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Commonwealth

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Submitted By Freek
Words 22380
Pages 90
FOREWORD CHAPTER I page 7
The Terms Used to Define the Commonwealth
CHAPTER II page 11
Equality
CHAPTER III page18
Autonomy
CHAPTER IV page 26
Autochthony
CHAPTER V page 37 Membership
CHAPTER VI page 42 Co-operation
CHAPTER VII page 48 Symbols
CHAPTER VIII page 56 Members of the Commonwealth
REFERENCES page 61

FOREWORD

The Commonwealth of Nations, normally referred to as the Commonwealth and previously as the British Commonwealth, is an intergovernmental organization of fifty-four independent member states. All but two of these countries were formerly part of the British Empire. The member states co-operate within a framework of common values and goals as outlined in the Singapore Declaration. These include the promotion of democracy, human rights, good governance, the rule of law, individual liberty, egalitarianism, free trade, multilateralism and world peace. The Commonwealth is not a political union, but an intergovernmental organization through which countries with diverse social, political and economic backgrounds are regarded as equal in status. Its activities are carried out through the permanent Commonwealth Secretariat, headed by the Secretary-General, and biennial Meetings between Commonwealth Heads of Government. The symbol of their free association is the Head of the Commonwealth, which is a ceremonial position currently held by Queen Elizabeth II. Elizabeth II is also monarch, separately and independently, of sixteen Commonwealth members, which are known as the "Commonwealth realms".
The Commonwealth symbol was originally designed by the Gemini News Service, London in 1972 and approved by the first Commonwealth Secretary-General, Mr Arnold Smith C.H. In 1989 a second logo was introduced to appear on official Commonwealth Secretariat publications, and in 1999 a special commemorative logo was produced to mark the 50th Anniversary of the modern Commonwealth. In 2000 Secretary-General Rt. Hon Don McKinnon, approved a new design that is now in use in place of the original designs. This design incorporates the image of the globe used in the original logo and the spears that make up the letter "C" from the 1989 design.
The radiating spears do not represent the number of countries in the Commonwealth but symbolize the many facets of Commonwealth cooperation around the world. The symbol is used on all official documentation and, sometimes in association with other specially developed logos, for the documents and logos of all Commonwealth Meetings. There is no fixed size or colour for the symbol but because of its frequent appearance on Commonwealth documentation, the black on white and gold on blue versions are commonly used. The Commonwealth Flag consists of the Commonwealth symbol in gold on a blue background centred on a rectangle.
The flag developed from the car pennants produced for the first time at the Ottawa Commonwealth Heads of Government Meeting in 1973. It is flown at Marlborough House, London, the headquarters of the Commonwealth Secretariat, throughout the year and for a limited period at other venues where Commonwealth Meetings are held or when other Commonwealth events / visits are taking place for example Commonwealth Heads of Government Meetings.

CHAPTER I
The Terms Used to Define the Commonwealth

The word 'Commonwealth' has come to be accepted as the new name for the British Empire. The parts of the Commonwealth are called 'Commonwealth countries' and the self-governing Commonwealth countries are called 'Members of the Commonwealth. Whether the Commonwealth is spoken of as the 'British' Commonwealth or not will depend essentially upon who is speaking and to whom they are speaking. The Members of British stock--including Australia, New Zealand, and the United Kingdom--in speaking to or of each other may well talk of the British Commonwealth. Australians will have an additional reason of convenience for so doing, because in ordinary speech 'the Commonwealth' is to them the Commonwealth of Australia or its government, so that to avoid misunderstanding they will say 'British Commonwealth'. But when countries in the Commonwealth of non-British stock speak of it or are spoken of in relation to it, it is more likely that the adjective 'British' will be avoided. Its use is evidently going out of fashion.
There have been some odd and unexpected happenings in the history of these terms. The use of 'Commonwealth' as a new name for the British Empire began to come into fashion after Lionel Curtis published his two books, The Problem of the Commonwealth and The Commonwealth of Nations, in 1916. It is true that Lord Rosebery, in a speech in Adelaide in 1884, had described the Empire as a 'Commonwealth of Nations',( 5 Crewe, Lord Rosebery, vol. i, p. 186)but there can be little doubt that if Curtis had not popularized the word, Lord Rosebery's remark would not have been exhumed by research students. Hard upon the publication of Curtis's books came the passing by the Imperial War Conference of 1917 of a resolution which spoke of the 'autonomous nations of an Imperial Commonwealth'. 6 (6 Cd. 8566, p. 5.) General Smuts, in speaking upon the resolution, referred to the 'equal governments of the King in the British Commonwealth. 7 (7 Ibid., p. 47.) Although the opening words of the Articles of Agreement for a treaty between Great Britain and Ireland, dated 6 December 1921, referred to Ireland's constitutional status 'in the Community of Nations known as the British Empire', 8 (8 Article I. The text is found in the Irish Free State Constitution Act, 1922 (13 Geo. V, c. I))in a later passage there was a reference to Ireland's 'adherence to and membership of the group of nations forming the British Commonwealth of Nations'. 9 (9 Article 4.) Yet, by a curious contradiction of history, as Curtis's word came into fashion, it came to mean something quite different from what he had intended it to mean. Indeed, 'Commonwealth' today stands for a situation which Curtis in his writings had deplored and which he had devoted his energies to avoid and remove.
What Curtis meant by a Commonwealth of Nations was a federal union. A commonwealth, he said, was 'a state in which government rests on the shoulders of all its citizens who are fit for government. It exists to enlarge that class, and can afford to spare from its difficult task none who are equal to sharing it.' (10 The Commomwealth of Nations, p. 702.) 10 The characteristic of a commonwealth was the government of men by themselves. But the British Empire in 1916 was not founded on this principle. The control of defence and foreign policy rested upon the shoulders of the people of the United Kingdom alone; the peoples of other parts of the Empire had no say in it. 'A commonwealth in which the final responsibilities of government have come to be regarded as the peculiar attribute of citizens inhabiting one locality is ceasing to realise the principle of its being.' 'Until that final responsibility is shared between all the peoples of the self-governing Dominions with those of the United Kingdom, this Empire will remain what it has been since its first colonies were planted in Ireland, not a commonwealth, but the project of a commonwealth, which must be completed if it is not to be brought to an end." 11 (11 Ibid.)The solution, as Curtis saw it, was to establish a parliament and government for the whole Empire to deal with defence, foreign affairs, and other important common matters, while national parliaments dealt with national matters. Through such machinery and the progressive extension of the franchise, the principle of the Commonwealth, already realized in the United Kingdom, and beginning to become established in the self-governing colonies overseas, would attain its fulfilment. If, on the other hand, each part of the Empire attained full self-government and control over foreign affairs and defence for itself, then you would not have a commonwealth of nations but a collection of independent, and, at the best, merely co-operative national commonwealths. 'In plain words, the issue, as seen by the writer, is whether the Dominions are to become independent republics, or whether this worldwide Commonwealth is destined to stand more closely united as the noblest of all political achievements.' 12 (12 The Problem of the Commonwealth, p. vii.)
The choice was made soon after by the Imperial War Conference in 1917, which, by its reference to 'the Dominions as autonomous nations of an Imperial Commonwealth' at one and the same time accepted Curtis's word and rejected his idea. General Smuts, in his speech on the resolution at the conference, made the position explicit.
If this Resolution is passed [he said] then one possible solution is negatived and that is the Federal solution. The idea of a future Imperial Parliament and a future Imperial Executive is negatived by implication by the terms of this Resolution. The idea on which this Resolution is based is rather that the Empire would develop on the lines upon which it has developed hitherto, that there would be more freedom and more equality in all its constituent parts; that they will continue to legislate for themselves and continue to govern themselves; that whatever executive action has to be taken, even in common concerns, would have to be determined, as the last paragraph says, by 'the several governments' of the Empire, and the idea of a Federal solution is therefore negatived, and, I think, very wisely, because it seems to me that the circumstances of the Empire entirely preclude the Federal solution. 13 (13 Cd. 8566, p. 47.)
The word 'Commonwealth' as it is used today, then, does not mean what Curtis meant by it. Nor does it mean what it meant in the years between the two world wars. In the usage which came to be adopted after 1919, the Commonwealth was thought of as the self-governing countries of the British Empire. In the Balfour Report, adopted by the Imperial Conference of 1926, this idea finds expression. Great Britain and the Dominions were described as 'autonomous communities within the British Empire' and 'freely associated as members of the British Commonwealth of Nations' 14 Cmd. 2768, pp. 13 - 30.
Another expression which came into use in this period and has persisted is 'British Commonwealth and Empire' or 'Commonwealth and Empire'. This is an ambiguous expression and is all the more useful on this account. It found favour, for example, with those who preferred the old-fashioned term 'British Empire', but felt obliged to recognize the new fashion of 'Commonwealth' while at the same time not entirely giving way to it. In the mouths of many such it amounted to saying 'British Commonwealth or Empire'. Mr. Winston Churchill's use of the expression during the Second World War and afterwards very well reflected this attitude. There were others who used the expression because they meant by 'Commonwealth' the selfgoverning communities and by 'Empire' the non-self-governing communities, and they therefore called the whole collection of countries 'the Commonwealth and Empire'. For them the Commonwealth was not part of the Empire; it was distinct from it and made up with it a larger collection.

