PETITION

IN THE SUPREME COURT

OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an application in terms of
Articles 17 and 126 of the Constitution of the
Democratic Socialist Republic of Sri Lanka.
S.C. (F/R) Application No.

1. Sri Lanka Institute of National Tourist

Guide Lecturers,
No. 37/35, Temple Road, Colombo 10.

2. Manoj Maddage,
President,
Sri Lanka Institute of National Tourist Guide
Lecturers,
No. 37/35, Temple Road, Colombo 10

PETITIONERS

Vs
1. Sri Lanka Tourism Development Authority,
No. 80, Galle road, Colombo 03.

1A. Chairman,
Sri Lanka Tourism Development Authority,
No. 80, Galle road, Colombo 03.

2. Minister of Tourism and Lands,

Ministry of Tourism,
7th Floor, Sri Lanka Institute of
Tourism and Hotel Management,
Galle Road, Colombo 03.

3. Secretary,
Ministry of Tourism,
2nd Floor, Asset Arcade (Pvt) Ltd.,
No 51/2/1, York Street,
Colombo 01.
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 Sri Lanka.

4. Inspector General of Police,

Police Headquarters, Colombo 01.

5. Hon. Attorney General,

Attorney General’s Department,
Colombo 12.
RESPONDENTS

On this day of 2023.

TO: HIS LORDSHIP THE HONOURABLE CHIEF JUSTICE AND THEIR

LORDSHIPS AND LADYSHIPS, THE OTHER HONOURABLE.JUDGES OF
THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF
SRI LANKA.
The Petition of the Petitioners above named appearing by Mr. Sanjaya Edirisinghe, their
Registered Attorney-at-Law states as follows;

THE PETITIONERS

1. The 1st Petitioner above named is the Sri Lanka Institute of National Tourist Guide
Lecturers (hereinafter referred to as ‘SLINTGL’ or ‘national tour guides in Sri Lanka’ or
‘national tour guide lecturers’ ) of the address mentioned above, limited by guarantee,
duly incorporated under the Companies Act No.7 of 2007, and may have authority to sue
or be sued in its own name and tender this petition before your lordships court to address
the grievances faced by the membership of the 1st petitioner organisation and to remedy
the situation as decided by the General committee of the 1st petitioner organization.

A copy of the Certificate of Incorporation of the SLINTGL dated 2009.12.17 is annexed

hereto marked “P1” and pleaded as part and parcel of this Petition.

2. The 2nd Petitioner above named is the President of the SLINTGL who has been engaged
in the tourist industry since 1999 having worked as a freelance tourist guide
accompanying inbound tourists in Sri Lanka. The Chairman was also employed as a
Tourism Consultant in a travel company “ANTIQUITY-Raffles Leisure”, where he was
involved in promotion of tour in Germany and Austria and tender this petition before your
lordships court to address the grievances faced by him as well as the registered members
of the 1st petitioner organisation.
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3. The Petitioners state that they have been instrumental from the beginning in establishing
and upholding the statutory entities to promote, safeguard and represent the interests,
rights, and privileges of National Tourist Guide Lecturers, to regulate professional
activities, to assist Governmental Authorities in formulating, regulating the conduct and
performance of persons engaged in the tourism industry, and also they have frequently
distributed invaluable knowledge, both practical and theoretical, among the National
Tourist Guide Lecturers fraternity through its members. Likewise, the Petitioners have
represented Sri Lanka in the World Federation of Tourist Guide Associations since
September 2012 up to date.

4. The Petitioners state that:

a) The 1st Respondent is the Sri Lanka Tourism Development Authority (hereinafter
referred to as "SLTDA") and is the governmental authority tasked with
regularizing the tourism industry in the country while establishing, positioning,
and developing Sri Lanka as a leading destination for international visitors. The
Authority is established under The Tourism Act No 38 of 2005, outlining many
objectives, inter alia, to advise the Minister in charge of the subject of Tourism on
matters related to travel and the tourism industry within the policy formulated by
the Cabinet of Ministers concerning the affairs of the tourism industry. The 1A
Respondent is the public officer responsible for taking decisions in respect of the
said Authority and holding the statutory post of Chairman of the said Authority.

