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Opinion

Judiciary – ‘a sleeping giant’?

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I stumbled upon an article published by Verite Research. It stated that the number of days it takes to enforce a contract through the court system in Sri Lanka was 1,318. That is in excess of three and a half years. The information was drawn from a World Bank study on the ease of doing business, with enforcing contracts being one of the metrics. A contract is one of the basic means of legal recourse. The article also showed that in Vietnam and Malaysia, time taken to enforce a contract was around 400 days. In Singapore it was 150 days.

You might safely assume that successive administrations since 2013 would have moved mountains to improve this most basic indicator. Especially considering that Sri Lanka was touting itself as a frontier economy in the region, in 2013, enforcing a contract ought to have been made much easier and quicker in the interim six -seven years.

Well, in 2013 it was 1,318 days and today, in 2020, the latest report from the World Bank shows that the number of days taken to enforce a contract is still 1,318 days! I dare say this may have something to do with inadequate reporting or a lack of data. I urge anyone to use the tools at hand to research this further.

Whatever these indices say about Sri Lanka, the lived experiences of many Sri Lankans are as good a measure as any. All Sri Lankans today, in 2020, know very well to avoid the legal system at any and all costs; as the expense, the time taken and the virtual harassment that the inefficiencies of the court system inflicts on ordinary citizens, are simply not worth the trouble. Even an employee that wants to seek redress for being unfairly treated by his or her employer will have to wait many years to obtain compensation, despite stringent labour laws. This shows that having strict laws in place is futile unless they can be implemented in a speedy manner.

During my career, I recall many instances where actions of competent officers were undermined by their organizations. I am aware of a specific instance at a foreign bank where there was a case of deferment of revenue by a senior officer, without formally advising the customer. This exposed a systemic failure of the bank’s internal systems, yet officers higher up the ladder were scapegoated. This allowed the bank to not only cover-up the deficiencies of their systems but to also conceal the incompetence of its expatriate CEO.

The expatriate CEO in question was conveniently transferred out of Sri Lanka, while the local officers are still in court, five years later. The expatriate CEO was allowed to take early retirement with full benefits, while the local officers even had their contributions to their own gratuity payments frozen by this foreign bank. The loss of earnings besides the effects on their reputations and the stress of the process is one thing. Yet to have an international organization use all of its financial and legal might to delay, block and mislead legal proceedings is shocking. What is downright disgusting is that the system is built for this type of delaying tactic, where justice comes after many years of court dates and many millions in legal fees.

Whether you are involved in a car accident or you have had a personal item stolen or you have been verbally abused, the most common course of action taken by you would be to shrug your shoulders and move on. Going to the police and resorting to legal action would basically be the utmost last resort, no matter what crime has been committed.

For reference, in the late 1980s, I met with a car accident while working in the Middle East; another motorist carelessly scratched my vehicle. There was a police officer nearby, who immediately intervened and took down my details. Within one week, I received a cheque from my insurance company to pay for the repairs. No going to the police station to record a statement, no prolonged wait for an insurance agent.

In Sri Lanka, if you are a business owner and you need legal recourse, you face a multi-year wait. Can we call this a fair judicial SYSTEM? Can something that is so clearly stunted, so obviously unfit for purpose, be described as a system? It you do so you must affix the word BROKEN, before the word, ‘system’. Is it broken beyond repair? Within this broken system, can there be justice? Without justice, can we be a truly democratic society?

There also seems to be a process of never-ending interviews and investigations. Witnesses and others related to an investigation are interviewed by the police for six or eight hours sometimes. I shudder at the thought of pages upon pages of unnecessary notes and records taken at these interviews. Another example of a lack of efficiency or intentional time wasting. The time taken to collect evidence after an offence has been committed simply allows those accused more time to escape punishment.

Sri Lanka has had a Ministry of Justice since 1947. Ministers of Justice throughout the years have included luminaries of public service such as Felix Dias Bandaranaike, Ratnasiri Wickramanayake, Nissanka Wijeyeratne in the past. More recently, W. J. M. Lokubandara, Rauf Hakeem and Wijeyadasa Rajapakshe have held this cabinet position. Yet, we see a shocking lack of attention paid to this issue which affects all Sri Lankans, of all walks of life.