CHAPTER II

EQUALITY
'EQUALITY of status,' said the Imperial Conference of 1926, 'so far as Britain and the Dominions are concerned, is then the root principle governing our Inter-Imperial Relations.' 1 (1 Cmd. 2768, p. 15.) Though 'Dominions' and 'Inter-Imperial' may now be dated words, the principle of equality of status remains as an essential characteristic of Members of the Commonwealth. It is indeed what marks off Members from other Commonwealth countries. Equality means equality of status, not equality of stature. Members differ in power and potential. Equality means also no subordination. Members are 'in no way subordinate one to another in any aspect of their domestic or external affairs'. It means no dependence; it means independence. It was not until twenty years after the declaration of equality of status in 1926 that 'independence' was officially used. When, in 1947, India was granted full self-government, the parliament of the United Kingdom passed the Indian Independence Act, which was described as an act to make provision for the setting up in India of two independent Dominions. The same language was used later in 1947 when the Ceylon Independence Act was passed. And the notion of independence was stressed and illuminated also by the language used when Burma decided to leave the Commonwealth and form a self-governing country outside. The parliament of the United Kingdom passed in 1947 the Burma Independence Act. By using the same title for an act granting full self-government outside the Commonwealth, it was demonstrated that Members of the Commonwealth were considered to be no less independent or free as nations in the world than were those which retained no link with the United Kingdom and other Members of the Commonwealth. And the same language was used when in 1957 parliament passed the Ghana Independence Act and the Federation of Malaya Independence Act.
The parliament of the United Kingdom is both imperial and sovereign. It is imperial in the sense that it has the power to make laws for the overseas dependent territories of the Commonwealth; it is sovereign in the sense that such laws when made prevail over laws made by the overseas territory in so far as they conflict. The situation was defined in 1865 by the Colonial Laws Validity Act, section 2 of which is as follows:
Any Colonial Law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the Colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the Colony the force and effect of such Act, shall be read subject to such Act, order or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.
This act, it should be emphasized, did not create the power of the parliament of the United Kingdom to make supreme laws for the overseas territories. That power was assumed already to exist. What the Colonial Laws Validity Act did was first to declare and describe the nature, extent, and effect of the power. In particular it was made clear in the Colonial Laws Validity Act that mere repugnancy to the law of England did not invalidate a colonial act. It could not be claimed, for example, that repugnancy to the common law of England necessarily involved invalidity. 'No colonial Law', says section 3 of the act, 'shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provision of some such Act of Parliament, order or regulation as aforesaid.'
Secondly, and not less important, the act contained a rule of construction to determine when this power should be deemed to have been exercised. 'An Act of Parliament, or any provision thereof, shall, in construing this Act, be said to extend to any Colony when it is made applicable to such Colony by the express words or necessary intendment of any act of Parliament.' 11 Before it could be claimed, therefore, that a colonial law was void on the ground of repugnancy to a British act, it must be shown that the British act did really extend to the colony, and in order to show this it must be possible to demonstrate that the 'express words' or the 'necessary intendment' of the act required this interpretation. A British act which merely dealt with the same subject as a colonial act did not thereby prevail over a colonial act. It was necessary to show that the British act extended to the colony, and, if so, that the colonial act was repugnant to it. The most important example of legislation by the parliament of the United Kingdom extending to a colony has usually been the constitution of the colony itself which almost invariably is embodied either in an act of parliament itself, or in an order-incouncil passed under the authority of such an act. For the rest there have been certain general acts dealing with such subjects as merchant shipping, copyright, naturalization and citizenship, and the like, which have extended to colonies to a greater or less extent, and colonial laws, repugnant to them, have been void to the extent of their repugnancy. The greater part of the law of a Commonwealth country, however, even when it is in a subordinate or dependent status, is enacted by the country's own legislature. Such control as the United Kingdom may wish to exercise over the legislation is provided by a variety of methods embedded within the constitution of the colony itself, rather than applied from outside by the parliament of the United Kingdom through the cumbersome method of legislation by act of parliament. There is, for example, the power granted to the Governor in some Commonwealth constitutions to enact laws himself if the legislature refuses to do so; or the legislature may be so composed that it contains a majority of official members who may be required to vote in accordance with instructions from the Secretary of State for the Colonies. Then there is the power of reservation by which a Governor, when presented with a bill duly passed by the legislature, may, instead of giving his assent to it, reserve it for the signification of Her Majesty's pleasure. Reservation is of two kinds, discretionary and obligatory. Where reservation is obligatory the Governor is required, either by his Instrument of Instructions, or by a specific instruction from the Secretary of State, or by the terms of the constitution of the colony, or by some act of parliament to reserve a bill if it falls within some specific class or category.
Even when an act has been passed by a colonial legislature and assented to by the Governor and is in full operation, it is still possible, by the terms of some Commonwealth constitutions, for the government of the United Kingdom to render the law of no effect. This is done by the exercise of the power of disallowance. An act of a legislature may, within a specified period, be disallowed by the Sovereign on the advice of the Secretary of State. It is most rarely exercised, but its existence is a potential instrument of control over a Commonwealth legislature.
It will be noticed that, in a dependent territory, the Governor is not only the representative of the Queen, but the representative of Her Majesty's Government also. To this extent an institution of the colonial constitution is subordinate to another government in the Commonwealth. To the extent that the Governor acts not upon the advice of ministers or of an executive council responsible to the colonial legislature, but is responsible to the Secretary of State and subject to his instructions, to that extent the colonial government is dependent upon the government of the United Kingdom. It is not surprising, therefore, that one of the significant changes which occur when Commonwealth countries attain independence is the change in the status of the Governor both within the colony and in relation to the government of the United Kingdom.
Dependent Commonwealth countries exhibit their subordinate position also in the field of external affairs. They are unable, as a rule, to make laws with extra-territorial operation and must rely upon legislation by the parliament of the United Kingdom in such a matter. They are restricted in their intercourse with foreign states and are normally unable, formally at any rate, to accredit or receive diplomatic representatives, to negotiate, sign, or ratify treaties, or to belong to international organizations in their own right. The use of their defence forces, particularly outside their own territories, is usually subject to control by the government of the United Kingdom.
In the judicial sphere, it is usual for an appeal to lie from the courts of a colony to the Judicial Committee of the Privy Council sitting in London. The extent of the appeal and the manner of its exercise varies from country to country. There may be a right of a litigant to appeal from a decision of a colonial court without asking the leave of that court; or appeal may be by leave of the colonial court; or finally, appeal may be by special leave of the Judicial Committee itself. If the Judicial Committee is regarded as a British court, it is clear that if an appeal lies to it from courts in Commonwealth countries, these courts are subordinate to it and to that extent the Commonwealth country is dependent upon the United Kingdom. Moreover, as the appeal is regulated by acts of the British parliament, in particular the judicial Committee Acts of 1833 and 1844, it is not possible, under the provisions of the Colonial Laws Validity Act, for a colonial legislature to restrict or abolish the appeal unless specifically authorized to do so by a British act.
When independence is to be granted to a Commonwealth country, one of the most important questions to be dealt with at the outset is the inequality which arises from the existence of a power in the parliament of the United Kingdom to make laws for that country. The simple and straightforward course, in the eyes of a layman, would be for parliament to enact that this power is hereby abolished in respect of the Commonwealth country, and that it will never be exercised or revived again. Lawyers, however, have doubted the efficacy of this step. They hold that the power is inalienable and they demonstrate this by asserting that, since one parliament cannot bind its successor, a later parliament would always be at liberty to revive and exercise the power, whatever a predecessor might have declared or promised. Whether this view is sound is a matter for argument. None the less, the inequality has not so far been tackled by a head-on approach. Instead the legislation has attempted not to abolish the power but to ensure that, if it is ever exercised, it will be ineffective unless the legislature of the Member of the Commonwealth concerned consents to it. What has been attempted, in short, is not to abolish the power, but, in the words of the Imperial Conference of 1930, to find an 'appropriate method of reconciling the existence of this power with the established constitutional position' of equality. A number of distinct but connected steps have been taken towards this end.
At first sight the obvious step would be to repeal the Colonial Laws Validity Act of 1865 in respect of those Commonwealth countries which were to attain equality of status. And this in fact was done for Canada, Australia, New Zealand, and South Africa by the Statute of Westminster, and for Ceylon and Ghana by their respective Independence Acts. 15 But this did no more than remove a declaration that the power existed and a rule of construction to determine when it should be deemed to have been exercised. With the repeal of the Colonial Laws Validity Act, it could be argued not only that the power of the parliament of the United Kingdom to make superior laws for the Commonwealth overseas still existed, but that the contention might be revived, which the act had been passed to negate, that repugnancy to English law (and not merely to acts of parliament extending to a colony by express words or necessary intendment) was a ground for invalidity of the acts of a Commonwealth country overseas. The mere repeal of the Colonial Laws Validity Act, therefore, while it had some significance, did not neutralize or nullify, much less abolish, the inequality.
The Members of the Commonwealth represented at the Imperial Conference of 1930 agreed to take this first step. They placed on record the following statement:
It would be in accord with the established constitutional position of all Members of the Commonwealth in relation to one another that no law hereafter made by the Parliament of the United Kingdom shall extend to any Dominion otherwise than at the request and with the consent of that Dominion.
This declaration received the approval of the parliaments of all the Dominions; it was recited in the preamble to the Statute of Westminster in 1931, and the parliament of the United Kingdom thereby expressed its acceptance of it. It will be noticed that the convention proceeds upon the basis that the power exists; it does not say that it must never be exercised again in the future; it does not attempt to abolish it. It says that the power shall not be used unless the Dominion concerned requests and consents to the exercise. Yet this convention did not alter the law. So a second step was taken. It was enacted as follows:
No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof.
This provision occurs in section 4 of the Statute of Westminster and applies now to Canada, Australia, New Zealand, South Africa, and the United Kingdom. It applied to the Irish Free State or Eire until it withdrew from the Commonwealth in 1949. A substantially similar provision appears in section 1 (i) of the Ceylon Independence Act, 1947, and in section 1 (a) of the Ghana Independence Act, 1957.
The enacted provision does not go so far in controlling the power of the parliament of the United Kingdom as the convention does. The convention lays down a rule to determine when the power may be exercised; the law lays down a rule to determine when the power has or may be deemed to have been exercised. If the parliament of the United Kingdom passed a law extending to a Dominion without the request and consent of that Dominion but inserted in the law a declaration that the request and consent of the Dominion had been obtained, it would have broken the convention, but it would not have broken the legal rule. The convention and the legal rule work together and neither is completely effective without the other.
The provisions of section 4 of the Statute of Westminster and section 1 of the Ceylon and of the Ghana Independence Acts have been misunderstood at times because it has been thought that their intention was to abolish or nullify the power of the parliament at Westminster to make laws extending to another Member of the Commonwealth. This was not their intention. They were enacted on the assumption that the parliament at Westminster had that power and that it could be exercised. They declared, as a rule of construction, that it would have been and should be deemed to have been exercised when the act in question contained a declaration that it had been passed at the request and with the consent of the Member concerned. The Colonial Laws Validity Act, 1865, had said that an act of parliament should be deemed to extend to a colony 'when it is made applicable to such Colony by the express words or necessary intendment of any act of parliament'. The Statute of Westminster and the Ceylon and the Ghana Independence Acts replace this rule by another. They say that an act of parliament shall be deemed to extend to the Members of the Commonwealth concerned when it contains a declaration that the Member concerned has requested and consented to it. The provisions of these sections are not directed to legislators but to judges; they are not a self-denying ordinance of the parliament of the United Kingdom (that self-denying ordinance is contained in the convention) but a direction to the courts in the Commonwealth to assist them in applying the law to the cases that come before them.