In addition to that, the Petitioners state that the 1 st Respondent, Sri Lanka Tourism
Development Authority, is a member to the United Nations’ World Tourism
Organization since 1975, and is abided by the rules and regulations provided
therewith.

b) The 2nd Respondent is the Minister of Tourism and Lands, who is duty-bound to
formulate laws and regulations, implement, monitor and evaluate policies,
programmes and projects for the development and enhancement of the tourism
industry in Sri Lanka within the purview established under the Tourism Act, No.
38 of 2005 and the Gazette Extraordinary No. 2289/43 dated 2022.07.22. The 3rd
Respondent is the Secretary to the Ministry of Tourism and Lands, who is

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 responsible to implement the decisions of the 2 nd Respondent, regulate the affairs
of the officers of the 2 nd Respondent, and to maintain and uphold delegated powers
in relation to tourism industry in Sri Lanka;

c) The 4th Respondent is the Inspector General of Police, who is responsible for
implementing the powers of the police conferred upon him in terms of the Police
Ordinance No.16 of 1865 as amended and the duties of the police throughout the
country and especially responsible to see that the "Tourist police division" of the
department of police, performs its duties assigned to that division and specially to
see that no unauthorized tour guides operations are done.

d) The 5th Respondent is the Hon. Attorney General of the Republic of Sri Lanka and
has been made a party to this Application in terms of the Rules of Your Lordships’
Court;

5. The Petitioners further state that the impugned actions and/or omissions and/or intended
activities complained of, on the part of one or more of the Respondents named above in
the instant Application, constitute "administrative and executive action" within the
meaning of Article 17 and Article 126 of the Constitution of the said Republic.

6. Petitioners state that the incidents hereinafter mentioned are pertinent to the subject matter
of this Application and led to the violation and/or continuous violation and/or imminent
infringement of the fundamental rights of the Petitioners by the 1 st to 4th Respondents.

SUBJECT MATTERS OF THE PETITION

7. Tour guiding, one of the main components of services offered by the Petitioners, is vital
to promoting the country's good name. The tourism industry is one of the significant
industries that earn a considerable amount of income in Sri Lanka annually. Accordingly,
such a profession plays a crucial part in the country's economy. Hence, the development
and protection of such a profession is everyone's responsibility.

8. Petitioners state that, during the past decade the national tour guides in Sri Lanka, as a
professional body has contributed greatly to the development of the tourist guide services
and the tourism industry in Sri Lanka. Accordingly, the Petitioners’ involvement has
spread over many areas in the industry and their contributions, inter alia, built up an
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 individual guide’s brand through self-education, profession of a high level of education of
knowledge by engaging in future training, intense experience and a flawless narration
which put together created a demand by the foreign and local tour operators. Moreover,
many languages, such as German, French, Italian, Japanese, Chinese and Russian are
spoken fluently by many registered and trained guides as well.

7. Apart from that, petitioners also state that national tourist guides have gained the
knowledge and communication skills acquired by reading additional courses either in Sri
Lanka or other countries. Furthermore, Petitioners state that among the tourist guides
provided within SLINTGL, there are eco-tourism specialists, Ph.D. holders in various
fields, geologists, and multi-lingual speakers.

8. In addition, the Petitioners state that they are abided by a declaration that lays out the
terms and conditions regarding the goodwill of the tourism industry and tour guiding
services provided by the Petitioners. The 1 st Respondent, Sri Lanka Tourism Development
Authority, has made a declaration outlining the duties and responsibilities of the
Petitioners and the conditions that must be met if the tourism sector is to attain long-term
sustainability.

A copy of the said Declaration by the Tourism Development Authority Sri Lanka is annexed
hereto marked “P2” and pleaded as part and parcel of this Petition.

