Palihawadana v. Assistant Commissioner of Labour and another

The applicant, a former employee of the Colombo Office of the Food and Agriculture Organization (FAO), filed a legal complaint to the Labour Tribunal, claiming the unlawful termination of her employment. Due to FAO non-appearance in the proceeding, the Tribunal delivered a default judgment upholding the applicant’s claim.

Since FAO had failed to comply with the Tribunal’s judgment, the applicant filed a petition to Commissioner General of Labour. Following the institution of such proceeding, FAO and the Minister of Foreign Affairs sent two statements of interest, asserting that FAO enjoys immunity from legal process by virtue of the FAO Constitution and of the Agreement concluded between FAO and Sri Lanka regulating the status of FAO’s offices in the country. The decision of the Commissioner General of Labour recognized FAO’s immunity from jurisdiction and enforcement. As a result, the former employee filed an application to the Court of Appeal of Sri Lanka.

The Court of Appeal firstly observed that international organizations are creatures of international law, created by treaties defining their legal personality, functions and mandates. The Court also held that, unlike the immunity granted to States under the customary principle of par in parem non habet jurisdictionem, jurisdictional immunity of international organization has a necessary treaty-basis.

However, the Court stressed that, given the dualistic nature of the domestic legal order, international treaties can be applied in Sri Lanka to the extent that they had been implemented at the domestic level by an internal act adopted according to the procedure established in the Constitution. Therefore,”the Constitution of an International Organization would not ipso facto grant legal personality to an International Organization in the domestic legal framework”.

The Court also underlined that “a plea of immunity must be armed with the adequate and effective domestic legislation which can give effect to it“, since granting of immunity to international organizations directly affects the individual right of access to judicial remedies. The national regulation on international organizations’ immunities is laid down in the Diplomatic Privileges Act No. 9 of 1996. Section 4 of the Act provides that “Where the Government of Sri Lanka has entered into an agreement with any inter-governmental or international organization providing for the grant of any immunities and privileges, to the officers or agents or property of such organization, the Minister may, by Order published in the Gazette, and to the extent necessary to give effect to the terms of such agreement”.

According to the Court, this provision empowers the executive to grant organizations established by a treaty to which Sri Lanka is a party the immunities necessary to ensure the implementation of that agreement. On this point, the Court emphasized that the immunities granted to organizations are necessarily functional. However, as underlined by the Court, the Act requires the Parliamentary approval of such executive orders. In the case under consideration, the Court found that the domestic legal acts necessary to apply the international provisions on FAO immunity were lacking.