CHAPTER III

AUTONOMY

'They are autonomous communities.' This is the way in which the founder Members of the Commonwealth described themselves in the report of the Imperial Conference of 1926. The very essence of autonomy is the capacity to adopt and adapt your own constitution, regulating and amending the framework of your government as you think necessary. he grant of autonomy raises the whole question of the authority and supremacy of the constitutions of Members of the Commonwealth, once those constitutions lose any superior status they may have enjoyed as acts of the parliament of the United Kingdom or as instruments made under the authority of such acts. It means that the communities concerned must consider carefully what form of government they wish to live under, what checks or safeguards, if any, they wish to impose upon their political institutions, and in particular upon their parliaments.
It had been agreed among Members of the Commonwealth at the Imperial Conference of 1926 that the principle of equality should govern their relations and it followed as one consequence of this that the parliaments of the overseas Members should be empowered to repeal or amend acts of the parliament of the United Kingdom extending to them. To this end the clause which was to become section 2 of the Statute of Westminster was drafted, which proposed that the Colonial Laws Validity Act of 1865 should be repealed, and that the powers of the parliament of a Dominion should include the power to repeal or amend any act of the parliament of the United Kingdom in so far as the same was part of the law of the Dominion.
But the repeal of the Colonial Laws Validity Act did more than merely remove the rule of construction, contained in sections 1, 2, and 3 of that act, by which an act of a colonial legislature was void if it was repugnant to an act of the parliament of the United Kingdom (or any order made under such an act), which extended to the colony by express words or necessary intendment. The Colonial Laws Validity Act contained some other important provisions, and in particular it laid down in section 5 certain requirements about the powers and procedure in amending colonial constitutions as follows:
Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative legislature shall, in respect to the colony under its jurisdiction, have and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any act of parliament, letters patent, order-in-council, or colonial law for the time being in force in the said colony.
Now the constitutions of Canada and Australia, for example, were contained in acts of the parliament of the United Kingdom. These constitutions divided legislative power between the parliaments of Canada and of Australia, on the one hand, and the legislatures of the provinces of Canada and the states of Australia on the other, in such a way that this division could not be altered by any of these legislatures or parliaments acting alone. This was an essential principle of the federal system of government which had been established by the constitutions. In Canada the constitution--the British North America Act, 1867, and certain subsequent acts of the parliament of the United Kingdom could be altered only by that parliament; in Australia, the constitution could be altered by a process set out in the constitution which involved in addition to the approval of the two houses of the Commonwealth parliament, the consent in a referendum of a majority of all the electors voting and of a majority of the electors in a majority of the six states; the Constitution Act itself--of which the constitution was section 9--could be altered only by the parliament of the United Kingdom, which could also, of course, as a matter of law, alter the constitution itself if it chose to do so. It was of fundamental importance to Canada and Australia that the constitution should be supreme over the legislatures. Before the passing of the Statute of Westminster it was clear that these constitutions were supreme and what is more that they were supreme, if for no other reason, because they were acts of the parliament of the United Kingdom. While nationalism, therefore, might wish to see the removal of the supremacy of British acts over laws made in Canada or Australia, federalism saw in the supremacy of British acts the safeguard of the system of government. For, it was argued, if the Colonial Laws Validity Act was repealed, and if the parliaments of Canada and Australia were empowered to repeal or amend British acts extending to them, then these parliaments could alter those particularly important British acts, the constitutions as set out in the British North America Act, 1867, and the Australian Commonwealth Constitution Act, 1900. And would not the parliaments be free to amend the constitutions by a simple act of parliament once there had been abolished, with the repeal of the Colonial Laws Validity Act, that provision in section 5 of the act which had said that constitutional amendments should be passed only 'in such manner and form as may from time to time be required by any act of parliament. If this were so, these parliaments could unilaterally alter the division of powers between themselves and the provinces and states within their countries, and so convert the federal system into a centralized, unitary system. The method of altering the federal constitutions of these countries was an important question, but it should be dealt with separately. So far as Australia was concerned, a method of alteration entirely within the hands of Australians themselves was available. Canadians in 1931 had not yet agreed upon an appropriate method of amendment and therefore they still relied upon the parliament at Westminster. Canada and Australia were resolved to maintain the supremacy of their constitutions and to base that supremacy upon the status of the constitutions as acts of the parliament of the United Kingdom. Accordingly, at the request of Canada and Australia, reservations were inserted in the Statute of Westminster which were designed to ensure that the legal position so far as their constitutions were concerned was unchanged by any provision in the Statute which extended the powers of the parliaments of Canada and Australia.
Thus, so far as Canada was concerned, although by sections 2 and 7 (2) of the Statute, the Colonial Laws Validity Act was repealed in so far as it applied to the parliament of Canada and the legislatures of the provinces of Canada, it was provided in section 7 (1) of the Statute that 'nothing in this Act shall be deemed to apply to the repeal, amendment, or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder'. 4. (4 The expression British North America Acts, 1867 to 1930, had been statutorily defined. It covered the British North America Acts of 1867, 1871, 1886, 1915, 1916, and 1930. It did not include the Parliament of Canada Act, 1875, or the British North America Act, 1907) And to make clear that the division of powers between the parliament of Canada and the legislatures of the provinces was unaltered by anything in the Statute, it was further provided, in section 7 (3), that 'the powers conferred by the Act upon the Parliament of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively'. This meant that the parliament and the legislatures could make laws only on those matters which the constitution of Canada placed within their competence, but that if in so doing they should make a law which was repugnant to an act of the parliament of the United Kingdom extending to Canada or to a province (other than the British North America Acts, 1867 to 1930) the Canadian or provincial act would not be void for repugnancy to the British act.
Similar but more elaborate provisions were inserted in the Statute to safeguard the position of the states of Australia. In section 8 of the Statute it was provided that 'nothing in this Act shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia . . . otherwise than in accordance with the law existing before the commencement of this Act'. There followed in section 9 (1) a clause declaring that 'nothing in this Act shall be deemed to authorise the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia'. No proposal had been made that the repeal of the Colonial Laws Validity Act should be extended to the states of Australia as had been done for the provinces of Canada. Consequently it was not necessary in this section to provide that the parliaments of the states of Australia should be confined to matters within their authority.
So anxious were the states of Australia that nothing in the Statute of Westminster should alter their status in relation to the parliament of the Commonwealth of Australia that they secured the insertion in the Statute of yet another safeguard, designed this time to protect them not from the powers granted to the parliament of the Commonwealth of Australia in section 2 of the Statute, but from certain consequences which they feared might follow from section 4 of the Statute. By this section, it may be recalled, no future act of the parliament of the United Kingdom would extend to a Dominion unless it contained a declaration that it was passed at the request and with the consent of that Dominion; and in the case of Australia this meant the request and consent of the parliament and government of the Commonwealth of Australia. New Zealand is a unitary and not a federal state, and it lacked therefore this particular concern which was shown in Canada and Australia for the preservation of the supremacy of the constitution. None the less, it was anxious to maintain the existing position and it therefore associated itself with Canada and Australia by securing the insertion in the Statute of Westminster of a provision that 'nothing in this Act shall be deemed to confer any power to repeal or alter the Constitution Act of the Dominion of New Zealand otherwise than in accordance with the law existing before the commencement of this Act. At the time of the passing of the Statute, it could be maintained that the parliament of New Zealand under the provisions of the New Zealand Constitution Act of 1852, as amended in 1857, was empowered to amend all the Constitution Act except certain specified sections. Of these it may be worth mentioning the section establishing the parliament itself (s. 32); regulating the time or place of its meeting, its prorogation and dissolution, the taking of an oath or the making of an affirmation by its members (ss. 44,46,47); empowering the parliament to make laws and defining that power (s. 53); providing for the appropriation and issue of public moneys (s. 54); providing for the governor's power to assent, refuse assent, or reserve bills duly passed by the parliament and for the disallowance of acts (ss. 5659); and defining the terms 'Governor' and 'New Zealand'--the latter including a definition of the boundaries of the colony (s. 80) . Yet at the same time it must be recalled that by section 5 of the Colonial Laws Validity Act, the New Zealand parliament had obtained 'full power to make laws respecting the constitution, powers and procedure of such legislature'; and it might be reasonably maintained that this grant of power enabled it to make almost any alteration it pleased in the constitution though it is doubtful whether it was sufficient to remove all the restrictions imposed by the act of 185713. (13 R. O. McGechan in New Zealand and the Statute of Westminster (ed. J. C. Beaglehole), pp. 100-3, favoured this view). In excluding its Constitution Act from the operation of section 2 of the Statute, New Zealand retained wide powers of constitutional amendment, preserved the status quo, and postponed for the time being the problems about powers of amendment that might be raised when the Colonial Laws Validity Act ceased to apply to the constitution. These sections which were inserted in the Statute of Westminster on behalf of Canada, Australia, and New Zealand had as their common object the preservation of the status of their constitutions as acts of the parliament of the United Kingdom extending to the Members concerned by express words, and possessing supremacy over laws made by any legislatures in these Members by virtue of the rule of repugnancy laid down in the Colonial Laws Validity Act. So reluctant, indeed, were Australia and New Zealand to agree to the repeal of the Colonial Laws Validity Act at all that they arranged for the insertion in the Statute of Westminster of a section postponing the application of sections 2-6 of the Statute to them until they adopted it, a step which was not taken by Australia until 1942 and New Zealand until 1947. During this period, indeed, certain acts of the parliament of the United Kingdom were passed which extended to Australia and New Zealand by virtue of the Colonial Laws Validity Act, though their application to these Members was in fact with their consent and at their request. This request and consent, however, was not recited in the acts because section 4 of the Statute did not yet apply to Australia and New Zealand. We may ask if these safeguarding clauses in the Statute of Westminster were really necessary, if the constitutions of Canada and Australia have ceased to be supreme over the parliaments of Canada and Australia and the legislatures of the provinces of Canada, if sections 7, 8, and 9 of the Statute had not been passed. In other words, if the supremacy of these constitutions depend upon the fact that they were made at Westminster or upon the terms of the constitutions themselves. It is clear that the framers of the Statute of Westminster, and particularly the governments and parliaments concerned in Canada and Australia, believed that, in the absence of safeguards, there was at least a strong presumption that the parliaments of Canada and Australia would acquire a power which they did not already possess to alter the constitutions of their countries. The powers of the parliament of a Dominion, said section 2 (2)of the Statute, shall include the power to repeal or amend any existing or future Act of parliament of the United Kingdom in so far as the same is part of the law of the Dominion. It did not say any existing Act except the Constitution. It seemed to suggest that, once it was established that an act was an act of parliament of the United Kingdom, the powers of the parliament of a Dominion were immediately attracted to it so as to be able to repeal or amend it. And if it were objected that, in the Australian constitution, for example, a special process of constitutional amendment had been laid down, which the parliament of Australia must surely be bound to follow, it was possible to answer that, with the repeal of the Colonial Laws Validity Act and particularly of section 5 of that act, there had disappeared the requirement that a parliament in amending a constitution must pass its laws in such manner and form as may from time to time be required by act of parliament of the United Kingdom. This line of argument has much to commend it. It is worth stating the other side. Might it not be true that what was done by section 2 (2) of the Statute of Westminster was not to increase the area of the powers of the parliament of a Dominion beyond those laid down in its constitution, but to provide that any act passed by the parliament of a Dominion within the area of its powers should not be void through repugnancy to an imperial act extending to the Dominion. It does not necessarily mean that the Parliaments of the Dominions shall have an independent power of repealing or amending Imperial Statutes operating in the Dominion simply because they are Imperial Statutes. It would be more natural to regard it as doing no more than removing from the legislative power of the Dominion the restriction on its exercise which the existence of an Imperial Statute might impose. So regarded it would not enlarge the ambit of the powers of a Dominion Parliament. It would leave them no more and no less extensive than it found them. But it would increase the strength of the power operating within the same limits so that all the law relating to the subject matter of the power, including provisions of Imperial Statute, would be liable to amendment by the exercise of the power. If this view of section 2 (2) of the Statute of Westminster were adopted, we may think how would it affect the position of the parliaments in the Dominions concerned in relation to their constitutions in the absence of the safeguarding sections 7, 8, and 9. Take the case of Australia to begin with. Suppose the parliament of the Commonwealth passed a measure purporting to alter the constitution, say by adding some subject to the list of the powers upon which the parliament could make laws, that this bill received the royal assent, and that the High Court of Australia was invited to pronounce upon the validity of this bill. The court would observe that this measure purported to amend the constitution, that amendments to the constitution to be valid must be passed in a particular manner, laid down in section 128 of the constitution, that this measure had not been passed in that manner, and that it was not therefore an amendment at all. And as it was not an amendment, no question could arise of whether it was or was not repugnant to an act of parliament of the United Kingdom. The test of repugnancy arises only in relation to a law of the parliament of the Commonwealth. A similar argument can be advanced in relation to a law passed by the parliament of the Commonwealth which does not purport to amend the constitution but which is alleged to conflict with the constitution on the ground, say, that it deals with a subject not placed by the constitution within the ambit of the powers of the parliament of the Commonwealth. Here it is open to the court to say that although the measure is an act of parliament, passed in the prescribed manner--unlike the purported amendment discussed above--it is not a valid act because it is ultra vires the parliament of the Commonwealth. Here again the test of repugnancy does not arise, for the act fails on the ground of ultra vires.
On this approach to the question, the constitution of Australia remains supreme over the parliament of the Commonwealth, but not because it is an act of the parliament of the United Kingdom. It is supreme because it is the constitution, and as such must be construed as logically prior to any measure passed by the parliament which owes its existence and powers to the constitution. The supremacy of the constitution is based upon logic, not upon its origin. On this line of argument, the constitution of Australia would have remained supreme even if the safeguarding sections 8 and 9 of the Statute of Westminster had not been inserted. It is true that, with the repeal of the Colonial Laws Validity Act, there would have been removed the safeguard in section 5 of that act that a law amending a constitution must be passed 'in such manner and form as may from time to time be required by any Act of Parliament'. But the courts would themselves have in effect restored the rule by their construction of the nature and meaning of the constitution.