9. Despite the necessity of adhering to such a declaration, it is evident that unlicensed tour
guides are not governed or subjected to its terms and conditions since they are not
registered with the appropriate authorities. Moreover, the fact that some tour guides
engage in unethical behaviour and activities that are not guided and regulated alongside
others being honest and qualified has become more apparent in recent years. According to
the Petitioners, it is impossible to safeguard the tourism industry and the Petitioners' rights
without eliminating such behaviours, as hereinafter detailed in this Petition.

10. In Sri Lanka, the Minister of Tourism has issued a new set of regulations for tourist-
guiding services, setting the minimum educational qualifications for those carrying out
such services. Accordingly, it is mandatory for any person to obtain a license from SLTDA
to perform tourist guiding services. In contrast, according to the experience of the

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 Petitioners, such legal requirements are being violated continuously, affecting the standard
of the tourist guide services safeguarded by the Petitioners over the years.

11. Petitioners state that the aim of making such a license a mandatory requirement is to
prevent illegal tour guiding and ensure that the travellers visiting the country are accurately
informed. However, today, persons conducting tourist-guiding services to foreign groups
without obtaining a proper license have ultimately jeopardized the standard and service
provided for the tourism industry for many years.

12. According to the Petitioners, one of the primary concerns of this Application is that many
unlicensed personals conduct tourist guiding services without obtaining a proper license
for the job. Likewise, unqualified individuals are being promoted to the role of tour guide
by Destination Management Companies (DMCs) and other companies involved in the
tourism industry, and there has been an increase in the number of foreign nationals using
visiting and/or working visas to lead tours without first obtaining the services of a National
Tourist Guide Lecturer. In addition, there are many incidents of license forgeries that
involve preparing and utilizing forged documentation by the unlicensed tour guides while
they are conducting tour guiding services.

Copies of the forged licenses, documents and information of some of the unlicensed tour
guides are annexed hereto marked “P3(a)” to “P3(g)” and pleaded as part and parcel of
this Petition.

13. Petitioners state that many people with various jobs, such as drivers, tourist chauffeurs,
tourist facilitators, tour leaders, and so on, have been hired as freelancing tourist guide
lecturers for many years. However, the petitioners state that most of these so called tour
guides have only a driver's license and insufficient qualifications to conduct tourist-guiding
services.

14. Moreover, the petitioners state that the unlawful tourist guiding has been made worse by
the deployment of non-nationals as tourist guides under the guise of translators and
interpreters, thereby depriving SLTDA license holders of their employment opportunities.
This, in turn, is aggravating the issue of the petitioners, hereby eliminating job
opportunities for those who possess an SLTDA license, who have graduated from

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 universities outside of Sri Lanka and who have respective language skills to provide better
services.

15. Petitioners further state that the SLINTGL on various occasions have requested the
SLTDA and Sri Lanka Tourist Police to conduct random checking programs to identify the
illegal tour guides who were involved in tourists’ services. As a result, SLTDA has
implemented random checking programs and has successfully identified a number of
unlicensed tourist guides who were operating illegally without obtaining a proper license.

A copy of the letter written by the SLINTGL to the Director General, SLTDA on 2018.05.17
is annexed hereto marked “P4” and pleaded as part and parcel of this Petition.

Moreover, copies of the Affidavits by some of the eye witnesses who are bearing tourist
licenses have verified the illegal tourist guiding that is currently happening around the
country, are annexed hereto marked “P5(a)” – “P5(e)” respectively and pleaded as part
and parcel of this Petition.

16. The Petitioners state that they have continuously been confronted with the same matter
during the past decades that detrimentally affect their profession in many aspects.
Regrettably, these issues have not been appropriately addressed by any of the responsible
governmental authorities up to date despite being brought to their notice on innumerable
instances by the Petitioners.

A copy of the letter dated 2014.08.14 by the SLINTGL to the Sri Lanka Tourism
Development Authority, informing the foreigners and unlicensed personal conducting
tourist guiding in Sri Lanka annexed here to marked “P6” and pleaded as part and parcel
of this Petition.

