SC Examines Why Trade Unions Cannot File FR Cases on Behalf of Their Members

In a recent ruling, the Supreme Court has clarified that a registered trade union cannot file a Fundamental Rights (FR) petition on behalf of its members unless the affected members are explicitly named as petitioners. The Court dismissed a petition filed by the Development Coordinators Trade Union, citing lack of standing, as the union had failed to name even one member in the application and had not shown any infringement of its own rights.

The case was brought solely in the name of the trade union, which claimed that the rights of its members—specifically Development Coordinators—had been violated. However, the Court found no material to support a claim that the union’s own rights had been violated. The application, it said, was based entirely on the alleged infringement of the members’ rights, yet none of them were included as petitioners. The Court therefore held that the union had no locus standi (legal standing) to maintain the petition.

The Court also noted that had the union included even a single affected member as a petitioner, the preliminary objection raised by the respondents would have failed, and the case could have proceeded.

FR Jurisprudence and Third-Party Applications

In reaching its decision, the Court revisited the development of standing in Sri Lanka’s FR jurisprudence. In earlier landmark decisions such as Shriyani Iddamalgoda v. Attorney General, the Court had allowed next of kin to file applications on behalf of deceased individuals who suffered rights violations.

However, the Court differentiated those cases from the present matter. In those instances, the applicants had a close personal connection and were acting on behalf of someone who could not represent themselves. This, the Court said, is distinct from a third party or an organization filing a case on behalf of others, without their participation, in the absence of a public interest litigation (PIL) context.

Not a Public Interest Litigation (PIL)

The Court also clarified that the present application could not be treated as a PIL. For an application to qualify as a public interest case, it must typically involve a disadvantaged or voiceless group, and the litigant must demonstrate that they are acting in the public interest. Here, the Development Coordinators Trade Union had not framed the case as a PIL and had not shown that its members were in such a disadvantaged position. Thus, the Court concluded that the union was not entitled to bring the application on behalf of its members.

“…one must bear in mind that the acceptance of public interest litigation is not an acknowledgment of the right of any person to vindicate the fundamental rights of a third party. On the contrary, it is an acknowledgment of the right of any person to institute a fundamental rights application to vindicate a fundamental right he enjoys with the rest of the community…” – – Justice Janak De Silva

Does a Trade Union Count as a “Person”?

The Court then examined whether a registered trade union qualifies as a “person” under Article 126 of the Constitution, which provides the legal avenue to file fundamental rights petitions.

Although Sections 30 and 42 of the Trade Unions Ordinance allow unions to sue in their name and hold property, the Court said this does not amount to full legal personality, as recognized under constitutional provisions. Referring to the earlier judgment in Ceylon Mercantile Union v. Insurance Corporation of Sri Lanka, the Court reaffirmed that a registered trade union is not a legal person, unless expressly made so by legislation.

Furthermore, the Court rejected the argument that the Interpretation Ordinance, which defines “person” to include both corporate and unincorporated bodies, applies to constitutional interpretation. It held that constitutional interpretation follows its own set of principles, and that the term “person” in Article 126 does not include unincorporated entities like trade unions.

“…In summary, the original intent rule of interpretation clearly shows that the framers of the Constitution intended the word “person” in Article 126(2) of the Constitution to have a narrow textualist meaning. It did not include unincorporated bodies such as a registered Trade Union. Article 158 makes this quite clear. The subsequent amendments made to Articles 14A and 121(1) reflects that this original intent was maintained although the word “citizen” was given an expanded meaning to include a body, whether incorporated or unincorporated. For all the foregoing reasons, I hold that the Petitioner does not have locus standi to maintain this application. The preliminary objection is upheld…” – Justice Janak De Silva

Debate on Collective Enforcement and Structural Rights

The union also relied on Articles 14(1)(c) and 14(1)(d)—which guarantee freedom of association and the right to form and join trade unions—as well as Article 4(d), which obliges the state to respect and secure fundamental rights. They argued for a structural and purposive interpretation of these rights that would allow collective enforcement through trade unions.

While the Court acknowledged the value of a purposive reading of the Constitution, it emphasized that this cannot override the clear textual meaning of Article 126(2). The Court stated:

“…I am not averse to adopting a purposive interpretation of the Constitution to advance collective remedies. Court must always strive to exercise its just and equitable jurisdiction in accordance with the constitutional directive enshrined in Article 4(d). Nevertheless, Court cannot disregard the plain meaning in Article 126(2) of the Constitution and give it an expanded meaning taking refuge behind Article 4(d). The original intent as well as subsequent amendments made by the legislature clearly indicates that “person” in Article 126(2) of the Constitution does not cover an unincorporated body such as a registered Trade Union…” – Justice Janak De Silva

Case No: S.C.F.R. Application No: 545/2011 [30.05.2025]

Before: Hon. S. Thurairaja, PC, J. Hon. Janak De Silva, J. Hon. K. Priyantha Fernando, J.