The Seventeenth Amendment, passed in 2001, 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 de-politicize the appointments to high posts, or in other words to take such appointments 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 body known as the Constitutional Council which comprises the Speaker of Parliament (Chairman); Prime Minister; Leader of the Opposition; a person appointed by 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 nominated upon agreement 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 further requirement that the persons nominated under the fourth, fifth and sixth categories 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 and National Police Commission which were created by the Seventeenth Amendment, as well as the Public Service Commission, Human Rights Commission, Permanent Commission to Investigate Bribery and Corruption, Finance Commission and Delimitation Commission which were institutions already in existence, to which appointments were previously made at the discretion of the President.

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.

However the Amendment was drafted in some haste, as a general election was round the corner and, given the violence and malpractices that had been witnessed at some previous elections such as the North-Western (Wayamba) Provincial election and the Presidential Election of 1999, there was a perceived urgent need to strengthen the independence of institutions such as the Elections Department and the Police.

As a result there was no time to call for public representations, and relatively little public debate, although a segment of NGO and academic personnel who had the ear of one or more of the political parties were able to put forward some ideas.

When the Amendment was passed and subsequently published, some disquieting features were noted, most particularly the requirement under Article 41A(3) that in choosing the five persons to be nominated jointly by the Prime Minister and the Leader of the Opposition, three should be nominated in consultation with "Members of Parliament who belong to the respective minority communities" and should "be nominated to represent minority interests".

This marked the first time that any Constitution in this country sought to recognize distinctions between majority or minority communities. While discrimination on racial or communal grounds would be illegal and subject to the fundamental rights jurisdiction, this country had never before had a requirement that appointments should be made to public bodies to be represent any particular communities or community interests.

After the Seventeenth Amendment was certified on 3 October 2001, the members of the Council apparently had some concern about their legal position, which were sought to remedied by means of an abortive Eighteenth Amendment to the Constitution.

Following a legal challenge to the Eighteenth Amendment, the Supreme Court held the Amendment in its entirety to be inconsistent with the Constitution, as it sought to confer a rule-making power on the Council without the requirement of Parliamentary approval, and it also sought to give complete legal immunity to the Council as a whole and to its members when acting in their official capacity.

The Seventeenth Amendment itself had conferred a significant degree of legal immunity on the Council, subject only to the fundamental rights jurisdiction under Article 126, but the Eighteenth Amendment sought to do away with the fundamental rights jurisdiction as well – something that cannot be done even under Emergency Regulations.

Following the Supreme Court’ determination the Eighteenth Amendment Bill was never passed, but it was an inauspicious beginning for an institution that was meant to impart transparency and impartiality into the making of appointments to high posts.

The Council is empowered to determine the procedures to be followed for the recommendation or approval of persons to the various commissions and high posts under its purview. The Council members appeared keen to ensure transparency and uniformity in the decisions of the Council and worked for several months to finalize prescribed criteria for the various appointments, which were presented to Parliament as part of 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 from the Council 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: For example, is it a manifestation of religious bias to engage in charitable activities linked to a particular religious institution?

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.

Yet despite the stringent criteria for appointment, the members of the various independent commissions did not always live up to expectations. In particular there were 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.

Furthermore, 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.

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 parliamentary parties other than the parties of the Prime Minister and the Leader of the Opposition to agree on a nominee. During this period the independent commissions (Public Service Commission, National Police Commission etc.) were also non-functional as the terms of office of their members had expired and their 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 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.

According to very recent press reports the President has once again declared himself opposed to the implementation of the Seventeenth Amendment to the Constitution in its present form.

Strictly speaking this could amount to "an intentional violation of the Constitution" for which the President could be impeached by Parliament under Article 38 of the Constitution. However, this is hardly likely to happen because such a process requires the initiative of at least one half of the Members of Parliament to set the process in motion, and a two-thirds majority for impeachment. The President’s party currently has a comfortable working majority in Parliament. Therefore a re-evaluation of the Seventeenth Amendment seems inevitable.

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. 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.

Most importantly, it would 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 Chandrika Kumaratunga refused to accept the Council’s nominee for the post of Chairman of the newly created Election Commission. The members of the Constitutional Council declined to suggest another name. As President Kumaratunga 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.

As a result of that deadlock the Election Commission has never been appointed to-date hereof, resulting in the gross violation of the fundamental rights of Elections Commissioner Dayananda Dissanayake who, by the terms of the Seventeenth Amendment, cannot retire until such a Commission is appointed.