PALIHAWADANA

Vs.

ASSISTANT COMMISSIONER OF LABOUR AND ANOTHER

COURT OF APPEAL
OBEYESEKERE, J. (P/CA)
CA/WRIT/370/2017
JUNE 18, 2020

Writs of certiorari and mandamus-Employment dispute-International organisation-Jurisdictional immunity-Diplomatic Privileges Act, No. 9 of 1996, section 4(1)

The petitioner complained to the Commissioner General of Labour that her services had been unlawfully terminated by the Food and Agriculture Organisation (FAO), which was part of the United Nations office in Colombo. The FAO claimed diplomatic immunity and did not appear at the inquiry. The petitioner then filed an application in the Labour Tribunal against the FAO, relying on a letter issued by the Ministry of Foreign Affairs (MFA) which stated that the FAO was not entitled to immunity in respect of employment disputes. The FAO did not appear before the Labour Tribunal and the matter proceeded ex parte. The Labour Tribunal awarded compensation to the petitioner. The FAO did not comply with the order and the petitioner moved the Commissioner General of Labour to enforce the order as provided for in the Industrial Disputes Act, No. 43 of 1950, as amended. The Commissioner General sought the advice of the MFA and the MFA replied that the FAO was entitled to immunity. The Commissioner General refused to enforce the order. Aggrieved, the petitioner sought writs of certiorari and mandamus to quash the decision of the Commissioner General of Labour refusing to enforce the order of the Labour Tribunal and to compel the enforcement of the order in terms of the Industrial Disputes Act.

Held:

1. In a dualist State such as Sri Lanka, the legal personality of an international organisation would be dependent on its recognition through domestic legislation. Acceding to the Constitution of an international organisation would not ipso facto grant legal personality to the international organisation under domestic law. The court's ability to give effect to the provisions of such

instruments, including those that grant privileges and immunities to international organisations, is dependent on the steps taken by the legislature to enact enabling legislation of a specific or general character.

2. Section4 of the Diplomatic Privileges Act, No. 9 of 1996 recognises a mechanism for the Government of Sri Lanka to give effect to immunity provisions in agreements entered into with inter-governmental and international organisations. An order under section 4(1) is therefore a mechanism to grant immunity to such organisations to the extent necessary to give effect to the terms of such agreements.

3. Where there is a specific mechanism provided by the law, jurisdictional immunity for international organisations cannot be inferred or implied through customary international law.

4. The order under section 4(1) which the respondents sought to rely on in this case was an order in favour of the United Nations Development Programme (UNDP) and UN subsidiary organs and specialised agencies acting as executing agencies of UNDP. No material was placed before court to establish that the FAO was an executing agency of UNDP. The impugned decision failed to consider all these factors and is illegal.

Cases referred to:

1. Singarasa v. Attorney General [2013] 1 Sri LR 245
2. The British High Commission v. Ricardo Wilhelm Michael Jansen (SC/APPEAL/99/2012, SC Minutes of 10.07.2014)
3. InternationalWater Management Institute v. Kithsiri Jayakody (SC/ APPEAL/11/2011, SC Minutes of 25.03.2014)
4. Amaratunga v. Northwest Atlantic Fisheries Organisation [2013] 3 SCR 866

APPLICATION for Writs of Certiorari and Mandamus.

Lasantha Hettiarachchi with Sara Miskin and Himath Silva for the Petitioner.

Ganga Wakishtarachchi, S.S.C., for the Respondents.

cur. adv. vult.

June 3, 2021

OBEYESEKERE, J. (P/CA)

The Petitioner states that she was an employee of the Food and Agriculture Organisation of the Uni