TWO MACHINES
It is implicit in what I have been saying that, except in the case of India and Pakistan, the legal machinery for creating independent states has operated, and still operates, in two distinct workshops.
An Act of Parliament is required to produce some of the essentials of independence, notably those taken from the Statute of Westminster, but in the majority of cases the new constitution itself is embodied in an Order in Council and other constitutional instruments made by Her Majesty in pursuance of some existing Act of Parliament or the Prerogative. It can therefore be made, and is made, before the Independence Act comes into operation. Speaking generally (for there may be exceptions in matters of detail) there is no reason in law why it should not come into operation before the Act, but in practice its operation is suspended until the day appointed for independence.Professor de Smith, in an article on the Independence of Ghana which was published in the Modern Law Review in July 1957, made the point that, though it may appear strange that the Ghana Constitution should be contained in an Order in Council, regarded in some quarters as the legislative symbol of Colonialism, there are sound reasons for preferring an Order to a Parliamentary Bill. He wrote ‘An Act of Parliament must go through both Houses; amendments may be moved at the committee and report stages of the Bill; delicately balanced compromises, arrived at after strenuous negotiations, may be upset, and even if the amendments are defeated, the ventilation of every contentious issue may have unfortunate repercussions in the territory concerned’. He gave speed as another advantage of an Order in Council in the Gold Coast situation; but experience has since shewn that whenever a constitutional advance is afoot, if the situation did not in fact call for speed, it would be so exceptional as to be quite remarkable. I am not suggesting that there is anything in the mechanics which necessitates undue haste; the trouble has nearly always been that etymological monstrosity the ‘target date’—which no one is ever invited to shoot down.
True, it is something to aim at, so perhaps it is to be preferred to its cousin—so popular with the Press—the ‘scheduled date’, which has never seen the inside of a schedule. The custom is to fix the date so early that to expect Parliament to digest a Bill containing the entire constitution and adhere to the set timetable would be to ask for die impossible. Even those engaged in the preparation of an Order in Council have had good reason to wish desperately that, if they must be driven, the route would occasionally take them through a built-up area. Having myself now been out of the turmoil for some time, I feel lean, without too much diffidence, wonder whether those who devote themselves so unsparingly to the arduous job (I am not speaking only of the legal draftsmen) receive anything like the credit due to them. And I should like to acknowledge what I read as a graceful tribute paid by Professor de Smith in the article which I have just mentioned, where he referred to the 1950 Gold Coast Constitution ‘produced by the now philoprogenitive Colonial Office’. The picturesque adjective is deserved, even when a workman operating our machine wearily asks, perhaps at the end of a twelve-hour shift, why, after 100 years or more of dependent status, a few weeks here or there make so much difference in arranging a date for independence. He does not mean to put a rhetorical question; he just does not know the answer.
More on the topic TWO MACHINES:
- The previous two chapters introduced the basic models of endogenous technological change.
- Learning Objectives
- References
- Diagnosis
- Care during labour and birth