A Critical Study on Executive Power to Pardon and its Impact on the Criminal Justice System: An Analysis of Sri Lanka

Prof. M.W. Jayasundara and D.A.S. Egodamahawatta
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Prof. M.W. Jayasundara: University of Sri Jayewardenepura, Sri Lanka
D.A.S. Egodamahawatta: University of Sri Jayewardenepura, Sri Lanka

International Journal of Research and Innovation in Social Science, 2022, vol. 6, issue 12, 650-664

Abstract: This study strives to ascertain the impact of the executive power to pardon on the criminal justice system. The power of pardon comes from the very beginning of human society, it has ancient origins. The executive power to pardon is a unique power vested with the executive, in Sri Lanka Article 34 of the Constitution grants power to the Executive President, and the scope of Article 34 was discussed by the researcher. To identify the concept of power to pardon and its impact on the criminal justice system, international and domestic authorities were analyzed while paying attention to the historical evolution and current application. The judges and courts of law in the criminal justice system are subject to substantial and procedural laws; the duty of the judges is strictly to apply the law. The prerogative of the executive pardon is only a constitutional devise that enables to redress of the unjust application of the law in a given situation. The analysis of executive pardon may relax the harshness and the rigidity of the legal provisions and customs, but it pointed towards several negative implications on the criminal justice system, to ridicule and rendered naught the entire processes which took place and the due application of the prevalent laws of the country. The constitutional power to grant a pardon does not have the freedom to do so in gross violation of the Rule of Law, a gross violation of the Fundamental Rights of the citizens, amounting to a violation of Article 12(1), in which there is a guarantee of equality and equal protection of the law. It became evident when comparing those theoretical implications with the actual practice, by closely studying selected cases of the research population and existing literature on the matter, that the executive power to pardon indeed has a negative impact on the criminal justice system. After realizing that the hypothesis of the research is true, the researcher attempted to rectify the situation by recommending both legal and procedural reforms that would make domestic law and procedure consistent with the standards recognized by international instruments. In this regard, several theories of law, as stipulated by jurists were used for inspiration, and also as validation for the recommendations suggested.

Date: 2022
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