Writing the Soulbury Constitution

Excerpted from A Cabinet Secretary’s Memoirs by BP Peiris

It was war time. Villavarayan was Legal Draftsman, H. N. G Fernando second in command and I next. Constitutional reforms were in the air and D.S. Senanayake and Governor Caldecott were in correspondence with the Colonial Office in London regarding the grant of Independence to Ceylon. The Colonial Office would not hear of drafting constitutions while they were in the midst of a war and told D.S. bluntly that they had no draftsmen to spare.

D.S. had told them that he had draftsmen in Ceylon and would have the draft Order in Council prepared. And so it was agreed with peace on both sides. It is not necessary here to refer to the correspondence between the Governor and the Secretary of State for the Colonies which has already been published in the Sessional Papers of Government.

Villavarayan was expecting, as was his right, to be asked at any time, to begin the drafting of the Constitution. He had given up reading his Greek and Latin and was looking into treaties on constitutional Law and Cabinet Government. D.S. in the meantime, having told the Colonial Office that he would produce the goods, was putting the Criminal Investigation Department behind every draftsman to enable him to decide which man should be entrusted with the drafting and could be trusted to keep the drafting a top secret.

I heard this later from Sir Charles Collins who was, at that time Adviser to the Government on Administrative Changes. The Police dossier, I am told, ran something like this:

Villavarayan –               Classics man from Oxford.

Fernando –                    Oxford and Orient Club

Peiris –                            No Clubs

Abeysundera –              One-time Private Secretary to D.S.

Namasivayam –            Oxford, Grandson of Arunachalam

De Silva –                       Son of Geo De Silva, Member, State Council

Mahadeva  –                  Grandson of Ramanthan

I was also told that D.S. was reluctant to entrust the drafting to a clubman or a Tamil.One day, Legal Secretary Nihill summoned me and said that he had been instructed by the Colonial Office to draft the Constitution. He could not do it personally as he was not a draftsman. He asked me whether I was willing to undertake the task. I agreed provided I was relieved of all other work, in which case, I suggested he should speak to Villavarayan.

As he was about to take up the telephone, I got up to leave and he beckoned me to be seated. “It will be easier and less embarrassing”, he said. Villavarayan was reluctant to release me in view of the work I had in hand, and Nihill told him that this was a decision by D.S. and that this work was far more important and far more urgent than any major Bill. Villavarayan was forced to agree to my immediate release and I was gazetted as an Assistant to the Legal Secretary.

D.S. had asked that I be warned that if one line of what I was drafting leaked out, I would be “hanged by the neck.” Nihill asked me to lock up even my blotting paper whenever I left my room and gave me the key of his safe. I started drafting – Clifford Pereira’s (lawyer/astrologer consulted by Peiris) fifth correct forecast!

My instructions were quite clear. I was to keep strictly within the “documents in the case”. These were the documents usually known as the Ministers’ Draft, the Report of the Soulbury Commission, and the White Paper embodying the decisions of His Majesty’s Government as an officer on special duty in the Legal Secretary’s Department. I had nothing to do with the other matters that department normally dealt with.

In these circumstances, and in view of other distractions like the telephone, I asked Nihill whether it was necessary that the drafting should be done in the office. He said he didn’t care where I did the drafting. He wanted the draft as quickly as possible. My study at home now became my office and, about once in every two weeks, I came from Panadura to Hultsdorp to look up necessary references in the library. The fact that I was drafting the Constitution was kept secret by my colleagues.

I had undertaken responsible work and I had to be careful. Many were the times I drafted a clause and tore it up. In the face of D.S.’s threat to hang me, I was unable to consult any of my colleagues when I was in a drafting difficulty. I had to rely on myself. There was no one I could take into my confidence. I struggled alone, sometimes tearing sheet after sheet of foolscap.

Many small but difficult points arose for consideration. The Ministers’ Draft, which had been prepared by Sir Ivor Jennings, was in a most confusing form as a draft and, although it contained all the essential points, had to be entirely redrafted. It had to be divided into Parts, each Part coming into operation on a different day.

