SIXTH REGIONAL SEMINAR ON GOOD
GOVERNANCE FOR SOUTHEAST ASIAN COUNTRIES

Hosted by UNAFEI
With the support of the Ministry of Foreign Affairs of Japan
12-14 December 2012, Tokyo, Japan

November 2013
TOKYO, JAPANThe views expressed in this publication are those of the respective presenters andauthors only, and do not necessarily reflect the views or policies of UNAFEI, theGovernment of Japan, or other organizations to which those persons belong.

FOREWORD
It is my great pleasure and privilege to present this report of the Sixth Regional
Seminar on Good Governance for Southeast Asian Countries, which was held in Tokyo
from 12 – 14 December 2012. This was our second time to hold the Good GovernanceSeminar in Tokyo, and it was our great pleasure to welcome participants to the Japanese
capital. We hope that we have repaid the hospitality always extended to us on ourprevious visits to other countries that have hosted the Seminar.
The main theme of the Seminar was “International Cooperation: Mutual Legal
Assistance and Extradition”, and it was attended by five speakers from public andprivate institutions and sixteen participants, all criminal justice practitioners, from
Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Thailand and Viet
Nam. The Seminar was organized by UNAFEI, with the support of the Ministry ofForeign Affairs of Japan.
Corruption destroys nations. It undermines democracy and the rule of law, distortsbusiness activities and competition, and hinders sustainable development and prosperity.
It is also a threat to the security of societies as it creates environments in whichorganized crime, terrorism, and other forms of unlawful activity may prosper. Suchenormous negative impacts of corruption and its increasingly transnational aspects led
to the adoption of the United Nations Convention against Corruption (UNCAC), thefirst global, legally binding anti-corruption instrument, by the UN General Assembly on
31 October 2003.
Because corruption has become increasingly transnational, countries increasingly
rely on international cooperation to gather evidence and to seek the return of fugitives.
The United Nations Convention against Corruption (UNCAC) devotes one full chapter
to “International cooperation”, and the United Nations Convention against
Transnational Organized Crime (UNTOC) has extensive provisions covering“Extradition” and “Mutual Legal Assistance (MLA)”.
While these provisions set the basic minimum standards for international
cooperation, there still remain practical obstacles and challenges such as problems ofjurisdiction, differences in criminal law and procedure, lack of international and internal
coordination, insufficient knowledge of legal requirements and restrictions, andtranslation and language problems. Enhancing practical knowledge and mutual
understanding and building a relationship of trust and confidence with foreigncounterparts can be the key to overcoming these obstacles.
The Sixth Regional Seminar aimed not only to develop contacts between Central
Authorities of the participating countries but also to deepen mutual understanding of thecurrent situation and mechanisms for fighting corruption by using formal and informal
channels for mutual legal assistance and extradition. Through discussion of the issues,participants exchanged experiences and knowledge of effective strategies, and bestpractices in the fields of mutual legal assistance and extradition were further improved.

It is my pleasure to publish this Report of the Seminar as part of UNAFEI’s mission,
entrusted to it by the United Nations, to widely disseminate meaningful information on
criminal justice policy.
Finally, I would like to express my sincere appreciation, on behalf of UNAFEI, tothe Department of Foreign Affairs of Japan, for its contribution in convening the Sixth
Regional Seminar.

Tomoko AKANE
Director, UNAFEI
November 2013

INDEXINTERNATIONAL COOPERATION:
MUTUAL LEGAL ASSISTANCE AND EXTRADITION
Introduction ............................................................................................... 1
Opening Address by Mr. Tatsuya Sakuma, Director, UNAFEI................................... 3
Introductory Remarks by Mr. Kenichi Kiyono, Deputy Director, UNAFEI .................... 4
Papers and Contributions................................................................................ 9
Speaker, Mr. Masamichi Kamimura, Ministry of Justice, Japan ............................... 11
Speaker, Dr. Kim Young June, Seoul High Prosecutors’ Office ................................ 14
Speaker, Ms. Nor’ ashikin Samdin, Attorney-General’s Chambers, Singapore ............ 19
Speaker, Mr. Pedro Gomes Pereira, Basel Institute on Governance ........................... 28
Speaker, Dr. Zhenjie Zhou, Bejing Normal University ......................................... 40
Cambodia ............................................................................................ 47
Indonesia ............................................................................................. 56
Lao PDR ............................................................................................. 72
Malaysia ............................................................................................. 82
Myanmar ............................................................................................ 126
Philippines .......................................................................................... 130
Thailand ............................................................................................. 148
Viet Nam ............................................................................................ 172
Chair’s Summary ..................................................................................... 179
Comparative List of Systems of MLA and Extradition in the Participating Countries ........ 183
List of Speakers, Participants, and Organizers ..................................................... 185
Seminar Schedule ..................................................................................... 191
Appendix............................................................................................... 193
Photographs ...................................................................................... 194

INTRODUCTION

Opening Remarks by
Mr. Tatsuya Sakuma
Director, UNAFEI***

Introductory Remarks by
Mr. Kenichi Kiyono
Deputy Director, UNAFEI-1-

OPENING REMARKSAT THE SIXTH REGIONAL SEMINAR ON GOOD GOVERNANCEFOR SOUTHEAST ASIAN COUNTRIES
Tatsuya Sakuma
Director, UNAFEI

Mr. Katsuyuki Nishikawa, Honourable Vice Minister of the Ministry of Justice, Mr.
Kunihiko Sakai, Honourable Director General, Research and Training Institute of the
Ministry of Justice, honourable guests, distinguished experts and participants, ladies andgentlemen,
It is a great pleasure and privilege for me to announce the opening of the Sixth Regional
Seminar on Good Governance for Southeast Asian Countries, which is a commemorative
event of UNAFEI’s 50th Anniversary. On behalf of UNAFEI, I would like to extend myheartfelt welcome to the honourable guests, the distinguished speakers and participants who
have come to join this significant forum.
I would like to take this opportunity to thank the Government of Japan for its continued
support as the host country of UNAFEI. I would also like to express my deepest
appreciation to the Japanese Ministry of Justice for their assistance in organizing thisSeminar.
The topic to be discussed at this seminar is “International Cooperation: Mutual Legal
Assistance and Extradition”. Corruption disrupts the rule of law. It encourages disregard ofhuman rights, allows criminals to prosper and feeds inequality, injustice and insecurity. In
corrupt societies, funds intended for development are often diverted and foreign aid andinvestment shy away as a result. Thus, this seminar will continue to focus on corruption
control as a cornerstone for realizing good governance. In the era of globalization, crimes
including corruption are in no way an exception. As the United Nations Convention against
Corruption (UNCAC) devotes a full chapter to international cooperation, effective andefficient international cooperation is a prerequisite for successful control of corruption.
However, despite various efforts made until now, we must admit that we are far behindthe criminals in this respect. Amidst issues of state sovereignty; disparity of laws, legal
systems and languages; low enforcement priority and lack of financial and other resources㧙
we have much to overcome to facilitate international cooperation. I believe this seminar can
be a good opportunity for us to identify the issues and the ways to overcome challenges andto build confidence and trust in each other.
I look forward to seeing this Seminar provide a useful forum to exchange expertise andknowledge in our common endeavour against corruption, contributing further to thepromotion of good governance in Southeast Asia.
Thank you very much for your attention.

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INTERNATIONAL COOPERATION:
MUTUAL LEGAL ASSISTANCE AND EXTRADITION
Kenichi Kiyono
Deputy Director, UNAFEI1

It is indeed an honour and a pleasure for me to open the discussion at the sixth Regional
Seminar on Good Governance for Southeast Asia and the Pacific, which includes the Joint
Ceremony for UNAFEI’s 50th and ACPF’s2 30th Anniversaries. As the Deputy Director of
UNAFEI, I will devote my utmost effort to make the Seminar and the Ceremony successful
and productive.
I. UNAFEI’S RECENT ACTIVITIES AGAINST CORRUPTION
It goes without saying that corruption is the main cause of the erosion of good
governance and the rule of law. Corruption control is of crucial importance to restore justiceand democracy, and to achieve a safe and prosperous society.
With this view, UNAFEI has been conducting the UNCAC3 Training Programme since1998. We have just concluded the 15th UNCAC Training Programme, which lasted for 5
weeks. Two hundred seventy-eight alumni from 74 countries have completed the UNAFEIUNCAC Training Programme.
In addition, UNAFEI started the Regional Seminar on Good Governance for Southeast
Asian Countries in 2007. We have discussed most important issues relating to UNCAC
during the three-day Good Governance Seminar each year:
1

Corruption Control in the Judiciary and Prosecutorial Authorities (in 2007);

2

Corruption Control in Public Procurement (in 2008);

3

Measures to Freeze, Confiscate and Recover Proceeds of Corruption, Including
Prevention of Money-laundering (in 2009);

4

Securing Protection and Cooperation of Witnesses and Whistle-blowers (in 2010);

5

Preventing Corruption: Effective Administrative & Criminal Justice Measures (in2011).

1

United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders, which
is an international training and research institute in the field of crime prevention and criminal justice, establishedin 1962 by an agreement between the United Nations and the Government of Japan. For over 50 years,
UNAFEI’s major activities have been focusing on providing training programmes for criminal justicepractitioners from around the world in a multinational format.
2
Asia Crime Prevention Foundation, which is an international NGO in general consultative status with theUnited Nations Economic and Social Council.
3
United Nations Convention against Corruption.

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UNAFEI has also been dealing with corruption-related themes at its conventional fiveweek training courses, which include:
1

Measures to Secure Protection and Cooperation of Witnesses and Whistle-blowers(149th Training Course in 2011);

2

Attacking the Proceeds of Crime: Identification, Confiscation, Recovery and AntiMoney Laundering Measures (146th Training Course in 2010);

3

Ethics and Codes of Conduct for Judges, Prosecutors and Law Enforcement Officials(143rd Training Course in 2009);

4

Effective Legal and Practical Measures for Combating Corruption: A Criminal Justice
Response (138th Training Course in 2008).
II. THE IMPORTANCE OF INTERNATIONAL COOPERATION

The main theme of this sixth Good Governance Seminar is “International Cooperation:
Mutual Legal Assistance and Extradition”. The global economy and internet society havemade corruption crimes more and more sophisticated, cross-border, and difficult to detect andcollect evidence. We would not be able to combat corruption without international
cooperation of law enforcement officials in each country.
The importance of international cooperation led UNCAC to devote one chapter 4 tointernational cooperation, which includes articles on extradition, 5 the transfer of sentenced
persons, 6 mutual legal assistance (MLA), 7 the transfer of criminal proceedings, 8 law
enforcement cooperation, 9 and joint investigations. 10 The United Nations Convention against
Transnational Organized Crime (UNTOC) also allocates five articles 11 to international
cooperation.
These provisions on international cooperation provide the States Parties which require
treaties to execute MLA, extradition and other forms of international cooperation with thecommon platform to execute such cooperation.12 Furthermore, whenever dual criminality is
considered a requirement, it shall be deemed fulfilled — irrespective of whether the laws of
the requested State Party place the offence within the same category of offence or denominate
the offence by the same terminology as the requesting State Party — if the conduct
underlying the offence for which assistance is sought is a criminal offence under the laws ofboth States Parties . 13
4

Chapter 4 of UNCAC.
Article 44 of UNCAC.
6
Article 45 of UNCAC.
7
Article 46 of UNCAC.
8
Article 47 of UNCAC.
9
Article 48 of UNCAC.
10
Article 49 of UNCAC.
11
Article 16 on extradition, Article 17 on the transfer of sentenced persons, Article 18 on mutual legal assistance,
Article 19 on joint investigation, and Article 21 on the transfer of criminal proceedings.
12
Article 44(5) and Article 55(6) of the UNCAC.
13
UNODC (2004), UNITED NATIONS CONVENTION AGAINST CORRUPTION, p. 30.
5-5-III. OBSTACLES TO INTERNATIONAL COOPERATION
AND MEASURES TO OVERCOME THEM
It is quite obvious that UNCAC and UNTOC require the states not only to acknowledge
the importance of international cooperation but also to execute the actual MLA, extraditionand other forms of international cooperation efficiently and effectively. That is the reason
why we need to identify the main obstacles to the smooth execution of international
cooperation and how to overcome them. There are many obstacles; however, I would like tosuggest that the following are major ones among them:ƔƔƔ

Little knowledge on the legislation, requirements and procedures of MLA, extraditionand other forms of international cooperation of the requested country, which causes
delay, frustration and even unexecutable requests;
Little or no acquaintances at the central authority of the requested country, whichhinders smooth communication and mutual understanding;
The translation of the formal request into the official language of the requested
country, which not only makes the procedure lengthy and costly but also makes therequest difficult to understand or, in some cases, incorrect, as the officials of therequesting country cannot make sure that the request is translated with precision if
they do not understand the language of the requested country.

This Good Governance Seminar can provide good solutions to some of these obstacles.
This Seminar sees delegations composed of corruption expertise and central authority
officials from eight countries, namely, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar,
Philippines, Thailand and Viet Nam. We also have speakers from Japan, Korea, Singapore,
the Basel Institute’s ICAR, 14 and Beijing Normal University. The participants and speakers
have prepared papers with the latest information on the legislation, requirements andprocedures of MLA, extradition and other forms of international cooperation, which will bepresented during this Seminar. 15
The delegations will meet each other in this very conference room. In fact, you havealready gotten acquainted with each other. You can foster mutual understanding and confidence
during this three-day Seminar, after which all of you will be UNAFEI family members! You
will be able to consult with each other in very informal ways, which will remove many
practical obstacles in executing MLA, extradition and other forms of international cooperation.
Other solutions to smooth execution of international cooperation include:Ɣ

Bilateral treaties;

Ɣ

Multilateral treaties: inter alia the so called “ASEAN MLAT” 16 was entered into by
the government of Brunei Darussalam, Cambodia, Indonesia, Lao People’s

14

International Centre for Asset Recovery
The presentation papers will be also available on UNAFEI’s website. See
http://www.unafei.or.jp/english/index.htm.
16
The official name is the “Treaty on Mutual Legal Assistance in Criminal Matters among Like-Minded
ASEAN Member Countries”, which was signed in November 2004 in Kuala Lumpur, Malaysia.
15-6-Democratic Republic, Malaysia, Philippines, Singapore and the Socialist Republic ofVietnam;ƔƔƔEurojust, which was established in 2002 as an agency of the EU to support andstrengthen coordination and cooperation between national authorities in fighting
serious cross-border crime that affects the EU, may reveal lessons which we canfollow without compromising state sovereignty. Twenty-seven Member States second
experienced prosecutors, judges or police officers of equivalent competence to theEurojust office in The Hague. 17 The outcome of this permanent international
cooperation agency is enormous. One thousand four hundred and forty-one cases weredealt with by the coordination meetings of Eurojust, 263 European Arrest Warrants
were registered in 2011, which facilitated extradition of offenders, and 31 Joint
Investigation Teams were formed with Eurojust’s assistance in 2011; 18
Placing legal attachés at the Embassy to assist and make arrangements for smooth
execution of MLA, extradition and other forms of international cooperation;
Dispatching investigators for the execution of requests, which helps to emphasize theimportant points of the request for the officials of the requested countries.

The requirement of the use of national languages for formal requests of MLA or
extradition often causes various problems. If we allow each other to use English text forformal requests, where appropriate, it can be of great help.
IV. CONCLUSION
There are many practical obstacles to the smooth execution of MLA, extradition andother forms of international cooperation. To identify and overcome them, it would be
extremely beneficial for officials in charge of international cooperation from various
countries to meet face to face to identify practical obstacles and measures to overcome them.
As obstacles may change over time, and we cannot avoid transfers or job rotations, periodical
meetings would be ideal, if it is practically possible.
This Seminar sees delegations from eight countries and speakers from five countries or
institutes. Furthermore, Mr. Sandeep Chawla, the Deputy Executive Director of the
UNODC,19 Mr. Kim Il-Su, President of the Korean Institute of Criminology, Dr. Kittipong
Kittayarak, Permanent Secretary for Justice, Ministry of Justice, Thailand, Mr. Severino H.
Gaña, Deputy Prosecutor General, National Prosecution Service, Department of Justice,
Republic of Philippines, and Mr. Elias Carranza, Director of ILANUD 20 and otherdistinguished guests will deliver speeches or lectures at the Joint Ceremony for UNAFEI’s
50th and ACPF’s 30th Anniversaries this afternoon.

17

Eurojust (2011), Eurojust: The European Union’s Judicial Co-operation Unit
(http://eurojust.europa.eu/doclibrary/corporate/corporatepublications/Eurojust%20brochure%202011/EUROJUS
T-2011_EN.pdf).
18
Eurojust (2012), Eurojust Annual Report 2011(http://eurojust.europa.eu/doclibrary/corporate/eurojust%20Annual%20Reports/Annual%20Report%202011/An
pp.11,
13 and 23.
nual-Report-2011-EN.pdf), p11,
p13&p23.
19
United Nations Office on Drugs and Crime.
20
United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders.

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I am sure that we will have beneficial and fruitful discussions during this Seminar, which
will foster mutual understanding and confidence.

-8-

SPEAKERS’ PAPERS AND CONTRIBUTIONS

Mr. Masamichi Kamimura
Director, International Affairs Division
Ministry of Justice, Japan***
Dr. Kim Young June
Director of Criminal Trial Department
Seoul High Prosecutors’ Office, Republic of Korea***

Ms. Nor’ashikin Samdin
Deputy Senior State Counsel
Attorney-General’s Chambers, Singapore***

Mr. Pedro Gomes Pereira
Asset Recovery Specialist
Basel Institute on Governance***

Dr. Zhenjie Zhou
Deputy Directorof thethe Institute
Institute forfor Foreign
Foreignand
andComparative
Comparative Criminal
Criminal Law,
Law,
Direcor ofCollege for Criminal Law Science, Bejing Normal University-9-

MUTUAL LEGAL ASSISTANCE AND EXTRADITION
Masamichi Kamimura*

I. INTRODUCTION
At the outset, as a member of the Japanese government, I would like to extend a hearty
welcome to everyone attending this sixth Regional Seminar on Good Governance. I also would
like to extend my congratulations for the 50th anniversary of UNAFEI. I have the greatest
respect for UNAFEI’s contribution to the promotion and the sound development of criminal
justice systems and mutual cooperation in the Asia-Pacific Region. I’m confident that thismemorial and commemorative seminar will be fruitful and meaningful to all the participants.
I believe that this Seminar is significant for the reason that Southeast Asian countries
have gathered together to have a better understanding of each other within the topic of
Mutual Legal Assistance (MLA) and extradition. I, myself, would like to learn more about
how the system works in other Asian countries, and I hope I can be of help to others who may
be interested in the Japanese system. My presentation today will try to give you an overview
of how our MLA and extradition systems work.
II. TREATIES AND MUTUAL LEGAL ASSISTANCE
I would like to start with a question. Can Japan render assistance without an MLA treaty?
The answer is “Yes.” As long as there is a guarantee of reciprocity, there is no need for atreaty.
A. Channels
If there is a treaty, the request can be sent from a Central Authority. In Japan, theMinistry of Justice and the National Police Agency can both send requests as central
authorities, but the Ministry of Justice is the only central authority authorized to receive
requests. So, our treaty partner will always send their requests to the Ministry of Justice, butthey will receive our requests from either the Ministry of Justice or the National Police
Agency. If there is no treaty, the request must come through diplomatic channels. Japan has
already concluded bilateral MLA treaties with six countries: the United States (US), theRepublic of Korea, China, Hong Kong, the European Union (EU), and Russia.
B. Scope of AssistanceWith or without a treaty, Japan can provide assistance using almost the same measuresthat are allowed in our domestic investigations. Interviewing witnesses, obtaining testimonyof witnesses in court, and conducting searches and seizures can all be done for other countries
with or without a treaty. However, we cannot execute wiretapping for other countries.
C. Conditions
As for the denial of requests, our domestic laws provide the following. First, we require a*

Director of the International Affairs Division of the Ministry of Justice Criminal Affairs Bureau, specializing in
MLA and extradition cases.

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guarantee of reciprocity. Next, assistance will not be provided for political offences. Finally,
dual criminality is required.
There are special requirements for the examination of witnesses in court and forproviding original, tangible evidence. We can only assist if the witness or the original
evidence is essential to the investigation in the requesting country. However, if there is an
MLA treaty, the requirement of dual criminality and the requirement of essentiality can be
exempted.
D. Statistics
In recent years, we have dealt with around 40 to 70 incoming and outgoing cases per
year.
III. EXTRADITION
Next, I would like to turn to the issue of extradition. As with MLA, Japan can extradite afugitive with or without a treaty.
A. Channels
Regardless of the existence of extradition treaties, requests should be sent to Japanthrough diplomatic channels. Japan has already concluded bilateral extradition treaties with
the US and the Republic of Korea.
B. Conditions
As for the required conditions, first we require the guarantee of reciprocity. We cannot
extradite the accused for political offences. We also cannot extradite for offences where themaximum term of imprisonment is less than three years under the requesting country’s laws,
as well as under Japanese law. Dual criminality is also required.
In addition, we need to be shown probable cause that the wanted fugitive has committed
the offence. We are often faced with an extradition request which does not contain evidence
to support the allegation. Whether or not probable cause exists is the focus when we consider
an extradition request. This is because in domestic investigations, probable cause is required
to obtain the arrest warrant, and, therefore, Japanese courts strictly examine probable cause in
extradition cases as well. Please be advised that should you send an extradition request to
Japan, evidence to establish such probable cause is most essential. Lastly, we cannot extraditea Japanese national without an extradition treaty.
C. Statistics
In the past 10 years, we have extradited 12 fugitives to foreign countries; foreigncountries have extradited 23 fugitives to Japan.
IV. STRENGTHENING COOPERATIONAt this point, I would like to introduce our efforts to strengthen cooperation in MLA andextradition matters.
A. Role of “CA”
CA, in Ministry of Justice terminology, means “central authority.” To ensure theeffectiveness of MLA and extradition, the role of the central authority is important. My- 12 -

division serves as a central authority in Japan, and my staff and I make efforts to be afunctional central authority.
If the central authority becomes just a mailman or mailbox, the execution of the request
will be time consuming, and the result of the request will not satisfy the requesting country.
On the other hand, if the central authority has the power and discretion over both incoming
and outgoing cases, the assistance can be effective. It is important for the central authority toadvise counterpart central authorities on what forms of assistance can and cannot be executed
and what should be modified in request documents. Otherwise, the requests will often not becompletely executed. Also, it will be very helpful if the central authority can advise its
domestic police or prosecutors about how the requests are executed in order to meet therequesting country’s demands.
In order for the central authority to fulfill such a role, the central authority should be
adequately staffed by trained legal experts. Providing and obtaining effective MLA requires
abundant knowledge about the MLA and extradition system as well as domestic criminal
procedure and criminal law. The central authority should also be adequately equipped, forexample, with secured internet and e-mail systems.
The Japanese central authority has five attorneys: four of them are originally publicprosecutors. In addition, Japanese legal attachés in China, England, France, Germany, theRepublic of Korea, and the US help us to communicate with such countries’ central
authorities. Hopefully we are working as effectively as we say we are.
V. OTHER ISSUESAt the Ministry of Justice, we have been strongly recommending to our foreigncounterparts to engage in informal consultation before sending a formal request. Even if therequest is non-treaty based, we think that the central authorities should communicate directlywith each other to discuss and solve problems. The use of diplomatic channels is limited tothe sending and receiving of formal requests. Therefore, if you plan to send an MLA or
extradition request to Japan, please consult with us at an early stage, and we can advise you
accordingly. As I have mentioned, providing good advice is an essential function of a central
authority.
The next issue is Japanese translation. In some cases, the Japanese translation of therequest is unsophisticated, and, thus, we cannot understand the request well. I understand it isdifficult to translate materials into foreign languages, and some people say Japanese is one of
the most difficult languages to translate to. So, my proposal is that if your country makes an
English version of the request, please send the English version as a supplement to theJapanese translation. While the English version cannot be a substitute for the Japanesetranslation, Japan can accept an English version as a supplement to the Japanese translation.
As far as I’ve heard, in some countries including Thailand, an English version is prepared
before translating into the language of the receiving country.
V. CONCLUSION
More information is available on our website (www.moj.go.jp/english). Also, if you needto consult with us on an individual case, please send us an e-mail at infojp@moj.go.jp.

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MLA AND EXTRADITION IN THE REPUBLIC OF KOREA
Dr. Kim Young June*

I. BASIC MECHANISM, PROCEDURES AND RESPONSIBLE AGENCY
MLA is prescribed in the Act on International Judicial Mutual Assistance in Criminal
Matters, and extradition is dealt with according to the Extradition Act. The Central Authority
for MLA and extradition in Korea is the Ministry of Justice.
A. MLAThe Central Authority for MLA in Korea is the Ministry of Justice. Korea receives lettersrequesting MLA through diplomatic channels or by direct mail. Officially, the acceptance ofa request for mutual assistance and the sending of materials of mutual assistance to therequesting country shall be made by the Ministry of Foreign Affairs. Provided that there areurgent or special circumstances, the Ministry of Justice may act with the consent of the
Minister of Foreign Affairs.
B. Extradition
When the Minister of Foreign Affairs has received a request for the extradition of acriminal from a requesting state, the requesting state shall send the written extradition request
and the related data to the Minister of Justice.
II. CONDITIONS AND REQUIREMENTS TO REQUEST MLA AND
EXTRADITION TO KOREA
A. Necessity of a Treaty Basis & Reciprocity
Even if an MLA treaty or an extradition treaty has not been concluded, if it is guaranteedthat any requesting country would comply with any request of the Republic of Korea withrespect to the same or similar matters, the Act on International Judicial Mutual Assistance in
Criminal Matters or Extradition Act shall be applicable. In cases where a mutual assistancetreaty or extradition treaty includes different provisions from those of the Act, the provisionsof the treaty shall prevail over the Act.
B. The Procedure to be Followed by a Requesting State
1. MLAAny request for mutual assistance shall be made in writing specifying matters fallingunder the following elements:(i) Agency taking charge of the investigation or trial related to the request for mutual
assistance;(ii) Summary of the case;
*Director of Criminal Trial Department, Seoul High Prosecutors’ Office.
- 14 -

(iii) Object and contents of the request;(iv) Other matters necessary for carrying out mutual assistance.
In case of a request for mutual assistance, such as examination of a witness, delivery ofobjects, testimony in the requesting country, etc., the requesting country shall explain
whether it is a request for investigation or trial.
2.

Extradition
There is no provision relating to the procedure of requesting in the Extradition Act. But
extradition treaties generally prescribe that all requests for extradition shall be submitted inwriting through diplomatic channels. All requests shall be supported by:(i) Documents, statements, or other types of information which describe the identity,
including nationality, and probable location of the person sought;(ii) Information describing the facts of the offence and the procedural history of thecase;(iii) The text of the law describing the essential elements of the offence for which
extradition is requested;(iv) The text of the law prescribing punishment for the offence;(v) A statement of the relevant provisions of its statute of limitations on theprosecution or the execution of punishment of the offence.
C. Dual Criminality and Scope of Offences
Dual Criminality is necessary for both MLA and extradition requests.
1.

MLA
Where the crime under mutual assistance does not constitute a crime, or it is a crime
against which no public action may be instituted, under the Act of the Republic of Korea, it
may not be required to give any mutual assistance.
2.

Extradition
Extradition may be requested only in cases where an extraditable crime corresponds tocapital punishment or imprisonment or imprisonment without prison labour for life or not lessthan one year under the Acts of Korea and the requesting state.
D. Limitations of Use (MLA)
Provisions on use limitation exist in most MLA treaties. The requesting state should notuse any information or evidence obtained under an MLA treaty in any investigation,prosecution, or proceeding for any purpose other than that described in the request without
the prior consent of the requested state.
E. Assurance of Specialty of Extradition
If there is no guarantee from a requesting state that an extradited criminal will not bepunished for crimes other than those permitted to be extradited, and he is not extradited to a

- 15 -

third country, the criminal shall not be extradited, except in cases where the criminal falls
under any of the following circumstances:(i)

Where the criminal is punished for a crime which may be deemed guilty in the limitof the criminal facts for which an extradition is admitted, or a crime committed after
the criminal is extradited;(ii) Where the criminal left the territory of a requesting state after extradition, and he or
she voluntarily re-entered the requesting state;(iii) Where the criminal fails to leave the territory of a requesting state within 45 days
from the time when he or she may freely leave the requesting country; and(iv) Where Korea agrees to it.
III. AVAILABLE TYPES OF ASSISTANCE
The scope of MLA is as follows:(i)

Investigation of the whereabouts of a person or object;(ii)

Presentation of documents and records;(iii) Service of documents;(iv) Gathering of evidence, seizure, search and verification;(v)

Delivery of objects, such as evidence, etc.; and(vi) Hearing of statements, and other measures to make any person testify or cooperatewith the investigation in the requesting country.
IV. RESTRICTION AND GROUNDS FOR REFUSAL
A. Restriction on MLA
Other than dual criminality, requests are restricted in the following circumstances:(i) Where it may be detrimental to the Republic of Korea’s sovereignty, national
security, public peace and order, or public morals;(ii) Where it is deemed that the criminal might be punished, or subject to an
unfavourable penal disposition due to race, nationality, sex, religion, social status, orthe fact that he or she is a member of a specified social organization, or by thereason that he has a different political view; and(iii) Where it is deemed that the crime underlying the mutual assistance request is one ofa political nature, or the request for mutual assistance is made for the purpose of aninvestigation or trial on another crime of a political nature.
- 16 -

B. Grounds for Refusal of Extradition
1. Absolute Cause for Refusal of Extradition(i) Where the prescription of indictment or sentence against an extraditable crime iscompleted under the Act of Korea or the requesting country;(ii) Where a trial for an extraditable crime is pending in a court of Korea, or the judgment
has become final;(iii)Where there is no proper reason to suspect that the criminal committed an
extraditable crime, provided that in cases where the accused was convicted in therequesting state for an extraditable crime, this shall not apply; and(iv) Where it is deemed that there exist concerns that the criminals might be punished or
subject to other unfavourable dispositions for reasons of race, religion, nationality,
sex, political belief, or membership in a specific social group.
2.

Refusal of Extradition in Crimes of a Political Nature
If an extraditable crime is one having a political nature or related to such a crime, nocriminal shall be extradited, provided that if the extraditable crime falls under any of thefollowing subparagraphs, the same shall not apply:(i) A crime injuring or threatening the life or body of the chief of the State or
Government, or his family;(ii) A crime for which Korea exercises a trial right on the criminal or bears an obligation
to extradite the criminal under a multilateral treaty; and(iii)A crime injuring, threatening, or provoking any danger to lives or bodies of many
persons.
If it is deemed that an extradition request is made for the purpose of bringing to trial
another crime of a political nature which the criminal committed, or executing a sentence
which became final against such a crime, the criminal shall not be extradited.
3.

Discretionary Causes for Refusal of Extradition
A criminal may not be extradited in cases falling under any of following subparagraphs:(i) If the criminal is a citizen of Korea;(ii) If all or part of the extraditable crime has been committed in the territory of Korea;(iii)If a trial concerning a non-extraditable crime which was committed by the criminal ispending in a court of Korea, or if the criminal was sentenced to a penalty but
execution thereof has not yet been terminated or exempted;(iv) If the criminal was brought to trial on an extraditable crime and punished in a third
country, or if a judgment that no punishment thereof will be made final;- 17 -

(v) If it is deemed inhumane to extradite a criminal in light of the nature of theextraditable crime and the circumstances, etc. faced by the criminal.
V. CONFIDENTIALITY OF THE REQUEST AND THE PROVIDEDINFORMATIONThe Minister of Justice may upon sending mutual assistance materials request
confidentiality to the requesting state. In MLA treaties, there usually are provisions relating
to confidentiality. Thus the requested state shall use its best efforts to keep confidential arequest and its contents if such confidentiality is requested by the requesting state.
VI. INTERNAL PROCEDURES FOR REQUESTING TO FOREIGN STATES
A. MLAIn a case where a prosecutor makes a request for mutual assistance as to any
investigation of a foreign country, he shall send a written request to the Minister of Justice,and the judicial police officer shall make a request to the prosecutor to send it to the Ministerof Justice.
After receiving a written request from the prosecutor, in a case where the Minister ofJustice admits that it is necessary, the Minister of Justice shall send it to the Minister of
Foreign Affairs.
B. Extradition
When the prosecutor judges that a request for extradition of a criminal to the foreigncountry is proper, he may suggest a request to the Minister of Justice attaching relating
materials.
If the Minister of Justice judges that it is necessary to request extradition, he may request,
through the Minister of Foreign Affairs, that the foreign state extradite the criminal.
VII. OTHER METHODS OF LAW ENFORCEMENT COOPERATIONThe Korea Supreme Prosecutors’ Office concluded 21 Memoranda of Understanding(MOU) on mutual cooperation with various foreign authorities. Through these MOUs, theKorea Prosecution Service has been cooperating with foreign law enforcement directly andquickly, which has turned out to be very successful. The International Cooperation Center
was established in the Supreme Prosecutors’ Office (SPO), which is in charge of this kind of
direct cooperation with foreign authorities.
Nowadays, the SPO is planning to launch the Asset Recovery Inter-Agency Network in
Asia and the Pacific (ARIN-AP). An interim secretariat has been established as a central
point of contact to receive expressions of interest and to progress the development of the
Network (contact: ARIN@spo.go.kr). Direct and speedy inter-agency cooperation in the asset
recovery area would be expected with the establishment of ARIN-AP.

- 18 -

INTERNATIONAL COOPERATION: THE EXTRADITIONFRAMEWORK IN SINGAPORE – A GENERAL OVERVIEW
Nor’ashikin Samdin*

I.

