A 2013 World Bank Review of the Sri Lankan justice system identified that “improvement of the performance of the judiciary is an important part of a growth agenda for Sri Lanka as it moves to middle-income country status,” highlighting the fact that a well-functioning justice sector is a critical factor for investment and commerce, reducing poverty and boosting economic growth.
Fast forward nearly a decade later, 920,660 cases were pending by the end of 2020, according to statistics published by the Ministry of Justice, Prison Affairs and Constitutional Reforms. This number includes 7,167 cases pending at the Commercial High Court, of which 6,772 were pending since 2019.
Such a high volume of cases carried forward places a considerable burden on the justice system, which may affect the time and energy a judge spends considering the case facts and applying judicial reasoning. The vast number of pending cases also impacts new litigation, which inherits systemic delays. The time between two court dates in the present context could easily span months due to the already full trial roll, delaying access to justice.
The rule of law strengthens when all are held accountable under the law, and the judiciary plays a critical role in this by operating as an independent adjudicator, allowing citizens to resolve legal disputes. Judicial decisions influence how the law applies in future situations, which affects the behaviour of those under the law, including economic actors. Businesses and investors rely on the predictability of a country’s legal environment, making the judiciary’s ability to deliver well-reasoned judgements without delay a significant factor for investors making investment decisions. It would also solidify citizen faith in the rule of law, a crucial part of modern democracy.
Uncertainty in the legal environment and governance is a considerable challenge to Sri Lanka’s economic development. A legal environment bogged by subsidiary legislation and administrative circulars, often haphazardly issued, has created a confusing maze of laws and decrees not conducive to attracting foreign investors. In the 44 years since the constitution’s introduction, it has undergone 21 amendments, with the twenty-second already passed by Parliament. Changes often are introduced and subsequently reversed. Officials introduce regulations ad-hoc and cancel them seemingly overnight.
The law-making process and policy deliberations must be more comprehensive, transparent and based on technical and expert input to nurture certainty within the legal system. Attorney at law, Harsha Fernando, a Legal Specialist on Justice Sector Reforms consulting the Asian Development Bank, is in the final stages of completing an assessment of the commercial litigation aspects of the justice sector. He pointed out to Echelon that sector-wide reforms to the legal system are necessary, with greater transparency in the regulatory process and accountability of market regulators. “We need to be smarter in how we approach regulatory governance to better harness the positives of market forces without compromising our responsibility toward the economically marginalised,” he added.
Review of legislation and by-laws at regular intervals for their relevancy and regulatory impact, having a Cabinet-approved annual legislative program arising out of the budget speech in November, enhancing justice sector efficiencies through process reengineering and adopting of appropriate IT infrastructure, outcome-based allocation of resources and data based justice sector infrastructure planning, and constantly improving the skills and competencies of justice sector personnel and the country’s legal education in keeping with international trends is also part of the crucial reforms Fernando suggests. Investors look for certainty and predictability. He notes that the legal framework and a well-functioning judiciary are what can ultimately guarantee a return on investment.
Seventy-five years past independence, Sri Lanka is at a turning point that could change its economic trajectory for the next twenty-five, and the justice system will play a crucial part in creating that path. With an effective justice sector strengthening the rule of law, Sri Lanka’s journey to economic independence would be putting the right foot forward.