By the Justice Ministry’s own latest available statistics, as at end 2016, about 725,000 cases were pending in courts, with the largest number, 535,000 cases, pending in Magistrates’ Courts. Consider what this number actually represents; in human terms. How many people must feel helpless at the lack of action? A wait that could last several years would be bad enough for the owner of an enterprise or an entrepreneur or even a simple shopkeeper.

Yet consider those waiting for justice for serious crimes; murder, rape, theft or even harassment. How desperate must someone feel to have been robbed, or had a loved one assaulted, but then wait years upon years for redress, with no guarantee and no definite time-line. How many people will watch the best years of their lives wither away in courtrooms around the country? The almost machine like process of taking a day off your job to attend a court date, only to be given another court date three-six months later, is simply dehumanizing. Let us call it what it is; an inhumane system, completely unfit for purpose.

If there are over 700,000 cases pending in our system, do we even dare consider how many cases never make it into the system at all? Such an estimate, if attempted would certainly be multiple times more and would perhaps be the most depressing statistic of all. Usually, what is most insidious is what the numbers do not show as well as the situations for which there are no numbers.

Sri Lankans seem to have internalized this notion of helplessness, perhaps this is ingrained in our psyche by design. We simply do not want to risk our precious time, energy, money, well-being and job security to take a case to the courts. The countless, faceless millions of Sri Lankans over the years that have had to simply grin and bear whatever misfortune befalls them, deserve better.

Worse still, this system allows those with even a modicum of power, to abuse it, as they know they will not be tried in a court of law, anytime within the next five years. The room this leaves for corrupt practices in every sphere of life is a blot on our society. The vacuum of law and order that this creates will necessitate desperate measures by Sri Lankans. We read many stories of Sri Lankans taking matters into their own hands, most times out of sheer desperation.

To gauge how bad the situation is, you need only revisit the infamous “Yahapalanaya” government, and its efforts (genuine or not) to litigate cases involving political corruption and abuse of power. President Maithripala Sirisena at the time decided to form special courts to hear such cases. This too seems to have been an abject failure, similar to the five year stint of that administration.

The people should also note that if certain cases need to be expedited, for political reasons, it can sometimes happen. Political expediency is the number one priority, not the needs of the common man. Yet another indication that the political class and elites of the country play by a different set of rules.

RW

Colombo

 



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Opinion

Sri Lanka cannot afford to remain silent on its demographic crisis

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I venture to make this appeal because I am increasingly concerned about what appears to be an inexplicable silence surrounding one of the most consequential challenges confronting Sri Lanka, the country’s emerging demographic crisis.

Nearly a year has elapsed since the official release of the latest Census population findings by the Department of Census and Statistics. The demographic signals revealed by the Census deserve far greater public scrutiny than they have received. An ageing population, declining fertility and a contraction of the working-age population are not merely statistical observations. Together, they have profound implications for the future economic, social and institutional sustainability of the country.

Yet, remarkably, the subject has not generated the level of informed public debate one would reasonably expect from a matter of such national importance.

What concerns me even more is the apparent reticence of those who are best placed to enlighten the public, the planners, demographers, academics and scholars attached to our universities and other institutions of national importance. Their silence is difficult to understand when the demographic trajectory of a country can influence virtually every aspect of its future: economic growth, labour-force availability, pension obligations, healthcare expenditure, education planning, family structures and the sustainability of social protection systems.

This is not an issue that can safely be postponed until the consequences become unmistakable. Demographic change is notoriously slow to reverse. By the time its consequences become visible in the form of labour shortages, an excessive dependency burden or an unsustainable ageing population, the policy options available to governments may already have narrowed considerably.

The public therefore has a legitimate right to ask some fundamental questions.

Where is the national demographic strategy? What are the projections for the next 20, 30 and 50 years? How rapidly is the working-age population expected to decline? What will be the implications for economic growth and productivity? How will Sri Lanka finance the needs of an ageing population? What measures are contemplated to address declining fertility? And, perhaps most importantly, has the country begun preparing now for a demographic reality that is already taking shape?