INTRODUCTION

This paper aims to provide a general overview of the extradition framework in Singapore
by addressing the following topics:(i) Basic mechanisms, laws and procedures concerning extradition and the agencies
responsible for these matters;(ii) Legal requirements for making an extradition request to Singapore;(iii) Grounds for Refusal;(iv) Lessons learnt.
As one of the objectives of this Regional Seminar on Good Governance for Southeast
Asian Countries is to provide an opportunity for the participating countries to enhancepractical knowledge and mutual understanding of the extradition framework in theirrespective countries, this paper will focus on extradition requests made by other countries, as
Requesting States, to Singapore, as the Requested State.
II.
BASIC MECHANISMS, LAWS AND PROCEDURES CONCERNINGEXTRADITION AND THE AGENCIES RESPONSIBLE FOR THESE MATTERS
A. The Extradition Act
The principal legislation in Singapore governing the extradition of fugitives to and fromforeign countries, including Commonwealth countries, is the Extradition Act, Chapter 103 of
the Statutes of the Republic of Singapore (the EA)1. The EA was enacted on 1st August 1968
and has undergone several amendments since then.
Briefly, the EA provides for 3 different types of frameworks for the extradition of
fugitives. The answer to the question of which framework governs a particular request is
contingent upon whether the request is made by a foreign state2, a declared Commonwealthcountry3 or by Malaysia4. A “foreignǥforeign state’
state” asas defined
defined in the EA means any foreign State or
any of the territories specified in the Third Schedule between which and Singapore an
extradition treaty is in force. A ǥdeclared Commonwealth country’ as defined in the EA
means a country declared to be a Commonwealth country in relation to which Part IV applies.
*

Deputy Senior State Counsel, Attorney General’s Office, Singapore.
A copy of the EA is available on the Attorney-General’s Chambers website at
http://app.agc.gov.sg/What_We_Do/International_Affairs_Division/Extradition.aspx
2
Governed by Part II of the EA.
3Governed by Part IV of the EA.
4Governed by Part V of the EA.
1- 19 -

A list of declared Commonwealth countries can be found in the Extradition (CommonwealthCountries) Declaration which is available on the Singapore Statutes Online at the following
URL address: http://app.agc.gov.sg/
Under the EA, the extradition of a fugitive who is suspected of being in, or on the way to
Singapore is only possible if there is an extradition treaty or arrangement between the
Requesting State and Singapore and the requirement of dual criminality is met.
B. The Criminal Procedure CodeIn addition to the EA, s 121 of the Criminal Procedure Code Chapter 68 (Revised Edition2012) of the Statutes of the Republic of Singapore (‘the CPC’), provides an alternative legal(reciprocal) basis for the extradition of a person who is accused or convicted of an offence
against the laws of Malaysia or Brunei Darussalam and who is suspected of being in, or on his
way to Singapore.5 Under this reciprocal arrangement, where a warrant for the apprehensionof a person has been lawfully issued by the relevant court in Malaysia or Brunei Darussalam,a Magistrate in Singapore may endorse the said warrant which may then be executed by therelevant law enforcement agency e.g the Singapore Police Force (‘SPF’) as though it were
issued by a Magistrate’s court in Singapore. This reciprocal arrangement is commonlyreferred to as the “endorsement or backing of warrants”.
As this is a reciprocal arrangement, the domestic criminal procedure laws of Malaysia
and Brunei Darussalam accordingly contain corresponding provisions for the endorsement orbacking of warrants issued by a Magistrate court in Singapore. I understand that ourcolleagues from Brunei Darussalam are not here. As such, I shall leave it in the good handsof my Malaysian colleagues to elaborate on the relevant domestic laws in their country on thispoint during their presentation. I look forward to their discussion on this.
C. The Central Authority
The AGC is designated as Singapore’s Central Authority for extradition requests and all
matters related thereto. The International Affairs Division of the AGC processes all
extradition requests in accordance with the provisions of the EA, CPC and other relevant
legislation, as well as any applicable Extradition Treaty (‘ET’).
D. Other Relevant Ministries and Agencies
Although the AGC is the Central Authority for all extradition requests, other Ministries
and government agencies are ordinarily also involved in the extradition process. For instance,
if a Requesting State seeks Singapore’s assistance in extraditing a fugitive believed to belocated in Singapore for having allegedly committed murder in that state, the Police, which is
the relevant law enforcement agency tasked with investigating such serious crimes and which
may end up executing the request, will be involved in ascertaining whether the fugitive is infact in Singapore.
In addition, depending on the terms of the relevant extradition treaty, the Ministry ofForeign Affairs (‘MFA’) may be involved in the extradition process in receiving the formal
requisition from the Requesting State in the form of the Third Person Note (‘TPN’).

5

A copy of the CPC is available on the Attorney-General’s Chambers website at
http://statutes.agc.gov.sg/aol/home.w3p- 20 -

E. The MagistrateThis part of the paper will now focus on extradition requests made to Singapore, as aRequested State, by a foreign state or declared Commonwealth country as the Requesting
State. Under the EA, the Magistrate plays a material role in the extradition process. There
are two distinct stages during which the Magistrate is authorised to act. The first is the stage
before the warrant for the apprehension of the fugitive is issued (‘pre-apprehension stage’),and the second is the stage after the warrant for the apprehension of the fugitive is issued(‘post-apprehension stage’).
During the pre-apprehension stage, the Magistrate can either issue a warrant for theapprehension of the fugitive pursuant to an application made directly to him, or alternatively,
pursuant to a notice given by the Minister for Law authorising him to issue a warrant for theapprehension of the fugitive. The litmus test that must be satisfied is that the Magistrate inSingapore must opine that there is such evidence according to Singapore law to justify theapprehension of the fugitive, or to justify the issue of the warrant, as the case may be, if theact or omission constituting the extradition crime had occurred in, or within Singapore’s
jurisdiction.
During the post-apprehension stage, the Magistrate may remand a person brought before
him, either in custody or on bail, for a period, or periods not exceeding 7 days at any one time.
The duty of the Magistrate, at this stage in relation to a fugitive who is accused of an
extradition crime, is to consider if there is such evidence, according to Singapore law, as
would justify the trial of the fugitive if the act or omission constituting that crime had
occurred in Singapore, or within the jurisdiction of Singapore. If so, and if after hearing any
evidence tendered by the said fugitive, the Magistrate opines that the fugitive is liable to be
surrendered to the foreign state or the declared Commonwealth country, as the case may be,
he shall commit the fugitive to prison to await the warrant of the Minister for his surrender.
Thereafter, he shall immediately furnish a certificate to the Minister, to that effect and suchreport, if any, relating to the proceedings, as he thinks fit.
The duty of the Magistrate vis-a-vis a fugitive who is alleged to have been convicted ofan extradition crime is to assess if there is sufficient evidence to satisfy him that the said
fugitive has indeed been convicted of that crime. If he is so satisfied, he shall similarlycommit the said fugitive to prison to await the Minister’s warrant for his surrender.
In relation to all extradition requests made by any Requesting State pursuant to the EA,
where the Magistrate opines that that it would be dangerous to the life or prejudicial to thehealth of the apprehended fugitive to commit him to prison, he may, instead, by warrant,
order that the fugitive be held in custody at the place where he is at presently, or at any otherplace to which he can be removed without danger to his life, or prejudice to his health, until
such time as he can be removed without such danger or prejudice, be committed to prison, or
he is surrendered.
In relation to a fugitive who has been committed to prison pending the issue of the
Minister’s warrant for his surrender to a foreign state or declared Commonwealth country(hereafter referred to as ǥthe prisoner’), or ordered to be held in custody at a specified place
other than in prison, the Magistrate shall inform him that he shall not be surrendered until
after the expiration of the period of 15 days from the date of the committal or order.

- 21 -

F. Order for the Review of Detention
If the prisoner asserts that his detention is unlawful, he may apply to the High Court for
an Order for Review of Detention. Upon the review of the Magistrate’s order, the High Court
may confirm, or vary the order, or quash the order and substitute a new order in its stead.
G. The Minister for Law
Under the EA, the final decision on whether or not to surrender a fugitive to a foreignstate or a declared Commonwealth country, lies solely with the Minister for Law. Vis-a-vis
requisitions from foreign states and declared Commonwealth countries requesting thesurrender of a fugitive suspected of being in or on his way to Singapore, the Minister for Law
plays a key role in the extradition process, both at the pre-apprehension and postapprehension stages respectively.
Upon receipt of a requisition for the surrender of a fugitive, the Minister may notify theMagistrate accordingly of the receipt of the said requisition and authorise him to issue awarrant for the apprehension of the fugitive, where no such warrant has been issued by theMagistrate. Where the Magistrate has already issued such a warrant without first having beenauthorised by the Minister, the Minister, if he is of the view that the fugitive is liable to be
surrendered to the foreign state or declared Commonwealth country, he may subsequently
proceed to notify the Magistrate that a requisition for the surrender of the said fugitive has
been made.
Alternatively, if after the Magistrate has issued a warrant for the apprehension of the
fugitive without having been authorised by the Minister, the Minister, if he opines that the
fugitive is not liable to be surrendered to the foreign state or declared Commonwealth country,
he may, by order in writing, direct that the warrant be cancelled and the fugitive, where he isheld in custody, shall accordingly be released. Where the fugitive has been admitted to bail,he shall accordingly be discharged from bail.
During the post-apprehension stage, after the expiration of the period of 15 days from thedate of committal or order issued by the Magistrate, or if within that period, an application for
an order for review is made by the prisoner and the court to which the application is madedoes not order that the prisoner be released, after the expiration of the period of 15 days fromthe date of the decision of the court, the Minister may, if he is satisfied that the prisoner isliable to be surrendered to the foreign state or declared Commonwealth country, by warrant,
order that the prisoner be delivered into the custody of a person specified in the said warrant
and be conveyed by that person to a place in the foreign state or declared Commonwealthcountry, or within the jurisdiction of, or of part of, the foreign state or declared
Commonwealth country and there be surrendered to a person(s) appointed by the said foreignstate or declared Commonwealth country to receive him.
III.

LEGAL REQUIREMENTS FOR MAKING A FORMAL REQUISITION TO
SINGAPORE SEEKING SURRENDER OF FUGITIVES

A. Request for Extradition by a Foreign State or Declared Commonwealth Country
This applies to situations where Singapore, as the Requested State, receives a requisition
complete with supporting documents from a foreign state or declared Commonwealth country
as the Requesting State. Such requisitions from foreign states or declared Commonwealthcountries should contain the following:- 22 -

•the formal requisition from the Requesting State in the form of a TPN•

authenticated copy of the foreign warrant or overseas warrant for the apprehension of
the fugitive issued by a competent authority which is usually a court of law in that
Requesting State•authenticated supporting documents, including a statement of facts, charge sheet, First
Information Report (‘FIR’), where applicable, the prosecutor’s affidavit, copies oflegislation, documents confirming the identity of the fugitive and duly sworn/affirmed
affidavits of material witnesses6•

where the requisition is in relation to a fugitive who is alleged to have been convictedof an extradition crime, the supporting documents should include original orauthenticated copies of any judgment or order recording a conviction against the
fugitive for the offences, copies of the relevant legislation applicable to the offences,
documentary or other evidence or information enabling the identification of the
fugitive e.g recent photographs of the fugitive, his fingerprint records, passport details
etc.

B. Essential Conditions
The following are the essential conditions that must be satisfied in order to ensure that an
extradition request from a foreign state or a declared Commonwealth country is not refusedfor non-compliance with the provisions of the EA or relevant practical requirements:• the request must be in respect of an extradition crime as defined in the EA• the offence must be one that is described in the First Schedule to the EA, or
alternatively deemed by other relevant legislation to have been included in the EA• the offence must satisfy the ǥdual
“dual criminality’criminality”ororǥdouble“doublecriminality’criminality”rulerule• in the case of a declared Commonwealth country, there is an additional requi
requirementthat the maximum penalty for that offence is death or imprisonment of not leless than
12 months• the identity of the fugitive must be ascertainable. In this regard, recent photographs
photograofthe fugitive and his fingerprint records constitute the best evidence to establi
establish andconfirm his identity• there is sufficient evidence in the depositions in support of each charge in the fforeignor overseas warrant.
C. Request for Provisional Arrest
This applies to situations where the request for the apprehension of a fugitive is urgent,for instance, when information is received by the Requesting State that a non-Sin
non-Singapore
resident fugitive is transiting through Singapore and will be leaving our territory before
befthecomplete set of depositions and documentation in support of a formal requisition can bbe sent
to Singapore. Such requests are sought to prevent the fugitive from evading apprehension
apprehensi due
6s 42 of the EA.
EA- 23 -

to the delay in preparing the formal requisition for his extradition, together with the complete
set of supporting documents.
A request for provisional arrest should contain the following:•a TPN from the Requesting State or a note from INTERPOL containing the requisite
information and request stating that a formal TPN will follow shortly•

authenticated foreign or overseas warrant•

documentary or other evidence or information
information confirming
confirming thethe identity
identity ofof thethe fugitive,
fugitivee.g. a recent photograph of the fugitive, his fingerprint records, passport details, etc.

•

documents setting out the facts of the case, e.g. sworn deposition, criminal complaint,
grand jury indictments. Due to the urgency of the request, duly sworn/affirmed
affidavits of material witnesses are understandably not required at this stage

Where the request for provisional arrest is acceded to, the relevant law enforcement
agency officer will be instructed to make a Magistrate’s complaint and apply for a warrant forthe provisional arrest of the fugitive.
D. Contact Details of Central Authority and MFA
Requesting States, viz, foreign states and declared Commonwealth countries, may send
their formal requisitions seeking the extradition of a fugitive suspected of being in, or within
the jurisdiction of Singapore directly to the AGC as the Central Authority for extradition
requests at the following address:
Director-General
International Affairs Division
The Attorney-General’s Chambers
1 Coleman Street#10-00, The Adelphi
Singapore 179803
REPUBLIC OF SINGAPORE
In cases of urgent requests, a copy of the request may also be sent by fax to +65 6338
2979 or by email to AGC_CentralAuthority@agc.gov.sg. However, a hard copy of therequest is still required to be sent over. Queries in relation to extradition matters may be sent
to the correspondence address and fax number above, or sent by email to
AGC_CentralAuthority@agc.gov.sg.
Requesting States which are foreign states or declared Commonwealth countries andwhose laws or diplomatic protocol require all formal requisitions seeking the extradition of afugitive suspected of being in, or within the jurisdiction of Singapore, to be addressed to the
Ministry of Foreign Affairs in Singapore (i.e. MFA), may accordingly send their formal
requisitions to the MFA at the following address:- 24 -

Ministry of Foreign Affairs,
Tanglin,
Singapore 248163
REPUBLIC OF SINGAPOREIV.

GROUNDS FOR REFUSAL

A. General Grounds
In accordance with the EA, the Minister shall refuse a requisition from a foreign state or
declared Commonwealth country seeking the extradition of a fugitive who is suspected ofbeing in, or within the jurisdiction of Singapore, if he has substantial grounds for believing
that:•

the requisition was made for the purpose of prosecuting or punishing the fugitive on
account of his race, religion, nationality, or political opinions•

the fugitive may be prejudiced at his trial, or punished, detained or restricted in his
personal liberty by reasons of his race, religion, nationality or political opinions•

if the requisition relates to an offence of a political character•

the requisition seeks the continued detention or trial in the requesting state, of asurrendered fugitive for an offence which was allegedly committed before hissurrender•

the requisition seeks the continued detention in the requesting state, of a surrenderedfugitive for the purpose of his being surrendered to another country for trial or
punishment for an offence which was allegedly committed before his surrender to that
foreign state•

the requisition is in respect of a person who is held in custody or has been admitted tobail in Singapore in respect of an offence that is alleged to have been committed in
Singapore, or is serving a prison sentence for a conviction in Singapore•

the requisition is in respect of a person who has been acquitted or pardoned by acompetent tribunal or authority in any country, or has undergone the punishment
provided by the law of, or part of, any country, in respect of that offence or of anotheroffence constituted by the same act or omission as that offence (i.e. autrefois acquit orautrefois convict).

B. Specific Grounds
In addition to the general grounds for refusal, the following specific grounds for refusal
are applicable to requisitions made by foreign states and/or declared Commonwealthcountries:•

in the case of requests from foreign states, any grounds for refusal specified in theapplicable treaties•in the case of requests from declared Commonwealth countries, if the Minister issatisfied that by reason of:- 25 -

(a) the trivial nature of the offence that the fugitive is alleged to havecommitted or has committed;(b) the accusation against a fugitive not having been made in good faith or in
the interests of justice; or(c) the passage of time since the offence is alleged to have been committed or
was committed,
and having regard to the circumstances under which the offence is alleged to have beencommitted or was committed, it would be unjust, oppressive or too severe a punishment tosurrender the fugitive, or to surrender him before the expiration of a particular period, theMinister shall not issue a warrant under s 27(2) in respect of the fugitive, or shall not issue
such a warrant before the expiration of that period, as the case may be.
V.

LESSONS LEARNT

A. Some Practical Tips•

Requesting States, viz, foreign states or declared Commonwealth countries, areadvised to establish early contact with the AGC as the Central Authority oralternatively, with Interpol Singapore, and to provide as much advance notification to
Singapore of their intention to make a request for provisional arrest or extradition of afugitive to enable the early identification and resolution of possible legal or practicalissues•

The relevant law enforcement agency in the Requesting State is advised to liaise with
its counterpart in Singapore to confirm, as far as possible, that the fugitive or person
accused or convicted of a crime against its law as the case may be, is, or is suspectedof being in, or on his way to Singapore. This will enable both states to have a betteridea of how much time they have to apprehend the fugitive or the said person and also,
whether to make a request for provisional arrest or a request for extradition proper•

Requesting States are advised to note that the key factor in the evaluation of a request
for provisional arrest is whether or not the fugitive is a flight risk. Thus, Requesting
States are therefore advised to provide its reasons for believing that the fugitive is aflight risk•

Requesting States which have made a request for provisional arrest are advised to notethat once the fugitive has been apprehended, they are required to submit the formal
requisition together with the complete set of supporting documents as soon as possible,
and in any event, before the expiry of the relevant period stated within the applicable
extradition treaty or arrangement•

Requesting States that are planning to issue a media statement regarding their request
are advised to consult the AGC and to discuss the possible impact such a statement
may have on their request, including any court proceedings relating to the executionof the request, eg. committal proceedings and order for review of the Magistrate’s order- 26 -

•

If after consultations with the AGC, the Requesting State wishes to proceed to issue
the media statement, it is advised to disclose the proposed media statement to AGC to
ascertain if the proposed statement could be drafted in a manner that lessens any
possible adverse impact on its request•

Requesting States are advised to identify an expert on the law of their respective states
who would be able to testify in the court proceedings in Singapore, if necessary, as to
the relevant laws constituting the offences in those states in the event a legal challenge
to the extradition request is mounted by the fugitive or his legal counsel
VI.

CONCLUSIONAs stated at the outset, this paper is intended to provide only a general overview of theextradition framework in Singapore where Singapore is the Requested State, rather than the
Requesting State. It is hoped that it has achieved its objective and enabled Requesting Statesto have a better understanding of the extradition process in Singapore.

- 27 -

MUTUAL LEGAL ASSISTANCE AND ASSET RECOVERY
Pedro Gomes Pereira*

I. INTRODUCTION
The international community has seen cross-border movement of persons, goods andcapital intensify greatly throughout the second half of the 20th century. While this global
integration has brought greater wealth, it has also brought with it the growth of, and new
trends in, cross-border crime. As a consequence, a new paradigm in criminal law has been
emerging in this period, challenging the age-old international legal standards that havedefined the modern sovereign State since the 17th century.
The rising international visibility of certain local events alongside the intensification ofcross-border movements has allowed this rise of transnational crime 1 , in particular of
corruption, of money laundering and of transnational organised crime. The traditional
interconnection between criminal law and sovereignty has, as a result, rendered the control oftransnational crime at a purely local level obsolete. This is due to the fact that sovereignty
becomes the main defence mechanism for transnational crime, as the latter normallystructures itself through the use of different, and often conflicting, legal systems andtraditions.
The response from the international community, in order to bridge this perceived
impunity gap, has sought to enhance its cross-border co-ordination with regards to certain
criminal offences. This co-ordination is done through hard and soft law instruments at thebilateral, regional and international levels. These instruments allow for a better co-ordinationof disparate legal systems in order to avoid the superimposition of jurisdictions and efforts,
where possible and applicable.
The focus of these international instruments, when combating corruption and money
laundering, is to choke their incentives through the asset recovery process. It is understoodthat, if the financial incentives — be they the undue advantage offered or accepted, or the
profits generated from it — are removed, the occurrence of corruption will be less likely.
The
Theasset
assetrecovery
recoveryprocessprocesscancanbe
be understoodunderstood as
as aa four-phased
four-phased processprocess22, made up ofthe:
1. Pre-investigative or intelligence gathering phase, during which the analyst or theinvestigator verifies the source of the information which may initiate an investigationand determines its authenticity;*

Senior Asset Recovery Specialist, Basel Institute on Governance.
Maíra Rocha Machado (2004). Internacionalização do Direito Penal: A Gestão de Problemas Internacionais
por meio do Crime e da Pena. p. 18.
2International Centre for Asset Recovery (ICAR) (2009). Tracing Stolen Assets: A Practitioner’s Handbook. p.
19.
1- 28 -

2. Investigative phase, where the proceeds and instrumentalities of crime are identified
and located, as well as evidence of the true nature and ownership is collected. This
stage covers several areas of investigative work in more formal processes, e.g.,through the use of requests for MLA, and financial investigations to obtain andanalyse bank records. This phase involves substantiating the veracity of theintelligence and information collected in the previous stage and converting it into
admissible evidence. The result of this investigation can therefore be only a temporary
measure – e.g., seizure – in order to later secure a confiscation order through thecourt;
3. Judicial phase, where a judgement against the perpetrator is obtained and, whereapplicable, a decision on the confiscation of the proceeds and instrumentalities ofcrime is determined;
4. Realisation phase, where the property is actually confiscated and realised by the Statein accordance with the law, while taking into account international asset sharing
obligations, as well as compensation for victims and determination on what to do withthe confiscated assets.
One of the tools which is to be used within the asset recovery process – in particular if
there are elements of cross-border movements – is known as mutual legal assistance (MLA).
Its purpose is to articulate States in order to repress the cross-border criminal activity3.
Therefore, MLA can be defined as the manner through which a State renders assistance toanother so that the requesting State may comply with its jurisdictional obligations. The needfor MLA is mainly due to the fact that the requesting State cannot exercise its jurisdiction in
the requested State. As a result, the latter may furnish evidence or take coercive measures onbehalf of the former in a way that both complies with its legal requirements and which may
be valid in the courts of the requesting State.
MLA is based on the premise that a State will request another, through channels decided
upon between them either bilaterally or through the international community, which will thenrule on the contents of the request. It is not just a form of communication between States: ittranscends to assistance provided by one State to another in order to co-ordinate legal
systems with a view to satisfying evidentiary requirements relating to the investigations in therequesting State, or to safeguarding assets which may be at risk of loss or that are the fruits
derived from criminal activity, and which are found in the requested State. When viewed thisway, it is possible to expand the scope of application of MLA while respecting traditional
perceptions of the sovereignty of States.4
This paper seeks to briefly put MLA into context in the asset recovery process, on the
one hand, while focusing on the international and cross-border efforts to prevent and combat
corruption, on the other. This paper will therefore seek to introduce the practitioner to thebases of MLA, its main principles, limits to international co-operation, and also the contentsof requests for such assistance. Special focus will be given to the channels of communication,
which must remain open and be used regularly and proactively by both the requesting and therequested States. Finally, this paper will also seek to address the issue of validity of theevidence in courts in both the requesting and requested State.
34GONZÁLES, S. A. ; REMACHA Y TEJADO, J. R, org. (2001). Cooperación Jurídica Internacional. p. 141.
GONZÁLES, S. A. ; REMACHA Y TEJADO, J. R, org. (2001). Cooperación Jurídica Internacional. p. 70.

- 29 -

II. ASSET RECOVERY AND CORRUPTION
The traditional perception of preventing and combating criminal activity is that there isa need to collect the evidence, identify the perpetrator of the criminal offence underinvestigation, prosecute him or her and convict or acquit him or her to a punishment that has
been pre-determined in law. The identification, seizure and confiscation of the proceeds andthe instrumentalities of crime, in this scenario, is secondary: the focus of this action is inorder to ensure that there are funds to satisfy the civil obligations which derive from thecriminal process, e.g., compensation to victims.
While this approach remains applicable in those cases in which the focus of thecriminal action is the unlawful financial gain deriving from the criminal activity, the object isensuring firstly that these assets are secured, as they are the gains of criminal activity. This isbecause corruption-related offences5, money laundering, fraud and other financial crimes
focus on the illicit financial advantage gained by the perpetrator when committing suchoffences. In these cases, while it is important to seek the conviction and incarceration of theperpetrator, the prime focus is to ensure that they do not enjoy the profits of their crime. Thus,
it is fundamental that these criminal assets are identified, seized and confiscated. They are theobject of the investigation and prosecution, not its by-product.
The identification of corruption-related proceeds and instrumentalities of crime is done
through, and is part of, the asset recovery process, as explained above. This is because, theunlawful assets are laundered6 by the perpetrator of the crime. Money laundering is the tool
used by the perpetrators of corruption and financial crimes to hide the true nature, origin andownership of the profits derived from crime7. On the other hand, asset recovery is the process
through which law enforcement identify and trace those assets, linking them to theperpetrators and their criminal activities, in order to obtain the necessary seizure andconfiscation of these unlawful assets.8
The identification of the proceeds and instrumentalities of crime, however, isoftentimes complex and time-consuming. As a consequence, the asset recovery process may
be constricted by the difficulties in identifying these proceeds and instrumentalities.9 An
added complexity is the fact that, during the money laundering process, it is common totransit the proceeds and instrumentalities of crime through numerous jurisdictions, in an
attempt to mask the true nature, origin and ownership of those unlawful assets.

5

The United Nations Convention Against Corruption (UNCAC), the global standard for preventing andfighting corruption, defines the following offences and corruption-related offences: active and passive
corruption of national public officials, of foreign public officials and of officials of public internationalorganisations; embezzlement; trading in influence; abuse of functions; illicit enrichment; bribery in the private
sector; embezzlement of property in the private sector and money laundering of corruption-related offences.
It should be underscored that not all of these offences are mandatory under the UNCAC, as the corruptionrelated offences are graded as mandatory and non-mandatory by the Convention.
6
While the exact definition of money laundering depends of how this criminal offence is defined in thenational legislation of each country, it can be generally understood, for the context of this paper — and based on
the international standards — as the process of concealing, disguising or hiding the true origin, nature andownership of property derived from, or involved in criminal activity, such as the corruption-related offences.
7International Centre for Asset Recovery (ICAR) (2011). Development Assistance, Asset Recovery andMoney Laundering: Making the Connection. p. 9.
98Ibid. p. 6.
9Ibid. p. 13.

- 30 -

As a result, States will normally require, during the investigation and prosecution of acorruption-related case, to make use of MLA, in order to collect the evidence – tosubstantiate the criminal activity – and to take coercive measures – such as the preservationof the proceeds and instrumentalities through seizure orders – in another jurisdiction. One ofchallenges to MLA, however, is its response time, which may be inadequate for seizing andconfiscating assets, given the time needed for its execution between the involved countries
versus the speed in which international financial transactions occur.10
III. MUTUAL LEGAL ASSISTANCE AND ASSET RECOVERY
There are several ways through which a State may pursue MLA with another, through:(i) bilateral or multilateral international treaties, (ii) reciprocity undertaking, or (iii) use of thelegislation of the requested State.
The international community has established a trend since the adoption of the United
Nations Convention against Illicit Traffic in Drugs and Psychotropic Substances, adopted in
198811 (1988 Vienna Convention), by including specific provisions pertaining to MLA.
Since then, these provisions have been enhanced and detailed more thoroughly, as can beseen in the United Nations (UN) Conventions against Transnational Organized Crime(UNTOC), adopted in 2000, and against Corruption (UNCAC), adopted in 2003.
There are also regional MLA conventions within regional bodies, such as the African
Union (AU), the Southern Africa Development Community (SADC), the Organisation ofAmerican States (OAS) and the Council of Europe (CoE). Furthermore, according to current
trends in the field of tackling corruption, there is, at the international legal level, theOrganisation for Economic Co-operation and Development (OECD) Convention on
Combating Bribery of Foreign Public Officials in International Transactions (OECD AntiBribery Convention)12 and on the regional level, the corruption conventions of the OAS, theAU, the SADC and of the CoE.
An international multilateral or bilateral convention may be invoked for the purpose of
MLA if both the requesting and requested States have ratified it. In the absence of suchratification by both States, a State may seek to request assistance with the provision ofreciprocal treatment in future cases of a similar nature emanating from the requested State. It
should be noted, however, that not all legal traditions allow for such a reciprocity undertaking
without a legal basis between both countries. Finally, assistance may also be requested on thebasis of the internal legislation of the requested State. This is because several jurisdictions
already have within their legal framework provisions for MLA, e.g., Switzerland and theUnited Kingdom.

10International Centre for Asset Recovery (ICAR) (2011). Development Assistance, Asset Recovery andMoney Laundering: Making the Connection. p. 13.
11
The 1988 Vienna Convention establishes a turning point for the international community as a whole. Prior tothis, however, there were some successful experiences seen on the bilateral and regional levels, as is the case of
the European Convention on Mutual Assistance in Criminal Matters (adopted by the CoE in 20 April 1959) and
its additional Protocol, adopted in 17 March 1978. On the bilateral level, Switzerland and the US signed abilateral treaty on mutual legal assistance in 1977.
12
It should be noted that the OECD Anti-Bribery Convention does not contain mechanisms enabling MLA. It
has nevertheless been mentioned in this paper as it is an important instrument for the prevention and thecombating of corruption.

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There are, however, subtle differences between multilateral and bilateral treaties thatprovide for MLA. Due to the fact that multilateral conventions encompass numerous
jurisdictions (e.g., the UNCAC has been ratified by over 150 jurisdictions), the co-ordination
between all these States limits itself to establishing important principles and standards
concerning specific criminal conduct which the international community wishes to addressand combat. The main element of multilateral conventions is not the co-ordination of MLA
instruments, but rather the co-ordination of specific offences deemed relevant by theinternational community. In these cases, more attention is given to the internationalisation of
local paradigms,13 rather than the procedural provisions enabling the prevention and thecombating of such offences.
On the other hand, bilateral treaties on MLA, due to the limited number of parties
involved, are able to establish exact procedures and the limits to co-operation that the
involved States are willing to provide through such assistance. Bilateral treaties, therefore, do
not generally address criminal conduct of the substantive criminal law, but rather leave its
application open to any criminal activity (although limited by the principle of speciality, as
will be seen below), specifying the rules of procedure to be followed in requests for MLA.
Co-ordination between two jurisdictions that have a bilateral MLA treaty in place is moreeasily attainable, as they seek the co-ordination of jurisdictions and their mechanisms tocounter cross-border criminal activity, rather than focusing on the internationalisation of thelocal paradigms.
It should be noted that the use of the bases for MLA listed above are not mutually
exclusive. A request for MLA can be based on one or more conventions, or on a convention
and the national legislation of the requested State. This is because the request may address
multiple criminal activities of a person or persons, which can easily span numerous
multilateral conventions. On the other hand, it may be possible to use a multilateralconvention, which addresses specific transnational crimes, and a bilateral treaty, which will
specify the appropriate procedures to be followed.
The practitioner should therefore, at an initial stage, analyse the criminal activity foundwithin his or her jurisdiction but which carries effects outside of it, superimposing the said
activity with all the international conventions that its country has ratified. Following this step,
it should observe whether these conventions have also been ratified by the State in whichassistance is to be requested.
1.

Mutual Legal Assistance and the Pre-Investigative and Investigative Stages
When an investigation reaches the stage at which an action must be executed within
another jurisdiction, the investigator or prosecutor must focus on three initial questions:whom should be contacted in order to request effective assistance, what mechanism should
be used, and when should this request be submitted to the requested State? In order to answer
these questions, several factors must be taken into account and they have to be considered
and analysed on a case-by-case basis.
The investigator should first determine whether the information sought in anotherjurisdiction could be produced formally or informally. Should the latter scenario be the case,that is, if no evidence is to be presented to a court or coercive measures sought but rather thecollection of information to support furthering the investigation, the investigator may wish to

13

Boaventura de Sousa Santos (2005). A Crítica da Razão Indolente: Contra o Desperdício da Experiência. p.
18.

- 32 -

make use of his or her contacts in order to obtain said information. If no contacts are known,
the practitioner should make use of his or her contacts to pursue other contacts within their
network. Another avenue to be considered is the use of legal attachés or police liaisons with
the Embassy of the requested State. Another mechanism that should be sought in the informal
assistance is making use of the numerous groups available for such purposes, such as theEgmont Group of Financial Intelligence Units (FIU) or the Interpol channels.
Should the procedure sought be produced formally, not only must the practitioner makeuse of the contacts mentioned in the preceding paragraph prior to issuing a request for MLA,
but he or she must also contact the central authority of his or her State. The central authority
is a body comprised of experts in the field of MLA. Ideally, the central authority is
responsible for assisting the law enforcement community and prosecutors in devising theirinternational strategies for an investigation and prosecution, if MLA is required. In order todo so, the central authority must heavily rely on its networking capabilities with central
authorities and officials of other jurisdictions, but also have a general understanding of therequirements for MLA and the legal requirements necessary in the requested State inrendering assistance, in order to ensure effectiveness and diligence in the execution of therequest. The staff at the central authority should, for this reason, have an adequate
understanding not only of the legal and judicial requirements of their country, but also that of
the main requested States.
Preliminary contact prior to taking any actions pertaining to MLA is essential in raising
the chances of a successful request: in international co-operation, communication is key.
Such contact will ensure that the requesting authority attains an understanding of what
information must be contained in the request and how the information should be best
conveyed within the request to the requested State. Also, such preliminary contact will
anticipate the forthcoming request, and allow the requested State to analyse and agree on theterms of the draft request, ensuring its future effectiveness. All these factors become
particularly important when the request is either deadline driven which is often the case, or its
execution is urgently required.
The timing for issuance of the request is also very important. This is because while theinvestigation may be confidential in the requested State, procedures in the requesting State
may determine that the request must be disclosed to the defence prior to sending the evidence
to the requesting State. Communication, once again, is paramount so that both the requested
and the requesting States fully understand the outcomes, results and consequences of theassistance rendered. It is only through appropriate communication that the practitioner willlearn and understand the legal implications of the request in the requested State. Moreover,understanding these implications will also anticipate legal challenges in the proceeding in therequesting State.
2.

Principles Governing Mutual Legal Assistance
There is an array of principles that govern MLA, derived from both international andnational law. From a day-to-day practical experience, however, two principles stand out forpractitioners who are faced with drafting requests: the principles of dual criminality andspeciality.
The principle of speciality prohibits or prevents the requesting State from utilising theresults arising from the assistance rendered by the requested State in proceedings other thanthose specified in the request for MLA. This does not mean, however, that the results from- 33 -

such a request cannot be utilised in proceedings other than those specified in the request for
MLA. Rather, it means that the requesting State must ask in writing for permission from therequested State to utilise the results in other proceedings, and obtain such authorisation prior
to disclosing the evidence in other proceedings.
This written request must refer to the new proceedings in which the requesting State
wishes to use the evidence, explaining the offences under investigation, the context of theinvestigation and how the evidence provided would benefit the other proceedings. Should therequested State agree, the evidence may then be lodged in the new proceedings, respecting
any conditions that the requested State may wish to impose.
The principle of dual criminality, on the other hand, is capable of easy understanding
but often difficult to fully comprehend. Requesting States often see it as the main reason for
restricting or denying assistance by requested States. This principle, which can also be foundin other forms of international assistance, such as extradition proceedings, conveys the factthat the offence under investigation in the requesting State must correlate to an offence in therequested State. The offence in both the requesting and requested States do not have to be
identical – if this were to be required, it would, in fact, greatly diminish the possibility ofrendering assistance. Rather, it means that the core elements of the offence in both States
must be similar in nature.
While drafting the request for MLA, the practitioner must be aware of the dual
criminality principle, and explain how its jurisdiction perceives the offence. The practitioner
cannot simply lay down the legal definition of the offence and hope that the requested State
will be able to understand it and find a similar offence within its legal system – thepractitioner drafting the request must seek to explain how the offence operates within its
jurisdiction, and to intertwine it with the subject-matter of the request with the criminal
offences found in the requested State. The practitioner must heavily rely on communication
with the requested State in order to achieve this, as the understanding of the criminal offencesin the requested State will only be forthcoming through this channel.
It should be highlighted that mutual legal assistance is not a transfer of the
responsibility to investigate to another country (commonly known as a “fishing expedition”).
While the requested State may have the jurisdiction to conduct an investigation, it is therequesting State which has the jurisdiction to investigate and prosecute. It is merely
requesting the former to collect evidence or to conduct and act on behalf of the latter, as it
does not have jurisdiction to act in the requested State. Thus, the requesting State must
conduct its own investigation, especially if it is the only one which has jurisdiction over thematter, and the requests for MLA must be sufficiently clear, detailed and based on
preliminary findings from its own investigation. The requesting State’s preliminary
investigations must sufficiently provide details about the background for the action which is
being requested in the request for MLA.
3.

