Papers by Harsha Fernando
JUSTICE SECTOR OF SRI LANKA - STRATEGY FOR REFORMS (CIVIL JUSTICE), 2023
The cost and speed of resolving commercial disputes and the quality of judicial processes have be... more The cost and speed of resolving commercial disputes and the quality of judicial processes have become key criteria for investment decisions. Certainty and predictability through efficient enforcement of laws and contracts predicated on high-quality laws, well-resourced and efficient courts, competent officials, and capable attorneys are critical value contributions made by the justice system to the business and investment environment. Justice sector reforms must be comprehensive and long-term. The sector must have a “Vision” to which all institutions and stakeholders who enjoy constitutional independence must and can relate. The “Court – Case - Judgment” is the nucleus of the justice ecosystem to which every other aspect is connected. The “judgment”, in terms of quality, responsiveness, and timeliness (“QRT”), is an effective measure linking multiple aspects of the sector. Judges are the key change agents, and the centrality of the judicial role towards reform efforts must be recognised. This assessment and strategies contained in the Strategic Action Plan (SAP) proposed focus on improving QRT of judgments covering judicial recruitment and onboarding, reducing and preventing backlog, court and case management, legal education with continuous professional development (CPD), simplified and reengineered procedures through legal and administrative reforms and digital solutions, adequately and strategically resourced courts with private sector investments under Public Private Partnerships (PPP) schemes, capacitated attorneys at law (AALs) and other sector professionals, independent judiciary with enhanced accountability and public orientation, and demand management through improved ADR mechanisms and better functioning of other regulatory bodies. The assessment draws on several internationally accepted performance measurements and proposes a new criterion, “Case Density”, as an easily adoptable tool for strategic budgeting and resource planning. The study disclosed that justice sector reforms are more about change management than legislative changes. Accordingly, the SAP proposes strategies for dealing with the attitudes of influential stakeholders and methods of negotiating change to take forward the reforms. Case backlog cannot be handled as a stand-alone issue. Heavy caseload firstly and directly impacts the QRT of judgements. Accordingly, the SAP attempts to deal with backlog through the QRT angle and in the context of wider reforms. Several of the Action Ideas proposed under multiple themes will have a significant bearing towards reducing the backlog. Without a holistic strategy, sector reforms are not effective, and standalone interventions that are not part of an overall plan would be sub-optimal and unsustainable. This SAP and the assessment attempt to take an overall approach to reforming the areas of the sector as scoped. The criminal justice system and the connected institutions are not covered under this study. However, the envisaged benefits of many of the reforms suggested, if implemented, will transcend beyond SAP’s scope. The justices of the Supreme Court and the Court Appeal, together with a host of other stakeholders, provided feedback on the Action Ideas proposed and acknowledged their relevance and effectiveness if implemented.
An Assessment of Sri Lankan Legal Framework for the Promotion of Transparent and Competitive Business Climate in Sri Lanka , 2024
Competition and competition law have long been recognized in Sri Lankan jurisprudence, yet their ... more Competition and competition law have long been recognized in Sri Lankan jurisprudence, yet their evolution has been influenced by economic policy ambivalence since independence in 1948. Despite legislative efforts such as the Consumer Protection Act of 1979 and the Fair-Trading Commission Act of 1987, competition law failed to catalyze market development. The subsequent Consumer Affairs Act of 2003 aimed to establish a “Competition Authority” but fell short due to structural and political economy considerations. With the presence of a large number of State-Owned Enterprises (SOEs), with approximately 80% of land ownership in the State and several other factors, government interventions in markets persisted, hindering market competition, while liberalization efforts and international commitments introduced further complexities. Analysis reveals a fragmented competition law landscape lacking a unified framework. The absence of a competition policy compounded challenges, leaving regulators and decision-makers without clear direction. Strategic reforms to competition law and policy in Sri Lanka are imperative to foster a competitive market environment conducive to sustainable economic growth. The recommendations provided offer a roadmap for achieving this goal, emphasizing the need for consensus and comprehensive legislative and institutional reforms. Key recommendations include formulating a comprehensive Competition Policy encompassing diverse market aspects and international commitments. Drafting a National Competition Policy and Enacting a new "Competition Act" with clear definitions and operational clauses is essential, alongside establishing an independent Competition Authority with robust powers and resources.
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Papers by Harsha Fernando