These are not questions that should be confined to academic journals or government reports. They deserve to be debated openly in the national press and explained to the ordinary citizen in language that everyone can understand.

At the same time, I would urge our demographers, economists, planners and scholars to come forward with evidence-based assessments rather than remain silent. If my interpretation of the demographic trends is misplaced, I would welcome a scholarly rebuttal. If the situation is more serious than is generally recognized, the public deserves to know that as well.

Silence is not a demographic policy.

Sri Lanka has already experienced the consequences of failing to anticipate several national crises. We should not allow demographic change, which operates quietly but relentlessly, to become another crisis that we recognise only when it is too late to manage.

The time to discuss Sri Lanka’s demographic future is not when the crisis arrives. The time is now.

Athula Ranasinghe

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Opinion

Sri Lanka must become easier to invest in

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Prof. Ranjith Bandara,
PhD (Qld.,) Emeritus Professor, University of Colombo

Investment promotion has been Colombo’s default strategy for two decades. The real barrier to foreign capital was never Sri Lanka’s pitch — it is Sri Lanka’s paperwork and administrative complexity.

For more than two decades, investment promotion has been one of Sri Lanka’s key development strategies. Successive governments have introduced investment incentives, established export-processing zones, strengthened promotion agencies, and dispatched delegations to road shows and conferences across the world. The message abroad has remained largely unchanged: Sri Lanka is open for business, and the opportunity is real.

That opportunity is not in question. The island sits strategically alongside some of the world’s busiest shipping lanes in the Indian Ocean. It has a relatively well-educated workforce, established commercial institutions, a strong tourism base, natural resources, and direct access to a South Asian market of well over a billion people. On paper, Sri Lanka should be attracting foreign capital on a much larger scale.

It is not. And the reason is not that the world has failed to hear Sri Lanka’s investment pitch. The problem is that promoting an investment opportunity and delivering the conditions promised to investors are two very different things — and Sri Lanka has historically devoted far more energy to the former than to the latter.

A recovery that still falls short

There has been genuine improvement recently. According to UNCTAD figures, inward FDI rose from roughly US$759 million in 2024 to US$1.04 billion in 2025 — the strongest performance since 2022, when inflows reached US$884 million, before falling back to US$713 million in 2023.

That trajectory is welcome. Yet, in the context of what Sri Lanka needs, it remains modest. Set against a GDP exceeding US$100 billion, US$1 billion in FDI represents roughly 1% of national output — only a fraction of what an economy pursuing serious industrialisation, technological upgrading and export expansion requires.

For comparison, Vietnam, a country against which Sri Lanka is often benchmarked, attracted more than US$20 billion in FDI in 2025 alone. Nobody expects Sri Lanka to match that scale overnight. But the gap is instructive: global capital is mobile, and investors have choices. Sri Lanka is not merely competing against its own past performance. It is competing with India, Vietnam, Indonesia, Bangladesh, Malaysia and Thailand, all pursuing the same global pool of investors.

Moreover, the issue is not only the quantity of investment, but also its quality. A country does not simply need short-term capital inflows; it needs investment that brings technology, managerial expertise, links to global markets, skills development, productivity gains and long-term export capacity. FDI policy should therefore move beyond asking, “How much investment came in?” It should also ask: “How much did that investment contribute to productivity, exports, technology transfer and the quality of employment?”

That leads to the question that should sit at the centre of national economic strategy: why, specifically, should an investor choose Sri Lanka over these alternatives?

Real obstacle is cumulative friction, not a single flaw

Investors do not evaluate countries on rhetoric. They compare them, line by line, on production costs, energy prices, logistics, taxation, regulatory predictability, political stability, labour relations, infrastructure quality, and the speed and reliability of approvals.

Sri Lanka is not catastrophically weak in any single one of these areas. The problem is cumulative. Small inefficiencies and delays across multiple fronts eventually add up to a high overall cost of doing business, even when no single obstacle appears decisive on its own.