Kinds of Assistance
Treaties on MLA generally provide a list of measures under which assistance may besought. This list, however, is not exhaustive and States will render assistance insofar as therequest does not contradict its own internal constitutional and legal framework. Furthermore,assistance may be rendered at any stage of the criminal proceedings — both pre-trial and trial— and includes acts ranging from the service of process to more complex coercive measures
such as obtaining bank statements and seizing proceeds of crime. Other coercive measures- 34 -

such as seeking to enforce arrest warrants or the extradition of persons are not encompassed
by MLA and are done through extradition.
It should be noted that MLA is entrenched within the criminal jurisdiction of a State,
which, in turn, is the most visible aspect of its sovereignty, and no other State may seek toapply criminal proceedings directly or enforce criminal orders within another State’s
jurisdiction without its prior approval. What this means in practical terms is that requests for
MLA must contain sufficient information in order for the requested State to understand what
is being sought and its connection with the underlying facts, so as to be able to act on behalfof the requesting State within the former’s jurisdiction. Failure to provide the minimal
amount of information to satisfy the requested State’s jurisdiction will more likely than not
result in the rejection of the request, as it will be deemed insufficient. Furthermore, therequesting State must also inform the requested State upon application for MLA the reasons
for which such coercive measures or production of evidence are necessary for its criminal
proceedings.
MLA is not a means to have the requested State carry on an investigation for therequesting Sate, and thereafter to retransmit the results to the requesting State, so that it may
initiate its own investigation or prosecution. This is also known as a fishing expedition, or
when the requesting State shifts the burden of the investigation to the requested State. One of
the keywords in MLA is co-ordination, and, as such, the requesting State must provide
sufficient information, which can only be obtained through investigation, to enable therequested State to render the assistance sought.
When requesting assistance, the practitioner must also be aware of the legal
requirements to be met in both the requesting and requested States for the assistance sought,
e.g., transmission of affidavits or court orders alongside the request for MLA. While thepractitioner of the requesting State is knowledgeable of the standards needed for the
production of evidence, one must assume that this is not the case regarding the legal
standards of the requested State.
There are many variables to this equation. The type of assistance to be pursued in therequesting State is the first point that the practitioner should analyse. Requests seeking theservice of documents or court orders from the requesting State will have simpler standards,
whilst taking evidence from a witness or expert may be more complex, as some States deemthe production of evidence by witnesses a coercive measure, should the witness not wish to
produce it voluntarily and must, therefore, be compelled to produce evidence.
Providing bank records or seizing proceeds of crime, on the other hand, have higher
standards. Banking information is, for the most part, legally protected, and a court order has
to be obtained prior to its disclosure to both the authorities of the requesting and requested
States. Seizing of assets in the requested State on behalf of the requesting State, is the mostcomplex type of assistance to be sought, as is its maintenance for future confiscation andrepatriation.
One important point to consider is that requests for MLA are not final. This is to saythat requests may be issued at any stage of the criminal proceedings in the requesting State,
and that more than one request may be issued for the same proceedings. The practitioner may
wish to pursue initially the production of banking information pertaining to an account heldby the investigated person. Upon disclosure of the banking information, the investigation- 35 -

may conclude that other accounts were also used, at which point further requests fordisclosure should be made to the requested State. When this investigation has firmly
established the link between the investigated person, the facts and the bank accounts, and themonies have been located, a further request for MLA should then be made, seeking to seize
the proceeds of crime.
As such, requests for MLA should remain simple, to the extent possible, and shouldseek precisely what the investigation in the requesting State has already uncovered. One
overly long and detailed request, containing multiple requests for assistance are not only
cumbersome to execute but also raise the level of complexity, which will invariably result indelay in its execution. Therefore, the practitioner should seek to issue requests with precise
objectives: the issuance of a request does not preclude issuance of future requests seeking toamend the previous one or containing a different focus for the assistance sought. Thisapproach, in fact, is generally better accepted and usually has a better chance of success.
Upon establishing the type of assistance to be pursued, the practitioner must then know
and understand the standards to be met in the requesting State. This must be done with priorcommunication with the requested State. Where a more experienced practitioner in MLA
may be able to make use of his networking contacts, a new practitioner in the field will haveto rely on the central authority of his country.
However, it may not only
be the central authority of the requesting State that will havebe only
the necessary information. Additionally, other very important sources of information for thepractitioner are contacts within the Embassy of the requested State in its own State, such aslegal attachés or police liaisons. Many countries nowadays have within their Embassy staff
experts from their law enforcement community, and they should be contacted as they areaware of their own law enforcement community and the requirements necessary to obtain theassistance sought in the requested State. Embassy contacts seek to bridge the gap between
law enforcement communities of States.
4.

Contents of the Request
A request for MLA must be simple and objective, as the requested State must
understand the correlation between the criminal activity in the requesting State and what isbeing requested. The assistance sought should be clearly established and linked to the facts
and criminal conduct described in the request.
In order to have a successful request for MLA, it is common to have an investigationthat has already been initiated in the requesting State. Its findings will lead the investigator to
new leads or hypotheses, which must then be tested in order to confirm if the investigatedperson(s) is guilty. However, should the information needed to confirm some of thesehypotheses be in another jurisdiction, a request for MLA will be necessary.
In order to initiate a request for MLA, the request in the requesting State must be
prepared by the relevant authority. It is of little use to have all the information andproceedings done properly if the competent authority does not sign the request, as no court oflaw in the requesting State will accept the evidence that was, in the final analysis, requested
by an incompetent authority. The proper authority will then seek to provide the necessary
information emanating from the investigation in the requesting State to the requested State,and be sure that the requirements in both States are met.

- 36 -

The request for MLA must include personal information of the person or persons underinvestigation, i.e. the full name of the person, date of birth, name of his or her mother andpassport number; a summary of the proceedings underway in the requesting State, including
the docket number, a brief description of the proceedings, and the stage which theproceedings under the criminal procedures of the requesting State has reached.
A brief description of the facts is to follow the introductory information. Here, therequesting State must provide information of the facts, and how these facts correlate to theinvestigated person or persons. A correlation between the criminal offence or offences andthe facts and persons must also be explained.
Thereafter, a copy of the criminal offences and their sanctions must be made available
to the requested State. It is of the utmost importance, however, that these criminal offences
are explained. This is necessary as some countries require that requests for MLA meet thedual criminality principle, in which the offence in the requesting State must find correlation
with a criminal offence in the requested State.
5.

Validity of the Evidence
Preparing a request for MLA is only part of the work which has to be done in MLA. Its
preparation must be thorough and complete, as the main goal is to guarantee its effectiveness.
Not only must the effectiveness of the request be considered but also the results arising
therefrom.
Whilst it is important to meet the requirements of a request for MLA established by thelegal framework of the requesting State, in order for it to provide the assistance sought, theactions undertaken by the requested State must also be deemed applicable in the requesting
State. Bilateral, regional and international treaties which contain rules for MLA determinethat the rules of procedure for the execution of the request shall be those of the requested
State.
What if, however, the way in which the evidence is produced by the requested State isconsidered inadmissible by the requesting State’s jurisdiction? It should be highlighted thatthe general rule mentioned in the preceding paragraph does contain an important exception:
the requesting State may ask the requested State, in the former’s request for MLA, for it toobserve specific procedures applicable in its jurisdiction whilst executing the request. The
requested State shall then comply with these rules during the execution of the request, to theextent that they do not conflict with the requested State’s internal legal framework or its
constitutional requirements.
An important observation thus arises: as uncommon as the procedure may be in therequested State, it shall be observed. Therefore, communication between the requesting andthe requested States is of the essence in order to guarantee the success of this procedure, andto understand the extent of application of the requesting State’s procedures within therequested State’s jurisdiction.
Therefore, if the evidence is produced in a valid manner in the requested State, or if theprocedure adopted for the production of the evidence is considered valid by the requested
State, it must be considered as valid in the requesting State’s jurisdiction.

- 37 -

IV. CONCLUSION
The asset recovery process is a powerful tool for the combating of corruption-related
offences. It is also, however, a complex process which requires the investigator and theprosecutor to think outside the box.
An important part of the asset recovery process is mutual legal assistance, as theproceeds and the instrumentalities of crime will normally transit between numerous
jurisdictions in an attempt to have hidden – and sometimes even have it as a final destination– by the perpetrator, the true nature, origin and ownership of these proceeds andinstrumentalities.
A request for MLA is however a delicate balance between what information isnecessary and should be conveyed, and what, in fact, has to be disclosed. This is so because
several factors come into play – whereas the requested State needs enough information andunderstanding of the case in the requesting State in order to render assistance in the assistancesought, an excessive amount of information may create confusion in the requested State, andmisunderstanding as to what is the purpose of the request. Moreover, too much information
may be made readily available to the defence at a moment when the investigation is still
confidential, thus defusing the element of surprise necessary to any investigation. Of
fundamental importance to the asset recovery process in general, and mutual legal assistancein particular, are that the channels of communication between the requested and requesting
States remain open and are used at all times, even prior to the issuing of the request for MLA
itself.
The key to successful MLA is, thus, communication. It is only through clear, concise
and constant communication prior to, throughout and after the assistance has been rendered,that the requesting authority will be able to know the intricacies of MLA with the requested
State. Moreover, communication brings another important element to MLA: trust. Throughcommunication,
one party
party isis able
able toto gradually
gradually build
build the necessary trust that any law
communication one
enforcement activity requires in order to ensure effectiveness and success.
Although the variables of MLA – difference between legal systems and traditions, thetype of assistance required and the subject matter of each investigation all interacting
simultaneously – do not allow for one to establish a formula for sure success, it is possible toestablish a checklist against which a request should be tested whilst it is in the process of
being drafted.
The practitioner should establish what assistance will be sought through the request andwhat the legal basis will be. Once this is defined, dual criminality issues should beestablished, if any, and the drafting of the request should be done in a way that it can becomprehended by the requested State’s jurisdiction. The request should be proofread in orderto ensure that all the necessary information and linkages are contained and, if possible, sent to
the requesting authority so that it too may determine that all the information is contained
within. Finally, prior to sending the request, it should be checked whether all the appropriate
supporting documentation, if any, or, if necessary, accompanies the request.

- 38 -

I. APPENDIX OF ABBREVIATIONS
1988 Vienna Convention

United Nations Convention against Illicit Traffic in Drugs
and Psychotropic SubstancesAU

African Union

CoE

Council of Europe

FIU

Financial Intelligence Unit

MLA

Mutual Legal Assistance

OAS

Organisation of American States

OECD

Organisation for Economic Co-operation andDevelopment

OECD Anti-Bribery Convention Convention on Combating Bribery of Foreign Public
Officials in International Transactions
SADC

Southern Africa Development Community

UN

United Nations

UNCAC

United Nations Convention Against Corruption

UNTOC

United Nations Convention against Transnational
Organized Crime- 39 -LEGAL FRAMEWORK AND PRACTICE OF MUTUAL LEGALASSISTANCE IN CHINA∗ ∗Dr.
Zhenjie
Zhenjie
Zhou
Zhou

I. INTRODUCTION
After the mid-1990s, along with development of a market economy and an increase inforeign investment, China saw dramatic economic success. Meanwhile, economic prosperity
led to more economic disputes, which in turn led to a quick increase in civil and commercial
cases, including those involving foreign elements. According to the annual report of theSupreme People’s Court (SPC) of the People’s Republic of China (PRC) in 2002, people’s
courts at all levels handled less than 55,000 civil and maritime cases involving foreign
elements in the five years from 1996 to 2001,1 and the annual report in 2008 shows that thefive years from 2002 to 2007 saw a considerable increase: the number reached 64,558, nearly
a 15% increase.2 After 2008, according to annual reports of the SPC, civil and maritime
cases involving foreign elements handled by people’s courts at all levels continued toincrease; the total number was 19,621 in 2009,3 20,258 in 20104 and about 22,000 in 2011.5
In order to handle such cases, mutual legal assistance such as collecting evidence and sending
legal documents aboard is naturally necessary.
Besides increases in civil and maritime cases involving foreign elements, China’s efforts
to crack down on corruption and terrorism in recent years makes mutual legal assistance more
and more vital too. For example, according to a research report by a project team of theChinese Academy of Social Sciences in June 2008, about 16,000 to 18,000 corrupt officials
fled from China with more than 80 billion US dollars since the 1990s.6 Most of them are
now in developed countries such as the US, Canada and EU countries, few of which havesigned mutual judicial assistance treaties with China. In order to punish these corrupt officials,
China has to request foreign authorities to help in locating and arresting suspects andrecovering assets, etc. In sum, mutual legal assistance is unprecedentedly important andnecessary to China now.
II. LEGAL FRAMEWORK OF MUTUAL LEGAL ASSISTANCE
China began to legislate on mutual judicial assistance since 1985, when China and∗Associate Professor, College for Criminal Law Science of Beijing Normal University.
See Xiao Yang, Report of the Supreme People’s Court on the 5th session of 9th National People’s Congress(Mar.11, 2002).
2
See Xiao Yang, Report of the Supreme People’s Court on the 1st session of 11th National People’s Congress(Mar.10, 2008).
3
See Wang Shengjun, Report of the Supreme People’s Court on the 3rd session of 11th National People’s
Congress (Mar.11, 2010).
4
See Wang Shengjun, Report of the Supreme People’s Court on the 4th session of 11th National People’s
Congress (Mar.10, 2011).
5
See Wang Shengjun, Report of the Supreme People’s Court on the 5th session of 11th National People’s
Congress (Mar.11, 2012).
6
See Huashang Daily, 16th June, 2011.
1- 40 -

France began to negotiate a mutual legal assistance treaty in civil and commercial matters.
Since then, China has been actively participating in negotiating, drafting and ratifying
international and bilateral documents.
According to the Ministry of Justice (MOJ) of the PRC, since ratification of the firstinternational convention on mutual legal assistance in 1991, the Convention Concerning
Sending Abroad Civilian or Commercial Judicial Documents and Un-judicial Documents,
China has ratified 28 international and multilateral conventions on mutual legal assistance,
including the UN Convention against Corruption and the UN Convention against
Transnational Organized Crime. Since signature of the first Treaty on Mutual Judicial
Assistance in Civil and Commercial Matters with France in 1987, China signed 107 bilateralmutual legal assistance treaties by the year of 2009.7 Meanwhile, China has laid down
provisions on mutual legal assistance in general laws such as civil procedure laws andcriminal procedure laws, and enacted special laws such as the Extradition Law.
75 of the 107 bilateral treaties that China has signed with foreign states have entered into
force. Among them, 19 are in criminal matters, 19 in civil and criminal matters, 11 in civil
and commercial matters, and 22 are extradition treaties. The remaining four are convict
transfer treaties.8 It is worth noting that China has signed bilateral treaties on mutual legal
assistance with less than half of the countries and regions in the world, the majority of which
are developing countries, such as Central Asian countries. The barriers that China is
confronted with mainly are the death penalty, problems in transparency of the justice systemand differences in laws.
With the intention to facilitate mutual judicial assistance, China is striving to eliminate
these barriers and create favorable conditions. For example, the 8th Amendment to the
Criminal Law 1997 abolished the death penalty for 13 offences and in principle exempted theelderly beyond 75 from capital punishment. What is more important is that the Amendment
showed the Chinese Legislature’s resolution to abolish the death penalty for non-violent
crimes and the fact that a majority of the people’s representatives agreed on the abolition.9
Moreover, China is preparing to ratify the International Convention on Civil and Political
Rights (ICCPR), 10 which undoubtedly will make it necessary to amend related laws
according to international standards and thereby reduce the gap between Chinese and foreign
legislation.
Within the legal framework of mutual legal assistance in China, in addition to the generallaws and special laws on mutual legal assistance, regulations and interpretation documents
issued by related authorities such as the SPC are also worth mentioning here as they makedecisions. For example, as early as in 1982, the SPC issued a notice on how to deal withissues concerning sending judicial documents between China and Japan. Another example
would be the interpretation on how to deal with requests of foreign courts for sending judicial
documents and submitting requests to foreign courts through the Ministry of Foreign Affairs
jointly issued by the SPC, Ministry of Foreign Affairs and MOJ in 1986. Both are actually
taking the place of law in guiding mutual judicial assistance in practice.

7

The Ministry of Justice of the PRC, Ratification of Treaties and Conventions on Mutual Judicial Assistance in
China, at http://www.legalinfo.gov.cn/moj/sfxzws/content/2009-08/26/content_1144120.htm?node=7382.
8
Ibid.
9
See Guangming Daily, Aug. 26, 2010.
10
See Nanfang Weekend, Sep. 22, 2005.

- 41 -

In order to offer clear and uniform standards and application guidelines, The MOJ of the
PRC had finished the draft of the Law on Mutual Judicial Assistance in Criminal Matters andsubmitted it to the legislature for review in 2009.11 Meanwhile, Chinese scholars are making
contributions too. For example, Professor Huang Feng at the College for Criminal Law
Science of Beijing Normal University, a former high level official at the MOJ, published his
expert proposal of Law on Mutual Judicial Assistance in Criminal Matters in March 2012.12
Judging from the present reality, it is very likely that the Law will be adopted in the near future.
Briefly, China now conducts mutual legal assistance through three approaches. The firstone is bilateral treaty. It might be the most reliable and fastest approach. However, it takes along time to negotiate. The second one is multilateral/international conventions, such as the
UNCAC and UNTOC. The last one is the foreign approach, which usually takes a long timeand has to overcome more barriers, such as the possibility of being subject to the death
sentence in criminal cases.
III. PROCEDURE
Procedures of mutual legal assistance in China vary with matters concerned. The mostrepresentative one might be the extradition procedure, in which the SPC, Supreme People’s
Procuratorate (SPP), Ministry of Public Security (MPS) and the State Council are all involved.
Therefore, it has become an example often quoted to show how mutual legal assistance incriminal matters is handled in China.
According to the Extradition Law of the PRC enacted in 2000, upon receiving therequest for extradition from the Requesting State, the Ministry of Foreign Affairs will
examine whether the request and the accompanying documents conform to the extradition
law and treaties. Where the Ministry of Foreign Affairs believes that the request conforms, itwill transmit the request to the SPC and the SPP.
Where the person sought is detained for extradition before the request is made, the SPC
will transmit the request to the Higher People's Court concerned for examination. Where thesaid person is not detained, the SPC shall, after receiving the request, notify the MPS tosearch for the person.
The Higher People's Court designated by the SPC will examine whether the request
satisfies conditions for extradition and render a decision on it. The SPC will review thedecision, and decide whether the extradition shall be granted.
After receiving the decision made by the SPC that no extradition shall be granted, theMinistry of Foreign Affairs shall, without delay, notify the Requesting State of the same.
Upon receiving the decision made by the SPC that the request meets the conditions for
extradition, the Ministry of Foreign Affairs shall submit the decision to the State Council forwhich to decide whether to grant extradition.
Where the State Council decides not to grant extradition, the Ministry of Foreign Affairs
shall, without delay, notify the Requesting State of the same. The People's Court shallimmediately notify the public security organ to terminate the compulsory measures against
11

See Legal Daily, Mar.4,
Mar. 4,2009.
2009.
See Huang Feng (2012) Legislative Proposal of Law on Mutual Judicial Assistance in Criminal Matters and
Its Proofs, Beijing: Peking University Press.

12- 42 -

the person sought.
As for legal assistance in civil and commercial matters, procedures are relatively easy
and fast.
IV. PRACTICE OF MUTUAL LEGAL ASSISTANCE
China has seen a number of well known cases of mutual legal assistance in recent years.
For example, LAI Changxing, a notorious smuggling ring kingpin, formed a smuggling ringwith bases in Hong Kong and Xiamen since 1991, importing cigarettes, cars and othercommodities worth 27.395 billion Yuan (US $3.69 billion) and evaded duties of nearly 14
billion Yuan from December 1995 to May 1999.13 He then fled from China and stayed in
Canada for more than 10 years. After long, laborious negotiation, he was transferred to China
in July 2011 and sentenced to life imprisonment in May 2012.14
Another example would be cooperation between China and Thailand. China andThailand have signed a Bilateral Mutual Judicial Assistance Treaty in Criminal Matters,
Extradition Treaty and Convict Transfer Agreement. According to the Ministry of Public
Security of the PRC, China has transferred 56 telecom-fraud suspects to Thailand since
September 2008 in recent years; the last time was in November 2012, 6 criminal suspects
were arrested by the Chinese public security authority and transferred to the Thailand police
authority.15
According to the MOJ, China only dealt with less than 100 cases of mutual legal
assistance annually in the 1980s and 1990s. However, the annual number quickly increased tomore than 1,500 in the beginning of 21st century. For example, the MOJ handled more than
3,000 cases in 2008. It is especially worth noting that convict transfer cases are on theincrease in recent years. The MOJ had received 198 convict transfer requests from both
Chinese and foreign authorities by 2012. The MOJ handled 251 cases of mutual judicial
assistance in criminal matters, which is a nearly 50% increase compared to previous years,
and submitted 8 requests for mutual judicial assistance in criminal matters in 2011.16
V. CONCLUSIONFor China, there are still barriers in the way of extending mutual legal assistance.
However, as noted above, China is making efforts to promote mutual legal assistance withforeign countries by adapting domestic laws, ratifying international documents, etc.
Meanwhile, international terrorism, environmental crimes and corruption issues make mutual
legal assistance vital for all members of this small global village. Therefore, mutual legal
assistance will and should be promoted as effectively and as soon as possible.

13

See People’s Daily (overseas edition), July 26, 2011.
See Procuratorial Daily, May 19, 2012.
15
See Yangzi Evening, Nov.16, 2012.
16
See Legal Daily, Feb. 12, 2012.
14- 43 -

PARTICIPANTS’ INDIVIDUAL PRESENTATION PAPERS

Mr. Ku Khemlin & Mr. Kuy Chhay, Cambodia***
Mr. Adnan Pandu Praja, Mr. Abeh Intano & Mr. Chuck Suryosumpeno, Indonesia***
Mr. Phongsavanh Phommahaxay & Mr. Somphet Chanthalivong, Lao PDR***
Ms. Baizura Kamal & Ms. Roziza Sidek, Malaysia***
Ms. Htu Htu Ngwe, Myanmar***
Mr. Manuel T. Soriano, Jr. & Ms. Mary Grace R. Quintana, The Philippines***
Mr. Poonpol Ngearndee, Mr. Kiaitisakdi Putphon, & Ms. Jiraporn Burintaravanich,Thailand***
Ms. Ngo Thi Quynh Anh, Viet Nam- 45 -

INTERNATIONAL COOPERATIONMUTUAL LEGAL ASSISTANCE AND EXTRADITION IN CAMBODIA
Khemlin Ku*

I. INTRODUCTION
The Ministry of Justice is delegated authority by the Royal Government to perform themission of guidance and administration of justice in the Kingdom of Cambodia. To achieve
this goal, the MOJ has several functions namely to assure justice for every one under thelaws, to organize and monitor all levels of the administrative processes of tribunals andprosecution institutions, to ensure the functioning of all sectors and levels of tribunals andprosecution institutions, to ensure the functioning of the courts and all prosecutors and toprepare various laws governing, and conduct international relationships associated with,justice and relevant laws.
To fulfill these functions, the Ministry of Justice established the Central Authority in2011 under the jurisdiction of the General Department of Research and Judicial Development
to facilitate mutual legal assistance, the transfer of prisoners, and extradition in criminal, civil,
and commercial matters.
II. ROLES OF THE CENTRAL AUTHORITY IN CAMBODIA
The Central Authority’s mission, roles, and tasks are as follows:*•

Receive, control, and facilitate requests for extradition, prisoner transfers andmutual legal assistance in criminal, civil, and commercial cases.

•

Send requests received from the requesting state to the applicable Cambodian
agency; and to return completed requests to requesting state;•

Organize information to be sent and monitor all received and sent requests toensure effective and efficient communication;•

Act as the focal point to facilitate all legal assistance;•

Direct contact or diplomatic channels with national and international agencies tofacilitate mutual legal assistance;•

Organize, review and facilitate the translation of requests, case files, evidence,and documents relevant to legal assistance;

Deputy Director General of the Ministry of Justice, Kingdom of Cambodia.

- 47 -•Manage data of requests on mutual legal assistance and organize legal documents,
entering information into our database and submitted online to the Ministry ofJustice’s website;•

Keep confidential requests for assistance, their contents, and supporting
documents contained in the request, as well as the fact of any assistance given andany action taken relative to the request;•

Ensure the information and evidence is protected from losing and using, changing,or revealing without authorization or other improper use;•

Develop an action plan to facilitate spending, study tours, workshops, andmeetings at national and international levels;•

Contact donors in order to get support for human resource development;•

Improve cooperation with national and international agencies to facilitate mutual
legal assistance.

III. PRINCIPLES GOVERNING RELATIONSHIPS BETWEEN CAMBODIA AND
OTHER MEMBERS IN CASE THERE IS NO EXTRADITION OR MLA TREATY
Currently, there is no legal framework governing the issue. But in the future, this issue
will be governed by Title IV of the New Code of Criminal Procedure. These provisions apply
by default to relations between Cambodia and other countries in the absence of extradition or
MLA treaties. Currently, Cambodia has existing bilateral treaties on extradition withThailand, Lao PDR, China, and South Korea.
In the meantime, the current practice is that:-

If Cambodia is the requested State:

The diplomatic procedure precedes judicial procedure. The competent authorities of the requesting
State must approach Cambodia by diplomatic channels (Embassy and Ministry of Foreign Affairs(MFA) by written request accompanied by supporting documents. Once the request is received, theMFA will forward this request to the Ministry of Justice (MOJ) which will verify the authenticity of
the request. Upon verification, the MOJ may request the Prosecutor General of the Appellate Court toissue an arrest or detention order of the interested person staying in the territory of the Kingdom of
Cambodia.

-

If Cambodia is the requesting State:

The judicial procedure precedes the diplomatic procedure. The concerned court of Cambodia must
send a request with supporting documents to the MOJ, which will refer the dossier to the MFA for
diplomatic action. Once Cambodia’s request is received, the competent authorities of the requested
State will verify the authenticity of the request for further action. During implementation of the

MLA process, the Cambodian CA has received a request from Vietnam, and is stillprocessing the request. In addition, we have also received requests from South Korea.

- 48 -

IV. THE VALIDATION OF EXTRADITION REQUESTS
All extradition requests shall be submitted to the Royal Government of Cambodia throughdiplomatic channels. Each request shall contain supporting documents. The supporting
documents shall include:•

Documents adequate for identifying the wanted person;•

A report of the acts for which the wanted person is prosecuted;•

The legal provisions applicable to such offence and the possible sentence; and•A copy of the judgment or sentencing decision, if any.

All documents shall be signed, officially sealed and enveloped. If they are not in the Khmer,
French or English languages, the request shall be accompanied by a certified translation of
the documents into one of the three languages.
V. CONCLUSION
The procedure for international cooperation in the judicial sector in Cambodia is crucial,using diplomatic channels by forwarding the request to the Ministry of Foreign Affairs andthen to the Ministry of Justice, which reviews the request for Cambodia and issues the final
decision whether to agree or disagree.

- 49 -

INTERNATIONAL COOPERATION: MUTUAL LEGAL ASSISTANCEAND EXTRADITION
Kuy Chhay*

I. INTRODUCTION
Cambodia supports anti-corruption measures in every aspect, at all levels and in allareas through education, dissemination, prevention and law enforcement. Fighting
corruption, strengthening of public financial management and improving good
governance are the key factors to alleviate poverty and promote people’s welfare.
Through global experiences, monitoring and eliminating corruption are the most difficult,complicated tasks, and are also time consuming, but it remains a high priority of theRoyal Government of the fourth legislative mandate. It is generally known that anticorruption law provides us with legal mechanisms which are necessary for fighting
corruption effectively. In light of this, the Royal Government of Cambodia (RGC) has
been committed to creating and adopting this law after having consulted enthusiasticallywith stakeholders and having reviewed existing laws.
The Anti-Corruption Unit has been mandated to pursue three vital roles: 1) Public
education and prevention; 2) Law enforcement and suppressing corruption offences and
3) Mass support backed by strategic partnership for cooperation regionally andinternationally. With respect to Extradition in General Criminal Offences andExtradition in Corruption Offences, the Code of Criminal Procedure (2007) has been
applied.
II. ANTI-CORRUPTION LAW
The Anti-Corruption Law in Cambodia was adopted on 17 April 2010 and regarding
the necessity the law was amended and thus, entered into force for full implementation on
2 August 2011. Its purpose is to combat all forms, all natures and all levels of corrupt
practices, regardless of political position throughout the Kingdom of Cambodia.
The Anti-Corruption Law provides that it is the court’s decision to confiscate
corruption proceeds, including property, materials, and instruments derived from corrupt
acts, and that the proceeds shall become State property when a person is found guilty ofcorruption.
Article 26 Special Privileges of Anti-Corruption Unit
Article 27 Privileges of Anti-Corruption Unit related to monitoring
Article 28 Privileges of ACU related to freezing an individual’s assets
Article 29 Privileges of ACU in cooperation with public authority
*Assistant to Anti-Corruption Unit, Kingdom of Cambodia.
- 50 -

III. ACTIVITIES OF THE ANTI-CORRUPTION UNIT (ACU)
Development of Legal Framework:Prepared the decision made by the Royal Government of Cambodia to allow
the ACU to be a mediator and liaison with international public authorities
against corruption.

Prepared sub-decrees on Organization and Functioning of ACU, on Budget
Management and Allocation of ACU, on the Logo and Seal of ACU, and on
the National Anti-Corruption Day (9 December).

Prepared Proclamation on Organization and Functioning of the Offices
reported to a department of the ACU.

1) Education and Dissemination Activities


The ACU provided education on and disseminated the Anti-Corruption Law.

The ACU produced an educational spot on anti-corruption.



The ACU organized a drawing-completion event, educational proverbs andshort stories at the national level.

The ACU published legal documents and legal instruments regarding anticorruption.



The ACU organized a concert to celebrate National Anti-Corruption Day,
9 December. In year 2011, it was the 1st National Anti-Corruption Celebration.

2) Obstruction and Prevention Activities


The ACU participated in observing the examination of government-official
selection at the general Department of Taxation and the Ministry of Public
Works and participated in public procurement of timbers.



The ACU has disseminated legal instruments in effect related to corruption
and led and educated the general public about the negative impacts ofcorruption.



The ACU has prepared, set up and managed the information system andwebsite of the anti-corruption unit.



The ACU has encouraged and motivated the general public to provide
corruption-related information.
- 51 -



The ACU prepares and produces spots and videos and make announcement of
successful operations.



The ACU has collaborated with the Ministry of Education, Youth and Sports
to incorporate anti-corruption-awareness education into the school curriculum.



The ACU evaluated and made incentive grading and provided awards foreducation and corruption prevention work to ministries, institutions and alllevels of administrative authorities as well as the public.



The ACU will prepare exhibits, drawings, documents, and tools used by theAnti-Corruption Unit in fighting corruption for the public to see.



The ACU has conducted studies identifying the priority areas so as to come up
with preventive and obstructive actions to prevent corruption opportunities inministries, institutions, the private sector and at all levels of local
administrative authorities.



The ACU gave warnings to any suspects who failed to carry out the law andregulations in effect.



The ACU has recently announced an anti-corruption campaign related tounofficial fees for public services to be carried out at the commune levels all
across the country and that the ACU is open and ready to work with civilsociety. As part of the Unit’s recent work, information has been disseminatedto all communes (1,633 communes) around Cambodia, assuring local
government officials that they face punishment for corruption activities.

3) International Cooperation

In 2007, the Royal Government of Cambodia (RGC) signed the United
Nations Convention against Corruption (UNCAC) and became a member of
the South East Asia Parties against Corruption (SEA-PAC).



The mission of the Anti-Corruption Unit is to lead the activities of fighting
against corruption in all forms, sectors and all levels through measures of
education, prevention, obstruction and enforcement of the Law on AntiCorruption with support from the public and international cooperation.



The ACU closely cooperates with anti-corruption agents around the world,
especially with the South East Asia Parties against Corruption (SEA-PAC), in
combating corruption through the Mutual Legal Assistance Treaty (MLAT) of
the ASEAN in order to develop their own countries.



In cases where the assets and corruption proceeds are found and kept inforeign states, the competent authority of the Kingdom of Cambodia shall take
- 52 -

measures to claim those assets and proceeds and return them back to
Cambodia through the means of international cooperation. The Kingdom of
Cambodia shall cooperate with other requesting countries to return thecorruption proceeds which are kept in Cambodia. In relation to the mutual
legal assistance on corruption offences, the court of the Kingdom of Cambodia
may delegate power to a competent court of any foreign state and may also
obtain power from a court of any foreign state in order to compile allnecessary documents required.


Regarding regional cooperation, Cambodia is also a Party to the ASEAN
Treaty on Mutual Legal Assistance of 29 November 2004, for the purpose toimproving the effectiveness of the law enforcement authorities of the Parties
in the prevention, obstruction, investigation and prosecution of offences
through cooperation and mutual legal assistance in criminal matters. The
Treaty was already ratified on 26 January 2010.

4) Submission of Complaints and Corruption Cases to the Court

Regarding drug trafficking corruption crimeRegarding judicial corruption crime
IV. EXTRADITION

A. General Provisions of the Code of Criminal Procedure (CCP)
Article 566: Extradition of Foreign Resident in Cambodia Territory
Article 567: International Conventions and Treaties
Article 568: Definition: Requesting State and Wanted Person
SUB-SECTION 2: CONDITIONS OF EXTRADITION
Article 569: Conditions of Extradition Relative to Act
Article 570: Attempted Offenses and Conspiracy
Article 571: Conditions Relative to Imprisonment Sentence
Article 572: Conditions Relative to Place of Commission of Offense
Article 573: Acts of Political Nature
Article 574: Acts committed in Cambodia and Tried by Final Judgment
Article 575: Extinction of Criminal Actions
Article 576: Multiple Extradition Requests against Same Person
Article 577: Conditions of Extradition Relative to Request
Article 578: Suspension of Extradition
SUB-SECTION 3: EXTRADITION PROCEDURES
Article 579: Validation of Extradition Request
Article 580: Forwarding of Extradition Request
Article 581: Request of Provisional Arrest
Article 582: Special Detention Order against Wanted Persons
Article 583: Presentation of Wanted Person to Royal Prosecutor or General Prosecutor- 53 -

Article 584: Filing Case with Investigation Chamber
Article 585: Proceedings before Investigation Chamber
Article 586: Decision of Investigation Chamber
Article 587: Application for Release of Wanted Person
Article 588: Agreement to Extradition
Article 589: Effects of Decision of Investigation Chamber
SECTION 2: EXTRADITION REQUESTED BY KINGDOM OF CAMBODIA TO
FOREIGN STATE
Article 590: Competence of Investigation Chamber
Article 591: Proceeding before Investigation Chamber
Article 592: No Suspending Effect of Motion to Invalidate Extradition Request
Article 593: Effect of Invalidation of Extradition
Article 594: Consent of State That has Delivered foreign Resident to Cambodia
CHAPTER 3: TRANSIT
Article 595: Transit Request
B. Extradition under the Anti-Corruption Law (ACL)
Article 26: Special Privileges of Anti-corruption Unit
CHAPTER 7: EXTRADITION AND MUTUAL LEGAL ASSISTANCE
Article 50: Extradition Provisions
Article 51: Mutual Legal Assistance
Article 52: Cambodians holding more than one nationality
Article 53: Mutual Legal Assistance Procedure

V. MUTUAL LEGAL ASSISTANCE (MLA)
A. Principles Governing Relationships between Cambodia and Other Members inCases Where There is No Extradition or MLA Treaty
Currently, there is no legal framework governing the issue. But in the future, this issue
will be governed by Title IV of the New Code of Criminal Procedure.1 These provisions
apply by default to relations between Cambodia and other countries in the absence of
extradition or MLA treaties. Currently, Cambodia has existing bilateral treaties on extradition
with Thailand, Lao PDR, China, and South Korea.
In the meantime, the current practice is that:- If Cambodia is the requested State:
The diplomatic procedure precedes judicial procedure. The competent authorities of the
1

According to Article 50 (Extradition Provision) of the ACL, Extradition of cases related to Corruption
offences, provision of Chapter 2, Content 1, Part/ Section 9 of Penal Code Procedure shall be applicable.
- 54 -

requesting State must approach Cambodia by diplomatic channels (Embassy and Ministry ofForeign Affairs (MFA) by written request accompanied by supporting documents. Once therequest is received, the MFA will forward this request to the Ministry of Justice (MOJ) which
will verify the authenticity of the request. Upon verification, the MOJ may request theProsecutor General of the Appellate Court to issue an arrest or detention order of theinterested person staying in the territory of the Kingdom of Cambodia.
- If Cambodia is the requesting State:
The judicial procedure precedes the diplomatic procedure. The concerned court of Cambodia
must send a request with supporting documents to the MOJ, which will refer the dossier tothe MFA for diplomatic action. Once Cambodia’s request is received, the competentauthorities of the requested State will verify the authenticity of the request for further action.
During implementation of the MLA process, the Cambodian CA has received a request from
Vietnam and is still processing the request. In addition, we have also received requests fromSouth Korea.
B. The Validation of Extradition Requests
RequestAll extradition requests shall be submitted to the Royal Government of Cambodia
through the diplomatic channels. Each request shall contain supporting documents. The
supporting documents shall include:•

Documents adequate for identifying the wanted person;•

A report of the acts for which the wanted person is being prosecuted;•

The legal provisions applicable to such offence and the possible sentence; and•A copy of the judgment or sentencing decision, if any.

