114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’
PAPERSPARTICIPANTS’ PAPERS

INTERNATIONAL COOPERATION IN CRIMINAL MATTERS
ON EXTRADITION AND MUTUAL LEGAL ASSISTANCE
IN MALAYSIA
Abdul Jalal Bin Mohd Yunus*
I. INTRODUCTION
The world today has indisputedly opened
up with an intensification of international
relations in all areas. Crime previously
confined to the territorial limits of states
has now shed a harsh light on a new scene
with accruing international fluxes which
is becoming increasingly intense andcomplex.
Wi t h r e g a r d t o t h e m e a n i n g o finternational crime, it is generally defined,
as a crime which requires the cooperationof a foreign country in the process ofenforcing criminal justice and the crime
contains an international factor in termsof the perpetrator, victim, occurrence,
whereabouts of the perpetrator or locationof evidence.
The occurrence of international crime
has brought great problems toinvestigators in their efforts to obtainevidence and to locate their witnesses,
especially in foreign countries or toapprehend a fugitive abroad. In order toobtain evidence from a foreign country,
mutual legal assistance is employed andthe process in which a fugitive issurrendered from one country to anothercountry is referred to as extradition. The
objective of this paper is to focus on mutual
legal assistance and extradition in
Malaysia.

* Officer-in-Charge of Criminal Investigation, Royal
Malaysia Police, Kedah, Malaysia

II. BASIS FOR EXTRADITION AND
MUTUAL LEGAL ASSISTANCE
There are two bases for extradition: Firstly, International deterence andgoodwill. An extradition request from one
country to anther country between which
there is no extradition treaty is based uponinternational comity. In Malaysia, if there
is no such treaty with the requesting
country, the law provides a discretion to the
Minister of Home Affairs to allow theextradition, if he deems it fit to do so.
Secondly, An extradition made based on
bilateral treaty or multilateral convention
which obligates the member countries toabide by the terms. If the requesting
country meets the requirements for
extradition, the request must be honoured
otherwise there could be a violation of its
international obligations. Such a treaty is
known as “Treaty Prerequisite Countries”.
Malaysia, Thailand, Indonesia and theUnited States have adopted this policy.
Please refer to the relevant treaties atappendix “A, B and C”.
As regard to mutual legal assistance,
there are three bases for it, namely, aninternational treaty and international
administrative agreements. The first twobases are the same as for those in
extradition. The third basis is found in aninternational agreement with Interpol
which is taken by police agencies ofparticipating countries. In Malaysia, therole of the police in matters of mutual legal
assistance is shouldered by the National
Central Bureau/Interpol of Criminal
Investigation Department. This division

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RESOURCE MATERIAL SERIES No. 57
will act as a coordinator in providing
appropriate assistance to requesting
countries.
III. REQUIREMENTS OF
EXTRADITION
A. The Law
The extradition process in Malaysia isgoverned by the Extradition Act 1992. The
Act applies to countries having treaties
with Malaysia and in a case where there
are no treaties between the parties, the law
provides a discretion to the Minister ofHome Affairs to allow the extradition if hedeems it fit to do so. Apart from that, inorder for the existing law to be enforced,
two inherent conditions are required tosatisfy the elements of extradition namely,(a) there must be a fugitive criminal and(b) the offence committed must be an
extradition offence.
As regards fugitive criminals, this meansa person who is accused of or convicted ofan extradition offence committed within
the jurisdiction of another country. The
offender must be a citizen of the country towhich he is seeking a transfer and theconviction must be final. The case cannot
be pending, in the sentencing stage or
directly under appeal. This also includes
appeals filed by an Attorney-General in acountry which permits such appeals as well
as appeals filed by the prisoners
themselves or their lawyers.
B. Categories of Offences Which
Entitle Extradition
Under Malaysian Law, there are twocategories of offences which entitle therespective authorities to request the returnof fugitive criminals. The offences are as
follows: -150

1. Extradition Offence.
An extradition offence refers to any
offence however described including a fiscal
offence:a. w h i c h i s p u n i s h a b l e w i t h
imprisonment for not less than one
year or with death under the laws ofa country having extradition treaties
with Malaysia or countries where the
Minister had granted an extradition
order; andb. which, if committed within thejurisdiction of Malaysia, ispunishable under the laws of
Malaysia with imprisonment for notless than one year or with death.
Provided that, in the case of an extraterritorial offence, it is so punishable under
the laws of Malaysia, if it took place incorresponding circumstances outside
Malaysia.
2. Extra-Territorial Offences.
The offences given the status of extraterritorial offences are: a. Offences against the State (Chapter
VI Penal Code);b. Offences under the Official Secrets
Act 1972 and the Sedition Act 1948;
c. Offences under the Prevention of
Corruption Act 1961;
d. Offences which consist of attempts orconspiracies to commit, or abeting in
the commission of, any offence
described as above: Extradition Act
1992.
3. Offences Committed At Sea Or Air.
Where an offence in respect of which thereturn of a fugitive criminal is sought wascommitted on board any vessel on the highseas or any aircraft while in the air outside
Malaysia which comes into any port or
aerodrome in Malaysia, the Minister andany magistrate having jurisdiction in such