This cumulative friction can be particularly damaging to small and medium-sized foreign investors. A large multinational may be able to employ legal advisers, consultants and government-relations teams to navigate a complicated administrative system. A medium-sized investor may be unwilling or unable to bear those additional costs. An unnecessarily difficult administrative environment therefore does more than delay investment — it can reduce both the number and diversity of investors willing to enter the country.

Bureaucracy is a central part of that friction. Investors routinely have to navigate multiple agencies with overlapping mandates and, at times, inconsistent rulings. The deeper problem is not regulation itself, but the absence of clear procedures and predictable timelines.

A guaranteed 60-day approval process is workable, even if it is not ideal. A process that may take one month or may take six is not. Investors can price a known delay into a project. What they struggle to price is uncertainty.

And uncertainty has a real financial cost. Every month that a project waits for approval can mean higher financing costs, delayed machinery orders, missed market opportunities and, ultimately, the possibility that the investor relocates the project to another country. Administrative delay is therefore not merely an inconvenience within government offices; it is a national competitiveness problem.

A genuine single-window system — one application, one digital file, one responsible case manager and fixed statutory deadlines — could do more to improve investor confidence than another round of tax incentives.

But a genuine single window must be more than a single desk at which applications are submitted. All relevant agencies should be digitally connected through the same platform. The investor should be able to see where an application stands, which agency or officer is responsible, what requirements remain outstanding, and when a decision is legally due. The investor should not have to become the coordinator of government agencies.

Policy volatility compounds the problem. Investors can plan around relatively high taxes. They cannot plan around taxes, incentives, import rules and foreign-exchange controls that shift unpredictably with every change in government or fiscal circumstance.

Such instability embeds a “policy-risk premium” into every long-term investment decision. That cost may never appear directly in headline statistics, but Sri Lanka pays it through investments that are delayed, scaled down or never made.

The answer is not to freeze every policy permanently. Economic circumstances change and governments must retain the ability to respond. What matters is that changes are introduced with reasonable notice, clear transitional arrangements and predictable implementation periods. Long-term investors do not require a world in which nothing changes; they require a system in which change itself can be anticipated.

Administrative discretion adds another layer of risk. Where licensing and approval outcomes depend more on relationships than on published, rule-based criteria, investors correctly interpret that as exposure — to delay, arbitrariness or worse.

Digitising approvals, publishing statutory timelines, reducing unnecessary discretionary authority and opening public procurement to transparent competition would reduce this risk directly. The governance benefits of such reforms would extend well beyond the investment climate.

None of this is an argument against labour protection. Strong labour standards are entirely compatible with a competitive investment environment, as many advanced and emerging economies demonstrate. The problem arises when industrial relations become unpredictable or politicised. That is a governance problem that can be addressed, not an unavoidable trade-off between worker welfare and competitiveness.

Nor is low labour cost, on its own, a winning strategy. What investors ultimately price is unit labour cost, which reflects productivity as well as wages. A country that competes purely on cheap labour while tolerating high energy prices, logistics delays and regulatory friction is not really offering investors a cost advantage — it is offering a false economy.

Physical infrastructure, too, is only part of the picture. Reliable electricity and serviced industrial land matter, but so does the institutional architecture around them: efficient customs, functioning courts and arbitration mechanisms, digital government services, reliable certification systems and predictable regulatory enforcement.

Investors are not simply buying land and electricity. They are buying access to a functioning business ecosystem.

From announcements to outcomes

Perhaps, the most consequential shift Sri Lanka needs is in how it measures its own success.

For too long, the metric has been approvals granted, memoranda signed and projects announced — announcements rather than outcomes.

What should matter instead is capital that actually enters the country, factories and businesses that actually commence operations, jobs that genuinely materialise, exports that expand, and investors that remain and reinvest.

The gap between approved investment and realised investment is where much of Sri Lanka’s promise has historically evaporated. Closing that gap requires dedicated project management and systematic follow-through, not another press release.

Every major investment project should therefore have clear post-approval responsibility. If a project is stalled because of land, electricity, a licence, customs, infrastructure or financing, the problem should be identified quickly and escalated to the appropriate authority.