All documents shall be signed, officially sealed and enveloped. If they are not in the
Khmer, French or English languages, the request shall be accompanied by a certified
translation of the documents into one of the three languages.
VI. CONCLUSION
The procedure for international cooperation in the judicial sector in Cambodia is crucial,using diplomatic channels by forwarding the request, firstly, to the Ministry of Foreign
Affairs and International Cooperation, and, secondly, to the Ministry of Justice, and, lastly, to
the Royal General-Prosecutor in the Appellate Court.

- 55 -

INTERNATIONAL COOPERATION:
BUILDING TRUST, OVERCOMING DIFFERENCES
Adnan Pandu Praja*

I. INTRODUCTION
Distinguished Participants of the Sixth Regional Seminar on Good Governance forSoutheast Asian Countries. It is our great pleasure to have this opportunity to speak at thisseminar on behalf of KPK — the Corruption Eradication Commission of the Republic ofIndonesia.

II. CORRUPTION IS A TRANSNATIONAL CRIME•

The main theme of this seminar is “International Cooperation: Mutual Legal Assistanceand Extradition,” which is directly related to our daily activities in combating corruption.

•

As we all know, corruption is a global, ethical and legal issue. Countries are now facing
growing cross-border chains of corrupt activities and the flow of proceeds of corruption
between jurisdictions.

•

Criminals and the proceeds of crime cross borders easily. Increasingly, there is a need forinternational cooperation to gather evidence, apprehend fugitives and to recover theproceeds of corruption.

•

International cooperation, especially in the areas of mutual legal assistance, extradition
and the recovery of proceeds of corruption, is, therefore, becoming more and more
important.
III. INTERNATIONAL LEGAL COOPERATION•Firstly, multilateral and bilateral treaties between countries still represent the most formal
vehicles that can be used in international legal cooperation. Theses treaties should build
trust and overcome differences in our legal systems.

•

On the other hand, since it was adopted and entered into force, the United Nations
Convention Against Corruption (UNCAC) has provided us with the primary internationalframework for cooperation.

•

We are fully aware that many countries have well-established systems for international
cooperation and have ratified UNCAC and the OECD Convention on the Bribery ofForeign Public Officials. Many countries have also made major investments in theinfrastructure required to detect, investigate and confiscate the proceeds of crime.

*

Commissioner, KPK Republic of Indonesia.

- 56 -Despite important progress over the last years, international cooperation against
corruption is still in an early, but promising, stage of development.
•

We also understand that to obtain assistance and cooperation, law enforcement must still
rely on the goodwill of foreign states, even in the presence of treaties and agreements.
No matter how involved the treaties or agreements between two states are, mutual legal
assistance is still a matter of asking another state for help.
IV. DIFFERENT LEGAL SYSTEMS•One of the most challenging issues in conducting international legal cooperation is thedifferent legal systems between countries.

•

We should stress the importance of making the effort to learn about the legal traditions of
the requested or requesting state.

•

It is important to learn by understanding the legal systems within which the requested
and requesting states are working. The domestic legislation of each state is instructive,and early efforts to understand these systems and their methods will pay dividends, notonly with the case at hand but also for every case in the future.

•

I believe we should speak with the central authorities. They are the national experts inthe field of international assistance. By making use of their knowledge, trust andenhanced cooperation will follow.

•

However, miscommunication and the problems it creates are founded inmisunderstanding. The greater problem often is not the differences in legal systems but
missunderstanding about those differences.
V. INFORMAL ARRANGEMENTS•

Based on the KPK's experiences, we learned that in some practical areas, informal
agency-to-agency arrangements were considered as important complimentary measures.

•

Arrangements were conducted through bilateral agency-to-agency or Interpol
cooperation mechanisms, including cooperation between Financial Inteligence Units(FIUs).

•

Agency-to-agency cooperation is very beneficial to obtain information from foreigncounterparts to collect non-sensitive records or preliminary data.

•

It is also useful as a bridging approach in dealing with formal legal cooperation (noncoercieve measures).

•In the case of mutual legal assistance, consideration should be given to whether current
goals can be achieved through agency-to-agency cooperation or whether the
documentation required is in the public domain of the requested state and is therefore
something that does not require mutual legal assistance. Normally, the less coercive arequest, the more likely it can be achieved without having to resort to a formal request
which, no matter how efficient a system is in place, will take more time than an informal- 57 -

request.
•

Knowing when to initiate formal requests is just as important as knowing how to initiate
them.
VI. KPK'S EXPERIENCES IN THE AREA OF INTERNATIONAL COOPERATION•

Let me share KPK's experiences in area of international cooperation. KPK via theIndonesia Central Authority has been conducting several MLAs (requesting andrequested) with the USA, the UK, Japan, Singapore, Hong Kong, Malaysia, Brunei
Darusallam, Australia, and others.

•

KPK also has good working relationships with many foreign agencies, such as the FBI(USA), SFO (UK), ICAC (HK), MACC (Malaysia), CPIB (Singapore), etc. We are also
actively involved in many anti-corruption forums, such as IAACA, G20 ACWG, APEC
ACT, SEA-PAC, World Bank ACHN, etc.

•

An example of one of our cases is the repatriation of MN, a high-profile Parliament
Member of Indonesia. After about 6 months as a fugivite, he was arrested in Cartagena,
Colombia on August 7, 2011. The operation was supported by approximately 15
jurisdictions in the form of formal and informal legal cooperation, including MLA. The
operation was supported by INTERPOL as well as authorities and anti-corruption agency
networks in Colombia, China, Cambodia, Hong Kong, Laos, Malaysia, Maldives,
Singapore, the USA, Vietnam, Venezuela and others•

Another milestone for Indonesia in international cooperation is in the area of UNCAC
implementation review. Indonesia completed its UNCAC implementation review on
Chapters 3 and 4 in May 2012.
VII. CONCLUSION

1.

To move forward in the implementation of international legal cooperation, we would
suggest that the following steps be taken: 1. promote UNCAC, particularly the use ofprovisions related to extradition, MLA and asset recovery; 2. strengthen
multilateral/bilateral treaties and agency-to-agency cooperation to gain better
understandings; 3. enhance capacity building; 4. improved domestic cooperation (multiagency teams).

2.

To sum up, as crime and criminals continue to have less respect for internationalboundaries, effective international cooperation becomes more vital. Concurrently, those
involved in practice will be required to become familiar with international legal practice,both theoretical and practical. Our criminal justice systems must continue to discover,collate, and absorb the rules, policies and practices of their partners in the international
community. Without joint effort, our fight against crime will be less effective. Let us
build trust and overcome differences

3.

Ladies and gentlemen, thank you for your attention.

- 58 -

INTERNATIONAL COOPERATION IN THE REPUBLIC OF
INDONESIA: MUTUAL LEGAL ASSISTANCE AND EXTRADITION
Abeh Intano*

I. INTRODUCTION
There are around 3 million citizens from the Republic of Indonesia who are living inforeign countries, and around 1 million people from the Republic of Indonesia travel
regularly to foreign countries for various business purposes. Also there are around 46,000
foreign citizens living in Indonesia for various business purposes, and there are 750,000
tourists visiting Indonesia (based on 2011 statistics from the Center Statistic Bureau
Indonesia). In this condition, the Government of the Republic of Indonesia believes that there
is a possible situation related to the criminal aspect which could appear in trans-borderactivity by the citizens. Offences involving trans-border activity could be ordinary crimes orserious and organized crime.
Efforts to prevent and combat trans-border crime require cooperation and mutual support
for the work of law enforcement authorities in all countries and/or jurisdictions; however,each law enforcement authority is limited in that they only work in their own jurisdictions
and lack the capability to reach other jurisdictions based on principles of sovereignty.
In support of the law enforcement effort to prevent and combat trans-border offences, thebroadest possible measures of cooperation need to be formulated. The government of the
Republic of Indonesia supports all mechanisms of cooperation including:•

Informal cooperation between law enforcement agencies;•

Formal cooperation between governments.

All cooperation is designated to support the work of law enforcement throughout theirinvestigation, prosecution, and execution of the judgment for the offence(s) which wereconducted by the criminal offenders in foreign jurisdictions. In this regard, Indonesia needs to
explore the international best practices in the implementation of formal cooperation throughmutual legal assistance in criminal matters and extradition of fugitive offenders.
The government of the Republic Indonesia has enacted national legislation on mutual
legal assistance and extradition. For mutual legal assistance, Indonesia has legislation which
regulates the principles, guidance, and proceedings in handling mutual legal assistance in*

Deputy Director for Central Authority Unit, Directorate of International Law and Central Authority,
Directorate General of Legal Administrative Affairs, Ministry of Law and Human Rights, Republic of Indonesia.

- 59 -

criminal matters through Indonesian Act Number 1 Year 2006 on Mutual Legal Assistance in
Criminal Matters. For the extradition of fugitive offenders, Indonesia has legislation which
regulates the principles, guidance, and proceedings in handling extradition throughIndonesian Act Number 1 Year 1979 on Extradition.
In the Republic of Indonesia cooperation is required in the support of the law
enforcement work to prevent and combat trans-border crime, which concerns obtaining
evidence, proceeds of crime, and also the surrender the fugitive offenders, through mutual
legal assistance and extradition, based on the following circumstances:
1. Evidence should be admissible for use by law enforcement and judicial authorities in the
Requesting Countries’ jurisdictions;2.

If there is a legitimate order from the judicial authority for obtaining evidence which isregulated under criminal procedure legislation;

3.

Assurance of the protection of third parties (related to the proceeds of crime);

4.

Ensuring due process of law for the surrender of fugitives (Human Rights aspect);5.

If there is consideration for conditions of reciprocity.

The Republic of Indonesia has become a Party to 3 (three) essential Conventions of theUnited Nations:1.

United Nations Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances 1988, which was ratified by Indonesia in 1997 by Act Number 7 Year 1997;

2.

United Nations Convention against Corruption 2003, ratified by Indonesia in 2006 by
Act Number 7 Year 2006;3.

United Nations Convention against Transnational Organized Crime 2000 (UNTOC),
ratified by Indonesia in 2009 by Act Number 5 Year 2009.

As a party
party totoUnitedthese United
conventions,appliesthem to covenant
combatting
Nation Nations
conventions,
IndonesiaIndonesia
applied theinternationalascriminals,
as othercriminalinternational
principles
national law.
one
based asforwell
combatting
as wellas otherandinternational
principles and national law.
II. MUTUAL LEGAL ASSISTANCE
Indonesian Act Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters is
specifically for assistance related to criminal investigations, prosecutions and examinations
before the court in accordance with domestic laws and regulations of the Requested State.
This means that assistance covered in this legislation is only related to assistance in criminal
matters and does not include assistance related to civil or commercial matters. Provisions ofIndonesian Act Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters do not
apply to the extradition or surrender of any person, the arrest or detention of any person witha view to the extradition or surrender, the transfer of persons in custody to serve sentences, orthe transfer of proceedings in criminal matters. Indonesian Act Number 1 Year 2006 on
Mutual Legal Assistance in Criminal Matters stipulates Mandatory and Discretionary
Grounds for Refusal of the Assistance as stated in Articles 6 and 7 of the Mutual Legal- 60 -

Assistance Act 2006 (Statute of Limitation).
Mandatory grounds for refusal of mutual legal assistance as stipulated in Article 6
Indonesian Act Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters are:1.

if the request for Assistance relates to the investigation, prosecution or examination
before the court or punishment of a person for the crime that is of a political nature,
except a crime or attempted crime against the life or person of a Head of State/a Head ofCentral Government, or terrorism;2.

if the request for Assistance relates to the investigation, prosecution or examination
before the court or punishment of a person for the crime under military law;3.

if the request for Assistance relates to the investigation, prosecution or examination
before the court of a person for a crime, the perpetrator of which has been acquitted,
awarded clemency, of has completed serving the criminal sanction;

4.

if the request for Assistance relates to the investigation, prosecution or examination
before the court of a person for a crime which, if committed in Indonesia, cannot be
prosecuted;

5.

if the request for Assistance is for prosecuting or bringing a person to justice based on a
person’s race, gender, religion, nationality, or political beliefs;

6.

if an approval for providing the Assistance requested will be harmful to the sovereignty,
security, interests, or national law;

7.

if the foreign state cannot assure that the items requested will not be used for a matterother than the criminal matter in respect to which the request was made;8.

if the foreign state cannot assure that it will return, upon request, any item obtained
pursuant to the request.

Discretionary grounds for refusal in mutual legal assistance as regulated in Article 7
Indonesian Act Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters are:1.

if the request for Assistance relates to the investigation, prosecution, and examination
before the court or punishment of a person for a crime that, if said crime were committed
within the territory of the Republic of Indonesia, is not a crime;

2.

if the request for Assistance relates to the investigation, prosecution, and examination
before the court or punishment of a person for a crime that, if said crime were committed
outside the territory of the Republic of Indonesia, is not a crime;

3.

if the request for Assistance relates to the investigation, prosecution and examination
before the court or punishment of a person for a crime that is subject to capital
punishment;

4.

if an approval for providing Assistance upon said request will be harmful to theinvestigation, prosecution or examination before the court in Indonesia, endanger the- 61 -

safety of the person, or burden the assets of the state.
In support of the work of assistance under Indonesian Act Number 1 Year 2006 on
Mutual Legal Assistance in Criminal Matters and as mandated in the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, theUnited Nations Convention against Corruption 2003, and the United Nations Convention
against Transnational Organized Crime 2000 (UNTOC), the Republic of Indonesia has
designated the Minister of Law and Human Rights of the Republic of Indonesia as the central
authority for handling cooperation on mutual legal assistance. For the next stage, the Ministerof Law and Human Rights of the Republic of Indonesia as the central authority establishedthe central authority unit under the Ministry of Law and Human Rights, which is the Mutual
Legal Assistance Section at the Directorate of International Law and Central Authority, andwhich handles all technical aspects in the mutual legal assistance role.
The main duties in the Mutual Legal Assistance Section at the Directorate ofInternational Law and Central Authority are:1.

Analyzing the Information and Evidence in the Request Document for satisfaction of therequirements under the Indonesian MLA Act and Indonesian Criminal Procedure Code(before determining whether the request(s) could be granted or not);2.

Immediately consult or communicate with the Requesting Country if there are any
additional documents or information needed to execute the request(s);3.

Designate the Competent Case Officer (who the authority in the Requesting Country cancontact directly for gathering information on the process);

4.

Consultation with Law Enforcement Authorities, which have authority to execute theassistance request;

5.

Make sure that the evidence (or others) obtained is admissible under the law of theRequesting Country.

6.

Drafting the Request Document(s), if Indonesia becomes a Requesting Country.

The type of assistance that could be given to foreign jurisdictions under Indonesian Act
Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters are:1.

Identifying and locating persons;2.

Obtaining witness statements (written or other forms thereof);

3.

Providing evidentiary documents (written or other forms thereof);

4.

Making arrangements for persons to provide statements in the Requested Country or toassist in the investigation;

5.

Service of Documents;

6.

Providing assistance related to searches by production warrant and also for seizing the- 62 -

evidence;
7.

Forfeiture of the proceeds of crime;

8.

Recovery of pecuniary penalties in respect to the crime;

9.

The restraining of dealings in property, the freezing of property that may be recovered orconfiscated, or that may be needed to satisfy pecuniary penalties imposed, in respect of
the crime;

10. Locating property that may be recovered, or may be needed to satisfy pecuniary penalties
imposed, in respect to the crime;
11. Other assistance in accordance with the Indonesian criminal procedure code.
Assistance request(s) also provide for using the UN Conventions to which Indonesia (andthe Requesting Country) are parties. In this matter the Requesting Country does not necessaryneed to obtain the specific reciprocity assurance, and the Requesting Country should be a
Party to the UN Conventions and should have ratified the conventions without taking
Reservations in the chapters or articles on international cooperation (mutual legal assistance).
For assistance related to recovery of assets relating to the proceeds of crime throughmutual legal assistance under Indonesian Act Number 1 Year 2006 on Mutual Legal
Assistance in Criminal Matters, there are the following conditions:
1.

Assistance requests shall be conviction based. However, at the present Indonesia is in theprocess of passing legislation which could implement a non-conviction-based-forfeiture
regime;2.

Assets should be related to the crimes (including proceeds of crime and/or are
instrumentalities of the crimes);

3.

The Confiscation Order from the Court in the Requesting Country is needed;

4.

Asset Sharing: not regulated in the Indonesian MLA Act 2006, if there are costs, thesecosts should be further discussed with the Requesting Country during the process (i.e. if
the assets needed to be put into special retention entities).
III. EXTRADITION

In support of the work of assistance under Indonesian Act Number 1 Year 2006 on
Mutual Legal Assistance in Criminal Matters and as mandated in the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, theUnited Nations Convention against Corruption 2003, and the United Nations Convention
against Transnational Organized Crime 2000 (UNTOC), the Republic of Indonesia has
designated the Minister of Law and Human Rights of the Republic of Indonesia as theCentral Authority for handling cooperation on extradition. For the next stage, the Minister of
Law and Human Rights of the Republic of Indonesia as the central authority established thecentral authority unit under the Ministry of Law and Human Rights, which is the Extradition
Section at the Directorate of International Law and Central Authority, and which handles all- 63 -

technical aspects of extradition.
The important principles regarding the implementation of extradition by the governmentof the Republic of Indonesia are:1.

Extradition of the fugitive where the fugitive offenders are suspected criminal offenders
and are needed for prosecution as well as where the fugitive offenders are convictedcriminal offenders and are needed for enforcement of imprisonment upon the sentencing
by the court;

2.

Recognizing the extradition of the fugitive by the bilateral treaty, convention (to which
Indonesia and the Requesting Country are parties), and also could be considered in theabsence of treaty or conventions (based on the assurances of reciprocity);

3.

There are mandatory requirements for submitting the extradition request throughdiplomatic channels (diffrent from mutual legal assistance that could be using directchannels from central authority to central authority);

4.

Indonesia has discretion to extradite its own nationals. Extradition of Indonesian citizens
could be granted if in view of the circumstances by the President of the Republic ofIndonesia, it would be better if the person concerned be tried at the place of commissionof the crime;

5.

Mandatory principle on dual criminality of the conduct.

To support the work of cooperation through extradition, as of 2012 Indonesia hasbilateral treaties with:a.

Malaysia (signed 7 January 1974) and has been ratified;b.

Philippines (signed 10 February 1976) and has been ratified;c.

Thailand (signed 29 June 1978) and has been ratified;d.

Australia (signed 22 April 1992) and has been ratified;e.

Hong Kong (signed 5 May 1997) and has been ratified;f.

Republic of Korea (signed 28 November 2000) and has been ratified;g.

Singapore (signed 27 April 2007) and not yet ratified, refer to the parliament schedule;h.

People’s Republic of China (signed 2 July 2009) and not yet ratified, refer to theparliament schedule;i.

India (signed 25 January 2011) and not yet ratified, refer to the parliament schedule;j.

United Arab Emirates (scheduled for signing);k.

Socialist Republic of Viet Nam (scheduled for signing).

- 64 -

There are mandatory principles on the limitation conditions to grant an extradition
request under Indonesian Extradition Act Number 1 Year 1979:
1.

Respect to political crime [Article 5];

2.

There is a final judgement [Article 10];3.

Double Jeopardy [Article 11];4.

Lapse of Time [Article 12];5.

Reason to believe that prosecution or sentence is related to her/his religion, politicalopinion or nationality, or because of his certain race or group of the people [Article 14];

6.

Will be surrendered to a third jurisdiction other than Requesting Countries [Article 16].

However, Indonesian Extradition Act Number 1 Year 1979 stipulates the discretion ofrefusal based on the following conditions:1.

Extradition for crimes under military criminal law, which are not crimes under ordinarycriminal law – Discretion if it is decided otherwise in a treaty [Article 7];2.

Extradition Request to Indonesia for Indonesian Nationality – Discretion if consideredthat it will be better to prosecute the fugitive in the Requesting Country [Article 7];

3.

The criminal conduct has been committed in whole or in part in the territory of the
Republic of Indonesia [Article 8];

4.

The person sought under criminal proceedings in Indonesia, discretion if the Requesting
Country agreed for postponement [Article 9];5.

The criminal law underlying the request is related to the provision of the death penalty,
discretion if the Requesting Country could obtain the assurance that death penalty will
not be imposed against the person sought [Article 13];

6.

Rule of Specialty assurance could not surrender by specific statement from theRequesting Country, discretion if the President of the Republic of Indonesia considers
waiving the assurance of specialty from the Requesting Country [Article 15].

Under the extradition principles of Indonesia, for urgent circumstances and when the
Requesting Country considers that there is a reason that the fugitive located in Indonesia
could be a flight risk, it is possible to implement a Request for Provisional Arrest (PAR)before the Extradition Request is made within the applicable time period (20 days underIndonesia national law, or specific time under the treaty).
The requirements for Provisional Arrest are:1.

Requesting Country could make the Provisional Arrest Requst (PAR) in cases of urgency
provided that the arrest is not contrary to the law of the Republic of Indonesia (i.e.
urgency reason: there are reasonable grounds to believe that if the fugitive is not- 65 -

immediately arrested, he/she will present a flight risk).
2.

PAR is requested when the document of extradition is under preparation in the
Requesting Country.

3.

PAR is applicable to requests from treaty- and non-treaty-based countries with Indonesia.

4.

Dual criminality principle is required in the criminal conduct which is made in the
document of request for provisional arrest.

5.

There is a time limit for the Requesting Country on submission of the document(original) through diplomatic channels (i.e. Indonesia and Australia for 45 days, butfrom non-treaty-based countries, it is 20 days). If the Requesting Country failed to fulfill
the obligations on this matter, the person(s) should be released from custody.

6.

PAR requests shall be sent by the competent authorities of the Requesting Country to thecompetent authorities in Indonesia (Head of Police of the Republic of Indonesia or the
Attorney General of the Republic of Indonesia through INTERPOL Indonesia) throughthe diplomatic channels or also could be sent directly by post or telegraph.

7.

Competent authorities in Indonesia will inform competent authorities of the Requesting
Country of the decision to arrest the person under PAR.

8.

If the extradition document was submitted at the time, the provisional arrest of the person
in custody will be continued to the arrest for extradition.

9.

Documents for extradition which were made previously by PAR at the first stage should
fulfill the requirement (refer to the extradition act or the treaty). It is important for
intensive communication and consultation before submission of the extradition request
document to make sure the extradition document can be granted.
IV. SOME PROBLEMS CONCERNING MLA AND EXTRADITION
Indonesia has some problems with incoming or outgoing MLA and Extradition.

A. MLA- Format of request. Sometimes requests do not come from the designated Central
Authority of the state. We frequently receive letters rogatory, not requests for MLA.
- Bank secrecy. Under Law Number 10, 1998, Banks must protect the owner of theaccount unless the owner is sued as a suspect.
- Differences of legal systems. Indonesia sometimes has a problem with different
legal systems from other counties. Mainly, how to fulfill the principles of dual
criminality. Related to this problem is concerning Interpretation of legal
terminology. The side effecteffectsofofdifferent
differentoflegal
legalsystems
systemsare
is problems
problems withwithinvestigation and prosecution.
B. EXTRADITION
In extradition, the problems are similar to MLA.

- 66 -

- Format of Arrest Warrant. Each country has a different format and different
officials who issue (some countries by police, others by the courts)- Dual Criminality.
- Differences of legal terminology.
V. SUGGESTIONS
To eliminate problems, we can consider:a. The need to expedite and streamline MLA and Extradition and to provide eachother easy access to up-to-date information, legislation and forms on MLA and
Extradition;b. Informal consultation and bilateral meetings between Central Authorities;
c. Building a regional cooperative network for efficient and effective MLA and
Extradition.
VI. CONCLUSION
International legal cooperation among the countries should be promoted. Indonesia
supports all efforts to combat transnational crime by legal instruments and is a party to someinternational conventions as well as bilateral treaties. Indonesia also supports building
networks to combat transnational crime through formal and informal relationships.

- 67 -

ASSET RECOVERY AND MUTUAL LEGAL ASSISTANCE IN
INDONESIA: THE PRESENT AND THE FUTURE
Chuck Suryosumpeno*

I. INTRODUCTION
The criminal offenders have the ability and capacity to commit crimes and place theircrime-related assets in any jurisdiction they think fit. They use any loopholes in nationallaw and legislation and exploit the inflexibility and incompatibility of the legal system fortheir own ends.
The Indonesian Government is fully aware of trans-national crime and therefore takes theview that there is no better solution to combat crime other than to cooperate with other states
foreacheachothers
otherslaws
lawsandandlegislation.
legislation.
on the basis of good relations and respect to
The objective of this paper is to provide knowledge regarding the general description on
recoverywithinthe theframe
of MLA
works
in Indonesia.
how asset
the asset
recoverywithinframe
of MLA
works
in Indonesia.
II. SEARCH, SEIZURE AND FORFEITURE IN INDONESIA
Indonesia has various investigating authorities. For general crimes, the investigating
authorities are divided into two groups. The first is the Indonesian National Police and thesecond is Civil Servant Investigators (PPNS) such as immigration, customs, tax and forestry.
For specific crimes such as corruption cases, the investigators are the Indonesian National
Police, the Prosecution Service and Corruption Eradication Commission (KPK). For humanrights violations, the investigator is the Prosecution Service.
Despite various investigating authorities, prosecution is the authority of the Prosecution
Service. For corruption cases the prosecution authority is executed by two agencies, i.e.:
The prosecutors from the Prosecution Service and prosecutors assigned to the Corruption
Eradication Commission (KPK).
In general, the criminal procedure for search, seizure and forfeiture is pursuant to Law no
8 of 1981 (KUHAP). When the case is still premature, i.e. in the intelligence data gatheringand preliminary investigation stage, it is not yet “pro justitia” (for the sake of justice). At
this point the use of force cannot be utilized by the law enforcement.
The persons of interest may provide information or data on a voluntary basis. Therefore
the action of search and seizure is not an option. When the case is upgraded into theinvestigation stage, then investigators are authorized to compel the suspect, witness or any*

Senior Prosecutor, Chief of Asset Recovery Task Force AGO Indonesia, Head of International Division AGO
Indonesia, Member of the Indonesian Integrated Team for Tracking and Arresting Corruptors, National Contact
Person CARIN for Indonesia.

- 68 -

relevant parties to transfer the legal control over their assets to the investigating authorities
since the investigation is now transformed into “pro justitia”
In order to carry out a search, investigators need a warrant and permission from a district
court. When a circumstance compels the investigators to act swiftly they may carry out the
search and later request approval from the court. The search can be a body search; clothing
search; property search. Witnesses have to be present during the search of property and incase of the owner subjects search, the local neighborhood leaders have to be present towitness the search. A copy of the minutes of the search is made available to the owners.
Goods, articles, property or other assets are subject to seizure if they meet criteria setsout by the law. Those criteria are:z

Obtained from a crime or as proceeds of crime.

z

Used as a tool of crime or tool to prepare the crime.

z

Used to hinder the investigation of a crime.

z

Made specifically to commit a crime.

z

Other goods, articles, property or assets that have direct connection with the crime.

Assets seized under civil law or bankruptcy cases may be re-seized for the purpose ofinvestigation, prosecution and trial of a criminal case as long as they meet any criteria as
mentioned above.
III. MUTUAL LEGAL ASSISTANCE LAW IN INDONESIA
The legal basis for the Indonesian law enforcement to honour requests from foreignstates for mutual legal assistance is Law Number 1 of 2006 regarding Mutual Legal
Assistance on Criminal Matters. For the ASEAN region, Indonesia is the signatory of theTreaty of Mutual Legal Assistance in Criminal Matters, or better known as AMLAT, wassigned in Kuala Lumpur, Malaysia on 29 November 2004. The treaty itself was ratified by
the parliament and enforced by Law Number 19 of 2008 regarding the Ratification of theTreaty of Mutual Legal Assistance in Criminal Matters.
The areas covered by MLA are investigation, prosecution and court hearings inaccordance with national laws and regulations. In relation to assets, several types ofassistance that can be honoured are: the execution of requests for search and seizure; therecovery of pecuniary penalties related to the crime; the prohibition of asset transactions andthe freeze of assets to satisfy the pecuniary penalties; and tracing assets.
Not all requests can be honoured. There are absolute and facultative grounds forrefusal. The request is refused if the alleged crime which is the basis of the request is:z

A crime of political nature with the exception of attempted assassination of the headof a state of government;- 69 -

z

A crime that falls under the military laws;z

The offender has been acquitted, granted clemency, or is finishing serving the sentence;z

Non-prosecutable in Indonesia;zRelated to race, gender, religion, nationality or political views of the alleged offender;z

Detrimental to the national laws, sovereignty, security and interest.

The request placed by a requesting state may be refused on the ground that the alleged
offence is:z

not a crime if committed in the Indonesian jurisdiction;z

Punishable by capital punishment;z

Detrimental to the Indonesian criminal procedure;zWill endangertheEndangering
thesafety
safetyofofpersons
personsififthetherequest
requestisishonoured;honoured;z

Burdening the state finances if the request is honoured.

There are three optional avenues for a requesting state in making the request, either by
the formal fashion or by the informal one. First, the requesting state with MLA agreementwith Indonesia may place its request directly through the central authority to the central
authority mechanism. The request is addressed to the Indonesian Ministry of Justice andHuman Rights as the central authority. The ministry will then refer such a request to therelevant competent authority (the Attorney General or Chief of National Police) for a follow
up. In the absence of such agreement, a request can be made through diplomatic channels.
The Ministry of Foreign Affairs will refer such request to the Ministry of Justice and Human
Rights, which in turn refers it to the competent authority.
Alternatively, a requesting state can make an informal request to the requested statethrough agency-to-agency channels. For example: Attorney General Office of any ASEAN
country may be in direct contact with relevant unit within the Attorney General Office of the
Republic of Indonesia to exchange information in regard to the case that MLA is sought.
This procedure may speed up the process by avoiding unnecessary delays and unforeseen
obstacles.
The request for assistance has to be accompanied by the court order or court permission
by the requesting state. If search and seizure of assets are necessitated and a proper warrant
has to be attached as well. On the basis of the warrant and other relevant documents fromthe requesting state the Attorney General or the Chief of the National Police will follow up by
issuing the similar warrant in order to execute the request. In the event that the law
enforcement must ask swiftly,
they may
may execute
execute aa warrant
warrant without
without having to secure the court’sswiftly they
permission in the first place. The execution of warrant in this nature is limited to assets thatare movable. After the execution the in-charge official must immediately seek approval fromthe district court within its jurisdiction. At its discretion, the court may or may not approve- 70 -

the action of the law enforcement official. For immovable assets permission by the district
court must be sought before a warrant can be executed.
IV. THE FUTURE
In regard to the asset recovery, the Indonesia Criminal Procedure (KUHAP) adopts theprinciple of in personam jurisdiction, meaning that assets can be frozen, seized and forfeited
only if such assets can be linked to a crime and the offenders, it is much harder for law
enforcement officials to find a link between the assets and the offender. The in personam
principle cannot satisfactorily address the difficulty of law enforcement. Therefore
Indonesia is now preparing a new law (bill) regarding the asset recovery in which the in rem
principle is adopted and will complement the in personam principle in KUHAP.
In the last two years (2011̆2012) the Attorney General Office of the Republic ofIndonesia has established and developed an Asset Recovery Task Force. During the two-year
period this task forced recovered 1.2 trillion rupiahs from drug and corruption cases. The task
force has already been internationally recognized because it is engaged with many
international networks such as CARIN (Europol), ARINSA (South Africa), RRAG (SouthAmerica).
This task force is an embryo of The Indonesian Asset Recovery Office and will become apermanent working unit under the direction of the Attorney General, which has the ability tohandle asset recovery. We will take advantage of the existence of this unit to have mutual
cooperation in combating trans-border crimes in which assets are involved.

- 71 -

MUTUAL LEGAL ASSISTANCE AND EXTRADITION
Phongsavanh Phommahaxay*

It is my great honour and pleasure to be here today. On behalf of the representativesof the Anti-Corruption Authority of Lao P.D.R, I would like to express my sincere
appreciation to the Japanese Government, especially UNAFEI, for giving me an opportunity
to take part in this important seminar in Tokyo, Japan, which is a very beautiful and modern
city.
Distinguished Guests,
Ladies and Gentlemen,
The topic I am going to present today is: Mutual Legal Assistance and Extradition
between Lao PDR and foreign countries.
I.

INTRODUCTION

Lao PDR does not have a law on mutual legal assistance so far, but we have bilateral andmultilateral agreements with other countries, such as the People’s Republic of China, theSocialist Republic of Vietnam, the Democratic People’s Republic of Korea and the ASEAN
Mutual Legal Assistance Treaty (AMLAT), which was signed in 2004. We are now preparing
to draft a law on mutual legal assistance in order to submit it to the national assembly forconsideration and approval by the end of this year or in June next year. If this law is approved,
it will be an important instrument for Lao PDR in general, particularly for organizations
concerned with implementing mutual legal assistance with other countries in the region as
well as globally.
The National Assembly has already approved a law on extradition, and the President of
the Lao People’s Democratic Republic just promulgated a law on extradition on 1 August
2012. This law provides not only principles, rules and remedies for extradition but also acentral authority for coordination with other organizations concerned. The Central Authority
for extradition is an Office of the Supreme Public Prosecutor, and the other organizations
involved are the Ministry of Foreign Affairs, Ministry of Justice, Ministry of Public Security
and the Supreme People’s Court.
II.