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
port or aerodrome may exercise the powers
conferred by the Extradition Act 1992.
C. Procedure of Extradition
The procedure of extradition must be
strictly followed. The failure of therequesting countries to comply with it will
result in their application being
dishonoured. The law in Malaysia requires
the following steps to be adopted: (i)The requesting country issues awarrant of arrest for the fugitive.
The warrant shall be submitted
through diplomatic channels to
the Minister (Minister of Home
Affairs). If the Minister issatisfied that the warrant wasissued by a person with lawfulauthority, he then authorises amagistrate to issue a warrant for
the apprehension of the fugitive
criminal. The Minister may
refuse to authorise the magistrate
to issue a warrant, if he thinksthat the offence is political incharacter or which is not an
extradition offence.

(ii)

A magistrate may issue aprovisional warrant based on
information (for instance, from
INTERPOL) where the Ministermust then be notified. The
Minister, if he thinks fit, may
cancel such a provisional warrant.

(iii)

The “fugitive criminal” shall be
remanded before he is brought tothe court for an inquiry into thecase. The Session Court has
jurisdiction to hear extradition
cases. The court, after receiving
enough evidence, shall decide
whether a prima facie case has
been established against the
fugitive, and thus commit him
and report to the Minister. If a

prima facie case has not been
established, the court will thendischarge him.
(iv)

Fifteen days after his committal
to prison or if the fugitive
challenges his detention by filinga writ of habeas corpus in theHigh Court, after the conclusionof the case, the Minister mayorder the fugitive to be handed
over to the requesting country.

(v)

The fugitive criminal may also
waive the committal proceedings
and hence be subjected to any
orders.

(vi)

Fugitive criminals who areserving sentences in Malaysia
may also be returned to therequesting country for the
purpose of trial against him. He
will then be returned to Malaysia
to complete his sentence andsubsequently be returned to therequesting country.

(vii)

With regard to Brunei
Darussalam and the Republic ofSingapore, special provisions areprovided for in the Act, where awarrant issued by both countries
can be executed in any part of
Malaysia after it has beenendorsed by a magistrate in
Malaysia. This also known as
Simplified Extradition.

IV. RESTRICTIONS ON RETURN OF
FUGITIVE CRIMINALS
A. Mandatory Ground for Refusal
Section 8 of the Extradition Act 1992
provides that a fugitive criminal shall not
be surrendered to a country seeking his
return in a situation where:151

RESOURCE MATERIAL SERIES No. 57- the offence in respect of which his
return is sought is of a politicalcharacter. However, the following
offences shall not be held to be
offences of a political character in
relation to a country which has madecorresponding provisions in its laws:
a. murder or other wilful crime
against the person of a Head ofState or a member of the Head ofState’s immediate family;b. an act which under a multilateraltreaty to which Malaysia and thecountry seeking the return of the
fugitive criminal are parties,
constitutes an offence for which aperson will be extradited orprosecuted notwithstanding thepolitical character or motivationof such act;c. a n y a t t e m p t , a b e t m e n t o rconspiracy to commit any of theforegoing offences;- the request for his surrender althoughpurporting to be made for an
extradition offence, was in fact madefor the purpose of prosecuting or
punishing the person on account of his
race, religion, nationality or politicalopinions;- he might be prejudiced at his trial or
punished or imprisoned by reason of
his race, religion, nationality orpolitical opinions;- prosecution for ‘the offence in respectof which his return is sought is,according to the law of that country,
barred by time;- the facts on which his surrender or
return is based or any lesser offence
proved by the facts on which that
return was grounded unless theconsent of the appropriate authority

