IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST

REPUBLIC OF SRI LANKA.

In the matter of an application under and

in terms of Article 126 of the Constitution.

Supreme Court Fundamental

Subhawikrama Mallika
Rights Application No:
Widhanaarchchige Upul Nishantha,
15/2B, Sri Sumanasara Mawatha,
Welegoda, Mathara.

Petitioner

Vs

1. Mr. H.P. Cashian Herath,

Secretary,
Ministry of Local Government &
Provincial Councils, No 330, Union
Place, Colombo 02.

2. Mrs. Kumari Balasuriya,

Governor,
Governor’s Secretariat
Southern Province,
Lower Dickson Road,
Galle.

3. Mr. Shan Wijayalal de Silva,

Chief Minister and the Minister of
Finance, Planning, Law & Order,
Transport, Water Supply & Drainage,
Electricity, Engineering Services,
Health, Indigenous Medicine and
Local Government,
15A, Lower Dickson Road,
Galle.
 4. Mr. M. W. Wijethilake,
Secretary,
The Ministry of Finance, Planning,
Law & Order, Transport, Water
Supply & Drainage, Electricity,
Engineering Services, Health,
Indigenous Medicine and Local
Government,
15A, Lower Dickson Road,
Galle.

5. Mr. S. D. Pandikorala
Commissioner of Local Government,
Southern Provincial Local
Government Commissiner’s Office,
District Secretariat,
Galle.

6. Administrative Officer,
Southern Provincial Local
Government Commissiner’s Office,
District Secretariat,
Galle.

7. Mr. N. W. Yapa
Assistance Commissioner of Local
Government (Matara),
Assistance Commissioner of Local
Government office-Matara, 10/3,
Hakmana Road,
Matara.

8. Honourable Attorney General

Department of the Attorney General
Colombo 12.

On this the 4th of March 2010

TO HIS LORDSHIP THE CHIEF JUSTICE AND THE OTHER HONOURABLE
JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA.

The Petition of the Petitioner appearing by James Henry Paul

Rathnayake……………………………its Registered Attorneys-at-Law state as
follows:-

1. The Petitioner states that he is the Mayor of the Matara Municipal Council.

2. The 1st Respondent is the Secretary of the Ministry of Local government &
Provincial Councils. The 2nd Respondent is the Governor of Southern
Province and the 3rd Respondent is the Chief Minister and the Minister of
Finance, Planning, Law & Order, Transport, Water Supply & Drainage,
Electricity, Engineering Services, Health, Indigenous Medicine and Local
Government of the Southern Provincial Council. The 4th Respondent is the
Secretary of the Ministry of Finance, Planning, Law & Order, Transport,
Water Supply & Drainage, Electricity, Engineering Services, Health,
Indigenous Medicine and Local Government of southern Province. The 5th
Respondent is the Commissioner of Local Government of Southern Province
and the 6th Respondent is the Administrative Officer of the Southern
Province. The 7th Respondent is the Assistance Commissioner of Local
Government (Matara). The 8th Respondent is the Honourable Attorney
General.

3. The Petitioner states that he has been a member of the Matara Urban
Council from 1996 and further states that he has held the following offices
in the said Urban Council.

1996 - Vice Chairman

1997 - Vice Chairman
2002 – Chairman

4. The Petitioner states that in 2002, the Matara Urban Council was upgraded
to a Municipal Council and Petitioner was elected as a Member of the
Matara Municipal Council at the election held in 2002. The Petitioner
further states that in April 2006, he was again elected to the Matara
Municipal Council and on the 15th of April 2006, he was appointed as the
 Mayor of the Matara Municipal Council having contested from the United
Peoples Freedom Alliance.

5. The Petitioner states that after he became the Mayor of the Matara
Municipal Council the Petitioner had worked for the development of the
Matara City. The Petitioner further states that he has travelled abroad
several times in his capacity as the Mayor of the Matara Municipal Council .
Further the petitioner states that:-

 In November 2008, he participated to the Young Councillors

International Platform at Nanjin, China as a Founder.