MUTUAL LEGAL ASSISTANCE AND PRINCIPLES OF INTERNATIONAL
COOPERATION IN CRIMINAL PROCEEDINGS

A. Mutual Legal Assistance
Although the Lao PDR does not have a law on mutual legal assistance, we have bilateraland multilateral agreements with foreign countries and the AMLAT. In addition, we also
entered into the United Nations Convention against Corruption (UNCAC), which was signed*

Anti-Corruption Inspection Department, Government Inspection Authority, Lao PDR- 72 -

on 9 December 2003 by the Government of the Lao PDR and ratified by the National
Assembly on 27 September 2009.
B. Principles of International Cooperation in Criminal ProceedingsInternational Cooperation in criminal proceedings between the competent authority of
the Lao PDR and the competent authorities of foreign counties shall comply with principles
of respect for the independence, territorial sovereignty of the states, non-interference in thedomestic affairs, equality and mutual benefit, and consistent with the constitution of Lao
PDR and the fundamental principles of international law.
In the event that the Lao PDR has not yet signed or has not yet entered into international
conventions relating to criminal proceedings, such cooperation shall be carried out on thebasis of principles of mutual cooperation, but shall not be in conflict with the laws of the Lao
PDR.
1.

Treaty between the Lao PDR and the Democratic People’s Republic of Korea on Mutual
Legal Assistance in Civil and Criminal Matters.

(i) Legal Assistance
Citizens and juridical persons of a Contracting Party shall have the right, in the territoryof the other Contracting Party, to legal assistance under the same conditions as applied to
citizens and juridical persons of the latter:
Both Contracting Parties shall render legal assistance to each other in civil andcriminal matters through the authority concerned that are authorized to handle civil
and criminal matters such as courts and public prosecutors’ offices.
(ii) Scope of Legal Assistance
Both Contracting Parties shall, in keeping with requirements of each Contracting Party’s
legislation, render legal assistance in civil and criminal matters as follows:• performing proceedings such as query of criminals, witnesses, experts or victims;• providing data and documents of the case;• executing requests for searches, seizures and collection of evidence;• recognition and execution of judgments and decisions of the courts;• Investigating, arresting, detaining and executing.
(iii) Procedure in Legal Assistance
When requesting legal assistance in civil and criminal matters, courts and othercompetent authorities of both Contracting Parties shall contact each other through their own
central authorities.
For the Lao People’s Democratic Republic, the central authority shall be the Ministry ofJustice, and communications regarding legal assistance of the Central Authority shall use
their own mother language and shall be accompanied by an English translation.

- 73 -

(iv) Form and Content of Requests for Legal Assistance
1. Legal assistance shall always be requested in written form in the mother tongue of therequesting authority, and the request shall be followed by translation into the language ofthe requested country or in English;
2.

Written requests for legal assistance shall contain the following:• Name of the requesting and the requested organs;• Title of the case for assistance and details of the request;• Name, birthday, sex, birth place, nationality, occupation, and permanent- or
temporary-residence status of the people related to the case;• Title and address of juridical persons;• Name and address of the assigned person;• Title of documents to be delivered;• If a criminal case, the record of criminal facts and the relevant provision of thelaw concerning the legal responsibility.

3.

Written requests for legal assistance shall have the signature of the chief person and theofficial seal of the requesting organs.

4.

Written requests for legal assistance shall be submitted together with documents and datanecessary to execute each request.

(v) Refusal to Execute Requests
In case the requested Contracting Party refuses to execute the request, it shall inform theother party of the reason and return all documents along with the written request.
The request may be refused under the following circumstances:1.

The execution of the request of the other Contracting Party infringes upon its
sovereignty or security, political system, public order or because of some other failure
to conform with domestic law;

2.

The requested organ of a Contracting Party has no power to execute the request and it
cannot transfer the request to any other competent organ.
III. EXTRADITION AND IMPLEMENTATION OF JUDICIAL ASSISTANCE

A. Extradition
Extradition issues arise when a person is accused of a crime, or when a foreign court
judgment is entered against a criminal offender in that foreign country, but the accused
offender has absconded to the territory of the Lao PDR. These issues also arise when aperson is accused of a crime, or when judgment is entered in the Lao PDR, but the accused
offender has absconded to the territory of a foreign country. Extradition is transferring an- 74 -

accused person or offender to the requesting country in order to conduct criminal proceedings
or for enforcement of a judgment.
B. Implementation of Judicial AssistanceIn the provision of judicial assistance, the competent authority shall conduct criminal
proceedings in the Lao PDR and shall comply with the agreements that the Lao PDR has
signed with foreign countries or based on international conventions that the Lao PDR is aparty to. Provision of judicial assistance may have the objective of extradition; the exchangeof prisoners; seizure or sequestration of assets of accused persons or defendants themselves;enforcement of judgments; or cooperation in combating crime across borders.
1.

The Treaty on Extradition between the Lao PDR and the People’s Republic of China
The treaty between Lao PDR and China is comprised of 21 Articles. Desirous ofpromoting effective cooperation between the two countries in the suppression of crime on thebasis of mutual respect for sovereignty and equality and mutual benefit, each party has
undertaken, in accordance with the provisions of this treaty and at the request of the otherparty, to extradite to each other any person found in its territory and wanted by the other party
for the purpose of conducting criminal proceedings against, or executing the sentence
imposed on, that person.
(i) Request for Extradition and Documents Required.
 Requests for extradition shall be made in writing and shall include or beaccompanied by the following:a. the name of the requesting authority;b. the name, age, sex, nationality, category and number of identification
documents, occupation, characteristics of appearance, domicile and residenceof the person sought and other information that may help to identify and search
for the person;c. a statement of the case including the time, place, conduct and outcome of theoffence;d. the text of the relevant provisions of the laws establishing criminal jurisdiction
over the offence, creating the offence and prescribing penalties that can be
imposed for the offence; ande. the text of the relevant provisions of the laws concerning any time limit on theprosecution.
 In addition to the provisions of paragraph 1 above, the following documents areneeded:a. the request for extradition, which is aimed at conducting criminal proceedings
against the person sought, shall also be accompanied by a copy of the warrantof arrest issued by the competent authority of the requesting party; orb. the request for extradition, which is aimed at executing a sentence imposed on
the person sought, shall also be accompanied by a copy of the effective court
judgment or verdict and a description of the period of sentence which has
already been executed;c. the request for extradition and its supporting documents shall be signed orsealed and shall be accompanied by translation in the language of the requested
party and in the English language.
(ii) Execution of Extradition
1. If extradition has been granted by the requested party, the parties shall reach an
agreement on the time, place and other relevant matters relating to the executionof the extradition. Meanwhile, the requested party shall inform the requesting- 75 -

party of the period of time for which the person to be extradited has been detained
prior to the surrender;
2. If the requesting party has not taken custody of the person to be extradited within
fifteen days after the date agreed on for the execution of the extradition, therequested party shall release that person immediately and may refuse requests by
the requesting party for extradition of that person for the same offence, unlessotherwise provided in the paragraph below;
3. If one party fails to surrender or take custody of the person to be extradited within
the agreed period for reasons beyond its control, the other party shall be notified
promptly. The parties shall once again reach an agreement on the relevant mattersfor execution of extradition.
2.

Case Study for Extradition of Chinese Offenders
In 2011, Chinese police sent a request letter to the Lao police through diplomaticchannels for detaining and extraditing Chinese offenders who had swindled Chinese citizen’s
money through electronic equipment and escaped to live in Lao PDR at the time. Upon
receipt of the request, we promptly contacted the concerned authorities in China for further
information. After getting further information from China, we conducted investigations andsearched for the wanted persons. Finally, we arrested 68 offenders (including 29 female
offenders). After arresting these persons, we contacted the Chinese Government to schedule adate and time to extradite. The offenders were extradited to China on 30 September 2011. In
this extradition, both sides had emphasized further cooperation in criminal matters based on
the bilateral agreement on Extradition between Lao PDR and China, which was signed in
February 2002.
3.

Case Study for Extradition of South Korean Offender
On 14 March 2009, the South Korean Police sent an official letter to the police of Lao
PDR through diplomatic channels to detain Mr. Choung Nakguang, a South Koreanbusinessman, in the case of swindling citizen’s property. After consideration and according to
Articles 117 through 119 on international cooperation of the Criminal Procedure Law of the
Lao PDR, the Lao police detained Mr. Choung Nakguang on 15 September 2009. Aftercoordination with South Korean police, the Lao PDR sent this offender to South Korea on 29
March 29 2010. In this transfer, even though there was no mutual agreement between Laosand South Korea, the two sides signed a memorandum of mutual assistance and cooperation.
IV. CONCLUSION
By recognizing the rights and duties of the countries with which the Lao PDR had signed
bilateral and multilateral treaties, the rights and duties under the ASEAN Mutual Legal
Assistance Treaty (AMLAT) as well as the International Convention against Corruption(UNCAC), we are now trying to enact a new law on Mutual Legal Assistance in Criminal
Matters. We are also working on amending the law on Anti-Corruption and other legislationin order to comply with international obligations and international conventions to which the
Lao PDR is a party.

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MUTUAL LEGAL ASSISTANCE AND EXTRADITION
Somphet Chanthalivong*I.

INTRODUCTION

The extradition law has already been approved and the President of the Lao People’s
Democratic Republic just promulgated a law on extradition on 1 August 2012. This law
provides not only principles, rules and remedies for extradition but also a central authority for
coordination and other organizations concerned. This law consists of 8 chapters and 44
Articles. The Central Authority for extradition is the Office of the People’s Supreme
Prosecutor and other organizations such as: the Ministry of Foreign Affairs, the Ministry ofJustice, the Ministry of Public Security and the Supreme People’s Court. In the past we usedthe criminal procedure law in chapter 11. Otherwise we have used bilateral and multilateralagreements with other countries. At present, however, we have new extradition laws, but thebilateral and multilateral agreements with other countries are still used.
II. INTERNATIONAL COOPERATION IN PROCEEDINGS
A. Principles of International Cooperation in Criminal ProceedingsInternational cooperation in criminal proceedings between the competent organization
conducting criminal proceedings in Lao PDR and competent organs of foreign counties shallcomply with principles of respect for the independence and territorial sovereignty ofstates, non-interference in domestic affairs, equality and mutual benefit, and shall beconsistent with the constitution of Lao PDR and the fundamental principles of internationallaw.
B. International Cooperation in Criminal ProceedingsInternational cooperation in criminal proceedings must be carried out in compliance withagreements that the Lao PDR has signed with foreign countries or international conventions
that it has entered into and in accordance to the laws of the Lao PDR.
C. Implementation of Judicial AssistanceIn the provision of judicial assistance, the competent organization conducting criminal
proceedings in the Lao PDR shall comply with the agreements that the Lao PDR has signedwith foreign countries or international conventions that the Lao PDR is a party to and shallcomply with the law. Provision of judicial assistance may have the objective of extradition or
exchange of prisoners; the seizure or sequestration of assets of the accused person or
defendant; enforcement of judgments; or cooperation in combating cross-border crime.
D. Refusal to Provide Judicial AssistanceThe competent organization conducting criminal proceedings in the Lao PDR may refuse
to provide judicial assistance in the following cases:*

Anti-Corruption Inspection Department, Government Inspection Authority, Lao PDR.

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1.

The request for judicial assistance is not in conformity with agreements that theLao PDR has signed with foreign countries, international conventions to which
the Lao PDR is a party, or the laws of the Lao PDR.

2.

The provision of judicial assistance would affect the sovereignty, security or
stability of the nation, or any important interest of the Lao PDR.

II.

EXTRADITION BETWEEN LAO PDR AND FOREIGN COUNTRIES

A. Definition of Extradition
Extradition issues arise when a person is accused of a crime, or when a foreign court
judgment is entered against a criminal offender in that foreign country, but the accused
offender has absconded to the territory of the Lao PDR. These issues also arise when a personis accused of a crime, or when judgment is entered in the Lao PDR, but the accused offender
has absconded to the territory a foreign country. Extradition is transferring an accused personor offender to the requesting country in order to conduct criminal proceedings or for
enforcement of a judgment.
B. Treaty on Extradition Between The Lao People’s Democratic Republic and The
Kingdom of Thailand
This Treaty consists of 20 Articles. For example:
ARTICLE 13
Rule of Speciality
1. A person extradited under this Treaty shall not be detained, tried, or punished in the
territory of the Requesting Party for any offence other than that for which extradition
has been granted, and shall not be extradited by that Party to a third State, unless:( a ) That person has left the territory of the Requesting Party after extradition and has
voluntarily returned to it;( b ) That person has not left the territory of the Requesting Party within thirty days after
being free to do so; or( c ) The Requested Party has consented to detention, trial or punishment of the person
for an offence other than that for which extradition was granted; or to extradition toa third State. For this purpose, the Requested Party many require the submission ofany document or statement mentioned in Article 7, including any statement made by
the extradited person with respect to the offence concerned.
2. These stipulations shall not apply to offences committed after extradition.

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C. Treaty on Extradition Between The Lao People’s Democratic Republic and The
Kingdom of Cambodia
This Treaty consists of 24 Articles. For example:

ARTICLE 2
Extraditable Offences
1. For the purposes of this Treaty, extraditable offences are offences which arepunishable under the laws of the Contracting Parties by the penalty of imprisonment
or other form of detention for a period of more than one year or by any heavier
penalty.
2. Where the request for extradition relates to a person sentenced by the Requesting
Party for any extraditable offence, extradition shall be granted only if a period of atleast six months in this sentence remains to be served.
3. For the purposes of this article, in determining whether an offence is an offence
against the laws of both Parties, is shall not matter whether the laws of theContracting Parties place the conduct constituting the offence within the same
category of offence or denominate the offence by the same terminology.
4. When extradition has been granted with respect to an extraditable offence, it may also
be granted in respect of any other offence specified in the extradition request thatmeets all other requirements for extradition except for periods of penalty or detention
orders set forth in paragraphs 1 and 2 of this article.

ARTICLE 3
Grounds for Mandatory Refusal
Extradition shall not be granted under this Treaty in any of the following
circumstances:
1. The Requested Party considers the offence for which the request for extradition ismade by the Requesting Party as a political offence. Reference to a political offence
shall not include the taking or attempted taking of the life or an attack on the personof a Head of State or a Head of Government or member of his or her family.
2. The Requested Party has well-founded reasons to suppose that the request for
extradition made by the Requesting Party aims to institute criminal proceedings
against or execute punishment upon the person sought on account of race, religion,
nationality or political opinion of that person, or that the position of the person soughtin judicial proceedings will be prejudiced for any of the reasons mentioned above.

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3. The offence for which the request for extradition is made is exclusively an offence
under military law of the Requesting party.
4. The prosecution or the execution of punishment for the offence for which extradition
has been sought has become barred by reason prescribed under the law of either
Contracting Party including a law relating to lapse of time.
5. The Requested Party has passed judgment upon the person sought in respect of thesame offence, before the request for extradition is made.
6. If the judgment of the Requesting Party has been rendered in absentia, the convictedperson has not had sufficient notice of the trial or the opportunity to arrange his or her
defence and he or she has not had or will not have the opportunity to have the caseretried in his or her presence.

D. Treaty on Extradition Between The Lao People’s Democratic Republic and The
People’s Republic of China
This Treaty consists of 21 Articles. For example:

ARTICLE 15
Surrender of Property
1. If the requesting Party so requests, the Requested Party shall, to the extent permitted
by its national law, seize the proceeds and instrumentality of the offence and otherproperty which may serve as evidence found in its territory, and shall surrender theproperty to the Requesting Party when extradition is granted.
2. When the extradition is granted, the property mentioned in paragraph 1 of this article
may nevertheless be surrendered even if the extradition cannot be executed owing to
the death, disappearance or escape of the person sought.
3. The Requested Party may, for conducting any other pending criminal proceedings,
postpone the surrender of above-mentioned property until the conclusion of suchproceedings, or temporarily surrender the property on condition that it is to be
returned by the Requesting Party.
4. The surrender of such property should not prejudice any legitimate rights of theRequested Party or any third party to the property. Where these rights exist, theRequesting Party shall, at the request of the Requested Party, return the surrendered
property without change to the Requested Party as soon as possible after theconclusion of the proceedings.

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III.

DEFINITION OF THE EXTRADITION AND
A CASE STUDY OF EXTRADITION

A. Definition of Extradition
Extradition issues arise when a person is accused of a crime, or when a foreign court
judgment is entered against a criminal offender in that foreign country, but the accused
offender has absconded to the territory of the Lao PDR. These issues also arise when a personis accused of a crime, or when judgment is entered in the Lao PDR, but the accused offender
has absconded to the territory of a foreign country. Extradition is transferring an accused
person or offender to the requesting country in order to conduct criminal proceedings or for
enforcement of a judgment.
B. A Case study of Extradition in the Case of Chinese Offenders
In 2011, Chinese police sent a request letter to the Lao police through diplomaticchannels for detaining and extraditing Chinese offenders who had swindled Chinese citizen’s
money through electronic equipment and escaped to live in Lao PDR at the time. Upon
receipt of the request, we promptly contacted the concerned authorities in China for further
information. After getting further information from China, we conducted investigations andsearched for the wanted persons. Finally, we arrested 68 offenders (including 29 female
offenders). After arresting these persons, we contacted the Chinese Government to schedule adate and time to extradite. The offenders were extradited to China on 30 September 2011. In
this extradition, both sides had emphasized further cooperation in criminal matters based on
the bilateral agreement on Extradition between Lao PDR and China, which was signed in
February 2002.

- 81 -

INTERNATIONAL COOPERATION: MUTUAL LEGAL ASSISTANCEAND EXTRADITION
Baizura Kamal*

I. INTRODUCTION
The challenge for prosecutors and law enforcement authorities in every nation in
combating crime is the issue of sovereignty, frontiers (borders) and differences in legal
systems between States. Criminals depend heavily upon the barriers of sovereignty andevidence to shield themselves of their crimes from detection. Organizations which orchestratetransnational crime and which then disperse and conceal the proceeds of their illicit activities
the world over have no regard for national borders. They are positioned to take advantage ofthe differences between legal systems, the clash of bureaucracies, the protection ofsovereignty, and, at many times, the complete incapacity of nations to work together toovercome their differences.
This is where international cooperation plays an important part in crime detection, crime
prevention and prosecution. International cooperation in criminal matters such as mutual
assistance and extradition are instruments which can be used to overcome the barriers ofsovereignty and allow the international community to "fight back" despite existing
differences. Both extradition and mutual legal assistance are about countries building bridges
to overcome the differences in their legal systems and assisting each other in law enforcement
matters.
A. Legal Framework
Criminal offenders are mobile and often seek to evade detection, arrest and punishment
by operating across international borders. They avoid being caught by taking advantage of
those borders and playing on the frequent reluctance of the law enforcement authorities toengage in complicated and expensive transnational investigations and prosecution.
B. Mutual Assistance in Criminal Matters (MLA)
MLA is the formal process by which one State requests another State to exercise its
coercive powers or to take steps to obtain evidence that must be admissible in a criminal trial.
MLA is commonly resorted to in situations when compulsive measures or legal sanctions are
required to obtain evidence in a foreign States’ jurisdiction. An example of compulsive
measures would be the issue of subpoenas to witnesses to record statements before a judicial
authority and production orders to financial institutions or companies. Thus it operates under
different and much stricter rules than those that apply to the informal channels.
The MLA legal framework allows for the collection of evidence in a useable andadmissible form by taking into account issues of voluntariness, authorization, oath,affirmation, certification and authenticity. The powers of the authorities in each country vary*

Senior Federal Counsel, Project Team Leader for MLA & Extradition Requests, International Affairs Division,
Attorney General’s Chambers of Malaysia.

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and it will be necessary to establish what can and cannot be obtained through discussions
with the relevant authorities.
Before we can fully appreciate the issues and plan of action to fully encourage theutilization of the tools underi.e. MLA
MLA andand extradition,
extradition, a brief lookunder international
international cooperations,cooperation, i.e.
at its legal framework is necessary.
1.

MLA Legislation
Malaysia already has in place the mechanism for international cooperation such as the
Mutual Assistance in Criminal Matters Act 2002 [Act 621] (“MACMA”) which came into
force on 1 May 2003. MACMA is an Act which makes provisions for mutual assistance incriminal matters to be rendered and sought between Malaysia and other countries and formatters connected therewith. The Mutual Assistance in Criminal Matters Regulations 2003
also has been enacted and came into effect on 15 June 2003 to complement theimplementation of MACMA.
MACMA provides for MLA pursuant to a Mutual Legal Assistance Treaty (MLAT)1 or
where a request is made by a State that does not have an MLAT with Malaysia (non-treaty
partner), the Minister charged with the responsibility for legal affairs, may, where therequirements of MACMA have been fulfilled and on the recommendation of the Attorney
General, issue a special direction to enable the request to be executed in accordance with theprovisions of MACMA.2(i) Central Authority
The Central Authority for MLA is the Attorney General of Malaysia who is empowered
to make and receive requests to and from the foreign States.3 These requests shall be madeand sent through diplomatic channels.4(ii) Scope of Offences and Dual Criminality Principle
In considering a request from a foreign State for rendering assistance under the MLA
regime, the requirements of dual criminality and threshold are pertinent in granting
assistance to a foreign country. Dual criminality is a mandatory requirement in order for
Malaysia to provide assistance to foreign States. This is to ensure that the offence provided
for in the request has a relevant corresponding provision under the Malaysia law. The
Attorney General (AG) shall refuse any request from any foreign State if the act or omission,
had it occurred in Malaysia, would not have constituted an offence against the laws of
Malaysia.5
It is mandatory that the issue of threshold is satisfied where the request for assistance canonly be made if it relates to “criminal matters” 6 and in respect of a serious offence7 or aforeign serious offence.8
1

Section 17(1) of MACMA.
Section 18 of MACMA.
3
Sections 7 and 19 of MACMA.
4
Sections 7(2) and 19(2) of MACMA.
5
Section 20(1)(f) of MACMA.
6
Section 2 of MACMA defines the term “criminal matter” as being in respect of a serious offence or a serious
foreign serious offence as (a) a criminal investigation, (b) criminal proceedings or (c) an ancillary criminal
matter.
7“Serious offence” is defined in Section 2 of MACMA as (a) an offence as defined under the Anti-Money
Laundering Act 2001 [Act 613], (b) an offence against the laws of Malaysia where the maximum penalty of the2- 83 -

However, in view of the current developments relating to MLA and desiring to improvethe effectiveness of the law enforcement authorities of the countries in the investigation ofcrime and in proceedings pertaining to criminal matters through cooperation and MLA,
Malaysia is in the midst of reviewing the current MLA law and the Model Treaty in order tokeep abreast of the common practices by other foreign States.
(iii) Undertaking of Reciprocity and Specialty
Once the issue of dual criminality has been satisfied, the Requesting State is also
required to provide undertakings of reciprocity9 and specialty.10 The Attorney General will
refuse any request from any foreign State if that State fails to give an undertaking that it will
subject to its laws, comply with a future request by Malaysia to that State for assistance incriminal matters if that State is not the party to the treaty with the Government of Malaysia.
This is to ensure that the Requesting State will oblige (reciprocate) a future request based ona similar offence from Malaysia so as to avoid a one-sided affair.
There is a need for the undertaking of specialty to be made to avoid the assistancerequested being used for a matter other than the criminal matter in respect of which therequest was made. This is to ensure that the information obtained from Malaysia can only be
used for the requested purpose due to the confidentiality element contained in the request.
(iv) Types of Assistance Available under MACMA11
Under MACMA, the Attorney General may make arrangements for the provision of thefollowing assistance12:(a) providing and obtaining of evidence and things13;(b) the making of arrangements for persons to give evidence, or to assist in criminal
investigations14;(c) the recovery, forfeiture or confiscation of property in respect of a serious offence or aforeign serious offence15;(d) the restraining of dealings in property, or the freezing of property, that may be recovered
in respect of a serious offence or a foreign serious offence16;(e) the execution of requests for search and seizure17;
offence is death and the minimum term of imprisonment is not less than one year and (c) any attempt, abetment
or conspiracy to commit any of the offences referred to in (b).
8Section 2 of MACMA defines foreign serious offence as an offence against the law of a prescribed foreign
State stated in a certificate purporting to be issued by or on behalf of the government of that prescribed foreign
State and that consists of or includes activity which, if it had occurred in Malaysia, would have constituted aserious offence.
9
Section 20(3)(d) of MACMA.
10
Section 20(1)(j) of MACMA.
11
The list of assistance is non-exhaustive.
12
Section 3 of MACMA.
13
Section 22 of MACMA.
14
Section 27 of MACMA.
15
Section 31- 34 of MACMA.
16
Section 31of MACMA and Reg. 23-26 of MACMR.
17
Section 35-36 of MACMA.

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(f) the location and identification of witnesses and suspects18;(g) the service of process19;(h) the identification or tracing of proceeds of crime and property and instrumentalities
derived from or used in the commission of a serious offence or a foreign serious offence;(i) the recovery of pecuniary penalties in respect of a serious offence or a foreign serious
offence; and(j) the examination of things and premises.
(v) Grounds of Refusal – Mandatory
A request for assistance will be refused as required by Malaysian law20, if the Attorney
General is of the opinion that:(a) Treaty/Agreement noncompliance – there is a failure to comply with the terms of any
treaty or other agreement between Malaysia and that prescribed foreign State in respectof that request;(b) Political Offence – the request relates to the investigation, prosecution or punishment ofa person for an offence that is, or is by reason of the circumstances in which it is alleged
to have been committed or was committed, an offence of a political nature;(c) Military offence – the request relates to the investigation, prosecution or punishment of aperson in respect of an act or omission that, if it had occurred in Malaysia, would haveconstituted a military offence under the laws of Malaysia which is not also an offence
under the ordinary criminal law of Malaysia;(d) Ulterior purpose – there are substantial grounds for believing that the request was madefor the purpose of investigating, prosecuting, punishing or otherwise causing prejudice toa person on account of the person’s race, religion, sex, ethnic origin, nationality orpolitical opinions;(e) Double jeopardy – the request relates to the investigation, prosecution or punishment of aperson for an offence in a case where the person has been convicted, acquitted or
pardoned by a competent court or other authority in that prescribed foreign State or has
undergone the punishment provided by the law of that prescribed foreign State, in respectof that offence or of another offence constituted by the same act or omission as the firstmentioned offence;(f) Dual criminality – the request relates to the investigation, prosecution or punishment of aperson in respect of an act or omission that, if it had occurred in Malaysia, would nothave constituted an offence against the laws of Malaysia;(g) Insufficient gravity – the facts constituting the offence to which the request relates does
not indicate an offence of sufficient gravity;
18

Section 39 of MACMA.
Section 40 of MACMA.
20
Section 20(1) of MACMA.
19- 85 -

(h) Insufficient importance – the thing requested of insufficient importance to theinvestigation or could reasonably be obtained by other means;(i) Impairment of sovereignty etc. – the provision of the assistance would affect thesovereignty, security, public order or other essential public interest of Malaysia;(j) Specialty – the appropriate authority fails to undertake that the thing requested will not
be used for a matter other than the criminal matter in respect of which the request wasmade;(k) Return of thing obtained – in the case of a request for assistance under sections 22, 23,
24, 25 and 26 or sections 35, 36, 37 and 38 of the MACMA, the appropriate authority
fails to undertake to return to the Attorney General, upon his request, anything obtained
pursuant to the request upon completion of the criminal matter in respect of which therequest was made;(l) Criminal matter prejudiced – the provision of the assistance could prejudice a criminal
matter in Malaysia; or(m) Contrary to law – the provision of the assistance would require steps to be taken thatwould be contrary to any written law.
The Attorney General may exercise his discretionary powers21 to refuse a request on thefollowing grounds –(a) pursuant to the terms of any treaty or other agreement between Malaysia and thatprescribed foreign State;(b) if in the opinion of the Attorney General, the provision of the assistance would, or would
be likely, to prejudice the safety of any person, whether the person is within or outside
Malaysia;(c) if in the opinion of the Attorney General, the provision of the assistance would impose an
excessive burden on the resources of Malaysia; or(d) if that foreign State is not a prescribed foreign State and the appropriate authority of that
foreign State fails to give an undertaking to the Attorney General that the foreign State
will, subject to its laws, comply with a future request by Malaysia to that foreign Statefor assistance in a criminal matter.
(vi) Confidentiality of Request and the Provided Information
A request to Malaysia may state that confidentiality of the request (both as to its content
and the fact that it has been made) is required. It would be helpful if the reasons for requiringconfidentiality are given in the request. Requests for confidentiality will normally beentertained.

21

Section 20(3) of MACMA.

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(vii) The Internal Procedure for Requesting MLA to Foreign States
The Attorney General’s Chambers provides a form in which a request from a foreigncountry is to be made22, a copy of which is annexed herewith as APPENDIX 1.
2.

Agreements/Treaties
In addition to MACMA, Malaysia also has entered into international (bilateral andmultilateral) treaties or other agreements on mutual assistance in criminal matters which
impose a legal obligation upon Malaysia within its legal framework to obtain and rendermutual assistance in criminal matters to the treaty partners.
The most common formal procedure used by States to request or provide legal assistancein criminal matters is through a formal bilateral MLAT. Malaysia had entered into a
multilateral mutual legal assistance in criminal matters treaty23 and five (5) bilateral MLATs
which form the legal basis to request and render MLA assistance.24
The ASEAN MLAT is intended to facilitate the implementation of ASEAN Member
Countries’ obligations under MLA regimes that have been established through international
instruments such as the United Nations Convention against Transnational Organized Crime(UNTOC) and the United Nations Convention against Corruption (UNCAC). ASEAN
Member Countries have developed a strong legal framework that regulates the provision of
MLA through the ASEAN MLAT and this reflects the common desire and commitment
among the ASEAN Member States in improving the effectiveness of the law enforcement
authorities of the Parties in the prevention, investigation and prosecution of offences throughcooperation and MLA.
These MLATs seek to improve the effectiveness of rendering of assistance where it
regularizes and facilitates its procedures. It creates unambiguous and binding obligations andmakes the MLA process reliable and effective as the provisions are tailored to the respective
needs of the negotiating States and can be customized to suit their respective needs. The
negotiation process also provided an opportunity to negotiating Parties to get acquainted withthe legislation of the other Parties.
C. Extradition
Extradition, unlike MLA, is the oldest component of international cooperation and isvery much familiar to the prosecutors and law enforcement authorities in Malaysia. However,in comparison with our foreign counterparts, outgoing extradition requests from Malaysia are
still relatively low.
In simple terms extradition could be termed as the process by which a fugitive criminal isreturned from the country where he is found to the country where he is accused of or has been

22

Form AGC2- Model Form for Request to Malaysia.
Treaty on Mutual Legal Assistance in Criminal Matters (among like-minded ASEAN Member Countries).
24
Treaty between the Government of Malaysia and the Government of Australia on Mutual Assistance in
Criminal Matters; Treaty between the Government of Malaysia and the Government of the United States ofAmerica on Mutual Legal Assistance in Criminal Matters; Agreement between the Government of Malaysia andthe Government of the Hong Kong Special Administrative Region of the People’s Republic of China concerning
Mutual Assistance in Criminal Matters; Treaty between the Government of Malaysia and the Government of theUnited Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance in Criminal Matters andTreaty between the Government of Malaysia and the Government of the Republic of India on Mutual Assistancein Criminal Matters.
23- 87 -

convicted of an offence. It is an arrangement designed to prevent criminals from escaping
from justice by crossing frontiers.
Extradition in Malaysia is usually employed when prosecutors intend to prosecute
accused person/persons who are no longer within the jurisdiction of the country. Malaysia
needs to ensure that criminals cannot evade justice simply by crossing borders. This requires
a responsive, streamlined extradition system that effectively combats domestic andtransnational crime, including terrorism, with appropriate safeguards.
1.

Extradition Legislation
Extradition matters in Malaysia are governed by the Extradition Act 1992 [Act 479](“EA”). Malaysia’s extradition relationships with other countries exist to enable Malaysia toensure the effective administration of criminal justice in this country. Malaysia’s extradition
relationships also enable us to cooperate with partner countries to fight crime and prevent
Malaysia from becoming a refuge and safe haven for persons accused of serious crimes inother countries.
(i) Central Authority
The Minister of Home Affairs is the central authority in extradition matters.25 In practice,
the Attorney General’s Chambers examines and advises the Minister on whether a request
complies with the Extradition Act. Malaysian extradition requests will be prepared by the
Attorney-General’s Chambers with approval of the Minister for Home Affairs.
(ii) Scope of Offences and Dual Criminality Principle
Fugitive criminals can only be extradited for “extradition offences.” 26 Dual criminality
is also a mandatory requirement for extradition where a person may be extradited only for
conduct/acts which are criminal in both the requested and requesting jurisdictions. Two
aspects of dual criminality are threshold where the request can only be entertained if theforeign offence underlying the request is punishable for not less than one (1) year
imprisonment or with death. This is to determine that the offence is serious and not atrivial/petty offence. It does not mean the offence in the requesting state must have exactly
the same description or terminology as a similar offence in Malaysia. The focus is on the act
or omission underlying the request. Malaysia will do its best to fit the conduct into an offence
under Malaysian law to accommodate the request.
(iii) Undertaking of Reciprocity and Specialty
The widely accepted principle for extradition is the principle of reciprocity where therequesting State gives assurances to the requested State that it will reciprocate or comply in asimilar type of offence in future. Under the current Extradition Act, there is no provision onreciprocity. However, in practice, when Malaysia receives an extradition request from any
country, among the mandatory requirements that need to be fulfilled by a Requesting State is
the undertaking of reciprocity.
Specialty means a person shall be tried or punished, after extradition, only for thecriminal conducts/acts for which his surrender has been made, unless the requested state,after surrender, gives consent to further trial or punishment.

25
26

Section 5 of EA.
Section 32 of EA.

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(iv) The Internal Procedure for Requesting Extradition to Malaysia
The handling of an extradition matter commences upon receipt of either of the following
requests:(a)a request for a provisional warrant of arrest 27 pending a full extradition
request; or(b)a full request for extradition.