CHAPTER IV

AUTOCHTHONY

Autonomy is one fundamental principle in the constitutional structure of the Commonwealth. But for some Members of the Commonwealth it is not enough to be able to say that they enjoy a system of government which is in no way subordinate to the government of the United Kingdom. They wish to be able to say that their constitution has force of law and, if necessary, of supreme law within their territory through its own native authority and not because it was enacted or authorized by the parliament of the United Kingdom; that it is, so to speak, 'home grown', sprung from their own soil, and not imported from the United Kingdom. They assert not the principle of autonomy only: they assert also a principle of something stronger, of self-sufficiency, of constitutional autarky or, to use a less familiar but accurate word, a principle of constitutional autochthony, 1 (1 From the Greek αὐτόχθων--'sprung from that land itself' (O.E.D.).) of being constitutionally rooted in their own native soil.
The issues involved were very clearly and forcefully pre sented when the constitution for the Irish Free State came to be drafted in 1922. Although the Republic of Ireland, the successor to the Irish Free State, ceased to be a member of the Commonwealth in 1949, the principles which its founders asserted, though rejected by other Members of the Commonwealth at the time, came to have a strong influence on the course of the development of the constitutional structure of the Commonwealth, particularly after 1945. The Irishmen who framed the constitution in Dublin in 1922 believed that they were acting on behalf of the people of an independent republic and that the constitution which they drew up obtained force of law through the approval of the representatives of those people. They described themselves as the Third Dáil Eireann. Their view is expressed in the preamble to the Constitution of the Irish Free State (Saorstat Eireann) Act which these representatives passed 4 (4 On 25 Oct. 1922, and referred to as No. 1 of 1922.) and which runs as follows:
Dáil Eireann sitting as a Constituent Assembly in this Provisional Parliament, acknowledging that all lawful authority comes from God to the people and in confidence that the National life and unity of Ireland shall thus be restored, hereby proclaims the establishment of the Irish Free State (otherwise called Saorstat Eireann) and in the exercise of undoubted right, decrees and enacts as follows:
And in section 1 it enacts that the constitution scheduled to the act shall be the constitution of the Irish Free State.
The view of the government and parliament of the United Kingdom, on the other hand, was that the power to establish the Irish Free State and to give it a constitution with force of law lay with the parliament of the United Kingdom alone. They did not recognize Ireland as an independent country but as a part of the United Kingdom whose parliament alone could grant self-government. When, therefore, the Irish representatives in Dublin had concluded their work and embodied it in the Constitution of the Irish Free State (Saorstat Eireann) Act, the parliament of the United Kingdom proceeded to pass what it described as the Irish Free State Constitution Act. This act is entitled 'An Act to provide for the Constitution of the Irish Free State' and begins:
Whereas the House of the Parliament constituted pursuant to the Irish Free State (Agreement) Act, 1922, 6 (6 An earlier act of the parliament of the United Kingdom, 12 Geo.V. c. 4. Assented to on 31 Mar. 1922.) sitting as a Constituent Assembly for the settlement of the Constitution of the Irish Free State, has passed the Measure (hereinafter referred to as 'the Constituent Act'), set forth in the Schedule to this Act, whereby the Constitution appearing as the First Schedule to the Constituent Act is declared to be the Constitution of the Irish Free State. . . .
And in section 1 it enacts that the constitution set forth in the first schedule to the Constituent Act shall, subject to the provisions to which the same is by the Constituent Act made subject, be the constitution of the Irish Free State, and shall come into operation on being proclaimed by His Majesty The view expressed by the parliament of the United Kingdom was that the Constituent Assembly was a 'House of Parliament' not Dáil Eireann; that its authority came from the Irish Free State (Agreement) Act, not from 'God to the people' nor from 'undoubted right'; that its deliberations were directed to the 'settlement' not the enactment of a constitution; that it passed a 'Measure', not an act, though that measure might be referred to as 'The Constituent Act'; and that it merely 'declared' the scheduled constitution to be the constitution of the Irish Free State, it did not enact it. On the British view, indeed, the Assembly had no power to enact a constitution; it had not been authorized to do so by the Irish Free State (Agreement) Act. All that the house of parliament did was to 'prepare' a constitution in accordance with the practice which had been followed already in Canada, Australia, and South Africa, and in the Australian colonies. Mr. Lloyd George, the Prime Minister of the United Kingdom, expressed this view in his speech in the House of Commons in introducing the Irish Free State Constitution Bill: 'Here we are going to follow the example which has been set in the framing of every constitution throughout the Empire. 7 The constitution is drafted and decided by the Dominion, the Imperial Parliament taking such steps as may be necessary to legalise these decisions. This difference of opinion about the legal basis of the constitution of the Irish Free State persisted throughout the history of the Free State. It was reflected in particular in the attitude of the courts in the Free State and in the United Kingdom towards the constitution. The Supreme Court of the Irish Free State, more particularly in the case of The State (Ryan) v. Lennon, 9 ([ 1935] I.R. 170.)decided in 1934, spoke of the constitution as 'the fundamental structure upon which the State was set up by the Third Dáil Eireann sitting as a Constituent Assembly. The Dáil thereby formulated the system or principles, and created the organs of government of the State." 10 (10 Per Kennedy C. J. at p. 203. FitzGibbon J. in the same case said that he was not disposed to quarrel with the statement 'that the Constitution was proclaimed in the name of the people by Dáil Eireann as an act of supreme authority, which it alone had the right to do, because it was the mouthpiece of the people, requiring and receiving no royal assent'. Ibid., at p. 226. See also Kennedy C. J. in Lynham v. Butler, decided in 1927. [ 1933] I.R. 74.).On the other side was the completely opposing view expressed by the Judicial Committee of the Privy Council in the case of Moorev. The Attorney-General for the Irish Free State, decided in 1935. 11 (11 [ 1935] A.C. 484; [ 1935] I.R. 472.)
In their opinion [said Lord Sankey] the Constituent Act and the Constitution of the Irish Free State derived their validity from the Act of the Imperial Parliament, the Irish Free State Constitution Act, 1922. This Act established that the Constitution, subject to the provisions of the Constituent Act, should be the Constitution of the Irish Free State and should come into operation upon being proclaimed by His Majesty, as was done on December 6, 1922. The action of the House of Parliament was thereby ratified; apart from such ratification that body had no authority to make a Constitution. . . . 12 (12 [ 1935] A.C. 484 at p. 497.)
These views were clearly irreconcilable. The one took its start from an Irish legislature possessed of supreme authority to enact a constitution in exercise of its undoubted right, and regarded the acts of the parliament of the United Kingdom as valid and necessary only in so far as they gave force of law in the United Kingdom to the changes consequential upon the recognition by the United Kingdom of the establishment of the Irish Free State. The other takes its start from the parliament of the United Kingdom as the only source of legal authority, and regards the Irish assembly and its measures as legally valid in the United Kingdom or in the Irish Free State only in so far as they derive such force of law from acts of the parliament of the United Kingdom. The argument proceeds on parallel lines.
This conflict of view about the legal basis of the constitution of the Irish Free State continued so long as the constitution itself existed. So far as the principle of autonomy was concerned, however, as distinct from the principle of autochthony, the British view was more favourable, if anything, to the Free State than the Irish view. For when the Statute of Westminster was passed in 1931, it gave full powers to the parliament of the Free State to repeal or amend any act of the parliament of the United Kingdom which extended to the Free State, and this included-so the Judicial Committee of the Privy Council decided in Moore's Case--the Irish Free State Agreement Act and the Irish Free State Constitution Act and its schedules. The parliament of the Free State was able therefore to remove any provisions of the agreement to which it objected and any inequalities in the agreement or in its constitution which had been imposed upon it in 1922. 13 (13 'The Statute of Westminster gave to the Irish Free State a power under which they could abrogate the Treaty. . . .' Moore's Case, [ 1935] A.C. 484 at p. 499). On the Irish view, however, the Articles of Agreement and the constitution had been enacted by the Third Dáil, which had stipulated that no amendment might be made to the constitution which conflicted with the Articles of Agreement, and there was no body--certainly not the parliament of the United Kingdom--which was able to remove this restriction upon constitutional amendment which the Third Dáil had imposed.
These arguments were brought to an end when the constitution of the Irish Free State of 1922 was superseded in 1937 by the constitution of Eire. In the enacting of this constitution great care was taken that it should not only be but also be seen to be 'home grown' in legal theory and practice. In the first place, the draft constitution, prepared by Mr. De Valera's government, was presented to the Dáil, but it was not enacted by it. The Dáil was invited to discuss the draft, to amend it, and to approve it, but to go no further. Thereafter it was submitted to the people in a referendum, and their approval constituted the enactment of the document. 14 (14 The Plebicite (Draft Constitution) Act, 1937 (No. 16 of 1937), referred to a 'draft constitution approved by Dáil Eireann'.) It was thus impossible to argue that the constitution obtained force of law through the authority of the Dáil which in turn had got its authority from the Statute of Westminster and the Irish Free State Constitution Act, 1922--both acts of the parliament of the United Kingdom. On the contrary the constitution was an act of the people, as declared in its preamble: 'In the Name of the Most Holy Trinity, from whom is all authority and to whom, as our final end, all actions both of men and states must be referred, We, the people of Eire . . . Do hereby adopt, enact, and give to ourselves, this Constitution.'
Two points about these events deserve notice. The first is that, on the Irish as well as on the British view of the legal basis of the constitution of the Irish Free State, the enactment of the constitution of 1937 caused a break in Irish constitutional history. There was a gap or break in legal continuity. Whether the Dáil owed its authority to the Irish people or to the parliament of the United Kingdom, it did not enact or purport to enact the constitution of 1937. It showed to other Commonwealth countries a method of making a break with the past, and of conducting what, in law, was a revolution, not an amendment or revision of the constitution of 1922. The second point is that Ireland carried out these steps while still within the Commonwealth. It showed the other Commonwealth countries that you could adopt a home-grown constitution without being obliged to leave the Commonwealth.
This desire to have a 'home-grown' or autochthonous constitution has been felt by other countries of the Commonwealth as they have approached independence, but not by all. But the same problem arises of how the parliament of the United King- dom can grant autonomy to a Commonwealth country without at the same time granting it a constitution or authorizing its legislature to enact a constitution. If independence has been achieved in a peaceful way, as a result of agitation and negotiation but not through insurrection as in Ireland, it is most natural that the new constitution of the new independent Member of the Commonwealth should be, if not made, certainly legalized or given its hall-mark or trade-mark in the United Kingdom.
The cases of India and Pakistan provide some interesting illustrations of the problem. When India obtained independence in 1947 it was arranged that, pending the drawing up of a new constitution, it should continue to be governed under the Government of India Act, 1935, as adapted to the new situation. It is clear, therefore, that until 26 January 1950, when the new constitution of India came into effect, India was governed under a constitution which owed its force of law to the parliament of the United Kingdom, and in particular to two acts of that parliament, the Indian Independence Act of 1947 and the Government of India Act of 1935. Pakistan was in a similar position from 1947 until its new constitution came into effect in 1956. What is the status of the new constitutions? The preamble to the Indian constitution of 1950 runs: 'We, the people of India, having solemnly resolved to constitute India into a sovereign democratic republic . . . in our constituent assembly, this twenty sixth day of November, 1949, do hereby adopt, enact, and give to ourselves this Constitution.' The preamble to the constitution of the Islamic Republic of Pakistan runs: 'We the people of Pakistan in our Constituent Assembly this twenty ninth day of February 1956 and the seventeenth day of Rajah, 1375, do hereby adopt enact and give to ourselves this Constitution.' Although this constitution was suspended in 1958, the course of events leading up to its enactment is worth some small study, for it is founded upon principles of enduring importance in the development of the constitutional structure of the Commonwealth.
Here is a claim that the constitution has been enacted by the people. And as if to make it clear and manifest that there was a break with the past, each constitution contained an article which repealed the Indian Independence Act, 1947, and the Government of India Act, 1935, 16 (16 Article 395 of the constitution of India and Article 221 of the constitution of Pakistan.) upon the coming into effect of the new constitution. It is true that, unlike the people of Eire, the peoples of India and Pakistan were not asked to express their opinion of the draft constitutions; they did not actually enact them as did the people of Eire. They acted through their constituent assembly, rather in the same way as the Irish people were claimed to have acted through the Third Dáil in 1922.Yet the Indian and Pakistani documents claim that the people, not the constituent assembly, enacted the constitution; the people 'in', not 'through' or 'by' their constituent assembly. It is a fiction, of course, but it is not necessarily therefore bad law. Let us examine the cases of India and Pakistan separately.
For the Indian Independence Act of 1947 conferred full powers to make laws upon the legislature of the new Dominion of India and provided that for the purpose of making provision as to the constitution of the Dominion the powers of the legislature of the Dominion should be exercisable in the first instance by the Constituent Assembly of the Dominion.
In the first place it could be argued that if the Constituent Assembly had passed the constitution and the Governor-General of India had assented to it, then undoubtedly the constitution would have had force of law, and would have derived this force of law from the powers conferred by the Indian Independence Act of 1947. This certainly did not happen. Though the Constituent Assembly itself passed the constitution, the GovernorGeneral did not assent to it. He was not asked to assent to it. On the view of the members of the Constituent Assembly his assent was not required to complete the enacting process.
To understand it we must go back to 1946 when arrangements for setting up the Constituent Assembly were first discussed.
The Assembly itself, when formed, will in my Committee's opinion be a sovereign body for the purpose of drafting the constitution unhindered by any external authority, as well as for entering into a treaty. . . . The Constituent Assembly being a sovereign body for the purpose of the constitution its final decisions will automatically take effect.
Here was a claim that the Constituent Assembly should be regarded as having complete authority to enact the constitution, as sovereign in its own right, dependent on no outside body to authorize its actions either before or after its labours were concluded. To this claim Lord Pethick-Lawrence returned an answer. 'When the Constituent Assembly has completed its labours', he wrote, 'His Majesty's Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people. . . .' 21 (21 Ibid., p. 165.)This was, no doubt intentionally, a little vague. It did not actually say that the constitution could not come into effect until given force of law by the parliament of the United Kingdom. It might imply it, but it was conceivable that the steps necessary to cede sovereignty might not actually include the legalizing of the constitution. the Constituent Assembly proceeded upon the assumption that it did not. Whenever it produced constitutional measures (and it should be remembered that great number of such measures had to be passed in the early year of independence before the constitution was completed) it regarded them as coming into force upon their signature not by the Governor General, to whom they were not presented, but by the President of the Constituent Assembly. His signature was not regarded as assent but as authentication, as certifying that the measure which he signed was that which is fact the Assembly had passed.
Alongside these arrangements for the enactment of constitutional measures, there were distinct and different arrangements for the enactment or ordinary legislation. The members of the Constituent Assembly, sitting as a legislature, passed bills upon non-constitutional subjects, and these were submitted to the Governor-General for his assent. There were in fact two bodies –or one body with two distinct functions. The rules of procedure when constitutional measures were being discussed were different from those when ordinary measures were being discussed. The debates were reported in separate Hansards. the enactments were published separately in the volumes of statutes. The question now arises: Did the Indian Independence Act of 1947 make the assent of the Governor-General an essential part of the process of enacting all legislation, constitutional or nonconstitutional? If it did, then all the constitutional measures, including the constitution itself, passed by the Constituent Assembly, were not in fact enacted, and did not obtain force of law under the authority of the Indian Independence Act. They derived their force of law, if they had it, from elsewhere--from the people, from the Constituent Assembly itself as a sovereign body (on the Congress view), or from both. This is what the Congress Working Committee had wished to see happen right from the start and the procedure followed by the Constituent Assembly clearly was intended to assert this principle. The similarity in aim and procedure between the Indian Constituent Assembly and the Third Dáil is apparent. There is just this difference. Whereas the parliament of the United Kingdom passed an act 23 (23 The Irish Free State Constitution Act, 1922. See above, p. 91.) Which claimed to give force of law to the constitution of the Irish Free State, no such British act was passed purporting to give force of law to the Indian constitution. In the end no British validating act proved to be part of what Lord PethickLawrence had vaguely referred to as 'such action as may be necessary for the cession of sovereignty to the Indian people'.
But now, supposing that the Indian Independence Act of 1947 did not require the assent of the Governor-General for the completion of the process of enacting laws, or at any rate of enacting constitutional laws? Might it not be that the act gave powers to the Constituent Assembly to enact constitutional laws, including the constitution, without bringing the Governor-General into the process at all? Perhaps the Constituent Assembly in dispensing with the Governor-General's assent was following the provisions of the Independence Act, not departing from them? If this is so, we reach the interesting conclusion that the Constituent Assembly did indeed enact the constitution, and did so under the authority of the powers conferred upon it by an act of the United Kingdom parliament, namely, the Indian Independence Act of 1947. The fact that the constitution itself declares at the outset that the people of India enacted it, is, in law, a mere flourish, for the constitution was enacted when the final vote was taken by the Constituent Assembly.
The constitution of India does in fact impose a variety of limitations upon legislatures. Part III contains a comprehensive declaration of fundamental rights--the right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, the right to property, and the right to constitutional remedies. Inevitably many of these rights are declared subject to qualifications, as, for example, Article 2 5 (1) which states that 'subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion'. An unqualified declaration of rights is incompatible with government. To the extent, however, that the constitution defines them, rights are guaranteed and the Supreme Court of India has the power to issue directions or orders or writs, whatever may be appropriate, for the enforcement of any of the rights conferred by Part III. 34 (34 Article 32.)In this matter it is clearly intended that the will of the people as expressed in the constitution is supreme over the legislature or any other institution of the state. Article 13 (2) declares: 'The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.'
A second important limitation upon legislatures embodied in the constitution is the division of powers between the parliament of the Union and the legislatures of the component states which make it up. These are set out in some detail in a Union List, a State List, and a Concurrent List. 35 (35 Part XI and Seventh Schedule.) The division is by no means unambiguous or rigid, and in this part of the constitution, as in others, there is provision for the assumption of power by the government of the Union in certain circumstances such as an emergency. Subject to these extensive qualifications, however, limits are imposed and here again the courts have power to determine whether or not limits have been transgressed. And an appeal lies to the Supreme Court in any case which involves a substantial question of law as to the interpretation of the constitution. In a succession of cases the Supreme Court has exercised this power.
In considering how far the people have imposed effective and extensive checks upon the institutions of government which they set up in their constitution, we must look not so much at the courts as at the nature of the power to amend the constitution and in particular the limitations embodied in it. Amendments to the constitution 36 (36 Article 368.) require a special process, which does not, incidentally, involve recourse directly to the people. Subject to certain excluded topics (which will be mentioned later) an amendment to the constitution 'may be initiated only by the introduction of a bill for the purpose in either house of parliament, and when the bill is passed in each house by a majority of the total membership of that house and by a majority of not less than two-thirds of the members of that house present and voting, it shall be presented to the President for his assent and upon such assent being given to the bill, the constitution shall stand amended in accordance with the terms of the bill'.
If, however, the proposed amendment deals with certain specified sections of the constitution--affecting, for example, the election of the President, the judiciary, and the allocation of powers and the regulation of relations between the Union and the component states--or if it deals with the amending process itself, then the amending bill requires in addition to the consent of the two houses of parliament as set out above, the assent also of the legislatures of not less than half of the states of the Union.
The amendment of the constitution of India must be carried out according to the procedure laid down in it and that any act of a legislature which conflicted with the constitution must give way to it. On the other hand it is also clear that the limitations upon the legislatures, and in particular the fundamental rights declared in Part III, are capable of being modified or abolished by constitutional amendment. So far as the fundamental rights are concerned, indeed, they can be altered by the parliament of the Union, provided the appropriate majorities can be obtained. 38 But whatever the extent of the area over which the constitution is supreme, that supremacy and the authority of the constitution is based upon something which, whether it is to be called a Grundnorm or not, is Indian.