 He was appointed as the Co-op Director for the Asia Pacific Region in
the Commonwealth Local Government Forum (CLGF) which was held
on 11th May 2009 at Bahamas Islands. This is the first instance in the
CLGF history that a Sri Lankan got this opportunity.

 In 2009/2010 he was appointed as a Director in the Ruhunu

Economic Development Agency (RUEDA) which operates in Southern
Province under ART Gold Project of United Nations Development
Program (UNDP).

 He was appointed as a Director of the Federation of Sri Lanka Local

Government Authorities (FSLGA) for the year 2009/2010.

 He was appointed as the National Organizer of Young Councillors

National Platform for the year 2009/2010.

6. The Petitioner states that in January, 2010 he received a telephone call

From Chatham House Enterprises Limited of London requesting him to be
present as their guest at the “Future of Cities” Conference which is to be
held by them on 8th and 9th February 2010. The Petitioner states that he
accepted their invitation.
 7. The Petitioner states that on the 19th of January 2010, he received an e-mail
from the Chatham House, inviting him to the said Conference.
(A true print-out of the said email is marked as P-1 and is annexed and
pleaded as part and parcel of the Petition.)

8. The Petitioner states that in January 2010, Mr. Sirisena Deshapriya who is
the project coordinator of the UNDP ART Gold project made a call to the
Petitioner and invited him to 7th Forum of the Worlds Alliance of Cities of
Poverty (WACAP) which is to be held from 24th to 26th of February 2010, at
Rotterdam, Netherlands. The Petitioner states that he accepted his
invitation.

9. The Petitioner states that prior to said official invitation from the project
coordinator of the UNDP ART Gold project, the Petitioner met the 3rd
Respondent with Canadian delegates from Federation of Canadian
Municipalities at the 3rd Respondent’s office on 12th December 2009 and the
3rd Respondent informed the Petitioner that he nominated the Petitioner for
WACAP Forum on behalf of Sri Lanka with another Mayor.

10. The Petitioner states that at the 6th WACAP Forum in Athens, Greece in
March, 2008 which the Petitioner also participated, initial arrangements
were made between Malaga Municipal Council of Spain and Matara
Municipal Council to sign a “Twin City Agreement”. Accordingly in 2009
group of delegates from Malaga Municipal Council visited Matara Municipal
Council. At the 7th WACAP Forum Malaga Municipal Council is about to
confirm their consent about the Twin City Agreement and therefore it was
very important to the Petitioner as the Mayor of the Matara Municipal
Council to participate in the 7th WACAP Forum.

11. The Petitioner states that Mayor of the Galle Municipal Council Mr. N. G. M.
A. De Silva was also invited to the 7th WACAP Forum.

12. The Petitioner states that he obtained a visa to United Kingdom for the
period from 25.01.2010 to 25.07.2010 and a visa to Netherlands from
22.02.2010 to 19.03.2010. The Petitioner further states that United Nations
Development Program arranged travel insurance for the Petitioner for the
period from 22.02.2010 to 28.02.2010. Further, the Petitioner paid a sum of
Euro 400/= for a hotel which he intended to stay at Netherlands. The
Petitioner states that the amount he paid for the hotel is to be reimbursed
by the UNDP.
 (A true print-out of the a email which send by Senior Conference Manager of
the Chatham house in support of the Petitioner’s visa application is marked as
P-2 and is annexed and pleaded as part and parcel of the Petitioner. A true
copy of the Petitioner’s passport is marked as P-3 and is annexed and
pleaded as part and parcel of the Petition.)

13. The Petitioner states that he handed over his two applications for leave from
Sri Lanka dated 19th of January 2010 (i.e. for the “Future of Cities”
Conference) and 20th of January 2010 (i.e. for the 7th WACAP Forum) to the
Assistance Commissioner of Local Government (ACLG)-Matara via the
Municipal Commissioner of the Matara Municipal Council.

