party’s interests. The courts are subject to CCP interference and police, prosecutors and judges all
work within the same party-led system.
JPP argues that impartiality and bias within the Pakistani legal system have long been identified by
lawyers and laypersons alike as a major weakness. The majority (60%) of JPP’s survey respondents
felt that public opinion, particularly in death penalty cases, impacts judges in their decision-making.
JPP also found that 46% of respondents felt that courts faced hurdles when attempting to perform
their duties free from the influence of government or private actors.
In Malaysia, the constitutional framework provides specific protections for judicial independence.
For example, article 121(1) of the Malaysian Federal Constitution states that judicial power shall rest
in the High Courts and in lower courts to the extent outlined under federal law. Legal provisions also
set out the protection of judicial independence including a Judges’ Code of Ethics (2009) which
includes procedures to sanction a judge who has breached the code. However, the research report
for this study raised concerns regarding both the constitutional and legal protections on judicial
independence. For example, the Judicial Appointments Commission Act 2009 explicitly states that
the Prime Minister has the duty to uphold the continued independence of the judiciary and directly
appoints five out of nine positions on the Judicial Appointments Commission. The Prime Minister
thus has great influence on judicial appointments.
Legal Assistance
Effective legal assistance is a critical component of a fair trial. The assistance must be available at
every stage of the criminal proceedings and regardless of the ability to pay. ICCPR, article 14, states
that all persons should be equal before the courts and tribunals which includes the right to defend
oneself or through legal assistance of one’s own choosing. The UN Human Rights Committee,
General Comment 36, states that a “lack of effective representation involving confidential attorneyclient meetings during all stages of the criminal proceedings, including criminal interrogation,
preliminary hearings, trial and appeal” in death penalty cases is a violation of fair trial guarantees
provided for in article 14 of the ICCPR.
An independent and ethical legal profession underpins the provision of effective representation.
Governments must ensure that lawyers are able to perform their professional duties without
intimidation, harassment or interference. The UN Basic Principles (1990) state that lawyers are
entitled to form and join self-governing professional associations and these should be able to
exercise their functions without external influence.
According to the UN Basic Principles on the Role of Lawyers, lawyers shall
at all times act freely and diligently in accordance with the law and
recognised standards and ethics of the legal profession.
According to our research reports from across Asia, lawyers face a number of challenges to carrying
out their duties in death penalty cases independently. The role of an independent professional body
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