The provisional warrant of arrest is used in cases of urgency. For treaty partners, requests
for provisional warrants of arrest are usually made by the foreign state to the designatedCentral Authority as provided for in the treaty and the supporting documents or theparticulars to be included in the request for provisional warrant will normally be identified in
the said treaty itself. The Model Form is annexed herewith as APPENDIX 2. 28
For non-treaty countries, information contained in an international notice issued by theInternational Criminal Police Organization (INTERPOL) in respect of a fugitive criminal
may be considered by the Magistrate in deciding whether a provisional warrant should be
issued for the apprehension of a fugitive criminal and the Attorney General’s Chambers(AGC) is to advise the Ministry of Home Affairs to issue a Special Direction to give effect tothe request29.
If the above matters are satisfied, the Royal Malaysia Police (RMP) will be notified of
the request and the RMP’s assistance will be sought to locate the fugitive criminal. Upon
agreement by the Attorney General or issuance of a Special Direction by the Minister andupon confirmation on the location of the fugitive criminal, notice of application is to be filed.
Upon execution by the RMP, to produce the fugitive criminal before the Magistrate Court
and to apply for an order to remand the fugitive criminal to custody for such reasonable
period of time with reference to the circumstances of the case, as he may fix, and for thispurpose the Magistrate shall take into account any period in the relevant extradition treaty
relating to the permissible period of remand upon provisional arrest of a fugitive criminal andto request a mention date on the last day of the remand period.
Upon receipt of the full request, the fugitive criminal is produced before the Magistrate
Court, and a request is made for the case to be transferred to the Sessions Court. A request for
extradition shall be made in writing and shall be sent through diplomatic channels. However,in urgent circumstances, an advance copy is sometimes transmitted to the AGC to enable
initial work to be carried out. The advance copy is only to facilitate the work in the interest of
expediting the request. It is not to be treated as an official request.
For non-treaty partners, undertakings of reciprocity are required. If the particulars andinformation received are insufficient, a request for better and further particulars andinformation from the requesting authority will be made. Unless expressly provided otherwise
in an extradition treaty, a request for provisional arrest should be made by the diplomatic
representative of the foreign State in Malaysia to the Minister of Home Affairs. The channelof transmission should be through the Malaysian Ministry of Foreign Affairs (“MoFA”). To
27

Section 13(1)(b) of EA.
Model Form AGC-EX1-A.
29
Section 3 of EA.
28- 89 -

expedite consideration of the request, an advance copy should also be sent, simultaneously,
directly to the International Affairs Division (“IAD”), Attorney General’s Chambers.
A full request requires requisition papers to be submitted through diplomatic channels
and the Requesting country shall furnish a warrant of apprehension of the fugitive criminal
issued by that country, particulars of him and the facts upon which, and the law under which,he is accused or was convicted as well as evidence sufficient to justify the issue of thewarrant of apprehension under section 13 of the Extradition Act. The Attorney General’sChambers provides a form30 in which a request by a foreign country is made to Malaysia andis annexed herewith as APPENDIX 3.
•

Extradition Proceedings –¾ Jurisdiction – The power and jurisdiction to hear extradition matters falls under the purview
of the Sessions Court.31¾ Procedures – there are three different procedures envisaged under the Extradition Act—(i) a full enquiry32 where a prima facie standard of proof is required;(ii) a full enquiry33 where the Minister has issued a written direction under section 4 of theExtradition Act to dispense with the prima facie standard of proof;(iii) a simplified procedure where the fugitive criminal informs the court that he consents to a
waiver of committal proceedings. 34 The Sessions Court is required to follow theprocedures provided in order to ascertain that the said waiver is given voluntarily and toadvise the fugitive criminal on the effect of such consent. Upon such advice, if the
fugitive criminal still consents to the waiver, the Sessions Court shall commit the fugitive
criminal to prison to await the issuance of the warrant of surrender from the Minister.
•

Extradition Hearing –(i) The hearing of the extradition case is based on the affidavits and evidence filed by theparties. The Sessions Court is empowered to receive any other evidence to show that the
fugitive criminal should not be returned.35(ii) Writ of Habeas Corpus – Upon issuance of the committal order by the Sessions Court,
the fugitive criminal may apply to the High Court for a writ of habeas corpus.36 The said
application will be heard by a High Court Judge. Upon the decision made by the High
Court Judge, the aggrieved party (Appellant) may file an appeal against the said decision
to the Federal Court. Upon receiving the records of appeal from the High Court, theAppellant is required to file a petition of appeal setting out the grounds of appeal to theFederal Court. Upon the final determination by the Federal Court—
30

Model Form AGC-EX1-B.
Section 18 of EA.
32
Section 19 of EA.
33
Section 20 of EA.
34
Section 22 of EA.
35
Section 19(2) of EA.
36
Section 36 of EA.
31- 90 -

¾ if the fugitive criminal is discharged, he will be released from detention under the Act; or¾ if the fugitive criminal is committed, he will be further detained pending the issuance of orderof surrender by the Minister.
(iii) Application for Review37 - If the Sessions Court discharged the fugitive criminal uponhearing under section 19 or 20 of the Extradition Act, the Public Prosecutor, upon thesaid decision, gives to the Sessions Court a notice of his intention to review the saiddecision at the High Court. The said Notice shall operate as a stay of the said order ofdischarge. Upon such notice, the Sessions Court may grant bail to the fugitive criminal
pending the determination of the review by the High Court. Upon receiving instruction toproceed from the Requesting Party, AGC is required to file the application to review atthe High Court within 10 days from the order of discharge. The said review is limited toquestions of law only. The decision of the High Court shall be final and conclusive.
•

Surrender – Upon final determination of the committal order, AGC will inform theRequesting Party of the decision and will request particulars of the officer(s) in charge to
receive the fugitive criminal. Upon receiving the said particulars, AGC will advise the
Minister to issue the surrender order under section 21(2) or section 22(3) of Act 479 toauthorize the surrender of the fugitive criminal to the said authorized officer(s) of theRequesting Party. Upon receiving the said order of surrender from the Minister, AGC willconsult with the RMP and the Requesting Party on the appropriate time/place of surrender.
Upon agreement, RMP will assist the Requesting Party in the process of surrender. The
process of surrender is to take place within 3 months or the period prescribed by the treaty
after the date of committal order or after the final determination of the Court’s decision. The
Minister may, upon an application by the fugitive criminal or on his behalf, order such
fugitive criminal to be discharged unless sufficient cause is shown to the contrary.
2.

Extradition Agreements
Malaysia’s extradition relationships with other countries exist to enable Malaysia toensure the effective administration of criminal justice in this country. Malaysia’s extradition
relationships also enable us to cooperate with partner countries to fight crime and prevent
Malaysia from becoming a refuge and safe haven for persons accused of serious crimes inother countries.
Extradition is not available at the request of members of the public. Malaysia’s treaty
partners have obligations to consider Malaysia’s requests, and the process will be dealt within accordance with the provisions of the treaty. In the absence of a treaty, it is a matter for thedomestic law in the foreign country to determine whether the country can agree to Malaysia’s
extradition request, and for requests from the Requesting State (non-treaty based), theextradition process will be dealt with under the Extradition Act 1992.
Like the MLA regime, the EA provides the legal basis for extradition to and from
Malaysia. It contemplates two bases for extradition (a) a treaty-based scheme38 and (b) a nontreaty-based scheme. Presently, Malaysia has concluded bilateral treaties on extradition withsix (6) countries which have come into force such as the Extradition Treaty between Great
37
38

Section 47 of EA.
Section 3 of EA.

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Britain and Siam,39 the Treaty between the Government of the Republic of Indonesia and theGovernment of Malaysia Relating to Extradition, the Extradition Treaty between the
Government of Malaysia and the Government of the United States of America; theAgreement between the Government of Hong Kong and the Government of Malaysia for the
Surrender of Fugitive Offenders; the Treaty between the Government of Malaysia and theGovernment of Australia on Extradition; and the Extradition Treaty between the Governmentof Malaysia and the Government of the Republic of India.
II. INFORMAL CHANNELS
As a matter of goodwill and international comity, law enforcement authorities around theworld may assist each other in the investigation and prosecution of crimes through informal
mutual assistance. MACMA allows assistance upon an informal request or otherarrangement40.
At the preliminary stage of an investigation, coercive powers are not yet needed, andsome form of “informal assistance” may suffice to provide information helpful to theinvestigation. This term is generally used for assistance through channels outside of theformal MLA regime, often through direct communications between counterparts such as
financial intelligence units (“FIU’s”) or police sharing intelligence or data which is legallyavailable to that agency through domestic databases. The informal channels have beeneffective law enforcement tools used among member countries for the expedient sharing of
information and use of multiple tools available for each jurisdiction to trace, freeze or seize,
and confiscate the assets of international criminal organizations.
The law enforcement authorities of Malaysia such as the Malaysian Anti-Corruption
Commission may request their overseas counterparts to provide information or intelligenceand conversely may, at their discretion, provide assistance to their respective foreigncounterparts. This system of cooperation among law enforcement agencies has the advantageof speed, efficiency and effectiveness. However, assistance can only be offered to the extent
that it does not conflict with any laws of Malaysia, and no compulsory measures may be
employed in offering assistance. Hence such assistance often neglects the issue ofadmissibility of evidence.
III. OBSTACLES TO EFFECTIVE MLA AND RECOMMENDATIONSMalaysia has received from various countries a total of 162 MLA requests from 2007 tillpresent. Malaysia has had many experiences in dealings with the requests received both fromtreaty partners and non-treaty partners. Malaysia has also made about 30 MLA requests toseveral countries. From our experience, some of the challenges, or rather barriers, to effective
MLA that need to be ironed out and possible recommendations in enhancing cooperation are
as follows –39

The Minister pursuant to section 2(1) of Act 479 issued an order on 10 July 1992 directing for the provision of
Act 479 to be applied to the Treaty (Extradition (Thailand) Order 1992) and the order was published in theGazette as P.U. (A) 269. The order came into force on 21 February 1992. Malaysia and Thailand note that theExtradition Treaty between Great Britain and Siam which is applicable to Malaysia by virtue of the Extradition(Thailand) Order 1992 [P.U. (A) 169/1992], which was signed on 4 March 1911, does not address current
extradition development. Hence, both countries are currently in the process of negotiating a new extradition
treaty to be entered into by both countries.
40
Section 4 of MACMA.

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• Establishment of effective Central Authorities – failure to identify or designate a responsible
central authority to facilitate the implementation of MLA is likely to seriously impede theeffectiveness of the process. Central authorities should be single entities to make it easier forother States to contact the appropriate authority for all kinds of mutual legal assistancematters.
It is critical for the central authorities to be staffed with officers who are legally trained,
have developed institutional expertise and continuity in the area of mutual legal assistance forthe speedy execution of the requests received from other Parties and in planning and drawing
up requests as they must be accurate, up to date and widely available to those who frame ortransmit mutual legal assistance requests.
• Increasing availability and use of practical guides regarding national mutual legal
assistance legal framework and practices (domestic manuals; guides for foreign authorities)– States should adopt mechanisms to allow for the dissemination of information, regarding
the law, practice and procedures for mutual legal assistance and on making requests to otherStates, to domestic authorities. One possible approach is to develop a procedural manual or
guide for distribution to relevant law enforcement, prosecutorial, and judicial authorities tofacilitate effective cooperation.
Guidelines on domestic law and procedures relating to mutual legal assistance to foreignauthorities41 should be made available to foreign authorities through a variety of methods,
such as, for example, publication on a website and direct transmission to law enforcement
partners in other States to inform foreign authorities on the requirements that must be met toobtain assistance.
• Reducing delay – significant delay in the execution of a request is partly caused by delays inconsideration of the request by the receiving central authority and transmission of the request
to the appropriate executing authority. States should take appropriate action to ensure thatrequests are examined and prioritized by central authorities promptly upon receipt and aretransmitted to executing authorities without delay. States should consider placing time limits
upon the processing of requests by central authorities. States are encouraged to afford foreign
requests the same priority as similar domestic investigations or proceedings. States should
also ensure that executing agencies do not unreasonably delay the processing of requests.
• Reviewing of treaties and legislation – States should regularly review their treaties and laws
when necessary to ensure that they keep abreast of useful developments in international
mutual legal assistance practice to enable speedy assistance, for example, doing away withthe dual criminality, specialty and diplomatic channels requirements.
• Increasing training of personnel involved in the mutual legal assistance process – lecturesand presentations by central authorities as part of regular training courses or workshops forlaw enforcement, prosecutors, magistrates or other judicial authorities; special workshops or
seminars on a domestic, regional or multi-jurisdictional basis; introducing programmes on
mutual legal assistance as part of the curriculum for law schools or continuing legal education
programmes; and exchanges of personnel between central authorities of various jurisdictions;41

AGC has published Guidelines entitled, “Obtaining Assistance From Malaysia in Criminal Case”.

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• Reducing complexity of mutual legal assistance through reform of extradition processes –traditionally, some States did not extradite their nationals to the State in which a crime took
place. At times, such States would instead seek to prosecute their nationals themselves in lieu
of extradition, resulting in lengthy and complex requests for mutual legal assistance in orderto obtain the necessary evidence from the country in which the crime took place. Recent
increases in the number of States that either will extradite their nationals or temporarily
extradite them provided that any sentence can be served in the State of their nationals, reduce
the need for mutual legal assistance that would otherwise be required. States that do not
extradite nationals should consider whether this approach can be reduced or eliminated. If
this is not possible, the States concerned should seek to coordinate efficiently with a view toan effective domestic prosecution in lieu of extradition.
• Ensuring confidentiality in appropriate cases – some States are not in a position to maintainconfidentiality of requests, and that the contents of requests were disclosed to the subjects oftheforeigninvestigation/proceedings,
therebypotentially
prejudicing
theinvestigation/proceedings. It was noted that confidentiality of requests was often a criticalfactor in the execution of requests. It was recommended that, where it is specificallyrequested, Requested States take appropriate measures to ensure the confidentiality ofrequests is maintained, and that in circumstances where it is not possible to maintainconfidentiality under the law of the Requested State, the Requested State notify the
Requesting State at the earliest possible opportunity, and in any case prior to the execution of
the request, in order that it may decide whether it wishes to continue with the request in theabsence of confidentiality.
• Execution of requests in accordance with procedures specified by the Requesting State – It is
important to comply with formal evidentiary/admissibility requirements stipulated by the
Requesting State to ensure the request achieves its purpose; failure to comply with suchrequirements would render it impossible to use the evidence in the proceedings in the
Requesting State. This causes delay, where the requested material has to be returned to theRequested State for certification/authentication in accordance with the request. The
Requested State should make every effort to achieve compliance with specified proceduresand formalities to the extent that such procedures/formalities are not contrary to the domestic
law of the Requested State. States are also encouraged to consider if domestic laws relating to
the reception of evidence can be made more flexible to overcome problems with the use ofevidence gathered in a foreign State.
VI. CONCLUSION
Effective implementation of MLA requires well trained staff in the applicable laws,
principles, and practices as failure to meet the standards of requested states can greatlycompromise the successful outcome of MLA requests. International corruption caseproceedings take place in a complex environment where different national legal systems,
including different institutions and models of investigation and prosecution provide obstacles
to effective legal cooperation across borders.
The absence of uniform procedures for granting MLA results in lengthy and cumbersome
procedures with no guarantee of timely and successful provision of the requested assistance.
There have been some cases where pieces of evidence were finally provided long after thetrial had been completed. In addition to different and sometimes incompatible transnationaland national systems for police co-operation, investigation and prosecution, MLA faces- 94 -

challenges of organization, efficiency and effectiveness in many developing countries. Last
but not least, the outcome of MLA greatly depends on political factors affecting the decisionsof the requested State, including issues of national interest and security.

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APPENDIX I
Version 1.3 – November 2010
FORM AGC 2[Section 19]
MODEL FORM FOR REQUEST TO MALAYSIATo:
The Attorney General of Malaysia
Level 8 Attorney General’s Chambers Malaysia
No. 45 Persiaran Perdana
62100 PUTRAJAYAMALAYSIA.
(Attention:

Head of the International Affairs Division)

From:[name appropriate authority/Central Authority of requesting State]1
Through diplomatic channels
REQUEST FOR MUTUAL ASSISTANCE IN A CRIMINAL MATTER
RE: (insert particulars)
INTRODUCTIONEITHER:
1.

I/The office of (name of designated authority under an operative bilateralagreement with Malaysia for mutual assistance in criminal matters), being theCentral Authority designated by Article (number of the relevant Article) of theTreaty between the Government of Malaysia and the Government of (name ofrequesting foreign State) on Mutual Assistance in Criminal Matters (after thisreferred to as “the Treaty”) to make requests for mutual assistance in criminal
matters on behalf of (name of requesting foreign State), and being empowered by(state relevant provisions of empowering legislation of requesting foreign State)

1

Please insert the name of the Central Authority if the request is made pursuant to an operative bilateralagreement with Malaysia, which requires requests to be made by a designated Central Authority. In othercases, please insert the name of the appropriate authority.

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to make requests for mutual assistance in criminal matters, present this request to
the Central Authority of Malaysia.2
OR:
1.

I/The office of (describe appropriate authority, either person or office), being anappropriate authority by virtue of (state relevant provisions of empowering
legislation of requesting foreign State) to make requests for mutual assistance incriminal matters on behalf of (name of requesting foreign State), present thisrequest to the Attorney General of Malaysia.3

AUTHORITY FOR REQUESTEITHER:
2.

This request is made under the Treaty.4

OR:
2.

(Name of requesting foreign State) makes this request for assistance to beextended under the Mutual Assistance in Criminal Matters Act 2002 [Act 621] of
Malaysia.5 The request is made in respect of a criminal matter within the meaningof subsection 2(1) of the Mutual Assistance in Criminal Matters Act 2002.

NATURE OF REQUEST
3.1

This request relates to a (criminal matter) 6 concerning (describe subject ofcriminal matter).

3.2

The personal details of the subject of the request are as follows:
Name/Description:
Date of birth:Age:
Occupation:
Nationality:
Passport No.

2

This version may be used by a foreign State having an operative bilateral agreement for mutual assistancein criminal matters with Malaysia.
3This version may be used by a foreign State without any operative bilateral agreement for mutual
assistance in criminal matters with Malaysia.
4This version may be used by a foreign State having an operative bilateral agreement for mutual assistancein criminal matters with Malaysia.
5This version may be used by a foreign State without any operative bilateral agreement for mutual
assistance in criminal matters with Malaysia.
6State whether it is an investigation, prosecution or an ancillary criminal matter relating to the restrainingof dealing with property or the enforcement or satisfaction of a foreign forfeiture order.

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Address/Location:
3.3

The details of the property to be traced/restrained/forfeited are as follows7:
Description:
Location:
Other relevant details:

3.4

The reasons for suspecting that the person/property is in Malaysia are as follows8:

3.5

The authority having the conduct of the criminal matter is (describe authority inthe requesting foreign State concerned with the criminal matter).

STATEMENT OF FACTS
4.

(Describe the material facts of the criminal matter including, in particular, thosefacts necessary to establish circumstances connected to evidence sought in
Malaysia and the relevance of Malaysian evidence to the criminal matter in therequesting foreign State.)

CRIMINAL OFFENCES/APPLICABLE LEGISLATION/PENALTIESEITHER:
5.1(Name of suspects/defendants) are (suspected of having/alleged to have)committed/have been charged with the commission of the following offences,namely •(describe offences and provisions of the legislation contravened)
The maximum penalties for the above offences, which are the subject of this(investigation/prosecution) are:o (specify maximum penalty for each offence and applicable law)9.

OR:
5.1

A foreign forfeiture order (has been/may be) made in proceedings in (name ofrequesting foreign State). (State basis for any statement that a foreign forfeitureorder may be made.)

7Applicable where request relates to restraint of property or enforcement of a forfeiture order.
8
Applicable where request relates to restraint of property or enforcement of a forfeiture order.
9
Applicable where request relates to an investigation or prosecution.

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The foreign forfeiture order is connected with (state the relevant offences)in (name of requesting foreign State) the maximum penalties for which are(specify maximum penalty for the offence and applicable law)10.
5.2

A copy/extract of the relevant legislation is attached and marked as “Attachment
A” to this request.

PURPOSE OF THE REQUEST
6.

By this request it is intended to (state purpose: e.g. secure admissible evidence forthe purpose of the criminal proceedings against the defendants, enforce theabovementioned foreign forfeiture order, etc.)

MANDATORY UNDERTAKINGS
7.1

It is confirmed that this request:(a)does not relate to the investigation, prosecution or punishment of a person
for a criminal offence that is, or is by reason of the circumstances in which
it is alleged to have been committed or was committed, an offence of apolitical nature;(b)

does not relate to the investigation, prosecution or punishment of a person
in respect of an act or omission that, if it had occurred in Malaysia, would
have constituted a military offence under the laws of Malaysia which is
not also an offence under the ordinary criminal law of Malaysia;(c)is not made for the purpose of investigating, prosecuting, punishing orotherwise causing prejudice to a person on account of that person’s race,
religion, sex, ethnic origin, nationality or political opinions;(d)does not relate to the investigation, prosecution or punishment of a person
for an offence in a case where the person (i)has been convicted, acquitted or pardoned by a competent court orother authority of the (name of the requesting foreign State); or(ii)

has undergone the punishment provided by the law of (name of therequesting foreign State),in respect of that offence or of another offence constituted by the same act
or omission as that offence;

10

Applicable where request relates to restraint of property or enforcement of a foreign forfeiture order.

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7.2.

(e)does not relate to the investigation, prosecution or punishment of a person
in respect of an act or omission that, if it had occurred in Malaysia, would
not have constituted an offence against the laws of Malaysia;[(f)does not have as its primary purpose the assessment or collection of tax.]11

The (appropriate authority of the requesting foreign State) further undertakes (a)that the thing requested for will not be used for a matter other than thecriminal matter in respect of which the request was made12;(b)that in the case of a request for assistance under sections 22, 23, 24, 25 and26 or sections 35, 36, 37 and 38 of the Mutual Assistance in Criminal
Matters Act 2002, to return to the Attorney General of Malaysia, upon his
request, any thing obtained pursuant to the request upon completion of thecriminal matter in respect of which the request was made13;(c)that (name of person) who attends in (name of requesting foreign State)shall not -

(d)

(i)

be detained, prosecuted or punished for any offence against the lawof (name of requesting foreign State) that is alleged to have beencommitted, or that was committed, before the his/her departurefrom Malaysia;(ii)

be subjected to any civil suit in respect of any act or omission of
the person that is alleged to have occurred, or that had occurred,
before his/her departure from Malaysia; or(iii)

be required to give evidence or assistance in relation to any
criminal matter in (name of requesting foreign State) other than thecriminal matter to which the request relates, unless he/she has left
(name of requesting foreign State) or he/she has had theopportunity of leaving (name of requesting foreign State) and has
remained in (name of requesting foreign State) otherwise than forthe purpose of giving evidence or assistance in relation to thecriminal matter to which the request relates14;

that any evidence given by (name of person) in the criminal proceedings towhich the request relates, if any, will be inadmissible or otherwise

11

Necessary only if the criminal matter is an investigation concerning offences relating to taxation and abilateral agreement with Malaysia is in operation.
12 Not applicable if the Attorney General consents pursuant to subsection 20(2) of the Mutual Assistancein Criminal Matters Act 2002.
13
Not applicable if the Attorney General consents to waive this requirement.
14
Applicable if request relates to attendance of person in requesting foreign State.

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disqualified from use in the prosecution of (name of person) for an offence
against the law of (name of requesting foreign State), other than for theoffence of perjury or contempt of court in relation to the giving of that
evidence15;(e)that (name of person) will be returned to Malaysia in accordance witharrangements agreed to by the Attorney General of Malaysia16; and(f)(such other matters as the Attorney General of Malaysia considers
appropriate).

DESCRIPTION OF ASSISTANCE REQUESTED
8.

The Attorney General of Malaysia is requested to take such steps as are necessary
to give effect to the following:(a)examination on oath or affirmation of a witness before a Sessions Court
Judge;(e.g.) Mr. X
ABC Co., Ltd.
(address)to be orally examined on oath or affirmation on the following
matters:(specify clearly the relevant issues/areas relating to thesubject-matter of the criminal proceedings/investigation onwhich evidence of the witness is sought and/or provide alist of the relevant questions)

Note:
This statement is to be obtained in the form of an affidavit in accordancewith Form 1 attached to this request.
(b)

production of things (documents, books, etc.) before a court [andobtaining of oral evidence of the witness producing such material for the
purpose of identifying and proving the material produced]17;(e.g.) Director
ABC Co., Ltd.

15

Applicable if request relates to attendance of person in requesting foreign State.
Applicable if request relates to attendance of person in requesting foreign State.
17
Include this part if it is deemed necessary for the purposes of admissibility of the documents in evidence.
16- 101 -

(address)
to be required to produce (describe the form of evidence e.g.
“certified copies”) of the following documents for the period(state relevant time frame):(specify documents or classes thereof).

The above witness to be orally examined on oath or affirmation on
the following matters for the purpose of identifying and proving
the documents produced:(state relevant particulars).
(e.g.)•

to provide confirmation as to his position in acompany/office and that he is responsible forkeeping/maintaining/holding the records in relation
to the subject-matter of the investigation•that he is authorised by the relevant law of therequested foreign State to make the affidavit•

to confirm that he has access to the records kept in
relation to the subject-matter of the investigation in
the normal course of his duties•

to confirm the authenticity of the copies of the
documents supplied•

to confirm that the documents were created in theordinary course of business

Note:
This statement is to be obtained in the form of an attestation in accordancewith Form 2 attached to this request.
(c)search of person or premises for things;(e.g.) The premises of ABC Co., Ltd.
(address)to be searched under a search warrant for the seizure of thefollowing from the company:- 102 -

(d)(provide details of the things sought to be searched for andseized).

(support any request for originals of items seized withreasons).

production of material (documents, books, etc.) through production orders;(e.g.) Manager
ABC Bank Ltd.
(address)to be required to produce copies of the following documents undera production order:(e)(describe particulars of material required to be produced
and where located).

(state grounds for believing that the material sought islikely to be of substantial value to the criminal matter in therequesting foreign State).

(support any request for the production of originals of
documents with reasons).

arrangement of travel of person/prisoner from Malaysia to assist in acriminal matter;(e.g.) Arrangements to be made for Mr. X(address)to travel to (name of requesting foreign State) to give assistance ina (criminal matter)18 by rendering the following assistance:(f)(specify the assistance sought).

(provide the undertakings required by the law of Malaysia).

(provide details of the allowances to which the person will
be entitled, and of the arrangements for security andaccommodation for the person, while the person is in therequesting foreign State pursuant to the request).

enforcement of a foreign forfeiture order/request to assist in the restrainingof dealing in property;

18State whether it is an investigation or criminal proceedings of an offence in the requesting foreign Stateor an ancillary criminal matter.

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o (state particulars of the foreign forfeiture order to be enforced, or
the property to be restrained and present state of related
proceedings).
(g)assistance in locating/identifying and locating a person who is suspected to
be involved in/to have benefited from the commission of a foreign serious
offence;(e.g.) Arrangements to be made to locate/identify and locate Mr. X who
is believed to be in Malaysia with the last known address at(address).
(h)(state particulars of person concerned).

assistance in tracing property suspected to be connected to a foreign
serious offence;(e.g.) Arrangements to be made to trace (description of property)
believed to be in Malaysia.
(i)(state particulars of property concerned).

service of process.
(e.g.) Mr. X(address)to be served with the following documents:(describe documents to be served).

(specify manner of service and period within whichdocuments to be served).

(specify required proof of service).

EXECUTION OF REQUEST(A)CONFIDENTIALITY[9.1

It is requested that the fact that this request has been made and the execution of
the request be kept entirely confidential except to the extent necessary to executethe request as (state reasons e.g. the likelihood of interference with witnesses and/or destruction of evidence, etc.)]19

19

Necessary if confidentiality is requested.

- 104 -

[9.2

It is also requested that the evidence of the witness be taken in camera as there
exist reasonable grounds for believing that it is in the interests of the witness togive evidence in camera because (state reasons) and the criminal matter would besubstantially prejudiced if the examination was conducted in open court because(state reasons).]20(B)

PARTICULAR PROCEDURES TO BE FOLLOWED10.

It is requested that the following procedures be observed in the execution of therequest:•(state details of manner and form in which evidence is to be taken andtransmitted to requesting foreign State, if relevant.)(e.g.)In relation to the evidence obtained on examination on oath/affirmation ofa witness, please provide the statement in admissible form. To beadmissible, the statement must be made in the form of an affidavit except
when recorded in writing by a judicial authority. If documents and records
are referred to or are otherwise enclosed, the documents and records mustbe accompanied by an attestation of authenticity. Copies of the prescribed
form for the affidavit and attestation of authenticity are attached to thisrequest and marked as Attachment B and Attachment C respectively.

•(state any special requirements as to certification/authentication of
documents.)(e.g.)In relation to evidence to be provided by affidavit(a)the affidavit should be made before a judicial officer or otherofficer who is authorised to administer oaths or affirmations in
Malaysia. When the affidavit has been sworn or affirmed, theaffidavit should be sealed with an official or public seal of
Malaysia to ensure compliance with (relevant provision of
applicable law of requesting foreign State), a copy of which is
attached to this request and marked as Attachment D;(b)

if the affidavit runs for more than one page, each page other thanthe last should be initialed both by the person who makes theaffidavit and by the person before whom the affidavit is made; and(c)each page of each attachment should be initialed both by the
person who makes the affidavit and by the person before whom theaffidavit is made.

20

Applicable if the request relates to the taking of evidence before a court for the purposes of aninvestigation in the requesting foreign State.

- 105 -

•(state if attendance by representative of appropriate authority at examinationof witnesses/execution of request is required and, if so, the title of the officeheld by the proposed representative.)(e.g.)
Permission is requested for an officer of (name of appropriate authority inrequesting State) to travel to Malaysia to assist in the execution of thisrequest.

(C)PERIOD OF EXECUTION21

11.

It is requested that the request be executed urgently/within (state period giving
reasons i.e. specify likely trial or hearing dates or any other dates/reasons
relevant to the execution of the request).

21

Section 23 of the Mutual Assistance in Criminal Matters Act 2002 prescribes a period of 7 days for the
production of documents and things under a court order. Where large quantities of documents are involved,
a longer period may be required.

- 106 -

(D)TRANSMISSION OF REQUESTED MATERIAL

12.1

Any documents, statements, information or things obtained in response to thisrequest should be sent to (name of appropriate authority in requesting foreign
State) at the following address:•(state address of appropriate authority in requesting foreign State).

•(state telephone, facsimile, electronic mail address).

12.2

The (appropriate authority in requesting foreign State) will forward the material
to (name of requesting authority in requesting foreign State), being the relevant
requesting authority in this matter.

(E)

DETAILS OF ALLOWANCES, ARRANGEMENTS FOR SECURITY AND
ACCOMODATION22

13.1

The allowances to which (name of person) will be entitled are as follows:(State details of allowances)

13.2

The arrangements for the security of (name of person) are as follows:(State details of security arrangements)

13.3

The arrangements for the accommodation of (name of person) are as follows:(State details of accommodation arrangements)

LIAISON
14.1

The case officer of (name of appropriate authority in requesting foreign State) is:(name of officer of appropriate authority in requesting foreign State,
telephone and facsimile numbers and e-mail address)

14.2

The following Malaysian officers of (name of appropriate authority in Malaysia)
has knowledge of this matter:(name of officer of appropriate authority in Malaysia, telephone andfacsimile numbers and e-mail addresses).

22

If the request involves a person travelling from the requested foreign State to Malaysia.

- 107 -

14.3

If permission is given for an officer of (name of appropriate authority inrequesting foreign State) to travel to Malaysia, the officer is likely to be ((name of
officer of appropriate authority in requesting foreign State).

SUPPLEMENTARY REQUEST
15.

The (name of appropriate authority in requesting foreign State) may wish to
make supplementary requests for assistance in this matter if necessary.

RECIPROCITY UNDERTAKING23
16.

The Government of (name of requesting foreign State) assures the Government of
Malaysia that it would, subject to its laws, comply with a request by theGovernment of Malaysia to (name of requested foreign State) for assistance of
this kind in respect of an equivalent offence.

EITHER:17.

I,, the (name of appropriate authority of requesting
foreign State), pursuant to (relevant provision in applicable law of requesting
foreign State) and at the instance of (name of appropriate authority in requesting
foreign State), being satisfied that there are reasonable grounds for believing that
there is evidence in Malaysia that would be relevant to an investigation/criminal
proceedings in the (name of requesting foreign State), make this request to the
Attorney General of Malaysia for assistance in relation to this criminal matter.

OR:
17.

I, (name of person), an officer of the (name of appropriate authority in requesting
foreign State), acting in reliance on the authority of the (name of appropriate
authority in requesting foreign State) in the exercise of the executive powers
under (relevant provision of applicable law of requesting foreign State) to makerequests to foreign States for assistance in criminal matters, and at the instance of(name of relevant authority in requesting foreign State), make this request to the
Attorney General of Malaysia for assistance in relation to this criminal matter.

23

Applicable if the request is made by a foreign State without any operative bilateral agreement with
Malaysia. The undertaking should be given by the appropriate authority that is authorised to give such
undertaking on behalf of the requesting foreign State.

- 108 -

Signed by
Name: ____________________________
Office: ____________________________
Date: ____________________________- 109 -

APPENDIX IIFORM AGC – EX 1- A
MODEL FORM FOR EXTRADITION REQUEST TO
MALAYSIA FROM TREATY PARTNER
To:
The Minister of Internal Security
Ministry of Internal Security
Level 11, Block D1 & D2
Federal Government Administrative Centre
62512 PUTRAJAYA(Attn: Head of the Security and Public Order Division)
OR[Name Central Authority for Malaysia designated by bilateral agreement]. 1
From:[name appropriates Central Authority designated in bilateral extradition agreement with
Malaysia][Through diplomatic channels]

1

Central Authority designated by treaty –• Provisional arrest request:• Thailand – Ministry of Internal Security (diplomatic channel)• Indonesia – Inspector General of Police (diplomatic channel/direct/Interpol)• USA – Attorney General’s Chambers (diplomatic channel)• HK – Attorney General’s Chambers (direct)• General – Ministry of Internal Security (diplomatic channel)•

Extradition requests –• Thailand – Ministry of Internal Security (diplomatic channel)• Indonesia – Minister responsible for the administration of justice(diplomatic channel)• USA – Ministry of Internal Security (diplomatic channel)• HK – Attorney General’s Chambers – (direct)• General – Ministry of Internal Security (diplomatic channel)- 110 -

INTRODUCTION
1.
I/The office of (name of designated authority under an operative bilateral agreementwith Malaysia for extradition), being the Central Authority designated by Article (number of therelevant Article) of the Treaty between the Government of Malaysia and the Government of(name of requesting foreign State) on extradition (after this referred to as “the Treaty”) to makerequests for extradition on behalf of (name of requesting foreign State), and being empowered by(state relevant provisions of empowering legislation of requesting foreign State) to makerequests for extradition, present this request to the Central Authority of Malaysia.12
AUTHORITY FOR REQUEST
2.

This request is made under the Treaty.

NATURE OF REQUEST
3.1

This request for provisional arrest/extradition (name of fugitive offender) who is afugitive criminal /offender * from justice / convicted person * whose surrender is beingsought by (name competent authority of requesting foreign State) of (name requesting
foreign State).The subject is a person who is believed to be presently in Malaysia at(provide particulars of address/location of subject as available).

3.2

The personal details of the subject are as follows:
Name/ Description: .................................................
(including aliases)
Date of Birth: ........................................................
Age: ................................................................

Occupation : ........................................................
Nationality: ...........................................................
National Identity Card No: .........................................
Passport No: ..........................................................
Address/Location: ...................................................
..........................................................................
..........................................................................
Other relevant details: ...........................................
(e.g. height/eye color/particulars of Interpol Red Notice)3* Delete which ever is not applicable2
3

Insert if diplomatic channels required by bilateral agreement with Malaysia.
Attach copies of relevant documents, e.g. passport, photograph, set of fingerprints, Interpol Red Notice.

- 111 -

3.3

The reasons for suspecting that the person is in Malaysia are as follows:(provide particulars)

3.4

The authority having conduct of this matter is (describe authority in the requesting
foreign State concerned)

Intention to request the surrender of the person4
4.

The Government of (name of requesting State) intends to request the surrender of (thesubject) in accordance with (number of relevant Article) of the Treaty and shall submit
the required documents in support of a formal request for his surrender within (specify
period provided in Treaty) / within the period required by the Malaysian authority
pursuant to this request.

5.

A statement of the existence of a warrant of arrest.5
5.1

On (specify date), a (specify competent authority e.g. Judge/Magistrate/Judicial
Authority) in and for (name of requesting foreign State) issued a warrant for thearrest of the subject. The warrant specified that (the subject) is wanted for acharge of (provide particulars of offence and provisions of relevant applicable
law).

5.2

The warrant of arrest remains in full force and effect. A copy of the warrant ofarrest is at Annex “_“ and the proposed charges at Annex “_“.

Description of the offences and a statement of sentence.
6.1

The subject is wanted for (provide details of offences and provisions of relevant
applicable of law).

6.2

A person, who commits the offence of (provide details of offences and provisions of
relevant applicable of law) is liable on conviction to (specify maximum applicablepenalty).

6.3

There is a/is no * time limitation for the prosecution of the said offence.

6.4

The particulars of the offence are set out in Annex “_“.