CHAPTER V
MEMBERSHIP
In the report of the Imperial Conference of 1926 the United Kingdom, Canada, Australia, New Zealand, South Africa, Newfoundland, and the Irish Free State described themselves as 'freely associated as Members of the British Commonwealth of Nations'. 1 While nobody at the time questioned the meaning of the term 'Member', nobody questioned the right of these countries in the Empire to call themselves 'Members' if they chose. In the years that have intervened, however, the meaning of membership of the Commonwealth has had to be investigated. What is involved in membership? How do you become a Member? How do you cease to be a Member? Who decides these things? The answers to these questions are by no means certain. In this chapter an attempt is made to set out some of the considerations that are involved.
It may be useful to begin by asking what were the characteristics which the original Members of the Commonwealth exhibited. The first was equality of status, their being in no way subordinate to the United Kingdom or to each other. By this characteristic they were marked off from the other countries in the British Empire. If you were a subordinate country in the Empire, then you were not a Member of the Commonwealth.
But while equality of status marked Members off from other countries in the Empire, it did not mark them off from other independent countries outside the Empire. If Canada was equal in status to the United Kingdom, so also was the United States. Equality of status merely placed these countries of the Empire on an equal footing with other sovereign, independent states. Membership involved something more than this. The second characteristic of Members was that, again in the words of the Report of 1926, they were 'within the British Empire'. As a consequence of this, or as an illustration of it, they described themselves as 'united by a common allegiance to the Crown'. By this characteristic they were marked off from foreign countries. What precisely was meant by 'common allegiance to the Crown' it was not easy to say. At the least it meant that government was carried on in each of the Members in the name of the King; their governments were His Majesty's governments. 'Allegiance' was a legal concept, and it had a place of particular importance in regard to questions of citizenship and to the law of treason. What it involved for the citizens of a Member was regulated, however, by the law of that Member.
Two other characteristics of Members were exhibited. The first is a development which seems to have grown out of the declaration of common allegiance to the Crown, but it is distinct from it. It finds its expression in the preamble to the Statute of Westminster in words that were adopted by all the Members of the Commonwealth at the Imperial Conference of 1930: 'Inasmuch as the Crown is the symbol of the free association of the Members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown. . . .' Here are two distinct ideas. The idea of common allegiance is mentioned separately; but, in addition to it, is the idea of the Crown as a symbol of the free association of the Members. This latter idea does not involve common allegiance in the legal sense of that word. All Members might accept the Crown as a symbol of their association--just as they might accept a flag or a flower--but not all might embody in their law the notion of allegiance to the Crown. The important point was that a distinction had been made between allegiance to the Crown and the Crown as a symbol of the association, though the importance of this distinction was not obvious at the time it was made.
A country is eligible for membership of the Commonwealth, therefore, if it has equality of status, if it is ready to accept the Queen as the symbol of its association, and if it is ready to accept the obligation to co-operate with the other Members. The form of government for a country that desires to become member must be such that it could claim to have equality of status or independence, and that it could accept the Queen as a symbol and that it could co-operate. But except in so far as these conditions for eligibility affect a form of government, no hard and fast rule is laid down. That is not to say that certain forms of government make co-operation easier or harder for Members or that it would be improper or impolitic for Members to take into consideration the form of government in a country before admitting it to membership. These are indeed most important considerations. So far, however, no rules on these subjects have been adopted. And indeed Pakistan continues as a Member of the Commonwealth, though its form of government is not parliamentary to say the least. It is sometimes asked if a Member of the Commonwealth could continue to be a Member if it joined itself with a foreign country. Discussion of the subject arose from reports of a proposed closer association of Ghana and Guinea. On the existing the obligation to co-operate with the other Members. The form of government of a country that wants to become member must be such that it could claim to have equality of status or independence, and that it could accept the Queen as a symbol and that it could co-operate. But except in so far as these conditions for eligibility affect a form of government, no hard and fast rule is laid down. That is not to say that certain forms of government make co-operation easier or harder for Members or that it would be improper or impolitic for Members to take into consideration the form of government in a country before admitting it to membership. These are indeed most important considerations. So far, however, no rules on these subjects have been adopted. And indeed Pakistan continues as a Member of the Commonwealth, though its form of government is not parliamentary to say the least. Is one condition of eligibility that the country seeking membership shall already be within the Commonwealth, though not a Member of it? Can new Members come from outside? The answer to this is that up to now all Members of the Commonwealth have attained membership after a period as dependent countries of the Commonwealth. They have grown up to adult status. And there are good reasons for saying that Members so recruited are likely to be good Members. But there is no rule laid down which would prevent the introduction into the Commonwealth of new Members from outside, provided, of course, that they fulfilled the three criteria of eligibility already mentioned. Whether in general or in a particular case new .
Members from outside would be desirable is a political question of very great importance. From the point of view of the constitutional structure of the Commonwealth it is not excluded. It is sometimes asked if a Member of the Commonwealth could continue to be a Member if it joined itself with a foreign country. Discussion of the subject arose from reports of a proposed closer association of Ghana and Guinea. On the existing rules of the Commonwealth, the answer is clear. If a Member joined with a foreign country in a union so close that the Member ceased to be a separate independent country, then it could no longer be a Member of the Commonwealth. It would lack equality of status or independence. If, therefore, Ghana and Guinea, say, formed a federal union and established a common government responsible for their external affairs and relations with other states, Ghana would no longer be a separate, independent state, and consequently no longer eligible to be a Member of the Commonwealth. If, on the other hand, Ghana and Guinea formed a loose confederation or league, under which, by whatever name it was called, each country maintained relations with other states, then Ghana undoubtedly would be eligible to continue as a Member of the Commonwealth. A very close association of the two states, with joint arrangements for defence, economic development, and external affairs might prove compatible with Ghana's membership of the Commonwealth. The test to apply, undoubtedly, would be whether, as a result of the arrangements, Ghana was still an independent state.
How does this affect the procedure for admitting new Members to the Commonwealth? It means that if an existing Member is unwilling to accept a proposed new Member and votes against it, it is at liberty, if it wishes, to leave the Commonwealth. Other Members must decide whether they prefer to lose an existing Member or to lose a prospective Member, bearing in mind that if an independent Commonwealth country is refused membership, it will probably decide itself to leave the Commonwealth. The existing Members have a sanction in their threat to secede; so have the prospective new Members. It would be possible, therefore, for a new Member to be admitted to the Commonwealth by a majority vote, on the understanding that the Member or Members who objected to the proposed new Member could, if they chose, secede from the Commonwealth. It would not be necessary for them to do so logically; they could content themselves with registering their dissent and accept the majority decision. If, however, this did not suit them, secession is available to them. There is, therefore, considerable reason for Members of the Commonwealth to consult each other about proposed new Members so that unanimity may be achieved, 19 but at the same time it is open to Members to argue that the loss of one existing Member (say) is a small price to pay for the acquisition of several new Members.
The notion of an independent Commonwealth country remaining in the Commonwealth if it ceased to be or failed to become a Member is probably unlikely to be of practical importance. As, however, the distinction between independence within the Commonwealth and membership has been drawn, it is worth noticing certain possibilities. Thus a country like Canada could conceivably, as a result of its disagreement with the other Members of the Commonwealth, declare that it wished no longer to be a Member, but at the same time that it wished to preserve its link with the Queen, to remain a kingdom and one of the Queen's Realms. It would, in these circumstances, surely be within the Commonwealth, and a Commonwealth country. It would not, however, recognize for itself the Queen as the Head of the Commonwealth, for the Queen as Head of the Commonwealth is the symbol of the free association of its independent Member nations, and that for Canada, in these circumstances, would not be applicable. So also if a Commonwealth country was granted independence and wished to continue to be one of the Queen's Realms but was refused admission as a Member of the Commonwealth, it could, if it wished, remain within the Commonwealth, recognizing the Queen as the head of its government but not as Head of the Commonwealth. Put shortly, while existing Members of the Commonwealth may say that an independent Commonwealth country cannot be a Commonwealth Member they may not say that it cannot be a Commonwealth country. Only the independent country itself may do that.