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in the requested country has beenobtained.
- a fugitive shall not be extradited toanother country for trial or
punishment for any offence that isalleged to have been committed
unless the consent of the appropriate
authority in the requested country has
been obtained.
B. Discretionary Ground for Refusal
In addition to the mandatory grounds forrefusal, most treaties also contain anumber of discretionary or optional
grounds. In Malaysia, the Act gives wide
discretion to the Minister, who may refuse
to allow an extradition if he thinks it would
be unjust or inexpedient to do so for reasons
such as the trivial nature of the offence or
the application for extradition was notmade in good faith or in the interest ofjustice or it was made for political reasonsor for any other reason.
The Minister may, having regard to thecircumstances of the case for which
simultaneous countries made therequisition, return the fugitive criminal tosuch country as he thinks fit. The Minister
may also refuse the surrender if the fugitive
criminal is a citizen of Malaysia or forwhich the extradition offence is one overwhich the courts in Malaysia havejurisdiction. Where a country having no
extradition treaty with Malaysia makes arequest for the extradition of a fugitive
criminal, the Minister may personally, if
he deems it fit to do so, give special
direction in writing allowing such fugitive
criminal to be extradited to the requested
country after the provisions of the Act havebeen complied with.

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
V. ESSENTIAL PRINCIPLESADOPTED BY MALAYSIAREGARDING EXTRADITION
A. Principle of Double Criminality.
For the rule to apply it must be an eventthat is defined as a crime in the territoryof the requested country and also in therequesting one. The right to claim an
individual from a state may not be
acceptable if its legislation does notconsider the event as punishable according
to its own domestic law. This requirement
must exist at the time the punishable act
takes place and must continue until thehanding over occurs. In Malaysia, theprinciple was established in the case of PP
v Lin Chien Pang (1993 ) 2 MLJ34.
B. Principle of Speciality
The rule of speciality means therequesting country is under a duty not totry or punish the offender other than thatfor which he has been extradited. The ruleguarantees that all the requirements of theextradition process (such as doublec r i m i n a l i t y, e x t r a d i t a b l e o f f e n c e s ,reciprocity and, etc) are observed by therequesting state. The purpose of this rule
is to prevent the requesting state fromabusing the extradition process by way ofusing legal subterfuges to obtain
extradition for on unavowed goal. In otherwords it will protect the right of an
extraditee against any violation.
C. Rule on Prime Facie Cases
In order to enable a fugitive criminal to
be extradited to a requesting country, thecourt of the requested country shall decide
whether a prima facie case has been proved
against the fugitive. If a prima facie casehas not been established, the court shalldischarge the fugutive. However the
statutory law in Malaysia does not define
what is prima facie case is in theextradition process. Article No. 5 of theModel Treaty regards a prima facie caseas “sufficient proof in a form acceptable
under the law of the requested state,established according to the evidentiarystandards of the state that a person is aparty to that offence”.
From the definition, it is clear that the
prima facie case embodies a dual concept
namely, sufficiency and admissibility ofevidence under the law of the requested
state. This requirement must be fulfilled
by both requested and requesting country.
The majority of common law jurisdictions
including Malaysia still require andrecognise this standard.
D. Political Offences
The Malaysia Extradition Act 1992
states that a fugitive criminal shall not besurrendered to a country seeking his returnon the basis of political character / offences.
However, no clarification has been madeby local courts pertaining to the definitionon the offence of a political character.
However in the United Kingdom, thepolitical offence has been defined by the
judiciary. In the case of “Regina v. Governorof Brixton Prison, Ex - parte Schtraks(1964) AC 566 at pg. 591 - 592 the court
defined that, “offence of a politicalcharacter” is that the fugitive is at odds
with the state where he applies for his
extradition on some issue connected withthe political control or government of thecountry. The analogy of political in suchphrases as “political refugee”, “politicalasylum” or “political prisoner”. In thisregard, since Malaysia’s courts practice thecommon law system, the definition in theabovementioned case is acceptable indeciding the nature of offences classified
as political offences. Perhaps the scope ofthe definition may be wider depending on
the situation which suits local conditions.

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VI. EXTRADITION AGREEMENTS
Presently, Malaysia has treaties with theRepublic of Indonesia, the Kingdom ofThailand and the United States of America
for the mutual surrender of fugitive
criminals. As for the Republic of Singapore
and Brunei Darussalam, special provisions
are made in the Extradition Act 1992, forthe similar purpose by way of warrants.
The treaties made are as follows:
A. Extradition (Republic ofIndonesia) Order l975
This treaty was signed between
Malaysia and Indonesia at Jakarta on 7
June 1974 and came into force on 11 August
1 9 7 5 . O n s i g n i n g t h i s t r e a t y, t h eGovernment of Malaysia and theGovernment of Indonesia undertakes tosurrender fugitives to each other, subject
to the provisions and conditions as laid
down in the treaty.
Extraditable crimes are as listed in thetreaty and they include abetments andattempts to commit such crimes.
Restrictions on extradition are for thefollowing reasons:a. Crime regarded as political crime.
b. The right to refuse extradition of
its nationals.
c. May refuse to extradite theoffender if the offence is extraterritorial.
d. May refuse to extradite if therequested party is proceeding
against the fugitive criminal inrespect of crimes for which theextradition is requested.
e. Causes double jeopardy to thefugitive criminal (Non is in idem).
f. Rule of speciality to be adhered.
In cases of emergency, the competentauthorities of the requesting party may
request provisional arrest. Decisions inthis matter will be made by the competent154

