The 17th Amendment, although in need of improvement, was one of the rare pieces of law-making to which virtually everyone in Parliament agreed at the time it was passed. Inter alia, it provides for the formation of a Constitutional Council (CC) of 10 members by a process which is defined. However, there is nothing in the 17th Amendment which states that, if one member of the CC dies or is absent or has not been appointed (say, after someone has resigned), that the CC cannot function. Natural justice and common sense would clearly support the view that, if there are more than 7 members (ie. two-thirds of the total) present, it should be sufficient to form a perfectly acceptable quorum. If the 9 members who have been nominated in terms of the provisions contained in the 17th Amendment had been appointed forthwith, we can see no reason why the CC could then not have come to perform its constitutional functions in a legitimate manner, pending the appointment of the 10th member. The red herring drawn across the trail, saying that the CC cannot function without all 10 members being appointed and present, is, in CIMOGG’s view, an argument put forward either with blinkers on or with questionable motives to frustrate the highly commendable intent with which the 17th Amendment was passed by Parliament with an overwhelming vote in its favour in October 2001.
Those who are sincerely, if mistakenly, of the view that all 10 members of the CC need to be appointed for it to function constitutionally should, in that event, be equally mindful of upholding the Constitution by refraining from encouraging or acting to appoint members to the Public Service Commission (PSC), the National Police Commission (NPC) or any of the other Commissions covered by the 17th Amendment, in the absence of the 10-member CC.
As for those who insist that the Inspector-General of Police (IGP) for the time being should be a member of the NPC, they need to be reminded that the present holder of that post has been faulted and penalised by the Supreme Court in a recent, high-profile Fundamental Rights case. Whilst the implications of the Supreme Court verdict are very worrying and need separate study and comment, it is imperative that one does not forget that the reason for the creation of an independent NPC was to make it distinctly independent of the Police Department, inclusive of the IGP, whose shortcomings, if any, could be dealt with administratively without the aggrieved persons having to file cumbersome and costly Fundamental Rights applications in the Courts.
Tinkering with the Constitution or circumventing it with specious argumentation in the belief that one can gain an advantage over all the other political parties is not a very bright thing to do. For example, the very Constitution that President Jayawardene foisted on the people of Sri Lanka in the expectation that it would lead to the Afolding up the electoral map of Sri Lanka, to the advantage of his party, has been used since 1994 by his opponents to thwart the very objectives that he was determined to attain. Governments must realise that any immoral precedent they set could one day be used against them when they are relegated to the Opposition, as is bound to happen, perhaps sooner than one thinks likely.
A particularly unhappy aspect of the appointments which have been reported to have been made to the PSC and the NPC is that many highly respected persons who are eager to serve the country are being placed in the invidious position of providing unwitting complicity to contravene the Constitution, perchance because of their unfamiliarity with the detailed provisions of the 17th Amendment. CIMOGG wonders whether they, being distinguished persons of high integrity, would otherwise have agreed to accept these positions.