A copy of the letter dated 2019.02.15 writing to the Director General of SLTDA
highlighting many of the issues that the SLINTGL face in the practice of their profession as
well as the insistent to implement the provisions of The Tourism Act No 38 of 2005 and a
copy of the letter dated 2019.04.23 by the SLTDA received in response to the aforesaid
letter are annexed hereto marked “P7(a)” and “P7(b)” respectively and pleaded as part
and parcel of this Petition.

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 A copy of the letter dated 2019.12.17 by the SLINTGL to the Director of SLTDA notifying
the silent protest and media awareness program is annexed hereto marked “P8” and
pleaded as part and parcel of this Petition.

17. According to the petitioners, the absence of a centralised regulatory authority for
streamlining and standardising the various categories of tourist guide licenses issued by a
number of government and private organisations has resulted in unqualified persons
functioning/operating as National Tourist Guide Lecturers since a license can only be
obtained after completing an interactive course in full-time attendance at the Sri Lanka
Institute of Tourism and Hotel Management. Therefore, the petitioners state that this
predicament should be remedied as soon as possible.

18. In addition to that, the Petitioners state that a large number of travel agencies and tourism-
related businesses, according to the Petitioners, are employing unlicensed and unregulated
personnel, including foreign nationals, denying the National Tourist Guide Lecturer's Code
and the other laws established to govern the affairs of the tourism industry in Sri Lanka.
Whereas such ignorance and violations have deprived the employment opportunity and
livelihood of National Tourist Guide Lecturers. In addition, the information and services
provided by such unqualified personnel have led to low service standards, which has
projected a negative image of Sri Lanka in the international market.

19. However, the Petitioners state that those wishing to obtain a license from the SLTDA will
be required to submit a valid medical certificate issued by a registered Government
medical officer – certifying their mental and physical fitness to function as a tourist guide
lecturer – submit valid proof of successful completion of training and skills development
related to tourist guiding amounting to a minimum of 32 hours per annum conducted by
Sri Lanka Institute of Tourism and Hotel Management (SLITHM), Sri Lanka Institute of
National Tourist Guide Lecturers or any other training institute authorised by the SLTDA,
as well as a Police certificate of non-conviction.

20. In addition to the aforesaid matters, Petitioners further state that a Gazette Notification has
not yet been issued specifying a minimum wage for tour guiding since 2005 encouraging
travel entities to pay low daily wages to service providers. Moreover, without providing
relevant facilities and administration to the tourist guide profession, the authorities have
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 taken actions to increase the license renewal fee, neglecting the financial and social issues
faced by the tourist guides due to Covid-19 and other incidental issues currently
experienced by Sri Lanka.

21. The Petitioners state that the Tour Guide Services to foreign tour groups who visit Sri
Lanka are regulated by the National Tourist Guide Lecturer's Code, which was published
in the Extraordinary Gazette No. 408/8 on 1986.07.02. These regulations were
implemented to ensure that foreign visitors to Sri Lanka receive informative and
professional service from their tour guides. However, it is apparent to the Petitioners that
such standards have been violated by the unlicensed and unqualified tourist guides, thereby
conducting such services without obtaining a valid license from the relevant authorities.

A copy of the Extraordinary Gazette No. 408/8 on 1986.07.02. is annexed hereto marked
“P9” and pleaded as part and parcel of this Petition.

