghana judges were removable only on an address from die legislature; in Malaya they were removable only on the recommenda­tion of a special tribunal composed of judges or former judges.

In the same year the Federation of the West Indies was established by the West Indies (Federation) Order in Council, 1957/ which was amended in 1958, 1959, 1960 and 1961. The division of powers was again on Australian lines, i.e. residual powers rested with the Territories. There was a bicameral legislature consisting of an appointed Senate and elected House of Representatives, neither of which contained Officials. The Governor-General had no reserved legislative powers, but power was reserved to Her Majesty to legislate by Order in Council on defence and external affairs. On the executive side there was a Cabinet presided over by a Prime Minister. (Originally this was styled a Council of State and was presided over by the Governor-General.) The Governor-General had reserved executive authority in relation to defence and external affairs. The Public Service Commission became ‘executive’ in i960, when a Judicial Service Commission, also ‘executive’, was introduced. This constitution was the first to provide that judges should be removable

* S.1.1957, No. 277. ² S.1.1957, No. 1533.

² Col. No. 330. ⁴ S.I. 1957, No. 1364.

only on the recommendation of the Judicial Committee of the Privy Council.

1958—1961

In 1958 Kenya¹ and Singapore² were given new constitutions.

Under the Kenya Constitution, as amended in 1959 and i960, there is a Legislative Council with a majority of elected members; the Governor has reserved legislative powers and the Crown a power of disallowance. There is a Council of Ministers not exceeding twelve in number, of whom no less than four must be Officials. The Governor has special authority to act contrary to the advice of the Council. A Council of State is also established as a safeguard against legislation which discriminates unfairly against the members of any racial or religious community. This body can delay the passage of a Bill or may cause a Bill that has been passed to be reserved for the signification of Her Majesty’s pleasure. The constitution also contains a long list of fundamental rights enforceable in the courts. (This was inserted by the amendment of i960.)

Under the constitution of Singapore Her Majesty’s representative in Singapore is not styled Governor but Yang di-Pertuan Negara, and must be a person bom in Singapore or Malaya. The Legislative Assembly is entirely elected; there are no reserved legislative powers and the Crown’s power of disallowance is restricted to certain laws affecting Singapore Government stock On the executive side there is a Cabinet presided over by a Prime Minister. The Yang di-Pertuan Negara has no reserved executive authority. Provision is also made for a United Kingdom Commissioner who is the representative in Singapore of the United Kingdom Government. Responsibility for defence and external affairs is expressly reserved to the Government of the United Kingdom and special provision is made to enable that Government to discharge those responsibilities. There is a special council, on which the Governments of the United Kingdom, Malaya and Singapore are represented, to deal with questions of internal security. There are executive Public Service and Judicial Service Commissions. The State of Singapore Act³ terminated the power of Her Majesty to make Orders in Council for Singapore under the British Settlements Acts, 1887 and 1945, and the Straits Settlements (Repeal) Act, 1946; but the constitution reserves to Her Majesty, on

* Kenya (Constitution) Order in Council, 1958 (S.1.1958, No. 600).

¹ Singapore (Constitution) Order in Council, 1958 (S.1.1958, No. 1956).

’ 6 & 7 El. 2, c. 59.

the terms set out therein, power to amend, revoke or suspend the constitution by Order in Council.

In 1959 the Jamaica Constitution of 1944, which had been amended in the interval, was replaced. Under the new constitution* the legislature remains bicameral and contains no Officials. The Governor has no reserved legislative powers and the Crown’s power of dis­allowance is restricted to certain kinds of law affecting Jamaica Government stock. There is a Cabinet presided over by a Premier and the Governor has no reserved executive authority. There are ‘executive’ Public Service and Judicial Service Commissions and the Privy Council is retained to advise the Governor on the exercise of the prerogative of mercy in capital cases.

In this year the Malta Constitution of 1947, which had been the subject of amendment in the interval, was revoked and replaced by a less advanced constitution which dispensed with the diarchy?

On October x, i960, independence came to Nigeria, the largest country both in area and population for which the Secretary of State for the Colonies had been responsible. Its independence constitution, set out in the Nigeria (Constitution) Order in Council, i960? was substantially that which had gradually and steadily been evolved between 1954 and early i960.

Sierra Leone had received a new constitution in 1958⁴ and in 1959 that constitution was amended so as to bring Sierra Leone to a stage of constitutional development approaching that achieved by Jamaica in 1959.

In 1961 Sierra Leone became independent and its constitution included provision for the protection of fundamental rights very similar to that in the Nigeria Constitution.

Trinidad⁴ and British Guiana* also received new constitutions in this year, which brought them to a stage similar to that reached by Jamaica in 1959.

Tanganyika, by an amendment of its existing constitution, attained internal self-government in May, 1961, and became inde­pendent in December?

¹ Jamaica (Constitution) Order in Council, 1959 (S.I. 1959, No. 862).

¹ Malta (Constitution) Order in Council, 1959.

³ S.I. i960, No. 1652.

⁴ Sierra Leone (Constitution) Order in Council, 1958 (S.I. 1958, No. 1259).

³ Trinidad and Tobago (Constitution) Order in Council, 1961 (S.I. 1961, No. 1192).

* British Guiana (Constitution) Order in Council, 1961 (S.1.1961, No. 1188).

’ S.I. 1961, No. 2274.