CHAPTER VI
CO-OPERATION
The Members of the Commonwealth declared in the Report of the Imperial Conference in 1926 that 'free co-operation is its instrument'. This statement is as true today as it was in 1926. It should be remembered that this instrument is not that which Lionel Curtis favoured when he advocated the idea and adopted the name of a 'Commonwealth'. His aim was federation, and the instrument of a federation is a government with power to decide and to execute in matters of common concern. Co-operation falls far short of government. When federation was rejected, however, co-operation between sovereign, independent states was the most that could be expected.
Co-operation is a vague, loose word. It is customary, in the discussion of Commonwealth affairs, to use along with it 'communication' and 'consultation'. It is perhaps worth while to say something about the meaning of these terms. 'Co-operation' is the widest; it means working or acting together. It implies freedom on the part of those who act or work together; cooperation is usually thought of as voluntary co-operation. This is certainly the meaning attached to it in the case of Members of the Commonwealth.
Acting or working together can occur at various stages. It is possible to agree that you will work together to the extent of exchanging information with each other on matters of common concern. This may well be described as 'communication'. Or you may go further than this and agree not merely to tell each other what you know and what you are doing or proposing to do but also to ask each other's opinion about it. This may well be described as 'consultation'. It is clear that 'consultation' involves some degree of 'communication', but that communication may well occur without consultation following upon it. Finally there may be an agreement to go further than the exchange of information and consultation about it; it may be agreed that the parties may take action in common, either by negotiating together with some foreign country, or by administering some activity together. It is always implied in this that the parties have voluntarily agreed to administer or negotiate together and that they are free at any time to withdraw and that they are not bound by the outcome of their co-operative action any further than they have agreed in advance to be bound.
Co-operation may then be used to cover a wide range of action taken together by the parties concerned. Communication and consultation are examples of co-operation; they are not different from it. And in this chapter 'co-operation' is thought to cover all examples of working together by Members of the Commonwealth, including especially communication and consultation.
The interesting point of this arrangement is that it is secured by joint legislation in the Members concerned. The United Kingdom has agreed that it will admit the stocks of a Commonwealth Member to the trustee list if the Member has undertaken in an act of its parliament to consult the United Kingdom before submitting for the royal assent any legislation by the Member which appears to the United Kingdom to alter any of the provisions affecting the stock to the injury of the stock holders or to involve a departure from the original contract, and to make any such amendments in the legislation as may be requested by the United Kingdom. 8
Now this arrangement leaves the Member concerned free to enact what legislation it pleases about its stocks. All that has been agreed is that if it wishes its stocks to be on the trustee list of the United Kingdom, then it must consult the United Kingdom about the changes it proposes to make and it must conform to the wishes of the United Kingdom about the terms of the legislation. If it does not do this, then the United Kingdom is not obliged to place these stocks on the trustee list. Failure to consult involves a sanction; a procedure is prescribed through which consultation can take place. But there is nothing in law to prevent the Member taking what action it pleases. And it is open to a Member, if it chooses, to impose similar conditions upon legislation about securities by other Members of the Commonwealth.
The members of the Commonwealth have established certain institutions for co-operative administration, but the institutions which they administer co-operatively in fact do no more than provide opportunities for communication and consultation. The existence of these institutions illustrates the fact that, so far, the Members of the Commonwealth have refused to undertake an obligation to co-operate beyond the stage of consultation. They may in particular cases administer together; in war and in peace they have decided and executed policies co-operatively, and with a co-ordination and unity as great as or greater than that shown by federations of comparable size. But these are ad hoc arrangements. No standing convention of co-operative decision and administration has been adopted.
The co-operatively administered institutions are almost all in the United Kingdom. They are normally financed by a contribution from each Member on an agreed basis, and they are administered by a governing body upon which each Member is represented. There is, for example, the Executive Council of the Commonwealth Agricultural Bureaux which administers the Commonwealth Institute of Entomology, the Commonwealth Mycological Institute, the Commonwealth Institute of Biological Control (which is in Ottawa), the Commonwealth Bureau of Animal Breeding and Genetics, the Commonwealth Bureau of Animal Health, the Commonwealth Bureau of Animal Nutrition, the Commonwealth Bureau of Dairy Science and Technology, the Commonwealth Forestry Bureau, the Commonwealth Bureau of Helminthology, the Commonwealth Bureau of Horticulture and Plantation Crops, the Commonwealth Bureau of Pastures and Field Crops, the Commonwealth Bureau of Plant Breeding and Genetics, and the Commonwealth Bureau of Soils. All these bureaux exist to collect and spread information in their respective fields, and they act as a clearing house and a centre of communication in these matters for Members. The Executive Council makes an annual report to each of the Members.
It is interesting to notice, also, how the operation of the Colombo Plan was arranged. There is a Consultative Committee, which was set up when the plan was adopted in January. 1950, and the task of this committee is confined to surveying the needs and assessing the resources available and required to carry out economic development in the countries in South and South-East Asia. Each year an economic survey of the region is prepared and published by the committee. But when it comes to providing capital aid and technical assistance to the countries in the region, decisions are in the hands of the countries involved. It is arranged independently between the giving and receiving countries. It should be added, perhaps, that the Consultative Committee is not confined to Commonwealth countries, for the Colombo Plan extends to countries in South and South-East Asia irrespective of whether they are in the Commonwealth or not, and what is more the United States is a member of the committee. It is perhaps natural, therefore, that administrative powers are not given to an international committee of this kind. None the less it is usual to find that Members of the Commonwealth, even when engaged in matters in which foreign countries are not concerned, tend to preserve their independence and freedom of action much as they do when engaged in other international discussions.
There is indeed only one example of co-operative administration through a permanent institution in the Commonwealth where the institution is not engaged almost exclusively in the exchange of information or in consultation and that is the Imperial War Graves Commission. This body, which owes its legal existence to a royal charter, is financed by Members of the Commonwealth and its function is to establish and maintain cemeteries and to compile records of civilian war dead. The exception goes far to prove the rule. It is only in a matter where policy can be agreed upon and politics can be ruled out that an institution with administrative functions can be set up by Commonwealth Members. War graves could be a contentious subject; the establishment and working of the commission was not always plain sailing. In fact, however, co-operative administration has proved possible and successful in its work.
When we consider co-operation in the Commonwealth, therefore, we start from the position that there is an obligation to communicate and consult, but there is no obligation beyond that. What is more there is no obligation to agree, or to refrain from action if others disagree; there is no veto. The development of institutions of co-operation within the Commonwealth has therefore been determined by these principles, that communication and consultation must be made full and effective, but that no obligation to go beyond this point could be undertaken. Wherever it seemed likely, in particular, that a Member government could be committed to any policy by the action of another Member, action was taken to make sure that no such consequences could occur. This process of co-operation is following certain rules. First there is communication and consultation between governments in the Commonwealth, carried out through the departments of external affairs in each of the overseas Members, while the government of the United Kingdom has a department of Commonwealth relations under a Secretary of State. 10 It is interesting to notice that none of the other Members of the Commonwealth has set up a separate department to deal with Commonwealth relations. They deal with Commonwealth relations either as part of the work of their department of external affairs or as part of their Prime Minister's department. In most cases, however, there would be a distinct subdivision of the larger department which specialized in questions of Commonwealth relations. No hard and fast rule can be laid down about the proper form of organization. The United Kingdom has contact with all the other Members of the Commonwealth and there may be a case for saying that it needs the attention of a separate minister. It means that there is one voice at least in the United Kingdom cabinet which can be raised on behalf of consultation and communication with the other Members of the Commonwealth. If Commonwealth relations were contained within the sphere of the Foreign Office, they might become submerged or confused in wider or more complicated matters and not receive the care and attention in the cabinet which they should have. So far as overseas Members of the Commonwealth are concerned their relations with each other may not be sufficiently extensive to justify the setting up of a separate department, or it may be that the external relations of these Members are not yet so extensive that relations with other Commonwealth countries are likely to be submerged.
A second method of communication and consultation is through the High Commissioners, the representatives in each Commonwealth Member of the other Commonwealth Members. This system of representation is now accepted as normal, though not all Members are represented in each other's capitals. Though High Commissioners are given the same status as ambassadors, they have retained their distinctive title to mark the fact that they are not the same as representatives of foreign countries. In earlier times it was objected that the representative of one of the Queen's realms could not enjoy diplomatic status in another of the Queen's realms because the Queen could not accredit an ambassador to herself. These legalistic objections, whatever their force, should not be allowed to stand in the way of the Members of the Commonwealth obtaining that form of representation in each other's capitals which seems to them in accordance with equality of status. In fact the objection could no longer be sustained so far as India or Pakistan or Malaya are concerned, since they have ceased to be Her Majesty's realms. The Presidents of India or Pakistan, and the King of Malaya, could properly accredit an ambassador to the Queen whether in the United Kingdom or in Canada, Australia, New Zealand, or any of her other realms. In practice High Commissioners are still appointed, though in the case of India and Malaya the High Commissioner presents Letters of Commission from the President of the Republic of India or the King of Malaya 11 to the Queen, while the United Kingdom High Commissioner in Delhi or Kuala Lumpur similarly presents Letters of Commission from the Queen to the President or the King. The use of a distinctive name for the representatives of the Members of the Commonwealth stresses their special relationship with each other and perhaps frees them from certain restrictions of procedure in carrying out their duties which might attach to them if they were ordinary members of the diplomatic corps. An interesting footnote to the matter is that the representative of the Republic of Ireland in the United Kingdom (as in other Members of the Commonwealth) is an ambassador, which is not surprising, for Ireland is not within the Commonwealth. On the other hand, Ireland is not regarded as a foreign country. Her ambiguous position is recognized by the fact that the Irish ambassador conducts his relations with the United Kingdom through the Commonwealth Relations Office, not the Foreign Office, and that when he presents his letters of credence to the Queen, he is accompanied by a representative of the Commonwealth Relations Office. In this way is symbolized Ireland's position in relation to the Commonwealth since 1949 of 'exclude me in' in place of 'include me out'.
Through these Commonwealth representatives and their officers and staffs in each other's capitals, communication and consultation can be carried out. In addition to this, however, there has grown up in London, and in many of the other capitals, an arrangement by which there are regular meetings between the Secretary of State for Commonwealth Relations or the Minister for External Affairs or some other appropriate minister in a given capital with the Commonwealth representatives in that capital. These meetings are sometimes regular and frequent, sometimes irregular. They provide, however, in each Member an opportunity for representatives to discuss and inform each other about matters of common concern as they are viewed in relation to the situation from the point of view of a particular Member.
Meetings between Commonwealth representatives are not confined, however, to Commonwealth countries. It is the custom in many foreign capitals, and at the headquarters of the United Nations in New York, for example, for regular meetings of Commonwealth representatives to occur, in addition to the informal and frequent consultation of each other which is carried out in the ordinary course of their work. Each Commonwealth Member is provided in this way with information and advice from foreign capitals of far greater breadth and significance than if it relied solely upon its own representative.