14. The Petitioner states that to in order obtain leave , the recommendation for
application for leave from of Sri Lanka firstly has to recommend by the
Assistant Commissioner of Local Government-Matara and then by the
Commissioner of Local Government. Thereafter the application is forwarded
for the recommendation of the Chief Minister of the Southern Provincial
Council and finally to the Governor of the Southern Province for approval.

15. The Petitioner states that his application for leave was recommended by the
Assistant Commissioner of Local Government (ACLG) and thereafter to the
Commissioner of Local Government (CLG) for his recommendation.

(A true copy of the covering letter implicating that the ACLG has recommended
and sent the Petitioner’s application to the CLG is marked as P-4 and is
annexed and pleaded as part and parcel of the petition)

16. The Petitioner states that the 5th Respondent Commissioner of Local
Government (CLG) delayed recommending his application and therefore the
Petitioner on the 3rd of February 2010, went to meet the 5th Respondent
Commissioner but he was on leave on that day and his duties were being
covered by the Administrative Officer. The Petitioner states that the
Administrative Officer told the Petitioner, that even though she is able to
recommend leave for the Petitioner, and that the 5th Respondent has
instructed her not to sign any application for leave from of Sri Lanka by the
Petitioner.
17. The Petitioner states that thereafter he met the 5th Respondent at his
residence and the 5th Respondent told the Petitioner that the Secretary of
the Ministry of Local Government & Provincial Councils namely the 1st
Respondent had informed him not to recommend leave from Sri Lanka to
the Petitioner since the Petitioner had supported the candidature of the
Common Opposition Candidate General Sarath Fonseka.

18. Subsequently the Petitioner telephoned the 1st Respondent informed him
that he had no option but to instruct the 5th Respondent not to recommend
leave to the Petitioner due to reasons beyond his control. The 1st
Respondent suggested that the Petitioner should make direct
representations to His Excellency the President in this regard which the
Petitioner declined to do as the Petitioner believed it to be unnecessary.

19. The Petitioner states that later, on the same day he met the 2nd Respondent
Governor of the Southern Province who asked the Petitioner to prepare a
file and to bring it to her.

20. The Petitioner states that thereafter he informed the 5th Respondent of the
2nd Respondent’s request. The 5th Respondent asked the Petitioner to meet
the Administrative Officer at the 5th Respondent’s office and to take the
relevant documents.

21. The Petitioner states that subsequently he went to the 5th Respondent’s
office to take the recommendation but the Administrative Officer signed only
on Petitioner’s covering letter and refused to sign on his leave application.
Then the Petitioner again went to the 5th Respondent’s residence again and
informed him of the situation. The 5th Respondent informed the
Administrative Officer that the said Administrative Officer was covering his
functions for the day and therefore that she could recommend the
Petitioner’s application for leave.

22. The Petitioner states that on the same day at about 4.30 pm Administrative
Officer recommended his applications for leave from Sri Lanla. (Covering
letter that the Petitioner received in respect of said applications is marked as
P-5 and is annexed and pleaded as part and parcel of the Petition)
23. The Petitioner states that thereafter he took his application to the 4th
Respondent Secretary to the Ministry of Local Government of the Southern
Province, Mr. M.W. Wijethilaka at about 4.30 pm. However since it was after
office hours the 4th Respondent asked the Petitioner to come on the next day
(i.e. 4th February, 2010) morning and to collect his application. The 4th
Respondent informed the Petitioner that even though the 4th of February is
a holiday he would be in office until 12.00 noon.

24. Therefore the Petitioner went to meet the 4th Respondent on the 4th of
February at about 11.30am. However the 4th Respondent informed the
Petitioner that he was unable to complete the application and he undertook
to complete the same and hand over it to the 3rd respondent on the morning
of the 5th of February 2010.

25. The Petitioner further states that he telephoned the 4th Respondent on the
5th of February, 2010 who informed him that that the leave application was
hand over to the Chief Minister Mr. Shan Wijelal de Silva, the 3rd
Respondent. The Petitioner states that at the same moment he telephoned
the 3rd Respondent who told him that there was a problem with
recommending the application and he will call the Petitioner a little later.

