THE CONSTITUTIONAL DEVELOPMENT

T

OF THE COMMONWEALTH

HE present Commonwealth as a free association of sovereign nations is the outcome of the development of self-government in the older British Dominions and, more immediately, of their demand during the First World War for an equally full control of their own foreign policy. Recognition was given to this in the resolution of the Imperial War Conference 1917, that 'the constitutional relations of the component parts of the Empire... should be based upon a full recognition of the Dominions as autonomous nations of an Imperial Commonwealth'. Accordingly, the Dominions* and India signed the Versailles Peace Treaty individually, and had their own representation in the League of Nations. The Inter-Imperial Relations Committee of the 1926 Imperial Conference, under the Chairmanship of Lord Balfour, made the first formal attempt to describe the resultant status and mutual relationship of the Members in what came to be known as the 'Balfour formula'. The Committee's report declared that "They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown and freely associated as Members of the British Commonwealth of Nations'. This principle was legally formulated in the Statute of Westminster of 1931 which gave effect to this fully independent status of the Dominions in relation to Great Britain and, by implication, in relation to each other.

The progress which India had already made towards a similar status was completed in 1947 when India and Pakistan became independent and Members of the Commonwealth. The Second World War had hastened this development with the remaining dependencies and the next two decades saw Ceylon become independent and a Member of the Commonwealth in 1948, then Ghana and Malaya in 1957, Nigeria and Cyprus in 1960†, Sierra Leone and Tanganyika in 1961, Jamaica, Trinidad and Tobago, and Uganda in 1962, Zanzibar and Kenya, together with Sabah, Sarawak and Singapore (as parts of the Federation of Malaysia) in 1963+, Malawi, Malta and Zambia in 1964, The Gambia in 1965, Guyana (formerly British Guiana), Botswana (formerly the Bechuanaland Protectorate), Lesotho (formerly Basutoland) and Barbados in 1966, Mauritius and Swaziland in 1968, Fiji in 1970 and the Bahamas in 1973. Nauru became independent in 1968 and joined the Commonwealth as a 'special member'. Western Samoa became independent in 1962 and a Commonwealth member in 1970. Tonga became an independent member of the Commonwealth on 4th June 1970.

India's decision to become a republic in 1949 marked a further step in the development of the Commonwealth. The definition in the Balfour formula of

• Other than Newfoundland.

† Cyprus became a member of the Commonwealth six months after her Independence, i.e. in March 1961.

Singapore subsequently became independent as a separate state by her secession from the Federation of Malaysia in 1965.

the Commonwealth as an association of states 'owing a common allegiance to the Crown' could not be applied to a republican Member and the Commonwealth Prime Ministers at their meeting in 1949 agreed to accept India's continued membership on the basis of her expressed 'acceptance of the King as the symbol of the free association of the independent Member Nations and as such the Head of the Commonwealth'. Following this precedent Pakistan (1956) and Ghana (1960) both adopted republican constitutions, while Cyprus, Zambia and Botswana became republics upon achieving independence. Tanganyika became a republic in 1962, and in 1964 united with Zanzibar to form the United Republic of Tanzania. Nigeria and Uganda became republics in 1963, Kenya in 1964 and Malawi in 1966. In 1965 the Prime Ministers of Singapore and Malaysia agreed on the withdrawal of Singapore from the federation at which point Singapore became a republic. Guyana became a republic on 23rd February 1970 in accordance with a provision in the independence constitution of Guyana (1966). The Gambia became a republic on 24th April 1970 after a plebiscite, and Sierra Leone became a republic on 19th April 1971.

Malaysia, Swaziland, Lesotho, Western Samoa and Tonga provide further variations. Malaysia is an elective monarchy and the Head of State is the Yang di Pertuan Agong, whom the Malay Rulers of nine of the States of Malaya elect from among their number to hold office for five years. Swaziland and Lesotho are monarchies where the King is designated in accordance with the customary law of the country. Tonga is a hereditary monarchy, and Western Samoa is ruled by a Head of State analogous to a constitutional monarch, who has been elected for life.

No functions attach to the title of Head of the Commonwealth and it has no strict constitutional significance. But, as the sole symbolic link uniting all the Members of the Commonwealth, it is the outward and visible mark of the special relationship which exists between them.

A further departure from the Statute of Westminster is the decline of the use of the term 'Dominion'. Although the Indian Independence Act, 1947 provided for the creation of two new 'Dominions', the use of the term had already begun to disappear after the Second World War even in describing those independent Commonwealth countries which already had 'Dominion Status'. In 1947 the Dominions Office was re-named the Commonwealth Relations Office, and Commonwealth countries which have become independent since 1947 do not call themselves, and are not referred to, as 'Dominions'. As a result of discussions at the Prime Ministers' Meeting of 1952 the term was also dropped from the Royal Titles. The term would indeed be inappropriate for such Commonwealth countries as no longer have the Queen as their Head of State.

For some years after the 1926 Imperial Conference apprehension was felt in some quarters lest the Balfour formula did not imply the right of secession, and the Union of South Africa, in approving the report of the Conference on the Operation of Dominion Legislation in 1929, expressly affirmed 'the right of any member of the British Commonwealth of Nations to withdraw therefrom'. The Union Prime Minister (Gen. Hertzog) in fact brought this resolution to the notice of the Imperial Conference of 1930, which took note of it without discussion.

In 1947 the view of the British Government that there was a full right of secession was clearly indicated in the statement of the Prime Minister (Mr Attlee) on the Burma Independence Bill, where he pointed out that "The British

Commonwealth of Nations is a free association of peoples, not a collection of subject nations'; hence, in view of Burma's desire to become an independent state outside the Commonwealth, 'it was the duty of His Majesty's Government . . . to implement their decision'. The Secretary of State for Burma (the Earl of Listowel) endorsed this with the statement in the House of Lords, that 'We do not regard membership of the Commonwealth as something to be thrust by force upon a reluctant people'. That members of the Commonwealth were considered as independent and as free as those nations who chose to break all links with the United Kingdom and the Commonwealth, was given further emphasis by the fact that the same title was used for the Burma Independence Act as had been used for the Independence Acts of India and Ceylon.

