The Seventeenth Amendment was historic in that it marked the first occasion on which the 1978 Constitution was amended with the cooperation of all the parties represented in Parliament. Its purpose was to take appointments to high posts out of the sole purview of the President as they had been in the past.

The method adopted by Parliament for achieving this objective was the creation of a "Constitutional Council" comprising the Speaker of Parliament (Chairman); Prime Minister; Leader of the Opposition; a nominee of the President; five persons appointed by the President on the joint nomination of the Prime Minister and the Leader of the Opposition; and a person appointed by the President upon nomination by the majority of MPs belonging to political parties or independent groups other than the parties to which the Prime Minister and the Leader of the Opposition belong.

There is a proviso that, when nominating the five persons jointly agreed upon by the Prime Minister and Leader of the Opposition, three of these nominees ‘shall, in consultation with the Members of the Parliament who belong to the respective minority communities, be nominated to represent minority interests’. This proviso appears to assume that all other appointees to the Council will be from the majority community or solely representing majority interests, although this is not a requirement on a plain reading of the Amendment.

There is a further proviso that the persons nominated under the fourth, fifth and sixth heads above, shall be ‘persons of eminence and integrity’ who have distinguished themselves in public life and should not be members of any political party.

The appointing authority for all members of the Council other than the Speaker, Prime Minister and Leader of the Opposition is the President, and such appointments are for three years duration.

The functions of the Constitutional Council fall into two categories. On the one hand, it has to recommend persons for appointment to the Elections Commission, National Police Commission, Public Service Commission, Human Rights Commission, Permanent Commission to Investigate Bribery and Corruption, Finance Commission and Delimitation Commission.

In addition, the President requires the approval of the Constitutional Council before making appointments to the Supreme Court or Court of Appeal (including the Chief Justice and the President of the Court of Appeal), the Judicial Service Commission and the posts of Attorney-General, Auditor-General, Inspector-General of Police, Parliamentary Commissioner for Administration (Ombudsman) and Secretary-General of Parliament.

The Seventeenth Amendment allows the Council to determine the procedures to be followed for the recommendation or approval of persons to the various commissions and high posts under its purview. Nevertheless the members of the first Council appeared keen to ensure transparency and uniformity in their decisions and worked for several months to finalize prescribed criteria for the various appointments, which were presented to Parliament in the Council’s first Annual Report in November 2002.

The Council’s criteria disqualified anyone previously convicted of an offence involving moral turpitude or adjudged insolvent, or found guilty of professional or ethical misconduct. Anyone facing such charges at the time of consideration for appointment would also be ineligible. So would persons owing debts to the Department of Inland Revenue or associated with criminal activities, gambling, narcotics or the manufacture or sale of alcohol. However, what was not stated, and what the Council could not provide for in terms of its own powers, was the fate of someone who successfully concealed a disqualification of this nature at the time of his or her appointment, which became known later.

The Annual Report also contained a list of general criteria for disqualification from all the high posts under the Council’s purview, namely engagement in partisan activities or manifestation, by word or deed, of political, ethnic, racial, caste, cultural, language, religious or gender bias or prejudice. Again, the intention may be good but its application could be problematic and even lead to fundamental rights applications by rejected candidates.

The Report also identified positive criteria for appointment. Subject to an overall requirement of good character and professional standing, specific criteria were set out for each type of post. The criteria were extremely precise, but, broadly speaking, were based on a combination of seniority, experience and qualifications.

In the case of the higher judiciary, the Council maintained the tradition of allowing a parallel inflow from the career judiciary, the official and unofficial Bar, the legal academic community and senior members of government departments staffed by legally qualified personnel. In respect of appointments made from the career judiciary, the order of seniority was normally to be followed.

In the case of appointment to the post of Inspector-General of Police, the stated criteria required an unbroken record of service in the Police Force, thereby apparently ruling out the possibility of recalling officers from retirement.