26. The Petitioner states that he didn’t receive such a telephone call from the 3rd
Respondent Chief Minister and therefore the Petitioner went to the Chief
Minister’s office.

27. The Petitioner states that at the Chief Minister’s Office he met the 3rd
Respondent Chief Minister’s Private Secretary and asked for the Chief
Minister and the Private Secretary replied the Petitioner that if the Chief
Minister met the Petitioner, Chief Minister will be in difficulty and therefore
that the Chief Minister does not wish to see him.

28. The Petitioner states that his applications for leave from Sri Lanka was not
allowed and therefore he was unable to participate at the Conference
conducted by the Chatham House Enterprises Limited and also at the 7th
Forum of the Worlds Alliance of Cities of Poverty (WACAP).
29. The Petitioner states that on the 19th of February 2010, the UNDP refused to
hand over his air ticket to 7th WACAP Forum for the reason that the
Petitioner has not obtained the letter of recommending leave from the
Governor. The UNDP also refused to reimburse the amount that the
Petitioner paid for the hotel in the Netherlands.

30. The Petitioner states that even though his application for leave was not
accepted, the Mayor of the Galle Municipal Council Mr. N. G. M. A. De Silva
was also invited with the Petitioner to the 7th WACAP Forum. The
application of leave of the said Mayor of Galle was recommended and he
participated at the said forum.

31. The Petitioner states that he was not given reasons as to why his application
for leave out of Sri Lanka was not recommended.

32. The Petitioner states that he verily believes that his applications for leave
were not recommended as a result of the 3rd Respondent Chief Minister
failing to submit the same to the Governor.

33. The Petitioner states that the failure of one or more or all of the
Respondents to recommend and/or approve the leave of the Petitioner to be
away from Sri Lanka to attend the aforesaid events, has been done with
malice and for collateral purposes.

34. The Petitioner verily believes that the failure to recommend and/or allow the
Petitioner’s leave while recommending and allowing the leave of the Mayor of
Galle at or about the same time, was as a result of the Petitioner being
subject to harassment caused by the Petitioner supporting the candidature
of General Sarath Fonseka.

35. The Petitioners state that in these circumstances the failure of one or more
or all of the Respondents in recommending and/or allowing the application
for overseas leave of the Petitioner to attend the Conference conducted by
the Chatham House Enterprises Limited in the United Kingdom from the 8th
to the 9th of February 2010 and the 7th Forum of the Worlds Alliance of
 Cities of Poverty (WACAP) in The Netherlands from the 24th to the 26th
February 2010 constitute
a) an infringement of the Fundamental Rights of the Petitioner’s as
enshrined in Article 12(1) of the Constitution guaranteeing to him
equality before the law and the equal protection of the law;

b) an infringement of the Fundamental Rights of the Petitioner’s as

enshrined in Article 12(2) of the Constitution guaranteeing to him
freedom from discrimination on the grounds of political opinion.

36. The Petitioner states that as a result of the failure to recommend and/or
leave applications has not only inconvenienced the Petitioner but also
affected the work and future plans of the Matara Municipal Council. The
said actions and failures have deprived the Matara Municipal Council of
opportunities that could have been achieved if the Petitioner had
attended the said conferences.

37. The Petitioner has not previously invoked the jurisdiction of Your
Lordships’ Court in this matter.

WHEREFORE THE PETITIONER PRAY THAT YOUR LORSHIPS BE

PLEASED TO: -

A. Grant Leave to Proceed in the first instance;

B. Declare that the Petitioners’ Fundamental Rights guaranteed under the
articles 12(1) and 12(2) of the Constitution have been infringed by one or
more or all of the Respondents and/or the State;
C. Direct one or more or all of the Respondents to grant the Petitioner
compensation of Rs. 500, 000/- ;
D. Grant Costs;
E. Grant such other and further relief that Your Lordships’ court shall deem
meet.

Attorney at Law
For the Petitioner