ICCPR. State parties to the convention include India, Indonesia and Pakistan. The administrative,
judicial and legal steps they have taken to implement the ICCPR are reviewed periodically by the UN
Human Rights Committee. Although Taiwan is not recognised in the United Nations system and
cannot formally become party to international covenants, it has incorporated the ICCPR into its legal
system and domestic laws. Domestic courts at all levels shall also apply the ICCPR with reference to
interpretations of the Human Rights Committee. India, Indonesia and Pakistan have incorporated
the convention to varying extents in domestic law.
As a signatory, though not a state party, to the ICCPR China is nevertheless obliged to act in good
faith and to not act against the purpose of the convention. Neither Malaysia nor Singapore are
signatories of the ICCPR; although not formally bound by the treaty the right to a fair trial will face
international scrutiny in these countries as part of the extradition arrangements they enjoy with
liberal democracies. In the absence of a regional human rights mechanism it is difficult for countries
across Asia to develop a shared understanding of how best to protect human rights in criminal
proceedings. Meanwhile, both domestic and international civil society organisations continue to
campaign for all countries to ratify the ICCPR and to take steps to incorporate the Convention into
domestic laws.
The extent to which fair trial rights are protected in domestic law and practice differs across Asian
states. Indonesia ratified the ICCPR in 2005, and the right to a fair trial including access to a lawyer is
regulated in various Indonesian national laws and regulations. However, the Institute for Criminal
Justice Reform (ICJR) found that in practice these rights are not guaranteed. Their study also
concluded that there were differences in the understanding of fair trial rights and effective defence
in death penalty cases between groups of lawyers who had obtained their license in the years 19902011 (senior lawyers with more than 10 years’ experience) and those who obtained their license
between 2012-2022 (junior lawyers with less than 10 years’ experience). Junior lawyers were more
likely to understand fair trial rights in terms of international law.
In Indonesia, as many as 95% of lawyers surveyed agreed with the
proposition that the Indonesian Criminal Procedure Code should be
revised to strengthen the guarantee of fair trial rights protections for
persons facing the death penalty.
Malaysian researchers observed that courts were reluctant to apply specific principles from the
ICCPR. However, the right to a fair trial is embedded in article 5(1) of the Malaysian Federal
Constitution. In addition to article 5(1), the right to fair trial is also provided in the Criminal
Procedure Code, the Evidence Act and in judicial pronouncements.
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