6.5

A copy/ extract of the relevant legislation is at Annex “_“

45Applicable if initial request is for provisional arrest.
Applicable if initial request is for provisional arrest.

- 112 -

The facts of the case7.

Provide brief summary of the facts of the case.

* Delete which ever is not applicable
SUPPORTING DOCUMENTS
8.

The supporting documents for this request for provisional arrest/ extradition* comprise –(a)(specify supporting documents prescribed in bilateral extradition agreement with
Malaysia).

(b)(specify any additional document available)

E.g.
The supporting documents comprise a true copy of the relevant warrant of arrest for the
subject and original affirmations/affidavits of witnesses made in the (name of competentauthority) in the requesting foreign State and duly authenticated by (name of authorized
officer) in the (Central Authority) of the requesting foreign State, a competent authority of
the requesting foreign State.
DECLARATIONS.
9.

For the purpose of (relevant Article of the Treaty), I declare that – (insert declaration
required by bilateral agreement with Malaysia.)E.g.
I declare that:(1)each of the offences in respect of which the surrender of the subject is requested is not an
offence of a political character;(2)

the surrender of the subject is not for the purpose of prosecuting or punishing him on
account of his race, religion, nationality or political opinions;- 113 -

(3)the subject will not, if surrendered, be prejudiced at his trail, or punished, detained or
restricted in his personal liberty by reason of his race, religion, nationality or politicalopinions.

For the purpose of (relevant Article) of the Treaty I declare that, if the subject issurrendered to (name of requesting foreign State) by Malaysia, he will not, unless he has first had
the opportunity to leave (name of requesting foreign State) and has not do so within (specify
period provided by bilateral agreement with Malaysia if any) of having been free to do so or hehas volunteered by retuning to (name of requesting foreign State) be proceeded against,
sentenced or kept in custody for any offence committed prior to his surrender to (name ofrequesting foreign State) other than:(1)

the offence or offences in respect of which his surrender is ordered; or(2)

any lesser offence, however describe, disclosed by the facts in respect of which
his surrender was ordered provided that such an offence is an offence for which
the subject can be surrendered under Treaty.

(3)

any other offence being an offence for which surrender may be ordered under theagreement and in respect of which the Government of Malaysia consents.

For the purpose of (relevant Article of the Treaty is surrendered) to (name of requesting
foreign State), he will not be surrendered to any other jurisdiction for any offence committed
before his surrender unless the Government of Malaysia consents to such surrender or he has
first had an opportunity to leave (name of requesting foreign State) and has not done so within(specify period provided in bilateral Agreement with Malaysia) and having been free to do so, or
he has volunteered by returning to (name for requesting foreign State) having first left.
10.
I, .................... , the (name of appropriate authority of Requesting foreign State),
pursuant to (relevant provision in applicable law of requesting foreign State) and the instance of(name of appropriate authority in requesting foreign State), being satisfied that there arereasonable grounds for believing that the subject is in Malaysia make this request to (name ofrequested State) for the provisional arrest/extradition of the subject.

Urgency(Please specify the reason/s for urgency if any)

- 114 -

11.

Liaison
11.1.

The case officer of (name of appropriate authority in requesting foreign State)is:(name of officer of appropriate authority in requesting foreign State,
telephone, and facsimile numbers and e-mail address)

11.2

The following Malaysian officer of (name of appropriate authority in
Malaysia) has knowledge of this matter:(name of officer of appropriate authority in Malaysia, telephone, andfacsimile numbers and e-mail address)

Signed by:Name:  ............................................

Office: ............................................

Date: ............................................

c.c. NCB/Interpol/Royal Malaysian PoliceOR
IN WITNESS WHEREOF is set the official seal of (state name of the office making
request) of (name of requesting foreign State) and my signature.
This .......... day of ............. 2005.
(Seal)...........................
(Name )
(Office)- 115 -

APPENDIX III
FORM AGC – EX 1- B
MODEL FORM FOR EXTRADITION TO MALAYSIATo:
The Minister of Home Affairs
Ministry of Home Affairs
Level 11, Block D1 & D2
Federal Government Administrative Centre
62512 PUTRAJAYAOR[Name Central Authority for Malaysia designated by bilateral agreement]. 1
From:[name appropriate Central Authority designated in bilateral extradition agreement with Malaysia][Through diplomatic channels]
INTRODUCTION
1.
I/The office of (name of designated authority under an operative bilateral agreementwith Malaysia for extradition), being the Central Authority designated by Article (number of therelevant Article) of the Treaty between the Government of Malaysia and the Government of(name of requesting foreign State) on extradition (after this referred to as “the Treaty”) to makerequests for extradition on behalf of (name of requesting foreign State), and being empowered by(state relevant provisions of empowering legislation of requesting foreign State) to makerequests for extradition, present this request to the Central Authority of Malaysia.

1

Central Authority designated by treaty –•Extradition requests –• Thailand – Ministry of Home Affairs (diplomatic channel)• Indonesia – Minister of Justice (diplomatic channel)• USA – United States Department of Justice (diplomatic channel)• HK – Attorney General’s Chambers – (direct)• Australia - Attorney General’s Chambers (diplomatic channel)• India – Ministry of External Affairs (diplomatic channel)• General – Ministry of Home Affairs (diplomatic channel)- 116 -AUTHORITY FOR REQUEST
2.

This request is made under the Treaty.

NATURE OF REQUEST
3.1

This request for extradition of (name of fugitive offender) who is a fugitive criminal /offender * from justice / convicted person * whose surrender is being sought by (namecompetent authority of requesting foreign State) of (name requesting foreign State).The
fugitive criminal / offender * is a person who is believed to be presently in Malaysia at(provide particulars of address/location of subject as available).

3.2

The personal details of the fugitive criminal / offender * are as follows:
Name/ Description: .................................................
(including aliases)
Date of Birth: ........................................................
Age: ...............................................................

Occupation: ......................................................

Nationality: ...........................................................
National Identity Card No: .........................................
Passport No: ..........................................................
Address/Location: ...................................................
..........................................................................
..........................................................................
Other relevant details: ...........................................
(e.g. height/eye color/particulars of Interpol Red Notice)3* Delete which ever is not applicable
3.3

The reasons for suspecting that the person is in Malaysia are as follows:(provide particulars)

3.4

3

The authority having conduct of this matter is (describe authority in the requesting
foreign State concerned)

Attach copies of relevant documents, e.g. passport, photograph, set of fingerprints, Interpol Red Notice.

- 117 -

REQUEST FOR THE EXTRADITION OF THE FUGITIVE CRIMINAL / OFFENDER*
4.

The Government of (name of requesting State) now makes a request for the extradition of(name of fugitive criminal / offender *), in accordance with Article (number of therelevant Article) of the Treaty and submits herewith the required documents in support ofa formal request for his surrender.

A STATEMENT OF THE EXISTENCE OF A WARRANT OF ARREST
5.1

On (specify date), a (specify competent authority e.g. Judge/Magistrate/Judicial
Authority) in and for (name of requesting foreign State) issued a warrant for the arrest of
the fugitive criminal / offender *. The warrant specified that (fugitive criminal /offender*) is wanted for a charge of (provide particulars of offence and provisions of
relevant applicable law).

5.2

The warrant of arrest remains in full force and effect. A copy of the warrant of arrest is at
Annex “_” and the proposed charges at Annex “_”.

DESCRIPTION OF THE OFFENCES AND A STATEMENT OF SENTENCE
6.1

The fugitive criminal / offender * is wanted for (provide details of offences andprovisions of relevant applicable of law).

6.2

A person, who commits the offence of (provide details of offences and provisions of
relevant applicable of law) is liable on conviction to (specify maximum applicablepenalty).

6.3

There is a/is no * time limitation for the prosecution of the said offence.

6.4

The particulars of the offence are set out in Annex “_”.

6.5

A copy/ extract of the relevant legislation is at Annex “_”* Delete which ever is not applicable
THE FACTS OF THE CASE
7.

(Provide brief summary of the facts of the case)

SUPPORTING DOCUMENTS
8.

The supporting documents for this request for extradition comprise –- 118 -

(a)(specify supporting documents prescribed in bilateral extradition agreement with
Malaysia).

(b)(specify any additional document available)

E.g.
The supporting documents comprise a true copy of the relevant warrant of arrest for the
subject and original affirmations/affidavits of witnesses made in the (name of competentauthority) in the requesting foreign State and duly authenticated by (name of authorized
officer) in the (Central Authority) of the requesting foreign State, a competent authority of
the requesting foreign State.
DECLARATIONS
9.

For the purpose of (relevant Article of the Treaty), I declare that – (insert declaration
required by bilateral agreement with Malaysia.)E.g.
I declare that:(1)each of the offences in respect of which the surrender of the fugitive criminal / offender *is requested is not an offence of a political character;(2)

the surrender of the fugitive criminal / offender * is not for the purpose of prosecuting or
punishing him on account of his race, religion, nationality or political opinions;(3)the fugitive criminal / offender * will not, if surrendered, be prejudiced at his trial, or
punished, detained or restricted in his personal liberty by reason of his race, religion,
nationality or political opinions.

(4)the prosecution of which his return is sought is not barred by time according to the law of...... (name of requesting foreign state);(5)

each of the offences in respect of which the surrender of the subject is requested is not an
offence under military law.

For the purpose of (relevant Article) of the Treaty I declare that, if the fugitive criminal /offender * is surrendered to (name of requesting foreign State) by Malaysia, he will not, unlesshe has first had the opportunity to leave (name of requesting foreign State) and has not do so
within (specify period provided by bilateral agreement with Malaysia if any) of having been free

- 119 -

to do so or he has volunteered by returning to (name of requesting foreign State) be proceededagainst, sentenced or kept in custody for any offence committed prior to his surrender to (nameof requesting foreign State) other than:(1)

the offence or offences in respect of which his surrender is ordered; or(2)

any lesser offence, however describe, disclosed by the facts in respect of which
his surrender was ordered provided that such an offence is an offence for which
the subject can be surrendered under Treaty.

(3)

any other offence being an offence for which surrender may be ordered under theagreement and in respect of which the Government of Malaysia consents.

For the purpose of (relevant Article of the Treaty is surrendered) to (name of requesting
foreign State), he will not be surrendered to any other jurisdiction for any offence committed
before his surrender unless the Government of Malaysia consents to such surrender or he has
first had an opportunity to leave (name of requesting foreign State) and has not done so within(specify period provided in bilateral Agreement with Malaysia) and having been free to do so, or
he has volunteered by returning to (name for requesting foreign State) having first left.
10.
I, ....................... , the (name of appropriate authority of Requesting foreign State),
pursuant to (relevant provision in applicable law of requesting foreign State) and the instance of(name of appropriate authority in requesting foreign State), being satisfied that there arereasonable grounds for believing that the subject is in Malaysia make this request to (name ofrequested State) for the extradition of the fugitive criminal / offender *.
URGENCY(Please specify the reason/s for urgency if any)
LIAISON
11.1.

The case officer of (name of appropriate authority in requesting foreign State)is:(name of officer of appropriate authority in requesting foreign State,
telephone, and facsimile numbers and e-mail address)

11.2

The following Malaysian officer of (name of appropriate authority in
Malaysia) has knowledge of this matter:(name of officer of appropriate authority in Malaysia, telephone, andfacsimile numbers and e-mail address)

Signed by:- 120 -Name:........................................

Office:........................................

Date

:

........................................

OR
IN WITNESS WHEREOF is set the official seal of (state name of the office making
request) of (name of requesting foreign State) and my signature.
This .......... day of .............. 20 .
(Seal)...........................
(Name )
(Office)- 121 -

INTERNATIONAL COOPERATION: MUTUAL LEGAL ASSISTANCEAND EXTRADITION
Roziza Sidek*

I. INTRODUCTION
Since the inception of the anti-corruption laws in Malaysia, vis-à-vis the Prevention of
Corruption Act 1961 and the creation of the Anti-Corruption Agency, Malaysia has witnessed
rapid economic development and its establishment as a major financial hub in the region. With
this development, the crime of corruption has also grown in substance and complexity. We havealso realized that corruption forms an integral part of other organized and serious fraud crimes.
Many corrupt activities have transformed into cross-border crimes. Criminals are also able
to escape justice by speedily moving around to different places, taking advantage of theconvenience of rapid modern-day travel. In the face of this challenge of hi-tech andinternationalized corrupt activities, how to tackle cross-border corruption has become an
important issue among law enforcement agencies worldwide.
The Malaysian Anti-Corruption Commission (MACC) has moved with the times and paid
serious attention to the need for international cooperation in fighting corruption and organizedcrime. Our strategy in this respect focuses on three areas: Mutual Legal Assistance, Informal
Assistance and Enforcement Officers’ Training.
II. INTERNATIONAL COOPERATION
A. Enforcement Officers’ Training
In order to strengthen investigation strategies among anti-corruption agencies in the AsiaPacific Region, MACC, through its training academy, has organized regional anti-corruption
training programmes at the Malaysian Anti Corruption Academy (MACA). At these training
programmes, anti-corruption professionals from the region exchange information and ideas about
the fight against corruption, evaluate existing strategies and develop new approaches towards
detecting and fighting corruption.
B. Informal Assistance
Informal assistance remains an invaluable tool in international cooperation in the fightagainst corruption. Less formalized, its strength lies in networking and information exchange
among enforcement officers. To that end, MACC has relied on informal assistance provided to
us by KPK (Indonesia), CPIB (Singapore) and ICAC (Hong Kong) in its detection andinvestigation of certain individuals. With their timely assistance, we have subsequently
embarked on and completed our investigation of these individuals.

*

Deputy Public Prosecutor, Malaysian Anti Corruption Commission.

- 122 -

MACC believes that as long as care is taken to gather information lawfully, with due regard
to its future use as evidence, and as long as the authorities in both jurisdictions are informed,
informal cooperation along these lines can be followed-up though formal channels by ensuringthat requests are well documented. Platforms of this nature should serve as an ideal set up for us
to not only socialize but to network and exchange information on matters that would eventuallyassist in the detection, investigation and prosecution of corruptors and their ill-gotten proceeds.
It must be borne in mind that the effectiveness of informal and to a lesser extent formalcooperation largely depends on trust which, in turn, develops through familiarity, working
relationships and mutual respect for the informal rules of cooperation, such as confidentiality andreciprocity.
C. Mutual Legal Assistance
Quite a number of cases investigated these days by MACC involve a cross-border element:
either where the suspects had absconded or they had transferred their ill-gotten gains to places
outside the territory or where the act of corruption is a collaboration of different nationals fromdifferent regions.
Ever since we have witnessed the increase of cross-border corruption, we have naturally
relied on assistance and information from Interpol and other overseas law enforcement agencies
in providing vital information about fugitive offenders, asset tracing information in relation tocorrupt public officials and individuals, and in detecting joint collaboration from different
nationals in acts of corruption or conspiracies to commit acts of corruption on Malaysian soil.
This assistance that we have received was as a result of formalized mutual-assistance treaties
entered into by the Government of Malaysia with other governments and through informal
assistance with anti-corruption agencies worldwide.
1.

The Mechanism in which Mutual Legal Assistance and Extradition Can Be Rendered
In the area of formalized assistance, The Mutual Assistance in Criminal Matters Act 2002
[Act 621] of Malaysia provides the backdrop for mutual assistance in criminal matters. Since thecoming into effect of this Act, Malaysia has embarked on Mutual Legal Assistance Treaties withvarious countries to enhance their mutual legal assistance. Substantive and procedural
requirements for extradition are set forth in the Extradition Act 1992 (Act 479).
2.

Agencies and Organizations Responsible For These Matters
The Central Authority responsible for matters pertaining to MLA requests is the Attorney
General’s Chambers of Malaysia whereas MACC is the specialized organization in Malaysia tocombat corruption. Thus, for the purpose of rendering MLA requests, or handling such requests,
MACC liaises closely with the International Affairs Division (IAD) of the Attorney General’sChambers.
The work process for MLA in MACC can be summarized as follows.
(i) For outgoing requests, the requesting officer submits requests for foreign assistance to thespecial unit at MACC known as the "Management Foreign Mutual Assistance in Criminal- 123 -

Matters (MACMA) Branch". The authorized officer from the MACMA Branch studies therequest and then drafts the MLA. The draft MLA will then be forwarded to the Central Authority
for its perusal and discussion. After that, MACC then waits for the response from the Central
Authority on the outcome of the request. Once the outcome has been received, the MACMA
Branch prepares the full report on the result of the request and sends the report to the requesting
officer (usually the investigating officer).
However, there still remain challenges for outgoing requests. These challenges sometimes
impede investigation or subsequent prosecution of corrupt practices. Among the challenges faced
are delay or failure to respond to queries by MACC and delay in execution of requests by law
enforcement agencies, banks, etc. – for example, compliance with production orders.
(ii) For incoming requests, once the MACMA Branch receives the official request from theCentral Authority, the MACMA Branch executes the assistance and submits the result of therequest to the Central Authority.
For the extradition process, once the MACMA Branch receives the application for
extradition, the authorized officer will discuss the matter with the Central Authority in order toobtain its consent. If consent is given, the MACMA Branch will then handle the matter either bytransporting the suspect to/from Malaysia.
III. THE MACC EXPERIENCE TO SPEED UP THE PROCESS
There is a broad consensus among the law enforcement authorities that proactive use of
informal channels and alternative mechanisms for cooperation can complement, and often
substitute for, formal MLA procedures, particularly during the early stages of investigations.
Many of the requests by MACC for assistance on routine, non-coercive measures are dealt withthrough informal channels, such as gathering information from public records, contacting
potential witnesses to determine availability and taking voluntary statements. Mutual legal
assistance would then be used primarily for measures that would require the direct participationof law enforcement authorities during the investigation (such as the interviewing of involuntary
witnesses, interviewing suspects under caution, obtaining bank and financial information, andsearch and seizure requests), and preventive and ultimately coercive measures.
IV. SUCCESS STORY
By virtue of the bilateral agreement entered into between MACC and the Anti Corruption
Bureau (ACB) in Brunei Darussalam, both agencies have agreed to mutually assist each other inrespect of operational matters, by forming an “Operational Working Group”. This working group
committee has garnered a lot of success in combating corruption between the two countries inrespect of investigation, as well as intelligence work, since its establishment in 2003.
For instance, MACC has made a request to obtain several copies of documents from theBrunei Customs Department and to record a statement from a Brunei Customs Department
Officer which was linked to the investigation conducted by MACC. Through this committee,
MACC has received responses from the ACB, Brunei Darussalam in less than two weeks, andthis enabled the case to be concluded on schedule.

- 124 -

V. MEASURES TO ENHANCE INTERNATIONAL COORDINATION
1.

The United Nations Convention Against Corruption (UNCAC)
Article 46(1) of UNCAC calls on States Parties “to afford one another the widest measureof mutual legal assistance in investigations, prosecutions and judicial proceedings in relation tothe offences covered by this Convention.” The convention promotes and facilitates thiscooperation by strengthening key elements of the existing international arrangements.
Furthermore, there should be strong incentives for countries to collaborate, since all countries areboth requesting and requested parties. However, implementation is still lagging, and there
remains room for improvement in the provision of mutual legal assistance in support of asset
recovery. Malaysia, has not only ratified the Convention but is currently reviewing theimplementation of Chapters III and IV of the Convention.
2.

The International Association of Anti Corruption Authorities (IAACA)
MACC’s commitment towards international assistance also lies in the role it has placed in
the founding of the International Association of Anti Corruption Authorities (IAACA), where
one of its objectives is to push forward international cooperation against corruption. The IAACA
has successfully organized a series of events in an effort to push forward international
cooperation against corruption.
3.

The South East Asia Parties against Corruption (SEA-PAC)
Law enforcement cooperation which includes the exchange of information and coordinationof certain investigations is pursued through the membership and participation of MACC in theSouth East Asia Parties against Corruption (SEA-PAC). MACC works closely with its
counterparts: for instance, MACC has conducted joint investigations with the ACB, Brunei
Darussalam.
VI. CONCLUSION
The presence of, and the participation in, this seminar is testament that the international
community has realized that international cooperation is a strategy in any country’s effort infighting corruption. It is not a luxury anymore but an integral part in the exploration of new
strategies and collaboration in the fight against ever-increasing cross-border corruption. It is
hoped that these concerted efforts can be further consolidated and enhanced.

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INTERNATIONAL COOPERATION:
MUTUAL LEGAL ASSISTANCE AND EXTRADITION IN MYANMAR
Htu Htu Ngwe*

I. INTRODUCTION
Myanmar acceded to the Convention against Transnational Organized Crime on 31
March 2004. In this Convention, Mutual Legal Assistance (MLA) and Extradition areimportant provisions for the state parties. To be in line with and to implement the provisionof MLA, Myanmar enacted ‘The Mutual Assistance in Criminal Matters Law’ on 28 April
2004 and promulgated the Mutual Assistance in Criminal Matters Rules on 14 October 2004.
Section 5 of said law provided that the Government shall form the Central Authority for
rendering assistance among States in criminal matters, comprising the following persons;(a) Minister, Ministry of Home Affairs, Chairman(b) Deputy Minister, Ministry of Home Affairs, Vice Chairman(c) Deputy Minister, Ministry of Foreign Affairs, Member(d) Deputy Minister, Ministry of Finance and Revenue, Member(e) Deputy Minister, Ministry of Immigration and Population, Member(f) Deputy Chief Justice, Member(g) Deputy Attorney General, Member(h) A Representative from the Ministry of Defense, Member(i) Director General, General Administration Department, Member(j) Director General, Myanmar Police Force, Secretary(k) Chief of Police, General Staff Myanmar Police Force, Joint Secretary
The functions and duties of the Central Authority are mentioned in Section 6 as follows:(a) Granting or refusing to provide assistance after scrutiny of the request;(b) Giving opinions to the Government with respect to entering into agreements between
States on mutual assistance in criminal matters;*

Director, Union Attorney General’s Office, Myanmar.

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(c) Laying down necessary training programmes for personnel from relevant
departments and organizations for enhancement of skill and technology inimplementation of this law;(d) Liaising and coordinating, as may be necessary, if requested issue is also involved
with another State;(e) Coordinating with the relevant government departments, organizations and persons
in respect of the requested issue;(f) Informing the relevant government department and organization to carry out mattersrelated to the request and handing over the performances of the relevant government
department and organization to the Requesting State;(g) Requesting and obtaining assistance from a foreign State in criminal matters.
Therefore, the Central Authority is the main responsible agency and organization for
MLA Matters.
1. The conditions and requirements to request MLA in Myanmar regarding with necessityof a treaty basis, the procedure to be followed by a requesting state, assurance of reciprocity,and dual criminality are mentioned in the relevant provisions.
Section 2 of the Law mentioned that this law shall apply to providing assistance incriminal proceedings with States parties to an international convention or regional agreement
to which the Union of Myanmar is a State party or with the State that has entered into bilateralagreement or with the State that will provide reciprocal assistance though not a State party to
the international convention or regional agreement or bilateral agreement with respect toinvestigation, prosecution and judicial proceedings in criminal matters.
Concerning the necessity of a treaty basis, the States parties to an international
convention or regional agreement or bilateral agreement to which Myanmar is a State party
shall be provided MLA.
If the State is not a party to the above-mentioned agreements, MLA will be provided
upon the assurance of reciprocity.
Regarding dual criminality, Section 3(a) provides that Offence means the offence,
punishable with imprisonment for a term of one year and above under any existing law. The
imprisonment for a term of one year and above under the law of any requesting foreign State;
2. The scope of offences for which MLA can be granted has no classification of offences.
But the request may be refused under Section 18 of the law. The severity of offences ispunishable with imprisonment for a term of one year and above under any existing law.
3. Available types of assistance are provided in Section 11. Any foreign State may, inmaking a request under Section 10, with respect to investigation, prosecution and judicial
proceedings in criminal matters, include and request the following matters:(a) Taking evidence or a statement from any person;- 127 -

(b) Rendering service so that judicial documents shall have effect;(c) Examining objects and sites;(d) Identifying or tracing money or property to be used for evidentiary purposes relevantto the offence;(e) Executing searches, seizures, control, issuing restraining orders andconfiscation of exhibits;(f) Obtaining information, documents to be used for evidentiary purposes, records andexpert opinions;(g) Providing originals or certified copies of relevant documents and records to be used
for evidentiary purposes;(h) Exposing the residential address of an offender, location of the exhibit and othernecessary information;(i) Other matters in respect of which the Central Authority has agreed to give assistance.
4. Grounds for refusal of MLA are provided in Section 18. The Central Authority shall notrefuse thethethegroundthatofit itis beinga bankaorbank
on theofthe request
request ofofany
anyforeignforeignState
Stateonongroundor groundfinancialfinancial-institution
it is foundon scrutiny
infringesone
oneofof theinstitution secrecy. secrecy.
ProvidedProvided
that if that
it isiffoundon scrutiny
thatthat
it itinfringes
following facts, the request may be refused in whole or in part:(a) Not being in conformity with the stipulations of this Law;(b) Encroaching on the sovereignty of the State, its security prevalence of law and orderor public interests;(c) There being cause to believe that the race, sex, religion, nationality, ethnic origin,political opinion or personal stand of any individual is encroached;(d) There being a prohibition of conducting investigation, prosecution and judicial
proceedings of an offence similar to the offence requested, under the existing law of
the Union of Myanmar;(e) Being an offence of military nature actionable under the Defence Services Act,
1959;(f) The subject matter relating to the request being contrary to the laws of Myanmar;(g) Being a request incidental to matters reserved in an international convention towhich the Union of Myanmar is a State Party.
5. Confidentiality of the request and provided information regarding Section 22 of the Law,
the Central Authority shall:- 128 -

(a) if there are matters that are to be kept confidential among the information andevidence to be sent by one’s own State with respect to matters that are given
assistance by the Union of Myanmar, inform the Requesting State to keep the same
confidential;(b) if there is no intention of handing over documents, records or property in their
entirety to the Requesting State, mention to return the same without delay to theUnion of Myanmar after completing performance of the request.
6. The internal procedure for requesting MLA is concerned with Section 10 of the Law, andany foreign State requesting assistance of Myanmar in criminal matters shall:(a) if it is the State Party to the international convention or regional agreement to which
the Union of Myanmar is a State Party or the State which has bilateral agreementwith the Union of Myanmar, request assistance directly from the Central Authority;(b) if it is the State Party to the international convention or regional agreement to which
the Union of Myanmar is not a State Party or the State that has not entered intobilateral agreement with the Union of Myanmar, request assistance from the Central
Authority through diplomatic channels.
In the Mutual Assistance in Criminal Matters Rules, the request form was mentioned andis called Form-1. (This form is mentioned in Annex-1)
7. Other informal methods of law enforcement cooperation are provided in Section 13 of
the Law. The requesting State may, in urgent circumstances, make a request orally by
telephone, facsimile, electronic mail or other electronic means including computer networks.
In making such requests, the original letter of request shall be sent to the Central Authority
without delay.
8. Regarding Mutual Legal Assistance, Myanmar is a State Party to the Convention Against
Transnational Organized Crime and the Treaty on Mutual Legal Assistance in Criminal
Matters (MLAT). Myanmar has only concluded a bilateral agreement with India on thismatter. In most of the ASEAN countries, the focal points of MLA are Offices of the Attorney
General, but in Myanmar, the Central Authority was established and led by the Minister ofHome Affairs. Most of the MLA requests were carried out in informal ways between
Myanmar and China, Myanmar and Thailand.
9. Regarding extradition, Myanmar enacted the Extradition Act in 1903 which still exists
but does not apply in practice. It is not in line with the current situation, and we are trying to
promulgate a new law for extradition. At present, Myanmar has not concluded any bilateralagreement between other States. Therefore, we have no presentation on extradition.

II. CONCLUSION
In conclusion, as a member of the United Nations, ASEAN and other international andregional organizations, Myanmar is actively taking part in Mutual Legal Assistance withother countries, especially with neighboring countries.

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INTERNATIONAL COOPERATION:
EXTRADITION AND MUTUAL LEGAL ASSISTANCE
Manuel T. Soriano, Jr.*I.

INTRODUCTION

Our Constitution declares that the Philippines adheres to the policy of cooperation withall nations.1 This cooperation necessarily includes assistance in other countries’ fights against
corruption, subject to Philippine domestic laws, treaty obligations and generally accepted
principles of international law. Like most countries, the Philippines abhors corruption
because of its devastating effect on the social and economic development of nations and theirpeople. As stressed in the Rationale of this seminar, “Corruption destroys nations. It
undermines democracy and the rule of law, distorts business activities and competition, andhinders sustainable development and prosperity. It is also a threat to the security of societies
as it creates environments in which organized crime, terrorism, and other forms of unlawful
activity may prosper.” The Philippines is committed to do its part in the fight against thiscommon enemy of nations, and has entered into several extradition and mutual legal
assistance treaties for that purpose. This paper will tackle the Philippine mechanism andprocedures concerning extradition and mutual legal assistance. It is hoped that this simple
presentation will give my fellow participants an opportunity to compare their systems andpractices with ours in the Philippines.
To be sure, participation in international seminars, such as this, helps us keep abreast ofdevelopments in the international arena and provides us with the essential opportunity tolearn from our peers and share good practices. I thus look forward to the presentations of myfellow participants in order to have an opportunity to gain broader understanding of theirrespective systems on extradition and mutual legal assistance which I can bring to my country.
II.

LEGAL AND INSTITUTIONAL FRAMEWORK FOR EXTRADITION AND
MUTUAL LEGAL ASSISTANCE

A. Agencies Involved
Before introducing mechanism and procedures relative to extradition and mutual legal
assistance, it may be worth mentioning and describing certain government agencies in thePhilippines which have roles in the matters under consideration. These agencies are the
Office of the Ombudsman, the Department of Justice, the Department of Foreign Affairs, and
the Anti-Money Laundering Council.
1.

Office of the Ombudsman
The Office of the Ombudsman is an independent constitutional body mandated to fightand prevent corruption. It is headed by an Ombudsman who has, among others, the power toinvestigate and prosecute, on his/her own or on complaint by any person, any act or omission*

Acting Director, Prosecution Bureau III, Office of the Special Prosecutor, Office of the Ombudsman,Philippines.
1
Article II, Section 2.

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of any public officer or employee, office or agency, when such act or omission appears to beillegal, unjust, improper or inefficient.2 The Office of the Ombudsman may request assistanceand information from any government agency in the Philippines.
According to the Philippine Notification relative to the ratification of the United Nations
Convention against Corruption (UNCAC), the Office of the Ombudsman, in the absence of abilateral treaty, serves as the Central Authority for mutual legal assistance. Should there be abilateral treaty between a state party to the UNCAC and the Philippines, it is the Departmentof Justice that functions as the Central Authority which shall have the power to receive
requests for execution or transmittal to competent authorities.
2.

Department of Justice
The Department of Justice (DOJ) investigates and prosecutes criminal offenders throughthe National Bureau of Investigation3 and the National Prosecution Service, respectively.4
The Department serves as the Philippine Central Authority for extradition and mutual legal
assistance on criminal matters and represents treaty partners before Philippine courts.5
3.

Department of Foreign Affairs
The Department of Foreign Affairs is the prime agency of government responsible forthe pursuit and implementation of the Philippine foreign policy. It pursues bilateral, regionaland multilateral relations with other states or governments to advance the interests of thePhilippines and the Filipinos.
4.

Anti-Money Laundering Council
The Anti-Money Laundering Council is the Philippines’ Financial Intelligence Unit.
Among its functions are to: (i) institute civil forfeiture proceedings through the Office of the
Solicitor General; (ii) cause the filing of complaints with the Department of Justice or the
Ombudsman for the prosecution of money laundering offenses; and (iii) investigate money
laundering activities and other violations of the Anti-Money Laundering Act.6
B. The Philippine Extradition Law7
1. Concept of Extradition
Extradition is defined in the law as “the removal of an accused from the Philippines withthe object of placing him at the disposal of foreign countries to enable the requesting state or
government to hold him in connection with any criminal investigation directed against him or
the execution of a penalty imposed on him under the penal or criminal law of the requestingstate or government.”8 It has been characterized as the right of a foreign power, created bytreaty, to demand the surrender of one accused or convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.
It is not a criminal proceeding. Even if the potential extraditee is a criminal, an extradition
proceeding is not by its nature criminal, for it is not punishment for a crime, even thoughsuch punishment may follow extradition. It is sui generis, tracing its existence wholly to2

Republic Act No. 6770 (The Ombudsman Act of 1989).
http://www.doj.gov.ph/vision-mission-and-mandate.html.
4
http://www.doj.gov.ph/vision-mission-and-mandate.html.
5
Id.
6
http://www.amlc.gov.ph/amlc.html.
7
Presidential Decree No. 1069, entitled “Prescribing the Procedure for the Extradition of Persons Who Have
Committed Crimes in a Foreign Country.”
8
Sec. 2(a), PD 1069.
3- 131 -

treaty obligations between different nations. It is not a trial to determine the guilt or
innocence of the potential extraditee. Nor is it a full-blown civil action, but one that is merely
administrative in character. Its object is to prevent the escape of a person accused orconvicted of a crime and to secure his return to the state from which he fled, for the purposeof trial or punishment.9
2.

Basis and Purpose
Extradition may be granted only pursuant to a treaty or convention.10 In the Philippines,
for a treaty to be valid and effective, the same must be concurred in, or ratified by, at least 2/3
of all the members of the Senate,11 that is, at least 16 out of 24 Senators.12 At present, thePhilippines has extradition treaties with 13 countries, namely, Indonesia, 13 Thailand, 14
Australia, 15 Canada, 16 Switzerland, 17 South Korea, 18 Micronesia, 19 the United States ofAmerica,20 Hong Kong,21 Spain, India, China, and the United Kingdom.22
Extradition may be requested for the following purposes: (i) criminal investigation
instituted by authorities of the requesting state or government charging the accused with an
offense punishable under the laws both of the requesting state and the Republic of thePhilippines by imprisonment or other form of deprivation of liberty for a period stipulated in
the relevant extradition treaty or convention; or (ii) execution of the prison sentence imposedby a court of the requesting state, with such duration as that stipulated in the relevant
extradition treaty or convention, to be served within the territorial jurisdiction of therequesting state.23
The general conditions for extradition are set forth in the Extradition Law, while thespecific minimum requirements as well as the mandatory and discretionary grounds forrefusing a request for extradition are provided for in existing treaties.24
Under existing treaties, extradition of a Filipino national is one of the discretionary
grounds for refusing a request for extradition, with the exception of the treaties of thePhilippines with India, the United kingdom and the United States of America, which contain9

Govt. of Hong Kong, represented by the Phil. Dept. of Justice vs. Hon. Felixberto Olalia Jr., et al., G.R. No.
153675, April 9, 2007, jurisprudence cited in the case omitted here.
10
Sec. 3, PD 1069.
11
The Philippine Congress, which is the Legislative Department of the government, is composed of two (2)chambers, the Lower House (House of Representatives) and the Upper House (Senate).
12
Sec. 21, Art. VII, Philippine Constitution.
13
Date of Entry into Force: October 25, 1976.
14
Date of Entry into Force: December 7, 1984.
15
Date of Entry into Force: January 18, 1991.
16
Date of Entry into Force: November 12, 1990.
17
Date of Entry into Force: February 23, 1997.
18
Date of Entry into Force: November 30, 1996.
19
Based on the records of the Department of Foreign Affairs of the Philippines, the treaty between thePhilippines and Micronesia has not entered into force. No file found (Note Verbale on notification of completionof the requirements) on its entry into force.
20
Date of Entry into Force: November 22, 1996.
21
Date of Entry into Force: June 20, 1997.
22
Philippine treaties with Spain, India and the United Kingdom are pending before the Philippine Senate
Committee on Foreign Relations for concurrence.
23
Sec. 3 (a) (b), PD 1069.
24
Atty. Rafael G. Hipolito, UNCAC Review Focal Point, Office of the Ombudsman, “Inventory of Philippine
Compliance with the United Nations Convention Against Corruption (UNCAC), Chapter IV-International
Cooperation, page 5.

