The shadow of fundamental rights has been likened to a "brooding omnipresence" underlying every single state action by the Indian Supreme Court and by necessary adaptation, executive and administrative action or private action instigating the former in this country. Rights, reasonably restricted, therefore provide the touchstone of the often unequal relationship between state and citizen.

And it is this touchstone that is violated when individuals or bodies wielding authority prefer to put themselves completely outside the reach of these rights for whatever reason.

Current thinking of the United Front Government that the 17th Amendment ought to be further amended in order to make decisions of the Constitutional Council "rights free", therefore sits somewhat uneasily with cardinal principles underlying the rule of law articulated above.

Central to this debate is Article 41H of the 17th Amendment which state that no court shall have the power or jurisdiction to entertain, hear or decide or call in question on any ground whatsoever, any decision of the Council or any approval or recommendation made by the Council, which shall be final and conclusive for all purposes.

However, this Article explicitly makes provision for challenge on grounds of violation of fundamental rights.

It is this latter provision which is sought to be deleted, bringing into question once again, the morality of constitutional ouster clauses with regard to the object and purposes of the 17th Amendment.

It is interesting in this sense that this limited ouster clause was present even in the earlier drafts of the 17th Amendment.

One recalls at this point that when the 17th Amendment was enacted by Parliament late last year, it was expected predictably (and perhaps), unreasonably to transform Sri Lanka's highly degenerate political and public culture.

Its initial performance during the December parliamentary elections was not very promising as the country witnessed an Elections Commissioner conferred with enhanced theoretical powers with regard to misuse of state resources for example but lacking sufficient authority to enforce these powers.

Consequent to a new regime in December, the progress of the 17th Amendment was unbearably slow. As six months passed, we saw the Constitutional Council being appointed through painful consensus and listened to reassurances by the Wickremesinghe administration on the expected transformative changes.

One waited therefore and watched. The possible rider that the decisions of the Council would be made free from rights challenge is therefore an unexpectedly negative development.

The Government has advanced a primary justification that otherwise, the Council would be unduly hindered in its work. This justification is however extremely problematic for several reasons.

Under the 17th Amendment, the Constitutional Council is a body that is semi political in its composition, though balanced as it is sought to be, by the inclusion of persons of eminence and integrity.

The Council comprises the Prime Minister, the Speaker, the Leader of the Opposition, one Presidential appointee, five appointees nominated jointly by the Prime Minister and the Leader of the Opposition and one appointee nominated upon agreement by the remaining political parties and independent groups in Parliament.

Its functions are primarily two fold. On the one hand, no person shall be appointed by the President to specified key public bodies except on the recommendation of the Council.

These bodies comprise the Elections Commission, the Public Service Commission, the National Police Commission, the National Human Rights Commission, the Bribery and Corruption Commission, the Finance Commission and the Delimitation Commission.

On the other hand, no person shall be appointed by the President to particular public offices unless such appointment has been approved by the Council, upon a recommendation made to the Council by the President.

These offices comprise the Chief Justice and judges of the Supreme Court, the President and judges of the Court of Appeal, members of the Judicial Service Commission other than the Chairman, the Attorney General, the Auditor General, the Inspector General of Police, the Ombudsman and the Secretary General of Parliament.

The Council shall endeavour to reach a unanimous decision on these recommendations, failing which such decision must be supported by not less than five members of the Council present at such meeting.

The Council was given definitive authority in the making of appointments to crucial public offices and bodies due to particular reasons.

The prevalent structure of appointments centering on the President alone was deemed to be unsatisfactory, not only for reasons of political impartiality but because the President is vested with immunity.

Replacing presidential immunity with a near collective immunity of the Constitutional Council can hardly be ideal. Neither is it acceptable to maintain that even though fundamental rights jurisdiction will be removed, decisions of the Council that are invalid in law, made without jurisdiction and 'no orders' at all, will be implicitly subject to judicial review despite the exclusionary clause.

Grounds of challenge in writ jurisdiction, particularly in the present context, are notably narrower (both in procedural and substantive terms) as opposed to rights violation, though discussion of the exact scope of difference appropriately belongs to a different forum than this column.

What is clear is that the scope of review of decisions of the Council will be considerably restricted, despite its semi political structure and the nature of its decision making.

One must also not forget the fact that the composition of the present Council (with its preponderance of legal minds) is obviously liable to change in the times to come, while constitutional changes, once made, may not be that easy to reverse.

These are all questions that the present administration ought to be extremely sensitive to, if the spirit and purpose of the 17th Amendment is not to be irredeemably refuted.

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