they begin interacting with courts. Prison visitation is limited not only by jail staff but also lawyers
themselves. Of the lawyers surveyed by JPP, 57% stated that they regularly visit their clients in
prison, while 23% of respondents stated that they ‘never’ do so.
Similarly, in India, the right to legal representation during trials is provided in the Indian Constitution,
articles 22 and 39-A, but the right to be represented by a lawyer at the pre-trial stage is not. The
Constitution only guarantees the right to ‘consult’ a lawyer. This allows the police to violate the
accused’s right against self-incrimination by using torture and other coercive methods to extract
confessions (often false). Out of the 20 death penalty lawyers interviewed by Project 39A, only three
lawyers visited their clients in prison. All lawyers preferred to meet their clients in court premises on
the days of court hearings.
In Malaysia, there are several limitations to the lawyer being involved in the initial arrest stage of a
death penalty case. The Malaysian Federal Constitution, article 5(3) provides an accused person the
right to be represented by legal counsel of their choice. The right to be defended by an advocate is
also included in the Criminal Procedure Code, Section 255. However, our researcher found that in
most cases, a suspect is not given free legal representation immediately upon arrest. The police may
also lawfully deny legal representation on grounds that it would cause undue interference with
investigations. In a 2006 report by SUHAKAN, the Human Rights Commission of Malaysia, the
authors argue that the presence of legal counsel during the period of arrest is essential to prevent
police brutality during detention. It is also necessary in order to remove any challenges raised in
respect of the voluntariness of the statement given by the suspect during police investigation.
In Malaysia, the presence of legal counsel during the arrest period is
essential to prevent police brutality during detention… However, the
involvement of a lawyer at this stage is subject to several limitations.
Appeals stage
Under international law, free legal assistance must also be provided for all appeals and
constitutional challenges. The ICCPR, article 14, states that “everyone convicted of a crime shall have
the right to his conviction and sentence being reviewed by a higher tribunal according to law”.
International materials on the UN Safeguards set out four practices characteristic of an effective
appeals process in death penalty cases: (1) substantive review of all matters of law and fact; (2) right
to counsel during review; (3) right to appeal for amnesty, pardon, or commutation; and (4) stay of
execution during review. States must take all feasible measures in order to avoid wrongful
convictions in death penalty cases.
National research reports in our study raised several concerns with the right to appeal for those
facing the death penalty. Some individuals were not granted the right to appeal, while others had no
access to a lawyer when their case was reviewed. In Pakistan, the right to appeal is granted in article
14(5) of the Constitution of Pakistan. However, the appeals process is extremely slow. For example,
in the case of Muneer Hussein, whose appeal was heard only after six years. Of JPP’s survey
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