For example, one Part come into operation on the date on which the Order in Council was published in the Gazette, another, on a date to be appointed by the Governor being a date not earlier than nine months from the date of publication of the Order, another on an appointed date not later than the date on which the names of members elected to the first House of Representatives were published in the Gazette, and another on the date of the first meeting of the House.

The Royal Power of Veto with regard to Bills had not been exercised in the United Kingdom since the days of Queen Anne, but the Power, though not exercised, was in every Dominion Constitution. Should I go outside my instructions and include it? I decided to do so, but at the final revision, D.S. with his horse sense said “Why should we include a Power which has not been exercised” and deleted it.

And now, after months of dreary but interesting work, the draft was coming to an end. When it was completed, I borrowed a typewriter and typed three copies of it. I am no typist and all the work was done with one finger of each hand. This was a slow and painful business which took me a very long time as the draft went into 52 pages of foolscap. The spacing was sometimes wrong; the alignment of the paragraphs was not always correct; there was much miss-typing, but the typing at last came to an end and I was happy.

Apart from the difficulties of drafting, I had to contend with other difficulties. I was drafting at Panadura in wartime and my petrol ration for an Austin Eight was two gallons a month. Telegrams were still going between Nihill and the Colonial Office over the drafting and, one night, I was asked to come at once to the Galle Face Hotel where Nihill was staying, as an urgent telegram had come from the Secretary of State.

I told him I was unable to come as I had no petrol in my tank and there was no train which I could use. When I met him the next day., he thought it preposterous that I should be given only two gallons of petrol a month and wrote, with his own hand, a letter to the Petrol Controller saying that I was engaged on matters of high state which could not be disclosed and asking that I be given all the petrol I needed.

This was too precious a letter for me to part with and I held on to it for the duration of the war. Armed with a copy, I went to see the Controller. I have spoken earlier about courtesy in high places, for example, among the Supreme Court Judges. Now, to my surprise, I came across a small man in boots that were too big for him. On the way to the general office, I passed three notices which said prominently in red “No interviews today” and entered a working room presided over by the person I thought was the Office Assistant.

I saw a man walking among the clerks’ desks smoking a cigarette but he took no notice of me. I kept standing at a table until, at last, he came to me and said rudely “No interviews”. I asked him whether he was the Office Assistant and he repeated what he had said earlier. I repeated my question a little louder and he answered “Yes” in a very superior voice.

Speaking staccato, I said “If you are, read this. Here’s a copy for your file. I want the original. Send me twenty-five gallons’ coupons to the Legal Secretary’s Office” and left. Why cannot public servants be courteous when courtesy costs nothing? I have noticed that it is always the small man, promoted, who tries to throw his weight about. The big men are there because they are big and they know the rules.

I informed Nihill and Drayton that I had completed the draft. They were both happy and requested me to come to Nuwara Eliya in a few day’s time with five copies of the draft. I was asked not to stay at any hotel as I was carrying secret papers. I told Nihill that I had only three copies of the draft, that I had typed them myself and that it was impossible, within the time allowed, to type the two extra copies required.

Drayton was surprised when he heard that I had typed the draft myself. He said that typing was not my job and asked the Civil Defence Commissioner, Sir Oliver Goonetilleke, to give me immediately a confidential stenographer-typist who could be entrusted with a most secret job. O.E.G., ever ready to help, sent me his own man, Basil A. R. Candappa and, with Candappa at my house typing till four in the morning, we produced the required number of copies in time. The two extra copies were intended for D.S. and Jennings who were in the background.

When I had the five copies, I sent the following note to Drayton as Nihill had suddenly gone to England for a couple of days for consultations:

C. S.

On Mr Nihill’s instructions five copies of the draft Order-in Council have been typed. Mr Nihill left with me the annexed note re distribution of copies and asked me to hand all the copies to you.

Drayton minuted back: My dear Peiris,

Thank you. I have distributed accordingly. A good piece of work I think and now for the Elections O in C:

Yours sincerely

Robert Drayton

On Nihill’s return, I reported at Nuwara Eliya. Drayton and Nihill were at the Lodge. I was at Lakshmi Mahal, the residence of Mr Walter Salgado of Panadura, a fully furnished luxurious place with grand piano, which he was kind enough to place at my disposal.

