IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application for mandates in the nature of Writs of Certiorari and Mandamus under and in terms of Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

CA (Writ) Application No: 370/2017 Beverly Palihawadana, No. 20/3, 2^nd Lane, Koswatta Road, Nawala, Rajagiriya.

PETITIONER Vs.

1. W.I.D.R. Weerakoon, Assistant Commissioner of Labour, Department of Labour, Colombo 5.

2. R.P.A. Wimalaweera, Commissioner General of Labour, Department of Labour, Colombo 5.

RESPONDENTS Before: Arjuna Obeyesekere, J / President of the Court of Appeal Counsel: Lasantha Hettiarachchi with Ms. Sara Miskin and Himath Silva for the Petitioner Ms. Ganga Wakishtarachchi, Senior State Counsel for the Respondents Argued on: 18^th June 2020 Written Tendered on behalf of the Petitioner on 10^th January 2019 and 26^th Submissions: June 2019 Tendered on behalf of the Respondents on 11^th June 2019 and 13^th August 2020 Decided on: 3^rd June 2021 Arjuna Obeyesekere, J., P/CA The Petitioner states that she was an employee of the Food and Agriculture Organisation of the United Nations Office in Colombo (the FAO) during the period April 1998 to September 2011. She states that her services were unlawfully terminated by the FAO on 30^th September 2011.

Complaint to the Commissioner General of Labour Aggrieved by the said decision of the FAO, the Petitioner made a complaint to the 2^nd Respondent, the Commissioner General of Labour on 25^th November 2011. The Petitioner states that in response to a notice dated 10^th February 2012 sent by the Deputy Commissioner of Labour to appear at a formal inquiry in relation to the complaint made by the Petitioner, the FAO had sent the Ministry of External Affairs a Note Verbale dated 27^th February 2012 marked ‘P5b’, wherein, the FAO had taken up the position that they are entitled to immunities and privileges under the following instruments:

1. The Constitution of the FAO signed in Quebec on 16^th October 1945, to which Sri Lanka has acceded on 21^st May 1948;

2. The Agreement between FAO and Sri Lanka regarding FAO representation accepted by Sri Lanka on 1^st December 1978.

The FAO has also made reference to the fact that the Agreement between the FAO and the Government of Sri Lanka, which makes reference to the Convention on Privileges and Immunities of Specialised Agencies, provides “in clear terms in Article I Section 4 that: “the Specialised Agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process, except insofar as, in any particular case, they have expressly waived their immunity.” The position of the FAO in the said Note Verbale is that the abovementioned international treaties grant to the FAO unrestricted immunity from the jurisdiction of national courts and that matters arising from employment disputes are governed by the internal rules of the Organisation (Constitution, General Rules of the Organisation, Staff Regulations, Staff Rules, Manual Sections and Administrative Issuances) to the exclusion of any national law. The rationale for this as provided in the said Note Verbale is as follows:

“If the laws of any Member Nation were held to be applicable to the employment relations between FAO and its personnel, and the national courts competent to adjudicate on such disputes, it would harm the concept of an independent international civil service and prevent the proper functioning of the FAO. It is for this reason that the Constitution of FAO, like that of other international organisations, prescribed the governance mechanisms by which individual Member Nations may influence the functioning of the Organisation, and to prohibit any attempt by individual member Nations to exert influence outside the framework of those mechanisms.”

The Petitioner states that since there was no representation or appearance by the FAO before the Commissioner General of L