22. Nevertheless, the Petitioners state that the 1st to 2nd Respondents are formally authorized to
promote the tourism industry and, in particular, to deal with the challenges affecting the
industry in view of conserving and simplifying the same under the Tourism Act No. 38 of
2005 (hereinafter referred to as “the Tourism Act”). The following, inter alia, describes the
powers given to the SLTDA to address the challenges confronted by the Petitioners:

a) Under Section 12 of the Tourism Act, the authority is vested with powers, and it
has stipulated their functions to the tourism industry, and inter alia the authority is
bound to act with the concurrence of the Minister, as an agent of the government
for the transaction of business connected with the tourism or travel industry as well
as to license the different enterprises, on criteria to be determined by the Authority
and to prescribe the terms and conditions applicable to the same;

b) Furthermore, under Section 13 of the said Act, it shall be the duty of the Authority
to advise the Minister on all matters relating to the tourism and travel industry on a
request of the Minister or on its own motion; to advise the tourism and travel
industry and other related enterprises concerning the developments in the field; to
prepare and submit to the Minister schemes in respect of the establishment,

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 regulation and supervision, development and control of tourist resorts and tourist
services and the persons employed in or about the same; and to formulate proposals
in respect of the above for the guidance of the Minister.

c) Under Section 50 of the same Act, it is the responsibility of the authority to advise
the Minister to categorize classes of Tourist Enterprises and Tourist Services and,
from time to time, prescribe the standards to be maintained by any such enterprise
or service. In contrast, the Authority may issue a Certificate of Standards to any
class of Tourist Enterprises or Tourist Services categorised under the section;
however subject to cancellation upon any failure to comply with any instructions by
the authority in advance.

d) In addition, Section 61 requires any party wishing to be employed in travel or

tourism services to be registered with the Authority; however, any failure of such
registration shall be guilty of an offence. Accordingly, under Section 63 of the
Tourism Act, any person shall be found guilty of an offense if not comply with the
provisions set out in the said Act.

e) Under Section 62 of the Tourism Act, the Authority is bound to make rules and
advice the Minister to make regulations in terms of Sections 49 and 69 of the
Tourism Act, inter alia, to authorize the Sri Lanka Tourist Police Division to arrest
any person acting in contravention and/or breach of any provision of Chapter IX of
the Act and Tourist Guide Lecturer's Code, 1986, to impose higher fines and penal
sanctions for acting in contravention and/or breach of any provision of Chapter IX
of the Act and Tourist Guide Lecturer's Code, 1986, and to prescribe the possession
of a National Tourist Guide License mandatory to operate as a tourist guide within
the territorial limits of Sri Lanka.

23. Furthermore, the Petitioners state that Sri Lanka being a signatory country to the United
Nations World Tourism Organization (hereinafter referred to as ‘UNWTO’), 1 st to 3rd
Respondents are bound to follow the guidelines provided within the UNWTO’s Global
Code of Ethics for Tourism. Accordingly, inter alia;

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 1. the fundamental rights of salaried and self-employed workers in the tourism industry
and related activities, should be guaranteed under the supervision of the national and
local administrations, both of their States of origin and of the host countries with
particular care, given the specific constraints linked in particular to the seasonality
of their activity, the global dimension of their industry and the flexibility often
required of them by the nature of their work;

2. Salaried and self-employed workers in the tourism industry and related activities
have the right and the duty to acquire appropriate initial and continuous training;
they should be given adequate social protection; job insecurity should be limited so
far as possible; and a specific status, with particular regard to their social welfare,
should be offered to seasonal workers in the sector;

24. Therefore, the Petitioners state that the 1 st and 1A Respondents, together with the 2 nd
Respondent have a statutory duty to abide by the statutory powers vested in each party
and to protect and promote the tourism industry by taking cognizance of the aforesaid
provisions of the Tourism Act and further the 4 th Respondent is also should take
cognizance of the provisions of the Tourism Act to penalize those who violate the
provisions of the Tourism Act and to punish the wrongdoers accordingly.

25. Nevertheless, the Petitioners state that, due to the challenges confronted by the
Petitioners over the last decades, it is apparent that the 1 st to 4th Respondents have failed
to take cognizance of the statutory authority vested upon them and to take actions to
prevent and mitigate the illegal and unauthorized tourist guiding services that have been
conducted within these years.