The present logic must be reversed. Rather than forcing the investor to move from ministry to ministry and agency to agency searching for solutions, government should have a system that actively identifies and removes obstacles preventing an approved investment from becoming operational.

The performance of investment-promotion institutions should likewise be measured not by the number of MoUs signed or approvals issued, but by capital actually invested, projects implemented, jobs created, exports generated and reinvestment secured. This would begin to close the institutional gap between investment promotion and investment implementation.

Global competition is only intensifying. The sectors now driving some of the largest FDI flows worldwide — semiconductors, artificial-intelligence infrastructure, renewable energy, advanced manufacturing, pharmaceuticals and critical minerals — are increasingly dominated by economies capable of offering subsidies on a scale Sri Lanka cannot realistically match.

That reality should clarify Sri Lanka’s strategy rather than discourage it. If Sri Lanka cannot out-subsidise its competitors, it must out-execute them.

Speed, certainty and administrative efficiency are not consolation prizes. For a country in Sri Lanka’s position, they may be among the most valuable incentives it can offer. Unlike large cash subsidies or tax concessions, they can be delivered at relatively low fiscal cost once the right systems are established.

The policy choice ahead

Sri Lanka’s renewed international engagement — including recent outreach to markets such as Australia — is a reasonable and necessary part of any investment strategy. No country can attract capital it never asks for.

But promotion without domestic reform is ultimately a roadshow with too little behind it. A conference can bring investors to the table; only institutional efficiency determines whether they sign, build, operate, expand and stay.

The government now faces a straightforward choice, and it is one that should be measured in policy rather than rhetoric: continue treating FDI primarily as a promotional challenge, or commit to a genuine Investment Competitiveness Programme.

Such a programme should include a true digital single window, enforceable approval timelines, a stable multi-year tax framework, reduced administrative discretion in licensing, and a public dashboard that tracks actual investment outcomes rather than signed intentions.

That dashboard would also be an important instrument of public accountability. Information such as the value of approved investment, the value actually realised, average approval times, causes of delay and performance by responsible agency should be publicly available. Such transparency would not only strengthen investor confidence; it would also create accountability across government institutions for the speed and quality of implementation.

Most importantly, FDI reform should not be viewed as providing special privileges to foreign investors. Clear rules, faster approvals, efficient public services, transparency and policy stability are equally important to domestic entrepreneurs.

Making Sri Lanka easier for a foreign investor is therefore, in the final analysis, about building a more efficient economic system for every business operating in Sri Lanka.

The question Sri Lanka’s policymakers should now be asking is no longer, “Have reforms been introduced?” Instead, it is this: “Has investing in Sri Lanka actually become easier?”

Once the answer to that question is in the affirmative, the country may find that it needs far fewer roadshows. Because the most persuasive advertisement for Sri Lanka will not be a delegation travelling abroad. It will be an investor already operating in Sri Lanka telling the next investor: “The system worked.”

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Opinion

Judiciary must not become price of political power: A call for conscience, restraint and public confidence

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by Shelton Dharmaratne

Sri Lanka is now confronted with an issue that goes far beyond the retirement age of a few judges. At stake is something infinitely more valuable, the confidence of the people in the independence, impartiality and dignity of the judiciary.

An intervention by Emeritus Professor A. N. I. Ekanayaka deserves serious public attention because it identifies a fundamental danger: when the conditions of judicial tenure are altered in circumstances that generate public suspicion, the damage may extend far beyond the immediate legislation.

The government has proposed the 22nd Amendment to the Constitution, under which the retirement age of Supreme Court judges would rise from 65 to 67 and that of Court of Appeal judges from 63 to 65. The Bill also proposes increasing the maximum number of Court of Appeal judges from 19 to 24.

There may be perfectly legitimate arguments for increasing judicial retirement ages. Longer life expectancy, accumulated judicial experience, the need for additional judges and the enormous backlog of cases can all be discussed rationally. Indeed, the government has presented judicial capacity and the expansion of the court system as reasons for the proposal.

But that is not the whole question.