However, there is a drawback of relying only on formalistic criteria based on seniority and qualifications. It may ensure that appointments will be safe and correct, but it will rule out the really inspired choices (often against seniority) that can yield dynamic results. Such choices can only be made by departmental heads or political authorities who are familiar with the personalities in contention for a post, and not by persons who have to rely on a data bank. However, it is possible that public opinion would be willing to pay this price in order to avoid the many inappropriate and sometimes unlawful appointments made by departmental heads and political authorities in the past.

Despite the stringent criteria for appointment, the members of the various independent commissions did not always live up to expectations. In particular there have been a number of successful fundamental rights applications filed in the Supreme Court by affected parties against decisions of the Public Service Commission and the National Police Commission.

The three-year term of office of the first Constitutional Council lapsed in 2005 and a new Council is yet to be activated. Initially the delay was caused by failure of the smaller parliamentary parties to agree on a nominee. During this period the independent commissions were also non-functional as the terms of office of their members had expired and there was no Constitutional Council to make the necessary appointments.

After this state of affairs had continued for some months the President by-passed the non-functioning Constitutional Council and made appointments to these independent commissions on his own, apparently invoking the doctrine of State necessity. However the need for such an action was debatable because there was an alternative course of action available that was more in keeping with the spirit and purpose of the Seventeenth Amendment, namely to have allowed the partially constituted Constitutional Council to recommend the persons to be nominated to the independent commissions, and left it to the Supreme Court, in the event of a legal challenge, to determine whether the terms of the Seventeenth Amendment permitted the Council to function without its full membership in these circumstances. It was notable that the President too had yet to name his appointee to the Council.

Finally when the small parties agreed on their nominee (a recently retired Auditor-General) the President declared that he would not make his nomination until the publication of the findings of a Parliamentary Select Committee that had been appointed to review the Seventeenth Amendment. At this point the doctrine of necessity (even if it was applicable earlier) clearly ceased to apply, as it was the President by his own act who was preventing the functioning of the Constitutional Council. Hence the President was presumably relying on his presidential immunity from suit. Under Article 38 of the Constitution the President could be impeached for an intentional violation of the Constitution, although political realities make such a course of action unlikely.

The Seventeenth Amendment is based on the assumption that there would always be cooperation between the President and Parliament, and also between the various parliamentary parties that have to agree on some of the nominees. This is illustrated by the fact that, apart from the Speaker, the Prime Minister and the Leader of the Opposition, all members of the Council have to be appointed by the President, although all but one of them are selected by Parliament. Yet had there been such a culture of cooperation and consensus, the Seventeenth Amendment would not have been necessary in the first place. Thus the fundamental flaw in the Seventeenth Amendment is that it depends for its successful application on the very thing the lack of which necessitated the Amendment.

With the benefit of hindsight one may ask whether it would not have been simpler for Parliament to have moved a constitutional amendment that required the President to obtain the consensus of the House for appointments to high posts such as the judiciary and the independent commissions. Such a solution would obviate the need for the Constitutional Council while ensuring that appointments to high posts cannot be made unilaterally by the President. It would also re-instate the principle that the elected representatives of the People are ultimately responsible for the state of governance in the country.

The idea suggested above might also have avoided the deadlock that arose during the term of the first Constitutional Council, when the then President refused to accept the Council’s nominee for the post of Chairman of the newly created Election Commission, and the Constitutional Council declined to suggest another name. As a result of that deadlock the Election Commission has never been appointed and Commissioner of Elections Dayananda Dissanayake has been compelled to work many years beyond his legal age of retirement.

As the President had not apparently objected to the other four nominees to the five-member Commission, it seems quite possible that another name could have been found without compromising the independence of the Election Commission, had the matter been left to pragmatic parliamentarians on both sides of the House.

Some other posts such as Parliamentary Commissioner for Administration (Ombudsman) and Secretary-General of Parliament are posts that one might expect to be under the sole purview of Parliament. For instance, in Sweden, where the Ombudsman institution originated, the Ombudsman is appointed with the consent of all the political parties represented in Parliament.