26. Therefore, Petitioners state that although they were instrumental from the beginning in
establishing and upholding the statutory entities to promote, safeguard and represent the
interests, rights, and privileges of National Tourist Guide Lectures, to regulate
professional activities, to assist Governmental Authorities in formulating, regulating the
conduct and performance of persons engaged in the tourism industry, such failures on the
Respondents' part have also led down the continuous engagement of the Petitioners in
their profession and accordingly, the Respondents' failures to perform their statutory

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 duties have caused a violation and/or continuous violation and/or imminent infringement
of their fundamental rights guaranteed under the Constitution of Sri Lanka.

27. Petitioners state that after considering the aforementioned facts it appears to them that
there is an imminent infringement and/or continuous violation and/or violation of
Fundamental Rights guaranteed under Articles 12(1), and 14(1)(g) of the Constitution if
the alleged illegal tourist guiding services are continued without taking proper legal as
well as administrative actions to prevent the extensive damages caused to both
Petitioners as well as the economy of the country.

28. Petitioners state that every person has the right to engage in work and to pursue a freely
chosen or accepted occupation. Accordingly, Article 14(1)(g) of the Constitution denoted
the freedom to engage by himself or in association with others in any lawful occupation,
profession, trade, business or enterprise. Likewise, the Petitioners are entitled to be
employed in their profession, to perform their lawful duties towards their work and to
engage in their lawful professions as other citizens of the country. However, the statutory
failures of the Respondents have disappointed the Petitioners, thereby denying their
fundamental rights guaranteed under Article 14(1)(g) of the Constitution as a result of
the illegal tourist guiding services conducted by unlicensed and unauthorized parties
other than the Petitioners who are lawfully entitled to practice the same in their
profession.

29. The Petitioners state that given the paucity of information and access thereto, and also
other exigencies that they were confronted with in preparing these papers to be instituted
in Your Lordships’ Court, the Petitioners most respectfully reserve the right to amend the
Petition, aver further facts, amend and/or include further reliefs and produce further
documents both per se and also depending on the disclosure made by the Respondents
and also to add any further parties.

30. The Petitioners have not previously invoked the jurisdiction of Your Lordships' Court in
respect of the subject matter of this application.

WHEREFORE the Petitioners respectfully pray that Your Lordships' Court is pleased to:

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a) Grant the Petitioners leave to proceed with this application to Your Lordships’ Court in
the first instance and issue notice on the Respondents;

b) Declare that the Fundamental Rights of the Petitioners and the members of the 1st
petitioner organisation guaranteed to them under Articles 12(1) and 14(1)(g) of the
Constitution are in imminent danger of being infringed and/or are being continuously
violated and/or being violated as a result of the failures of the respondents to perform
their duties to prevent illegal tourist guiding services of the unauthorized tourists guides;

c) Declare that the 1st to 3rd Respondents are bound under sections 12, 13, 50, 61, 62 and 63
of the Tourism Act No. 38 of 2005 to protect and promote the tourism industry in Sri
Lanka and to implement the aforesaid legal provisions to prevent illegal tourist guiding
and any other illegal activities involved therein;

d) Direct the 1st to 3rd Respondents to take immediate actions to prevent illegal tourist
guiding and to implement the necessary legal provisions under the Tourism Act No. 38
of 2005 in order to prevent illegal tourist guiding and other illegal activities involved
therein;

e) Direct the 4th Respondent to take immediate actions to arrest and penalize the unlicensed
tour guides who are involved in illegal tourist guiding activities around the country and
to preserve the peace and order of the country;

f) Direct the 1st to 3rd Respondents to gazette the minimum wages for tour guiding
corresponding to the present market values and to compensate the Petitioners as Your
Lordships’ Court deem fit in respect of the grievances caused, as a result of the failures
of the respondents, to the Petitioners during the past years;

g) Grant the Petitioners costs of this Application and award compensation for the denial of
the rights of the petitioners and members of the 1st petitioner organisation.;

h) Grant the Petitioners such other and further relief as Your Lordships’ Court shall seem fit
and meet;

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ATTORNEY-AT-LAW FOR THE PETITIONERS

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