The more fundamental question is why now; why in this manner, and why should the public be expected to accept an alteration of the constitutional tenure of sitting superior-court judges without the fullest possible consultation and reassurance?

That question cannot simply be dismissed as political opposition or resistance to reform.

The Bar Association of Sri Lanka has expressed precisely this concern. Its July resolution states that security of tenure is an essential safeguard of judicial independence and questioned the absence of demonstrated compelling necessity, objective evidence and comprehensive consultation. The Commonwealth Lawyers Association similarly warned that constitutional reform should not be undertaken piecemeal or ad hoc and emphasised the importance of public and stakeholder consultation. More recently, the UN Special Rapporteur on the independence of judges and lawyers raised concerns that the proposed change, in its reported form and implications, could affect judicial independence, separation of powers and public confidence in the courts.

These concerns deserve to be heard—not because every criticism of the government must necessarily be correct, but because the judiciary is different from every other institution of the State.

A government can survive criticism. A political party can survive defeat. An administrative department can survive controversy. But a judiciary cannot function effectively if the public begins to believe that judges may owe their continued tenure to the political authority that changes the rules governing their retirement.

Justice must not only be done; it must also be seen to be done.

This is where Professor Ekanayaka’s proposal deserves particular consideration. He does not suggest that judges should determine whether the proposed retirement age is a good or bad policy. Instead, he appeals to those judges who might personally benefit from the proposed extension to voluntarily declare that they will retire according to the existing retirement provisions and will not personally take advantage of the extension.

That would be an extraordinary act of judicial statesmanship.

Such a declaration would immediately separate the individual judge from the political controversy surrounding the legislation. It would tell the country: My loyalty is not to my position. My loyalty is to the institution of justice.

It would also remove much of the suspicion that inevitably arises when a constitutional amendment appears capable of benefiting people already occupying the very offices affected by it.

This is not an accusation against any individual judge. Nor should it be interpreted as suggesting that judges who remain in office under a new law would necessarily act improperly. That conclusion would be unfair and unjustified.

The issue is one of institutional perception.

If the public sees the government changing the constitutional retirement framework while particular judges are approaching retirement, suspicion is almost inevitable. Even a completely independent judge may then find that the credibility of a perfectly lawful judgment is questioned merely because of the circumstances surrounding his or her continued tenure.

That is an intolerable burden to place upon the judiciary.

Sri Lanka’s constitutional history provides ample reason for caution. The country has previously witnessed bitter confrontations between political power and judicial independence. The lesson from such episodes should not be that one political party was uniquely guilty while another is uniquely virtuous. The deeper lesson is that no government, however popular, should ever become so confident of its own righteousness that it regards institutional criticism as an obstacle to be overcome by parliamentary numbers alone.

A two-thirds majority is a constitutional instrument. It is not a substitute for wisdom.

And if the Supreme Court ultimately determines that a referendum is constitutionally required, that constitutional process must be respected without political intimidation, triumphalism or resentment. The question should not be whether the government has sufficient political strength to prevail. The question should be whether the constitutional order has been strengthened or weakened by the manner in which the change is pursued.

This is, therefore, not fundamentally an NPP issue, a JVP issue, an Opposition issue or a government Issue. It is a Sri Lankan issue.

The beneficiaries of the proposed extension should also understand this. If the amendment eventually becomes law, accepting its benefits may be entirely lawful. But legality and legitimacy are not always identical concepts. A judge who voluntarily declines a personal benefit arising from a controversial alteration of tenure would send a message of exceptional moral strength.

The people of Sri Lanka need such reassurance.

The government should, therefore, pause, consult the Judiciary, the Bar, academics and wider civil society, and demonstrate that judicial reform is being undertaken for the enduring benefit of justice rather than for the immediate convenience of government.

And the judges, who may personally benefit, have an equally historic opportunity.

They can rise above the controversy.

They can voluntarily relinquish the personal advantage.

They can demonstrate that the office is greater than the office-holder, the Constitution is greater than the government, and justice is greater than political power.

If they do so, they will not merely be retiring from judicial office; they will be leaving behind something far more important, a renewed measure of public faith in the proposition that, in Sri Lanka, justice remains above politics.

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