The Burma Independence Act (1947) was followed by the Ireland Act of 1949, which recognised that Eire, or the Republic of Ireland as it now came to be known, had ceased to be part of His Majesty's dominions.

During 1960 the Union of South Africa decided, after a referendum, to become a republic from 31st May 1961. In accordance with precedents set by India, Pakistan and Ghana, the South African Government enquired whether South Africa as a republic would be accepted as a Member of the Commonwealth. After considerable discussion at the Prime Ministers' Meeting in March 1961, largely concerning the Union's racial policies, the Prime Minister of the Union of South Africa withdrew his application. When South Africa became a republic on 31st May 1961, she therefore ceased to be a Member of the Commonwealth. Pakistan withdrew from the Commonwealth on 30th January 1972, giving the reason that Australia, New Zealand and Britain were about to recognise East Pakistan as the independent state of Bangladesh. The decision was consistent with President Bhutto's party manifesto for the General Election of 1970, which had said "Pakistan will quit the Commonwealth at the appropriate opportunity". Bangladesh emerged as an independent state following a political crisis between the East and West wings of Pakistan which culminated in the hostilities of December 1971 between Pakistan and Indian forces, the latter supported by the guerrilla movement in East Pakistan. On 18th April 1972, the Commonwealth Secretary-General announced that, after consulting the Heads of all member governments, Bangladesh's application to enter the Commonwealth had been approved.

Certain other territories, formerly British dependencies, left the Commonwealth on becoming independent. Besides Burma in 1948, the Sudan became an independent sovereign state outside the Commonwealth in 1956. In 1960 British Somaliland joined with its neighbour, the former United Nations Trust Territory of Italian Somaliland, to form the independent Somali Republic. Similarly in 1961 the Southern Cameroons, on becoming independent, moved out of the Commonwealth to join the neighbouring French Cameroons to form the Federal Republic of Cameroun. The Maldive Islands ceased to be a protected state in 1965. With the end of the South Arabian Federation in 1967, the independent sovereign state of the People's Republic of South Yemen was established outside the Commonwealth.

Western Samoa, formerly a Trust Territory administered by New Zealand, became independent in 1962. She did not join the Commonwealth until 1970, although she was treated in the intervening period by New Zealand in all except nationality matters as though she were a Member of the Commonwealth, and in

certain respects this was true also of her relations with other Commonwealth countries.

The Cook Islands, formerly a dependency of New Zealand, became fully selfgoverning internally in July 1965 and chose to remain in free association with New Zealand, 'free association' being one of the three ways recognised by the United Nations General Assembly by which a territory reaches a full measure of self-government. The New Zealand Government remains responsible for the conduct of the external affairs and defence of the islands. Early in 1967 five former British colonies in the Eastern Caribbean (St Christopher, Nevis and Anguilla, Antigua, Dominica, St Lucia and Grenada) received constitutions similar to that of the Cook Islands. The Associated States (as they are now known) are fully self-governing while Britain remains responsible for their external affairs and defence. St Vincent became an Associated State on 27th October 1969. Nauru, formerly a Trust Territory administered by Australia on behalf of the Governments of Australia, New Zealand and Britain, became independent in January 1968. The Republic of Nauru became the first 'Special Member' of the Commonwealth with the right to participate in all functional meetings and activities of the Commonwealth, the only limitation being that she does not attend Meetings of Prime Ministers.

The British Government have agreed that, subject to Parliament's approval, Grenada should become independent on 7 February, 1974. The Grenada legislature have passed a resolution requesting that on independence Grenada should become a member of the Commonwealth.

The Commonwealth has no legal definition although a statement of principles which all members hold in common was made in the Commonwealth Declaration, January 1971. Until recently it had no formal institutional expression. Intergovernmental consultation is its principal mode of operation, and this is carried on both by direct inter-governmental correspondence and by the periodic Commonwealth Heads of Government meetings (known until 1972 as Commonwealth Prime Ministers' Meetings). While some of the Members of the Commonwealth have been inflexibly opposed to the establishment of any centralised machinery for the consideration of political questions, particularly foreign policy and defence, the Heads of Government Meeting in 1964 favoured the institution of more formal machinery to promote closer and more informed understanding between their governments. After a report by officials on the matter, the Heads of Government agreed in June 1965 to set up a Commonwealth Secretariat for this purpose. Its headquarters are at Marlborough House in London and its chief official is the Commonwealth Secretary-General, who is appointed by Heads of Government. The Secretariat is at the service of all Commonwealth countries. Its principal functions are to promote multilateral consultation among member governments, to organise Commonwealth meetings ranging from those of Heads of Government and of Finance Ministers to meetings of officials and seminars on specialised topics, and to prepare and distribute to governments information on a wide range of subjects of common concern. It also provides developing member countries with technical assistance through the multilateral Commonwealth Fund for Technical Cooperation. The Secretariat is staffed by officers from member countries and financed by contributions from member governments. It is described in detail in a separate section of this Year Book.

There has recently been a further sharp reduction in the number of the remaining British dependencies. In 1966 four more became independent, and five others reached Associated status in February 1967. Mauritius and Swaziland became independent in March and September 1968, Fiji on 10th October 1970 and the Bahamas on 10th July 1973. The remainder vary from wealthy and populous Hong Kong to the tiny island of Pitcairn with fewer than one hundred inhabitants; but most are small and have very limited natural resources.