My hours of work at the Lodge were from 9 a.m. till 7 p.m. with a break of one hour for lunch before which gin was served. At about 6 p.m. the whisky came round. My one regret was that when at last our labours had come to an end and I invited Drayton and Nihill over to my place for a drink, Drayton very politely refused saying that they should not put me to any trouble. Drayton scrutinized my draft with a magnifying glass and found few faults. Nihill, not having been a draftsman, was more or less silent unless a matter of law was being discussed.

After the whisky, with my papers in my bag, I used to drive to the Public Service Club as I was mentally tired and wished to have a game of billiards. When I reached the Club, I gave my bag to the Bar keeper to be locked up. My name was then put on the billiards board as a player waiting for a game. All the members of the Club knew that I was engaged in some official work – what the nature of the work was they did not know.

And, although my game was about midnight, each game being of half an hour’s duration, the members were kind enough to accommodate me. As soon as the first after my arrival was over, one of them who was down to play the next game would invite me to take his place, and this happened night after night, with the result that I was able to get back home for an early dinner and bed and be fresh for the next day’s drafting.

There was only one unfortunate incident – the club sponger. The membership consisted mainly of clerks but there was one ‘Staff Officer’ who played bridge and not billiards, and the bridge section was on the other side of the Bar. He had the knack and the habit of coming into the billiards section with an empty glass in his hand just at the moment when a round of drinks was about to be ordered. How he timed his visit was never found out and the poor, foolish clerks, in ordering the next round of drinks, which they could afford with difficulty, would include the staff officer.

The high-up would then collect his glass and return to the bridge room; and this process was repeated three or four times a day. I noticed this technique about my third day at the club and asked the clerks whether the old boy ever stood them a drink, His salary was five or six times theirs, and they said “Never”. I said “Watch it, chaps, next round” and held a pow-wow with the bar keeper. It happened as I expected; he came and stood, empty glass in hand.

From the high bench I raised my hand and the bar keeper brought a tray of drinks for everyone in the room, less one. Someone asked whose round of drinks this was and was told “Mr Peiris”. The tray was taken round and, when it came to serving the Staff Officer, the Bar Keeper skipped him. He went back to the bridge room and was not seen in the billiards section thereafter. I received the grateful thanks of the others for helping them to get rid of a pest.

The draft as finally approved by Drayton and Nihill had now to be submitted to D.S. who was being advised by Jennings. These secret meetings were held at Temple Trees which was not then what it is now. Jennings has related this part of the story elsewhere. We were all seated round a small oval dining room table and D.S., with Jennings to assist him went through the entire Order in Council clause by clause.

At times, D.S. was so suspicious about some phraseology that I had used that Drayton, Nihill and I felt that we were suspected of ‘cooking up’ the draft to give effect to some secret instructions received by Nihill from the Secretary of State. The fact was that the three of us were, strictly, agents for His Majesty’s Government while Jennings was agent for D.S. Whenever there was a slight difference of opinion among the lawyers on a question of legal interpretation, was it not natural for the layman D.S. to feel that his agent’s interpretation was the correct one?

There was no love lost between the two European officials, on the one hand, and the Vice-Chancellor, on the other. The native officials appeared to be there, like an air-cushion, to soften the blows. When after thrust and counter-thrust, complete agreement was reached by both parties, Candappa again typed the final wax sheets. This was necessary because, I believe, the Colonial Office required 15 copies.

The 52 wax sheets had to be carefully checked before they could be rolled off the machine, and that was a task I couldn’t handle single-handed.

Some outsider had to be taken into my confidence (there had been no leak and my neck was still intact) and that outsider had to be a person who was very good in his English, who was unlikely to go to a club and blab, and who, above all, had not the slightest interest in anything political. There was only one such I could think of – my friend Alexis Roberts who figures prominently in these Memoirs.

He lived at Auburnside at Dehiwala by the sea. On a full-moon night I took my wax sheets and went to him with a bottle of whisky. Stretched out on the lawn on a tarpaulin and cushions, the sea breeze keeping us cool and the whisky keeping us warm, he read the fifty-two pages of manuscript slowly with the aid of a reading lamp on a very long lead, while I kept my eyes glued on the wax sheets. The reading went on till four in the morning, with frequent intermissions, when we felt we had to wet the whistle if we were to survive.