authorities of the requested party
according to its laws. It can be madethrough the inspector General of Police in
Malaysia or the National Central Bureau
in Indonesia or through diplomaticchannels or the INTERPOL.
So far as the law permits, the requested
party shall seize and hand over property
to the requesting party if such property,(a) is required as evidence, and (b) was
acquired as a result of a crime and at thetime of arrest he was found in possession
or subsequently discovered. The property
shall be handed over even if the extradition
could not be carried out owing to the deathor escape of the fugitive criminal. Any rightin which the requested party or any otherState may have acquired in the said
property shall be preserved. Where theserights exist, the property shall be returned
without charge to the requested party assoon as possible after the trial. Expenses
incurred in the territory of the requested
party by reason of extradition shall beborne by that party.
B. Anglo - Siamese Extradition
Treaty 1911
This treaty which was enforceable wasmade between His Majesty the King of theUnited Kingdom of Great Britain and His
Majesty the King of Siam in 1911. The
provisions and procedures of the treaty arequite similar to the Extradition Act 1992.
In 1992 the Government of Thailand
came up with a new draft treaty to update
and repeal the 1911 treaty which had not
yet been finalised. The new draft treaty is
modified with the inclusion of the following
provisions:a. The obligation to extradite
includes persons who have beenproceeded against, have been
charged with, have been foundguilty or are wanted for the114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
enforcement of a judiciallypronounced penalty for committing
an extraditable offence by the
judicial authority of the requested
State;
b. Extraditable offence includes theprinciple of the double criminality
rule where the offence ispunishable under the laws of bothcontracting parties;
c. Restrictions to extradite with thefollowing reasons.
i. Offence is political or military
in nature;ii. Dual jurisdictions;iii. Double jeopardy;
iv. Capital punishment;
v. Lapse of time;vi. Own nationals.
C. Extradition (United States ofAmerica) Order 1985
By an exchange of notes on 17 November
1958 an arrangement was made between
the Federation of Malaya and the UnitedStates of America for the mutual surrenderof criminals in accordance with the treaty
dated 22 December 1931 concluded
between His Majesty the King of theUnited Kingdom and the President of theUnited States of America. With the powers
conferred on the Yang Di Pertuan Agong,
this Order was made in 1985.
This treaty allows the High Contracting
Parties to deliver up to each other, undercircumstances and conditions stated, those
persons being accused or convicted of any
crimes or offences which are extraditable
and are committed within the jurisdiction
and found within the territory of each other.
Restrictions on extradition’s are for thefollowing reasons:a. Double jeopardy;b. Lapse of time;c. Crime of political character;d. A lesser crime other than thecrime extradited.

Sufficient evidence to be given before theextradition should be produced within twomonths. If the fugitive criminal is claimed
by other States extradition shall be granted
to the State whose claim is the earliest in
date unless the claim is waived. All articles
seized in possession of the criminal fugitiveat the time of his apprehension may beserved as proof and shall be handed overwhen extradition takes place. Expenses
connected with the extradition shall beborne by the party making the request.
VII. MUTUAL ASSISTANCE IN
CRIMINAL MATTERS
Assistance in the investigation andprosecution of criminal activities in aninternational binding sense, is a far more
recent development. Given the differencein legal systems both procedural andsubstantive, including rules as to theadmissibility of evidence, it should comeas no suprise that the difficulties in thisarea of international co-operation are evengreater.
Considering the international featuresof many organized crime groups andcriminals, it must be acknowledged that nocountry by itself can be effective inneutralising them. It is important fornations having problems with the same
crime groups to share their informationand experiences to curtail transbordercriminal activities.
In the absence of formal legal treaties,
experience has shown that regional
meetings between law enforcement agencies
play a big role in promoting cooperation andmutual understanding between states.
The Royal Malaysian Police (RMP) has
always viewed regional cooperation as apractical means in pursuing a criminal
matter outside its jurisdiction. The RMP
has the following arrangements to foster

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RESOURCE MATERIAL SERIES No. 57
cooperation amongst the Police Forces inthis region:
1. T h e A n n u a l C o n f e r e n c e o f t h e
Association of National Police Forcesof Asean (ASEANAPOL)-

a forum of Asean Chiefs of Police
to discuss, exchange intelligence,
mutual assistance, and others;-

The Aseanapol Database System
which was fully implemented at
the end of 1996. Through thisnetwork, the NCBs of eachcountry will be able to exchange
criminal information by computer.