CHAPTER VII SYMBOLS
It is common for the members of a group, whether it be a club or a school or a state or the United Nations, to adopt some symbol of their association. It may be a flag or a badge or a motto; it may be animal, vegetable, or mineral; it may be a person. There is, be it noted, no logical necessity for a symbol; an association is not less an association because it lacks a symbol of its members' unity. In practice, however, it is commonly found that unity is maintained and promoted by the possession of a symbol. At the same time it is to be remembered that where members differ about what form a symbol should take, unity in the association may be preserved only by deciding to go without a symbol.
In the Commonwealth, as it is organized at present, the Members have decided that there shall be a symbol of their association, and that that symbol should be what they describe either as 'the Crown' or 'the Queen'. In the preamble to the Statute of Westminster, 1931, for example, we find it declared that 'the Crown is the symbol of the free association of the Members of the British Commonwealth of Nations'--at that time the United Kingdom, Canada, Australia, New Zealand, South Africa, Newfoundland, and the Irish Free State.
And in the communiqué issued on 27 April 1949 by the Commonwealth Prime Ministers the following paragraphs appear:
The Governments of the United Kingdom, Canada, Australia, New Zealand, South Africa, India, Pakistan and Ceylon, whose countries are united as Members of the British Commonwealth of Nations and owe a common allegiance to the Crown, which is also the symbol of their free association, have considered the impending constitutional changes in India.
The Government of India have informed the other Governments of the Commonwealth of the intention of the Indian people that under the new constitution which is about to be adopted India shall become a sovereign, independent republic. The Government of
India have however declared and affirmed India's desire to continue her full membership of the Commonwealth of Nations and her acceptance of The King as the symbol of the free association of its independent member nations and as such the Head of the Commonwealth.
The Governments of the other countries of the Commonwealth, the basis of whose membership of the Commonwealth is not hereby changed, accept and recognize India's continuing membership in accordance with the terms of this declaration. Accordingly the United Kingdom, Canada, Australia, New Zealand, South Africa, India, Pakistan and Ceylon hereby declare that they remain united as free and equal members of the Commonwealth of Nations, freely co-operating in the pursuit of peace, liberty and progress.
When, in 1955, Pakistan decided to establish a republican form of government, a similar declaration was adopted at a meeting of Commonwealth Prime Ministers. The position of the Queen as the symbol of the Commonwealth's association was explicitly recognized by the proclamation at the time of her Coronation in 1953 of new royal styles and titles in which she was described as 'Head of the Commonwealth'.
In the outcome, therefore, all the Members of the Commonwealth recognize the Queen as the symbol of their association, and, as such, the Head of the Commonwealth. Some Members go further, however, and recognize the Queen as the head of their own national government. For the United Kingdom, Canada, Australia, New Zealand, South Africa, Ceylon, and Ghana, the Queen is not only the Head of the Commonwealth but also the head of their state. For India and Pakistan, however, and for South Africa, Ceylon, and Ghana, when they carry out their declared intentions of becoming republics, the head of the state is a president, as a result of their adopting a republican constitution. But this situation is not confined to the republican Members of the Commonwealth. Malaya is not a republic; the head of the state is a King (Yang di-Pertuan Agong) elected for a period by the rulers of the states of the federation. The Queen is not therefore the head of the state in Malaya, although Malaya is a kingdom. In relation to India, Pakistan, and Malaya, therefore (and to South Africa, Ceylon, and Ghana in due course), the Queen is no more than the symbol of their association with each other and other Members of the Commonwealth. As Head of the Commonwealth she has no position within the governmental system of any individual Member, nor has she any powers in the Commonwealth as a whole.
. Although there have been changes in the membership of the Commonwealth since 1931--the Irish Free State has left, 10 Newfoundland has become a province of Canada, and India, Pakistan, Ceylon, Malaya, and Ghana have assumed the status of membership--the principles enunciated in the preamble to the Statute of Westminster remain substantially operative today. To understand their operation, however, it is necessary to consider the position of Members of the Commonwealth in some detail, for in this matter of their relation to the monarchy they exhibit individual differences of some importance. And since 1931 there have been several opportunities of observing these differences. With the abdication of Edward VIII in 1936, it was thought necessary to make provision concerning the succession to the throne; with the passing of the Indian Independence Act in 1947 it was necessary to abolish the King's title of Emperor of India; and with the accession of Elizabeth II in 1952, action was taken to alter the royal style and titles.
The basic rule, as has been said, is that no such alteration may be made save with the assent of the parliaments of all Members of the Commonwealth. This assent may be given in any way which the parliament deems appropriate: by resolution, by an address to the monarch, or by act of parliament. In practice acts of parliament have generally been employed. 11 (11 The exceptions were Australia and New Zealand which assented by resolutions of both houses of their parliaments to the alteration in the law concerning the succession to the throne made by the Abdication Act of the parliament of the United Kingdom in 1936 (see Australian Commonwealth Parliamentary Debates, vol. 152, and New Zealand Parliamentary Debates, vol. 248). The explanation probably was that at that time, as neither Australia nor New Zealand had adopted the Statute of Westminster, their parliaments were not competent to pass laws concerning the succession to the throne, and an act of assent might be thought void for repugnancy.) It must be emphasized that the withholding of assent does not invalidate in law the alteration made by another Member of the Commonwealth, though it might in practice destroy the symbolic unity of the Commonwealth. Although it would seem desirable that prior assent should be obtained before any parliament makes an alteration in the law, this has not always occurred in practice. Prior consultation and an assurance from a government that assent will be sought has been considered sufficient. When Edward VIII expressed his intention to abdicate in 1936, the government of the United Kingdom decided that it would be necessary to pass an act which might be held to alter the law touching the succession to the throne for it was to contain a section excluding from the succession any children which Edward VIII might have after his abdication. It wished to proceed speedily and, as the parliaments of some Members of the Commonwealth were not sitting, their assent could not be obtained in time. Thus, while the parliament of the Commonwealth of Australia signified its assent to the alteration on 11 December 1936, the very day upon which the Abdication Act was assented to in the United Kingdom, the assents of the parliaments of Canada, New Zealand, South Africa, and the Irish Free State were not given until after the United Kingdom act had been passed. 12 (12 The New Zealand resolution of assent was not passed until the parliament resumed in Sept. 1937.)
Giving assent to alterations is one thing; making the alterations is another. Both may be linked together, but there are possible differences in procedure which deserve attention. Consider, for example, the Republic of India. So far as India is concerned the position of the Queen as symbol of the Commonwealth association is not a matter of law at all. It rests upon a basis of constitutional convention--the Declaration of the Commonwealth Prime Ministers in 1949. India proclaimed no title for the Queen as did the other Members of the Commonwealth in 1953, although upon the Queen's accession in 1952 the Prime Minister of India addressed a message to her welcoming her as 'the new Head of the Commonwealth'. The view in India would seem to be that since the Queen is Head of the Commonwealth, but is not Head of the State and therefore forms no part of the government of India and performs no functions within India, it is not necessary for the Queen's accession to be proclaimed in India nor for her title to be part of the law of India. If, therefore, any change should be proposed either in the succession to the Headship of the Commonwealth or to the titles of the Head of the Commonwealth, the change could be carried out so far as India was concerned without any alteration in the law of India. At the same time it is difficult to see that this could properly be done without the assent of the parliament of India, though this assent could of course be given by resolution, and would not need to be expressed in the form of an act. Whether this view is accepted in India is not clear. When the royal style and titles were altered in 1953, at the time of the Coronation of the Queen, India not only abstained from proclaiming a title for the Queen but apparently the parliament of India was not called upon to give its assent to the changes of title which all the other Members of the Commonwealth were making. It may be that India considered that changes in the title of the Queen concerned only those Members of the Commonwealth in which the Queen was the Head of the State, yet it would seem of great importance that the title of the Head of the Commonwealth should not be altered save with the assent of the parliaments of all the Members.
Two possible lines of action are open to some Members of the Commonwealth at least in this matter. One is to enact the change themselves; the other is to ask the parliament of the United Kingdom to enact the change on their behalf. It may be that some Members might feel that, although they could enact the change themselves, they could express their unity with each other and the United Kingdom by arranging for the change to be made in one single act of the parliament at Westminster. It is perhaps unlikely that this line will be followed in the future for feelings of independence and self-sufficiency are strong in the Members of the Commonwealth. The legal possibility exists, however, for some Members, and it is perhaps worth while to indicate how it could be done.
New Zealand is in the position of being able either to make a change in the succession or the titles by an enactment of the parliament of New Zealand, or to request and consent to a change being made by the parliament of the United Kingdom so as to extend to New Zealand under the provisions of section 4 of the Statute of Westminster. The request and consent would have to be recited in the United Kingdom act, if the act was to be construed as applying to New Zealand, and it would be necessary for the parliament of New Zealand to signify request and consent. 17 (17 By the terms of the Statute of Westminster Adoption Act of New Zealand, No. 38 of 1947,s. 3 (I).) In addition the assent of the parliament of New Zealand to the change would be required in accordance with the constitutional convention recited in the preamble to the Statute of Westminster.
Australia was in a similar position before it adopted the Statute of Westminster in 1942. The Abdication Act of the parliament of the United Kingdom extended to Australia by virtue of the Colonial Laws Validity Act: there was no declaration of Australia's request and consent because it had not adopted section 4 of the Statute. The parliament of the Commonwealth assented to the change 19 (19 By resolution passed on 11 Dec. 1936 ( Australian Commonwealth Parliamentary Debates, vol. 152).) but it was not competent to make it itself.
South Africa has the power to make these changes by an enactment of the Union Parliament and has in fact done so in 1937 (following the abdication of Edward VIII) 22 22 H. M. King Edward VIII's Abdication Act, No. 2 of 1937. This act was made to apply from 10 Dec. 1936--one day before the passing of the Abdication Act in the United Kingdom, so that George VI was King in South Africa (retrospectively) while Edward VIII was still King in the rest of the Commonwealth. To add to the confusion, the Irish Free State brought Edward VIII's abdication into effect on 12 Dec. 1936, so that Edward VIII was King in Ireland after George VI was King in the rest of the Commonwealth. and in 1948 and 1953, 23 (23 Royal Style and Titles Act, No. 17 of 1947 and No. 6 of 1953.) and these enactments constitute also the requisite assent of the parliament of the Union to the changes by other Members. It is true also that the Union could, if it wished, invite the parliament of the United Kingdom to enact a change by virtue of section 4 of the Statute of Westminster, expressing its request and consent to such an enactment, but this United ingdom act would not extend to the Union unless, by section 2 of the Status Act of 1934, it was expressly extended thereto by the parliament of the Union. If such a procedure were followed-and it is difficult to see why it should be--the act of the parliament of the Union extending the United Kingdom act to the Union would no doubt constitute a declaration of the 'assent' to the change by the parliament of the Union.
Ceylon, under the provisions of the Ceylon Independence Act, 1947, is in the same position as New Zealand. It may either enact a change itself, 24 (24 As was done by the Royal Titles Act, No. 22 of 1953.) or it may request and consent to the enactment of a change by the parliament of the United Kingdom under the provision of section 1 (I) of the Ceylon Independence Act, which embodies the terms of section 4 of the Statute of Westminster. Ghana, under the terms of the Gold Coast Independence Act of 1957, is in the same position as Ceylon and New Zealand.
It will be seen, then, that the Members of the Commonwealth differ in the procedures open to them when a question arises of altering the succession to or the titles of the Headship of the Commonwealth and the symbol of their association. What is common to them all is that, for any change, the assent of the parliaments of all the Members is required, by constitutional convention, though not by law. 25 All have power to make a change by act of their own parliaments if they choose to do so. 26 India, Pakistan, and Malaya, it is submitted, may if they choose make a change without resorting to a legal enactment: Canada, South Africa, Australia, New Zealand, Ceylon, and Ghana, on the other hand, would have to enact any change in the law, but they have open to them a choice between passing the act themselves or inviting the parliament of the United Kingdom to make the change on their behalf through the appropriate procedure laid down in the relevant acts.