Criminal Activities. It is held
alternately in each country to
discuss and exchange intelligenceon criminal matters.
-

The Malaysian CID also conductsa special bilateral forum with theRoyal Thai Police of the Southern
Region to discuss crime related
matters occurring along thecommon borders of Malaysia/
Thailand.

-The Narcotics Department of the
RMP also maintains a special
relationship with the Office of the
Narcotics Control Board, Thailand
to discuss drug related matters.

2. Malaysia/Singapore Liaison Meeting
5. Malaysia/United States of America-

Held every three months. The
Narcotics Department of the RMP
also maintains a special
relationship with the Central
Narcotics Bureau (CNB) of
Singapore. Regular meetings andexchange of information/
intelligence have in the past
resulted in the successful
detection and apprehension of
criminals in both countries.

-

6. NCB/Interpol Networking-

The Interpol network has given
much assistance to the RMP in
dealing with foreign offenders andin reciprocity the Malaysian NCB/
Interpol handles all requests andrenders assistance to foreigncountries for any enquiries orapprehension of fugitive
criminals.

-

For countries which do not haveany bilateral/special arrangementwith Malaysia, a request can bemade through the diplomaticchannel of NCB/Interpol Branchfor extradition purposes.

3. Malaysia/Indonesia RAPAT Conference-This conference is held annuallyat alternative venues to discuss/exchange intelligence on crime
related matters. Both countries
have a bilateral treaty that allows
fugitive criminals to be arrested
and extradited based on theprincipal of reciprocity.

4. Malaysia/Thailand Joint Committee-

156

Police forces of both countries
conduct an annual Joint Malaysia/
Thai Working Committee on

The RMP maintains good
relations with the American law
enforcement agencies, such as the
DEA and the FBI, especially in thefield of training and the exchange
of information/intelligence to curbtransitional crimes.

114TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS-

International “ Red Notice” for the
purpose of provisional arrests canalso be sent through NCB/Interpol
office for the purpose of
extradition.

7. Scope of Mutual Assistance in Criminal
Matters
Malaysia has not ratified the UN Model
Treaty and as such we do not have any
legislation on mutual assistance to otherforeign enforcement agencies. However thescope of assistance that can be given by theRoyal Malaysia Police to our counter-parts
are as follows:a. To carry out investigations byinterviewing witnesses after
information received from requesting
countries and inform the results ofinvestigations to the requesting
countries. This is normally done
though INTERPOL.
b. Confirming the whereabouts ofwanted persons of the requesting
country.
c. If statements are required by therequesting country this can only bedone through an affidavit before acompetent authority. This can only
be made through the witnesses
voluntarily.
d. The requesting country may send
their investigating officers to
Malaysia for discussions regarding
the case they are investigating.
Interviews of witnesses orinterrogation will be done by the
Malaysia police and he may be inattendance.
e. P r o v i d i n g i n f o r m a t i o n f o r
investigative use of the requesting
country.

VIII. CONCLUSION
Malaysia in its efforts to combat
transnational criminal activities is everwilling to extradite a fugitive criminal as
long as it satisfies all requirements as
required by the law. In cases where there
is no treaty, a fugitive criminal may be
extradited upon the discretion of the
Minister.
The extradition process is a slow process
as it needs to fulfil all the necessary
procedures before a fugitive criminal canbe surrendered to a requesting country.
This could take months as the fugitive
criminal is allowed to seek redress by a writof habeas corpus from the High Court of
Malaysia. The alternative action that canbe taken by the authorities is to expel the
fugitive criminal from Malaysia throughthe process of deportation. In this instanceonly the immigration law of Malaysia is
applied. However the Imigration
Department requires reasonable
justification to implement this process for
a foreigner. Reasons could be given on thebasis of expiration of travel documents oran invalid travel document, violations of
Imigration Laws, etc.
We believe in close cooperation amongst
the law enforcement officers of otherStates/Countries so that we can check thecriminals in their endeavours to commit
cross-border and global transnational
crimes.

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