CHAPTER VIII
Members of the Commonwealth

The differences in attitude of the individual Members of the Commonwealth towards the Queen as Head of the Commonwealth or as Head of the State may be illustrated by looking at the titles proclaimed for the Queen by certain of the Members at her Coronation in 1953. Until that date it had been considered proper that the Queen should have one title only throughout the whole Commonwealth, and that if any alteration were to be made, it should apply uniformly to all Members. The action taken in 1953, however, illustrated a new departure. While it was still necessary for changes to obtain the assent of the parliaments of all the Members, it was not thought necessary that the same title should be adopted by all Members. Each Member, indeed, was to be free to choose that title which suited it best. There was one element in common--all Members embodied in the title they chose the phrase 'Head of the Commonwealth'.
Members of the Commonwealth, as was requisite, had removed the words 'Emperor of India' from the title of George VI in recognition of the independence granted to India and Pakistan in 1947. But the secession of the Republic of Ireland from the Commonwealth in 1949, the adoption of the republican form of government by India, and the explicit recognition of the King as Head of the Commonwealth at the Prime Ministers' Conference in 1949, made it clear that further changes would be needed.
The accession of Queen Elizabeth II on 6 February 1952 brought the opportunity to consider the position. Already some Members, in proclaiming the Queen's accession, showed that they were ready for changes, but the variety in the forms which they adopted in their proclamations showed the diversity of the Commonwealth once more. In London the government of the United Kingdom described the Queen as ' Elizabeth the Second, by the Grace of God, Queen of this Realm and of all Her other Realms and Territories, Head of the Commonwealth, Defender of the Faith'. The phrase 'Head of the Commonwealth' was used also in the proclamations issued in Australia, New Zealand, Pakistan, and Ceylon. India issued no proclamation but the Prime Minister addressed a message to the Queen welcoming her as 'the new Head of the Commonwealth'. In South Africa and Canada, the phrase 'Head of the Commonwealth' was not used. Instead she was proclaimed ' Elizabeth the Second, by the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas, Queen Defender of the Faith', and in addition there were added, in the case of Canada, the words 'Supreme Liege Lady in and over Canada' and in the case of South Africa, 'Sovereign in and over the Union of South Africa'. It is interesting to observe that Canada and South Africa, both always in the forefront in asserting independence, should have adopted the old-fashioned formula while the United Kingdom and the other Members should have broken new ground. Strictly speaking, Canada and South Africa were acting correctly. They recited the Queen's title as it was established by law.
The divergence in the form of the proclamations made it clear, however, that it was time to discuss the question of the title and the matter was accordingly taken up at a Commonwealth Conference in December 1952, and a declaration was issued. It was agreed, in the words of the communiqué: that the present Title is not in accord with current constitutional relations within the Commonwealth, and that there is need for a new form of title which will, in particular, reflect the special position of the Sovereign as Head of the Commonwealth. [The governments] concluded, after full consideration, that in the present stage of development of the Commonwealth relationship, it would be in accord with the established constitutional position that each member country should use for its own purposes a form of title which suits its own particular circumstances but retains a substantial element which is common to all. They agreed that the various forms of the Title should, in addition to an appropriate territorial designation, have as their common element the description of the Sovereign as Queen of Her other Realms and Territories and Head of the Commonwealth.
As a result of this declaration the parliaments of the Members of the Commonwealth except India and Pakistan passed legislation to authorize a form of title for the Queen in respect of each of them and in due course proclamations were issued on 29 May 1953, in the capitals of the Members of the Commonwealth bringing the new titles into effect simultaneously in respect of the different Members. It is worth while to set them out in order so that the resemblances and the differences may stand out.
United Kingdom. Elizabeth the Second, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland, and of Her other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith.
Canada. Elizabeth the Second, by the Grace of God, of the United Kingdom, Canada, and Her other Realm and Territories, Queen, Head of the Commonwealth, Defender of the Faith.
Australia. Elizabeth the Second, by the Grace of God, of the United Kingdom, Australia and Her other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith.
New Zealand. Elizabeth the Second, by the Grace of God, of the United Kingdom, New Zealand, and Her other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith.
South Africa. Elizabeth the Second, Queen of South Africa and of Her other Realms and Territories, Head of the Commonwealth.
Pakistan. Elizabeth the Second, Queen of the United Kingdom and of Her other Realms and Territories, Head of the Commonwealth.
Ceylon. Elizabeth the Second, Queen of Ceylon and of Her other Realms and Territories, Head of the Commonwealth.
It is interesting to speculate upon the differences of principle and of sentiment that lie behind these differing titles. To start with, the Queen's title in respect of the United Kingdom has been amended to take account of the partition of Ireland, and there is a specific reference to Northern Ireland. It will be noticed that Canada, Australia, and New Zealand all wished to lay some stress upon the fact that their own Queen was also the Queen of the United Kingdom and they made specific reference to this fact in the titles they chose. In this way we may think they chose to stress their association in a British Commonwealth, which is, perhaps, of particular significance in the case of Canada, for a large proportion of its population is not of British stock, but of French stock. The Prime Minister of Canada said in the debate on the Canadian bill authorizing the title:
Her Majesty is now Queen of Canada but she is the Queen of Canada because she is Queen of the United Kingdom and because the people of Canada are happy to recognise as their sovereign the person who is the sovereign of the United Kingdom. It is not a separate office . . . it is the sovereign who is recognised as the sovereign of the United Kingdom who is our sovereign. . . . 31 (31 Canadian House of Commons Debates, 3 Feb. 1953, p. 1566. See note by W. P. M. Kennedy, 10 University of Toronto Law Journal, p. 83.)
The same three Members chose also to recite the Queen's title as 'Defender of the Faith', following the United Kingdom in this matter. In South Africa--no less staunch in the Christian faith than these other Members--it was decided none the less to drop the title 'Defender of the Faith'. Nor does South Africa follow the United Kingdom, Canada, Australia, or New Zealand in using the phrase 'by the Grace of God', preferring perhaps to think that the Queen holds her position by act of parliament. It was not surprising, of course, that in Moslem Pakistan and Buddhist Ceylon the title Defender of the Faith should be omitted as inapplicable, and there too no use was made of the phrase 'by the Grace of God'.
It was significant, also, that in South Africa and Ceylon no reference was made explicitly to the United Kingdom in the titles adopted, though that country is included in the reference to 'Her other Realms and Territories'. The majority of South Africans are not of British stock, and the government of the Union had laid great stress upon the fact that the Queen was Queen of South Africa in a distinct and separate capacity. Ceylon naturally followed the same plan. Pakistan's choice of title was significant not only for what it omitted, but also for what it contained. It was at first sight very surprising that in the Pakistan title there was an explicit reference to the United Kingdom, but no explicit reference to Pakistan itself. The explanation, it may be suggested, is that Pakistan was engaged upon drawing up her new constitution and it was still to be decided whether it would adopt a republican form of government or continue to be a monarchy. In these circumstances it was no doubt wise to make no explicit reference to Pakistan but to describe the Queen truthfully enough as 'Queen of the United Kingdom and of Her other Realms and Territories', one of which, if you chose to be explicit, was Pakistan. If Pakistan should become a republic, the title would still be correct, though Pakistan would no longer be one of 'Her Realms and Territoties'.
It is apparent, then, that on the present organization of the Commonwealth, the Members are agreed that a symbol of their association is needed and that this symbol is the Queen, who, in her symbolic capacity, is the Head of the Commonwealth. The acceptance of the Queen as the symbol is, at present, a condition of becoming a Member of the Commonwealth. It may not always be so; it may be that the Members may find it essential, if they are to preserve or extend the association, that they should adopt a different symbol or no symbol at all. These are matters of speculation. For the present, although we may no longer say, in the words of the Declaration of 1926, that the Members of the Commonwealth are 'united by a common allegiance to the Crown', we may assert that they are 'united by a common recognition of the Queen as the symbol of their free association and, as such, the Head of the Commonwealth'.

REFERENCES Crewe, Lord Rosebery, vol. i, p. 186
2 Cd. 8566, p. 5
3 Ibid., p. 47
4 Article I. The text is found in the Irish Free State Constitution Act, 1922 (13 Geo. V, c. I)
5 Article 4
6 The Commomwealth of Nations, p. 702
7 Ibid
8 The Problem of the Commonwealth, p. vii
9 Cd. 8566, p. 47
10 Cmd. 2768, pp. 13-30
11Cmd. 2768, p. 15
12The expression British North America Acts, 1867 to 1930, had been statutorily defined. It covered the British North America Acts of 1867, 1871, 1886, 1915, 1916, and 1930. It did not include the Parliament of Canada Act, 1875, or the British North America Act, 1907
13 R. O. McGechan in New Zealand and the Statute of Westminster (ed. J. C. Beaglehole), pp. 100-3, favoured this view
14From the Greek αὐτόχθων--'sprung from that land itself' (O.E.D.)
15On 25 Oct. 1922, and referred to as No. 1 of 1922
16An earlier act of the parliament of the United Kingdom, 12 Geo.V. c. 4. Assented to on 31 Mar. 1922
17 [ 1935] I.R. 170
18 Per Kennedy C. J. at p. 203. FitzGibbon J. in the same case said that he was not disposed to quarrel with the statement 'that the Constitution was proclaimed in the name of the people by Dáil Eireann as an act of supreme authority, which it alone had the right to do, because it was the mouthpiece of the people, requiring and receiving no royal assent'. Ibid., at p. 226. See also Kennedy C. J. in Lynham v. Butler, decided in 1927. [ 1933] I.R. 74
19[ 1935] A.C. 484; [ 1935] I.R. 472
20[ 1935] A.C. 484 at p. 497
21'The Statute of Westminster gave to the Irish Free State a power under which they could abrogate the Treaty. . . .' Moore's Case, [ 1935] A.C. 484 at p. 499
22The Plebicite (Draft Constitution) Act, 1937 (No. 16 of 1937), referred to a 'draft constitution approved by Dáil Eireann'
23 Article 395 of the constitution of India and Article 221 of the constitution of Pakistan
24A. C. Banerjee, The Making of the Indian Constitution, vol. i, pp. 137-50
25 Ibid., p. 162
26Ibid., p. 165
27The Irish Free State Constitution Act, 1922. See above, p. 91
28 See the account in K. Callard, Pakistan: A Political Study
29Moulvi Tamizuddin Khan v. Federation of Pakistan, P.L.R. 1955 Sind 96
30 Federation of Pakistan v. Moulvi Tamizuddin Khan, P.L.R. 1956 W.P. 306. Printed in Jennings, op. cit., pp. 79-238
31This argument was advanced in the Federal Court in Tamizuddin Khan's Case, but rejected by the court. See Jennings, op. cit., pp. 134-6
32Article 32
33 Part XI and Seventh Schedule
34Article 368
35 488 H.C. Deb. 5 s., col. 1199. Reprinted in Mansergh, op. cit., vol. ii, pp. 1288-9
36 Mansergh, ibid., vol. ii, p. 759
37 See Lord Addison's statement, 152 H.L. Deb. 5 s., col. 1205
38Announcement by Mr. Macmillan, Prime Minister of the United Kingdom, 565 H.C. Deb. 5 s., col. 605
39 Recorded in Sir R. Coupland, The Cripps Mission, p. 31
40Cmd. 2768, pp. 17-18
41Cmd. 3479, paras. 74 ff., adopted in Cmd. 3717
42Cmd. 2768, p. 22 and Cmd. 3717 ( 1930), p. 28
43No. 58 of 1936
44The term 'United Kingdom' is not used, for the Irish Free State did not recognize the union of Northern Ireland with Great Britain
45Constitution of Eire, Article 5
46No. 22 of 1948
47 In a speech to the Canadian Bar Association in Montreal, 1 Sept. 1948, printed in Mansergh, Documents and Speeches on British Commonwealth Affairs. vol. ii, p. 799
48 Ibid., p. 800
49Ibid., p. 798
50 The exceptions were Australia and New Zealand which assented by resolutions of both houses of their parliaments to the alteration in the law concerning the succession to the throne made by the Abdication Act of the parliament of the United Kingdom in 1936 (see Australian Commonwealth Parliamentary Debates, vol. 152, and New Zealand Parliamentary Debates, vol. 248). The explanation probably was that at that time, as neither Australia nor New Zealand had adopted the Statute of Westminster, their parliaments were not competent to pass laws concerning the succession to the throne, and an act of assent might be thought void for repugnancy.
51 The New Zealand resolution of assent was not passed until the parliament resumed in Sept. 1937
52 I Edw. VIII and I Geo. VI, c. 3
53 By the Succession to the Throne Act, 1937, I Geo. VI, c. 16, which assented to the Abdication Act of the United Kingdom
54 By the terms of the Statute of Westminster Adoption Act of New Zealand, No. 38 of 1947,s. 3
55 By resolution passed on 9 Sept. 1937 ( New Zealand Parliamentary Debates, vol. 248)
56 By resolution passed on 11 Dec. 1936 ( Australian Commonwealth Parliamentary Debates, vol. 152
57 As in Royal Style and Titles Acts, No. 70 of 1947 and No. 32 of 1953
58 H. M. King Edward VIII's Abdication Act, No. 2 of 1937.
59 Royal Style and Titles Act, No. 17 of 1947 and No. 6 of 1953
60 As was done by the Royal Titles Act, No. 22 of 1953
61 Canadian House of Commons Debates, 3 Feb. 1953, p. 1566. See note by W. P. M. Kennedy, 10 University of Toronto Law Journal, p. 83

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...Fain v. Commonwealth The defendant in this case shot and killed an individual. The court reversed the defendant’s conviction for two separate reasons related to the defendant’s condition. What were those reasons? If the prisoner is and has been afflicted in the manner claimed, and knew, as he no doubt did, his propensity to do acts of violence when aroused from sleep, he was guilty of a grave breach of social duty in going to sleep in the public room of a hotel with a deadly weapon on his person, and merits, for that reckless disregard of the safety of others, some degree of punishment, but we know of no law under which he can be punished. Our law only punishes for overt acts done by responsible moral agents. If the prisoner was unconscious when he killed the deceased, he cannot be punished for that act and as the mere fact that he had the weapon on his person and went to sleep with it there did no injury to anyone he cannot be punished for that. (pg 207) How did the two reasons different and does one describe on involuntary act by the defendant? Well this case rests on the tenet that there can be no criminality in the absence of criminal intent so the first reason states that the defendant was at fault or knowing that he had a chance of being violent when awaken, yet still he went to sleep in a public place while armed with a gun and that there should be a punishment for that but there is no such law that lets the courts charge him for his grave and reckless disregard......

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A Royal Salute to the Commonwealth

...A royal salute to the commonwealth A royal salute to the commonwealth is an article written by Peter Oborne in 2011 for the newspaper the daily telegraph. Where he, gives a salute to the commonwealth, by over praising the mere concept of the commonwealth. The article is about the commonwealth, which is a term used for the collective ex British colonies and Britain, formerly known as the British Empire. But now it is used as more of a collected union like the UN, which makes it easier to for example enter a country from another if they are both part of the commonwealth. The article is very strangely built, because, at first it seems like he is going to talk about the Duke and duchess of Cambridge’s visit to Canada, but the article says very little about that, and quickly moves on to discussing why the commonwealth is a good idea. The arguments he is using, often times has no direct relation to why the commonwealth is a good solution, but more why The European Union, The U.S.A and NATO are bad solutions to a unity. It is very obvious that this man seems to be very positive about commonwealth, and you can easily see how he tries to better it by trash-talking every other unity of the world. For example “Over the past few decades Britain has been unlucky in it’s leaders. With only a few exceptions, they have been hostile or blind to British history. The two greatest offenders were Edward Heath, who led us into the United Nations, and Tony Blair, with his uncritical......

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