- 132 -

an explicit provision that extradition shall not be refused on the ground that the person sought
is a citizen of the requested state. To date, the Philippines has not refused a request for
extradition on the sole ground that the person sought to be extradited is its own national.25
Moreover, the Extradition Law and the existing treaties do not impose as a condition for
the extradition of a Filipino national that the service of sentence, in case of conviction, be in
the Philippines. There is also no domestic law which would authorize the enforcement in thePhilippines of a sentence imposed under the domestic law of a foreign country.26
Extradition may be denied on the ground that the request is likely for the purpose ofprosecuting and punishing a person on account of that person’s sex, race, religion, nationality,
ethnic origin, or political opinions or that compliance with the request would cause prejudice
to the person’s position for any one of these reasons. This mandatory ground for denying arequest for extradition is present in all Philippine bilateral extradition treaties, except with
India, Indonesia, Thailand and the United States of America.27
With regard to UNCAC, the Philippine Notification states that, in view of therequirement of dual criminality under the Philippine Extradition Law, UNCAC cannot be
considered as a legal basis for extradition. However, subject to compliance with domestic
legal processes, the Philippines is considering the amendment of its declaration, so that it canuse the Convention as a basis for extradition provided that the dual criminality requirement issatisfied.28
3.

Requesting Officer; Requirements
Request for extradition may be made by any foreign state or government with which thePhilippines has an extradition treaty or convention in force. Such request may be made by the
diplomat of the foreign state, addressed to the Secretary of Foreign Affairs of the Philippines.
The request shall be accompanied by: (i) the original or an authentic copy of either- (a) thedecision or sentence imposed upon the accused by the court of the requesting state, or (b) the
criminal charge and the warrant of arrest issued by the authority of the requesting state or
government having jurisdiction of the matter or some other instruments having the equivalent
legal force; (ii) a recital of the acts for which extradition is requested, with the fullest
particulars as to the name and identity of the accused, his whereabouts in the Philippines, if
known, the acts or omissions complained of, and the time and place of the commission ofthese acts; (iii) the text of the applicable law or statement of the contents of said law, and thedesignation or description of the offense of the law, sufficient for the evaluation of therequest; and (iv) such other documents or information in support of the request.29
4.

Provisional Arrest; Right to BailIn case of urgency, the requesting state may, pursuant to the treaty or convention in force,
request the provisional arrest of the accused pending receipt of the request for extradition. A
request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation (NBI) of the Philippines, either through the Diplomatic Channels or direct bypost or telegraph. The Director of the NBI or any official acting on the Director’s behalf shall,
upon receipt of the request, immediately secure a warrant for the provisional arrest of the25

Id. at page 7.
Id. at page 8.
27
Id. at page 9.
28
Id. at page 4.
29Sec. 4, PD 1069.
26- 133 -

accused from the judge of the Regional Trial Court of the province or city having jurisdiction.
The NBI Director through the Secretary of Foreign Affairs shall inform the requesting stateof the result of its request. If within 20 days after the provisional arrest the Secretary ofForeign Affairs has not received the request for extradition and the required documents, theaccused shall be released from custody. Release from provisional arrest shall not prevent rearrest and extradition of the accused if a request for extradition is received subsequently inaccordance with a treaty or convention in force.30
Can a prospective extraditee post bail for his/her provisional liberty upon arrest? In a
2002 case, the Philippine Supreme Court held that, “The constitutional provision on bail does
not apply to extradition proceedings, as it is available only in criminal proceedings.” 31
However, in 2007, the Philippine Supreme Court held that, “Clearly, the right of aprospective extraditee to apply for bail in this jurisdiction must be viewed in the light of thevarious treaty obligations of the Philippines concerning respect for the promotion andprotection of human rights. Under these treaties, the presumption lies in favor of humanliberty. Thus, the Philippines should see to it that the right to liberty of every individual is
not impaired.”32 The Supreme Court added that, “Obviously, an extradition proceeding, whileostensibly administrative, bears all earmarks of a criminal process. A potential extraditee
may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to thedemanding state following the proceedings.”33
5.

Duty of Secretary of Foreign Affairs; Concurrent Request for Extradition
Unless it appears to the Secretary of Foreign Affairs that the request fails to meet therequirements of the Philippine law and the relevant treaty convention, the Secretary shallforward the request together with the related documents to the Secretary of Justice, who shallimmediately designate and authorize an attorney in the Justice Department to take charge ofthe case. The attorney so designated shall file a written petition, including all related
documents, with the proper Regional Trial Court of the province or city having jurisdiction of
the place, with a prayer that the court take the request under consideration. The filing of thepetition and the service of the summons to the accused shall be free from payment of docket
and sheriff’s fees. The court where the petition is filed shall continue to have exclusive
jurisdiction to hear and decide the case, regardless of the subsequent whereabouts of theaccused, or the change or changes of residence.34
In case extradition of the same person has been requested by two or more states, theSecretary of Foreign Affairs, after consultation with the Secretary of Justice, shall decide
which of the several requests shall be first considered, and copies of the former’s decision
thereon shall be promptly forwarded to the attorney having charge of the case, if there be one,through the Department of Justice.35
6.

Issuance of Summons; Temporary Arrest; Hearing, Service of Notices
Immediately upon receipt of the petition, the judge shall, as soon as practicable, summon
the accused to appear and answer the petition on the day and hour fixed in the order. The
30

Id. at Sec. 20.
Government of the United States of America vs. Hon. Guillermo Puruganan, et al., G.R. No. 148571,
September 24, 2002.
32
Id.
33
Govt. of Hong Kong, represented by the Phil. Dept. of Justice vs. Hon. Felixberto Olalia Jr., et al., supra.
34
Sec. 5, PD 1069.
35
Id. at Sec. 15.
31- 134 -

judge may issue a warrant for the immediate arrest of the accused which may be served
anywhere within the Philippines if it appears to the judge that the immediate arrest andtemporary detention of the accused will best serve the ends of justice. Upon receipt of theanswer to the petition, or should the accused after having received the summons fail toanswer within the time fixed, the judge shall hear the case or set another date for the hearing.
The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly
served each upon the accused and the attorney having charge of the case.36
7.

Appointment of Counsel de Officio; Hearing in Public; Exception; Legal Representation
If on the date set for the hearing the accused does not have legal counsel, the judge shallappoint any law practitioner residing within the court’s territorial jurisdiction as counsel deofficio to assist the accused in the hearing.37 The hearing shall be public unless the accused
requests, with the approval of the court, that it be conducted in chambers. The attorney
having charge of the case may upon request represent the requesting state throughout theproceedings. The requesting state may, however, retain private counsel to represent it forparticular extradition cases. Should the accused fail to appear on the date set for hearing, or if
the accused is not under detention, the court shall forthwith issue a warrant of arrest which
may be served upon the accused anywhere in the Philippines.38
8.

Nature and Conduct of Proceedings; Decision and Service Thereof.
In the hearing, the provisions of the Rules of Court, insofar as practicable and notinconsistent with the summary nature of the proceeding, shall apply to extradition cases, andthe hearing shall be conducted in such a manner to arrive at a fair and speedy disposition of
the case. Sworn statements offered in evidence at the hearing of any extradition case shall bereceived and admitted in evidence if properly and legally authenticated by the principal
diplomatic or consular officer of the Philippines residing in the requesting state.39
Upon conclusion of the hearing, the court shall render a decision granting extradition,and shall give his reason therefor upon showing of the existence of a prima facie case.
Otherwise, it shall dismiss the petition.40 The decision of the court shall be promptly servedon the accused if present at the hearing, and the clerk of court shall immediately forward twocopies thereof to the Secretary of Foreign Affairs through the Department of Justice.41
9.

Appeals by Accused; Stay of Execution
The accused may, within 10 days from receipt of the decision of the court granting theextradition, appeal to the Court of Appeals of the Philippines, whose decision in extradition
cases shall be final and immediately executory. The appeal shall stay the execution of thedecision.42 The provision of the Philippine Rules of Court governing appeals in criminalcases in the Court of Appeals shall apply.43 The accused and the Secretary of Foreign Affairs,
through the Department of Justice, shall each be promptly served with copies of the decisionof the Court of Appeals.44
36

Id. at Sec. 6.
Id. at Sec. 7.
38
Id. at Sec. 8.
39
Id. at Sec. 9.
40
Id. at Sec. 10.
41
Id. at Sec. 11.
42
Id. at Sec. 12.
43
Id. at Sec. 13.
44
Id. at Sec. 14.
37- 135 -

10. Surrender of Accused; Seizure and Turn Over of the Accused’s Properties
After the decision of the court in the extradition has become final and executory, theaccused shall be placed at the disposal of the authorities of the requesting state, at a time andplace to be determined by the Secretary of Foreign Affairs, after consultation with the foreign
diplomat of the requesting state. 45 If the extradition is granted, articles found in thepossession of the accused who has been arrested may be seized upon order of the court at the
instance of the requesting state, and such articles shall be delivered to the foreign diplomat of
the requesting state who shall issue the corresponding receipt.46
11. Costs and Expenses; By Whom Paid
Except when the relevant extradition treaty provides otherwise, all costs and expenses
incurred in any extradition proceeding and in apprehending, securing and transmitting an
accused shall be paid by the requesting state. The Secretary of Justice shall certify to theSecretary of Foreign Affairs the amount to be paid by the requesting state on account ofexpenses and cost, and the Secretary of the Foreign Affairs shall cause the amount to becollected and transmitted to the Secretary of Justice for deposit in the National Treasury.47
C. Mutual Legal
Assistancelegal assistance
1. No Domestic Legislation
The Philippines does not have a domestic law on mutual legal assistance. However, theabsence of domestic legislation concerning mutual legal assistance does not prohibit thePhilippine government from requesting or granting legal assistance to a foreign country. The
Philippines can request or provide legal assistance in criminal matters to other states using asbases, among others, the provisions of existing bilateral and regional mutual legal assistancetreaties (MLATs), as well as “mini-MLAs” contained in the various United Nations
Conventions to which the Philippines is a state party, such as the United Nations Convention
against Corruption (UNCAC). Mutual legal assistance may also be provided pursuant to R.A.
9160, the Philippine Anti-Money Laundering Act of 2001 (AMLA), as amended by R.A.
9194.48 Moreover, non-treaty-based requests for legal assistance may also be made on thebasis of reciprocity.
2.

Philippine MLATs With Other Countries
To date, the Philippines has 8 MLATs. These are with Australia, 49 China, 50 Hong
Kong,51 South Korea,52 Spain,53 Switzerland,54 the United Kingdom55 and the United Statesof America.56 The more recent MLATs in the list are with China and the United Kingdom,which were concurred in by the Philippine Senate in May 2012. The Philippines is also astate party to the “Treaty on Mutual Legal Assistance in Criminal Matters,” or the so-called“ASEAN MLAT” entered into by the governments of Brunei Darussalam, Cambodia,
45

Id. at Sec. 16.
Id. at Sec. 17.
47
Id. at Sec. 18.
48
Inventory of Philippine Compliance with the United Nations Convention Against Corruption (UNCAC),
Chapter IV-International Cooperation, supra, page 11.
49
Date of Entry into Force: December 19, 1993.
50
Date of Entry into Force: October 19, 2012.
51
Date of Entry into Force: March 24, 2004.
52
Date of Entry into Force: November 17, 2008.
53
Date of Entry into Force: December 18, 2008.
54
Date of Entry into Force: December 1, 2005.
55
Date of Entry into Force: June 1, 2012.
56
Date of Entry into Force: November 22, 1996.
46- 136 -

Indonesia, Lao People’s Democratic Republic, Malaysia, Philippines, Singapore, and theSocialist Republic of Vietnam.
The MLATs entered into by the Philippines contain a lot of common provisions, among
them are assistance in: (i) gathering of evidence; (ii) taking the testimonies or statements ofpersons; (iii) execution of requests for searches and seizures; (iv) facilitating the personal
appearance of witnesses; (v) transferring of persons in custody for testimony or otherpurposes; (vi) obtaining and production of judicial and official records; (vii) tracing,
restraining, forfeiting and confiscating the proceeds and instrumentalities of criminal activities,
including assisting in proceedings related to forfeiture of assets, restitution and collection offines; and (viii) providing and exchanging information on law, documents and records.57
3.

Grounds for Denial of Requests for Mutual Legal AssistanceThe grounds for the denial of a request for assistance may be mandatory or discretionary.
The mandatory grounds include those that involve: (i) political offenses; (ii) offenses under
military law; (iii) double jeopardy; (iv) offenses barred by prescription; or (v) requests madefor the purpose of prosecuting, punishing or otherwise causing prejudice to a person on
account of that person’s race, sex, religion, nationality, or political belief.58
In the ASEAN MLAT, it was stated that the following shall not be considered as politicaloffenses: (i) an offense against the life or person of a Head of State or a member of his/her
immediate family; (ii) an offense against the life or person of a Head of a central Government,
or of a minister of a central Government; (iii) an offense within the scope of any international
convention to which both the Requesting and Requested states or governments are parties
and which imposes on the parties thereto an obligation either to extradite or prosecute a
person accused of commission of that offense; and any attempt, abetment or conspiracy tocommit any of the offences referred to above.59
The discretionary grounds to deny a request for legal assistance include those: (i) where
the requesting party has, in respect of that request, failed to comply with any material termsof the treaty or other relevant arrangements; (ii) the provision of the assistance would, or
would be likely to prejudice the safety of any person, whether that person is within or outside
the territory of the requested party; or (iii) the provision of the assistance would impose an
excessive burden on the resources of the requested party. 60
Noteworthy, the Philippine MLATs with China, Republic of Korea, Switzerland, Spainand the United States provide as a discretionary ground for refusing a request for assistancethe fact that the execution of the request is likely to prejudice its sovereignty, security, publicorder, or other essential interests. On the other hand, the Philippine MLATs with Australia

57

Simeon Marcelo, Former Ombudsman of the Philippines, “Denying Safe Havens through Regional andWorldwide Judicial Cooperation: The Philippine Perspective,” Issue Paper (Workshop F), presented to the 5th
Anti-Corruption Conference, ADB/OECD Anti-Corruption Initiative for Asia and the Pacific (September 28-30,
2005).
58
In the Philippines and the United States of America MLAT, it was stipulated that the Requested State may
deny assistance if the request relates to a political offense; an offense under military law which would not be an
offense under ordinary criminal law; or if the execution of the request would prejudice its security or similar
essential interests, or made not in conformity with the Treaty. (Article 3 [1] of the Treaty).
59
Article 3(3), ASEAN MLAT.
60
Id., Article 3(2).

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and Hong Kong provide such as a mandatory ground for refusal.61
4.

Dual Criminality
Dual criminality relates to acts that are criminal in both the requesting and requested
states. Generally, the requirement of dual criminality is discretionary upon the requested state.
However, the Philippines has bilateral agreements wherein it is expressly stated thatassistance will be provided without regard to whether the alleged conduct constitutes anoffense under the laws of the requested party. As a rule, the Philippines does not decline
requests for mutual assistance, be they treaty or non-treaty based, on the ground of absence ofdual criminality. Likewise, dual criminality is not a requirement for providing assistance to aforeign state under Section 13 of the AMLA.62
5.

Central Authority
As previously stated, the Department of Justice serves as the Central Authority for treatybased requests for legal assistance. It acts on both incoming and outgoing MLA requests. The
Department of Justice, through its Office of the State Counsel, conducts the evaluation. If theJustice Department finds that the execution of the request belongs to another government
agency, said Department transmits the request to the agency competent to execute the same.
If the request involves production of bank records, the request will be referred to the AntiMoney Laundering Council.
In the absence of a treaty, the Office of the Ombudsman, through its Office of the Legal
Affairs, serves as the Central Authority for mutual legal assistance. So far, the Office of the
Ombudsman has received only one request, and it is pending.
6

Confidentiality
The Justice Department exerts its best efforts to keep MLA requests confidential,
including its contents and any action taken thereon. In case the confidentiality is breached,
the Department of Justice, or the Office of the Ombudsman in proper cases, will immediately
inform the requesting party of such breach to determine if it still wants to pursue the request.
However, where the request would involve filing an application in court for its execution, therequest and the information provided therein would be considered as public record once theapplication is filed in court.
7.

Limitation of Use
The information or evidence obtained may only be used in the criminal proceedingreferred to in the request for assistance. If the requesting state wishes to use the information
or evidence in a proceeding not mentioned in the request, it must first secure the consent of
the requested state. MLATs are intended solely for mutual assistance between the parties tothe treaty. The provisions of an MLAT will not give rise to any right on the part of any
private person to obtain, suppress or exclude any evidence or impede the execution of therequest.

61

Inventory of Philippine Compliance with the United Nations Convention Against Corruption (UNCAC),
Chapter IV-International Cooperation, supra., page 23.
62
Id. at page 16.

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III. CASE STUDIES
A. Turn-over of US$132,000, Representing Proceeds of the Forfeiture Sale ofProperty Registered in the Name of a Former Military Comptroller’s Wife
In 2005, the Office of the Ombudsman filed a forfeiture case before the Sandiganbayan63
against former military Comptroller and General Jacinto Ligot for amassing wealth grossly
disproportionate to his lawful income. Further investigation, in close cooperation with US
authorities, resulted in the identification of real property located in Buena Park, California,
registered in the name of the General’s wife. The property was promptly subjected toforfeiture proceedings and auctioned off for the amount of US$132,000.
In 2009, a request for the return of the proceeds of the forfeiture sale was made by the
Office of the Ombudsman, through the Department of Justice, under the auspices of the USPhilippines Mutual Legal Assistance Treaty. In 2011, the US Government, throughAmbassador Harry K. Thomas, Jr. turned over to Secretary of Justice Leila M. de Lima acheque, in the amount of US$132,000, representing the proceeds of the forfeiture sale.
Ambassador Thomas declared that it was the “first-ever return of funds in an asset-forfeiturecase,” demonstrating the benefits of the Mutual Legal Assistance Treaty between the twonations.
B. Return of US$100, 000 Seized from a Military Comptroller’s Sons
In December 2003, the sons of retired Armed Forces of the Philippines Comptroller andGeneral Carlos Garcia attempted to bring into the United States of America the undeclaredamount of US$100,000 (cash) but were caught by San Francisco airport authorities andcharged with conspiracy to commit bulk cash smuggling. The sons pleaded guilty and themoney was forfeited to the US Government.
In the Philippines, an investigation led to the filing of a Plunder charge and a forfeiturecase against General Garcia and his family. In 2010, the Office of the Ombudsman formally
informed the US authorities that the seized US$100,000 was part of the ill-gotten wealth ofGeneral Garcia and requested its return, under the auspices of the US-Philippines Mutual
Legal Assistance Treaty. In January 2012, the US Government, through Ambassador Harry K.
Thomas, Jr., turned over to Ombudsman Conchita Carpio Morales a cheque, in the amount of
US$ 100,000, representing the money seized from the General’s sons.
C. Extradition of Charlie Atong Ang, Co-accused in a Plunder Case Against a Former
Philippine President
Charlie Atong Ang, then consultant of the Philippine Amusement and Gaming
Corporation, fled to the United States when then Philippine President Joseph Estrada wasousted. Mr. Ang’s extradition was sought for prosecution of the crime of Plunder, inviolation of Republic Act No. 7080, specifically for conspiring with the President in theconversion of P130 million worth of tobacco excise tax for the latter’s personal use and inreceiving proceeds from the illegal numbers game jueteng. Finding that the evidence
established probable cause that Mr. Ang committed Plunder, the US District Court of theDistrict of Nevada granted the request for extradition.

63

Special Anti-Graft Court in the Philippines which has jurisdiction over offenses committed by high-ranking
public officers of the Philippines, as well as low-ranking employees and private persons who may haveconspired with the high-ranking public officers.

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IV. CONCLUSION
Extradition and mutual legal assistance may no longer be in their infancy stages in thePhilippines. However, more work should be done. There is no domestic legislation on mutual
legal assistance, hence, legislation in that regard should be enacted. Likewise, trainings on
extradition and mutual legal assistance for authorities responsible for extradition and mutual
assistance may be needed. Further, more treaties on extradition and mutual legal assistancewith other willing states should be entered into by the Philippines. To be sure, the moretreaties of that kind, the fewer places where corrupt people and other criminals can hide,
perpetrate their nefarious activities and evade investigation, prosecution and service ofsentences.

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INTERNATIONAL COOPERATION: MUTUAL LEGAL ASSISTANCEAND EXTRADITION
Mary Grace R. Quintana*

I. INTRODUCTION“With the advent of easier and faster means of international travel, the flight of affluent
criminals from one country to another for the purposes of committing crime and evadingprosecution has become more frequent. Accordingly, governments are adjusting their
methods of dealing with criminals and crime that transcend international boundaries.”1“More and more, crimes are becoming the concern of one world. Laws involving crimes
and crime prevention are undergoing universalization. One manifest purpose of this trend
towards globalization is to deny easy refuge to a criminal whose activities threaten the peace
and progress of civilized countries. It is to the great interest of the Philippines to be part ofthis irreversible movement in the light of its vulnerability to crimes, especially transnational
crimes.”2
II. LEGAL FRAMEWORK
A. Mutual Legal Assistance (MLA)
The Philippines does not have domestic legislation on mutual legal assistance (MLA).
The absence of a domestic law on mutual legal assistance, however, does not mean that wecannot seek or obtain assistance from and to a foreign government. We do so on the basis of
our existing bilateral Mutual Legal Assistance Treaties in Criminal Matters, commonly
known as MLATs, or on the basis of reciprocity.
In case of a request for assistance that is made on the basis of reciprocity, an undertaking
has to be made by the requesting State that it will provide the same type of cooperation to therequested State. The extent of assistance that the Philippines can seek or grant will, therefore,
depend on the nature of assistance being requested. A request for assistance requiring
compulsory processes or court intervention for its execution may not be made on the basis ofreciprocity; requests of this nature can only be made on the basis of a treaty.
The Philippines is party to eight (8) bilateral MLATs with the following countries:
Australia, China, Hong Kong, Korea, Spain, Switzerland, the United States of America(USA) and the United Kingdom (UK). It is also a party to the ASEAN MLAT.
Aside from the bilateral agreements earlier mentioned, the Philippines is also a Party tomultilateral treaties which contain provisions on extradition and mutual legal assistance.
These include the UN Convention Against Corruption (UNCAC), the UN Convention
Against Transnational Organized Crime (UNTOC), the UN International Convention for the*State Counsel IV, Philippine Department of Justice.
Government of the United States of America v. Purganan, 389 SCRA 623, 652.
2
Secretary of Justice v. Lantion, 343 SCRA 377, 393.
1

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Suppression of the Financing of Terrorism, the UN Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, and others.
B. Extradition
Presidential Decree No. (P.D.) 1069, “Prescribing the Procedure for the Extradition of
Persons Who Have Committed Crimes in a Foreign Country,” was issued by then President
Ferdinand E. Marcos on January 13, 1977. At present, the Philippines has thirteen (13)extradition treaties with the following countries: Indonesia (1976); Thailand (1981); Australia(1988); Canada (1989); Micronesia (1990); Korea (1993); the USA (1994); the Hong Kong
Special Administrative Region (1995); China (2001); Spain (2004); India (2004); the UK(2009). PD No. 1069 expressly states that extradition may be granted only pursuant to atreaty or convention.3
III. PHILIPPINE CENTRAL AUTHORITY
The designated Central Authority for the Republic of the Philippines in MLA and
Extradition is the Department of Justice (DOJ). Unless the treaty itself expressly states thatthe request be transmitted through diplomatic channels, all requests for extradition andmutual legal assistance may be directly transmitted to the DOJ.
The Office of the Chief State Counsel (OCSC), which assists the Secretary of Justice inthe performance of his/her duties as the Attorney General of the Philippines, performs therole of the DOJ as Central Authority in the processing and/or implementation of requests for
extradition and mutual legal assistance. The OCSC also represents our treaty partners before
the courts in extradition proceedings and requests for mutual legal assistance in criminal
matters.
IV. LEGAL PRECONDITIONS
A. Dual Criminality
For MLAs, the requirement of dual criminality is generally discretionary upon therequested State. However, we have bilateral agreements wherein it is expressly stated thatassistance will be provided without regard to whether the alleged conduct constitutes anoffense in the requested state. Under our MLATs with Australia, China, Hong Kong, andKorea, a request for legal assistance may be refused if the request relates to acts or omissions
which would not constitute an offense under the laws of the Requested State. A similar
provision is found in the ASEAN MLAT except that the Requested Party may provide
assistance even in the absence of dual criminality if permitted by its domestic laws.
For extradition to be granted, dual or double criminality is required. In determining
whether an offense is an offense punishable under the laws of both parties, it shall not matter
whether the laws of both States place the act or omission within the same category of offense
or denominate the offense by the same terminology (China).
B. Use Limitation/Rules of Specialty
The use of the limitation principle is standard in all of our MLATs. Under this principle,
the information or evidence obtained may only be used in the criminal proceeding referred toin the request for assistance. If the Requesting State wishes to use the information or evidence
3Sec. 3.

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in a proceeding not mentioned in the request, it must first secure the consent of the Requested
State.
In our MLAT with Switzerland, prior consent is not necessary if (a) the facts which are
the basis of the request constitute another offense for which mutual legal assistance would be
granted; or (b) the foreign criminal proceedings are directed against other persons having
participated in committing the offense.
The rule of specialty, while not provided in our Extradition Law, is found in all ourbilateral treaties. Under this principle, an extraditee will only be tried or punished by the
Requesting State for offenses in respect of which extradition has been granted unless theRequested State consents thereto. Before giving its consent, the Requested State may require
the submission of documents/statements under the Treaty. Our treaties expressly excluded
application of this rule (a) for conduct committed by an extraditee after his/her extradition;and (b) for lesser offenses, provided such lesser offense is an extraditable offense. In ourbilateral extradition treaties with UK and USA, the rule of specialty is extended to theextradition of a person to a third State.
C. Evidentiary Test
In requests for mutual legal assistance, the laws of the Requested State shall be observedin their implementation or execution. This requirement is essential to prevent “fishingexpeditions.” However, like dual criminality, evidentiary requirements are more relaxed for
MLA rather than for extradition, particularly for less intrusive measures such as the
production of documents or taking of statements of witnesses.
For extradition cases, the evidence submitted to the requested State should at least meetthe standard of probable cause. However, some jurisdictions, while agreeing on this standard,may, under their respective domestic laws, differ in meeting this standard.
Under PD No. 1069, the Department of Justice, as petitioner, must establish a prima
facie case. While the other treaties are silent as to the standard of evidence to be used in
extradition proceedings, our extradition treaties with Canada, Hong Kong, India, and the US
expressly provide that the conduct of extradition proceedings shall be in accordance with thelaws of the Requested State.
V. SCOPE OF OFFENSES
Affording the widest range of assistance possible under our MLATs, and subject to eachparties’ domestic laws, mutual legal assistance is rendered in the investigation andprosecution of offenses or to proceedings relating to criminal matters. Criminal matters
include matters connected with offenses against a law related to taxation, customs duties,
foreign exchange control or other revenue matters. Still other treaties include criminal
matters relating to forfeiture or confiscation of property in respect of an offense, imposition
or recovery of a pecuniary penalty and/or the freezing of assets that may be forfeited,confiscated or used to satisfy a pecuniary penalty imposed in respect of an offense.
P.D. 1069 provides that the person who is the subject of the request for extradition be
charged with an “offense punishable under the laws of both the requesting state or
government and the Republic of the Philippines by imprisonment or other form ofdeprivation of liberty for a period stipulated in the relevant extradition treaty or convention.”- 143 -

(Section 3) Except for our bilateral treaties with Hong Kong, Indonesia and Thailand, which
follow the list-approach, our treaties require that the offense must be penalized by
imprisonment for a period of at least one year, or by a more severe penalty. This may include
the attempt, conspiracy to commit, aid, abet, counsel, cause or procure the commission of or
being an accessory before or after the fact to, an offense to which the extradition relates (US,Thailand).
VI. GROUNDS FOR REFUSALAll extradition treaties and MLATs specify the grounds on which cooperation may bedenied. The ground for denying an extradition request or a request for mutual legal assistance
may be a mandatory or discretionary ground.
Mandatory grounds of refusal include requests that involve (a) political offenses; (b)offenses under military law; (c) double jeopardy; (d) prosecution is already barred byprescription; or (e) requests made for the purpose of prosecuting, punishing or otherwise
causing prejudice to a person on account of that person’s race, sex, religion, nationality, or
political belief.
In MLATs, discretionary grounds include requests where the Requesting Party cannot
comply with the conditions imposed by the Requested State relating to the confidentiality or
limitations as to the use of the evidence. A request for assistance may also be refused if its
implementation would prejudice an investigation or proceeding in the Requesting State, orendanger the safety of any person or impose an excessive burden on the resources of theRequested State or prejudice national interest.
Discretionary grounds for refusal of extradition include requests when the person sought
to be extradited is a national of the Requested State or if the extradition would be unjust or
incompatible with humanitarian considerations, taking into account the nature of the offense,
the interests of the Requested State, and the age or health of the person sought. The
extradition treaties with the United States and India contain a provision to the effect thatextradition shall not be refused on the ground that the person sought is a citizen of theRequested State.
VII. INTERNAL PROCEDURE
A. Transmission
Extradition requests are generally transmitted through diplomatic channels. Requests formutual legal assistance, on the other hand, are generally transmitted directly between theCentral Authorities of the two States.
B. Evaluation
In Sec. of Justice vs. Lantion4, the Supreme Court held that the executive authority given
the task of evaluating the sufficiency of the request and the supporting documents is the
Department of Foreign Affairs (DFA).
The DFA must also see to it that the accompanying request had been certified by theprincipal diplomatic or consular officer of the Requested State resident in the Requesting4

322 SCRA 160 (Jan. 18, 2000).

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State. It shall also determine if the request is politically motivated, or if the offense is amilitary offense which is not punishable under non-military penal legislation.
Should the DFA find that the request complies with the requirements of the law andapplicable treaty, the request and supporting documents are forwarded to the DOJ. The
Secretary of Justice shall then designate a panel of State Counsels to handle the extraditioncase. The designated State Counsels shall then file a written petition with the proper regional
trial court (RTC).
There are, however, instances when the person sought may waive the extradition
proceedings either before or after the filing of the petition for extradition. This process iscalled simplified extradition. In such a case, the person will be returned to the requesting
State as expeditiously as possible without further proceedings.
In case of requests for MLA, the DFA will only have the opportunity to evaluate therequest if the same is made on the basis of reciprocity. For MLA requests made on the basisof a treaty, the DOJ conducts the evaluation. If the execution of the request belongs toanother agency, the DOJ will transmit the request to the agency competent to execute thesame. For example, if the request involves production of bank records and the offense
involved is money laundering, the same will be referred to the Anti-Money Laundering
Council (AMLC). Where the request for mutual legal assistance involves a corruption case, it
shall be forwarded to the Office of the Ombudsman for implementation.
C. Extradition Hearing
PD No. 1069 does not specifically indicate whether the extradition proceeding is
criminal, civil or a special proceeding. Par. 1 of Sec. 9 thereof provides, however, that in the
hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicableand not inconsistent with the summary nature of the proceedings, shall apply (Section 9,
Paragraph 1). Thus, the extradition court shall, immediately upon receipt of the petition for
extradition and as soon as practicable, summon the accused to appear and answer the petition.
If in the court’s opinion, the immediate arrest and temporary detention of the personsought will best serve the ends of justice, the extradition court may issue a warrant of arrest.
It has been our practice to request the arrest of the person sought upon the filing of thepetition for extradition.
Upon conclusion of the hearing, the court shall render a decision granting the extradition
and giving the reasons therefore upon a showing of the existence of a prima facie case, or
dismiss the petition. 5 Said decision is appealable to the Court of Appeals (CA), whose
decision shall be final and immediately executory.6 The provisions of the Rules of Court
governing appeals in criminal cases in the CA shall apply in the aforementioned appeal,
except for the required 15-day period to a file brief.7
The person sought to be extradited may also be provisionally arrested pending receipt of
the formal request for extradition as long as it can be proven that there is urgency in theprovisional arrest such as when the subject person is a flight risk.
5Sec. 10, PD No. 1069.
Ibid. at Sec. 12.
7
Ibid. at Sec. 13.
6- 145 -

In this case, the DOJ, upon evaluation of the request for provisional arrest, indorses therequest to the INTERPOL Division of the National Bureau of Investigation, which shall thenfile the application for provisional arrest with the RTC. Upon receipt and evaluation of theformal request for extradition, the State Counsels assigned to the case shall thereafter file thecorresponding petition for extradition before the RTC.
Application with the RTC for the implementation of MLA requests will only be filed if
the request involves coercive measures such as search and seizure, freezing, confiscation orforfeiture of assets, or where the witness refuses to have his or her statement taken, etc.
D. Surrender of Fugitive/Implementation of MLA Request
After the decision of the extradition court granting the petition for extradition has
become final and executory, the person sought will be placed at the disposal of the authoritiesof the Requesting State, at a time and place to be determined by the Secretary of Foreign
Affairs, after consultation with the foreign diplomat of the Requesting State. Where thePhilippines is the Requesting State, at least two (2) INTERPOL agents of the NBI will escort
the fugitive back to the country. Where the Philippines is the Requested State, the extraditee
is normally turned over to the authorities of the Requesting State, the US Marshalls in case
the Requesting State is the US, at the NAIA. Documents or evidence produced pursuant to an
MLAT request are transmitted through the fastest possible means.
VIII. CHALLENGES
Extradition and mutual legal assistance, while already customarily used in internationallaw, are fairly new concepts in our jurisdiction. Expectedly, difficulties and challenges
abound in its implementation. Listed below are some of the common problems we encounter.
1. No organic law on MLA/outdated law on extradition.
While we have dutifully complied with our obligations under our MLATs, our ability toprovide the widest range of assistance to non-treaty partners is considerably hampered.
Without a domestic law on mutual legal assistance, we cannot grant requests for assistancethat require coercive measures for its execution, i.e. executing searches and seizures or
effecting service of judicial documents.
Our Extradition Law, on the other hand, was enacted thirty-five years ago before
criminals intensified their trans-border criminal activities. Understandably, there are alreadysome gaps in the law that have been legally attacked in court – rights afforded to an
extraditee, admissibility of evidence presented, among others – all of which has contributed
to delays in the proceeding. While we have, so far, successfully defended such issues, it has
lengthened the process contrary to the summary nature of an extradition hearing.
2. Lack of familiarity/awareness among law enforcers and prosecutors
3. Difficulty in gaining direct access to contact/focal points.
4. Differences on the evidentiary requirement rules.

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IX. MEASURES TO ADDRESS THE GAPSAs the primary implementing agency, the DOJ has taken steps to address the difficulties
in implementing or executing requests for mutual legal assistance or extradition. Amongthem –
1. Drafting of/amendments to domestic legislation.
2. Conducting trainings among stakeholders, i.e. law enforcers and prosecutors, tofamiliarize them with the use of MLATs and Extradition as a tool in investigation,evidence gathering, and case build-up.
3. Regular dialogue/meetings with Central Authorities to thresh out common issues
faced and to facilitate coordination.
X. CONCLUSION“Indeed, in this era of globalization, easier and faster international travel, and an
expanding ring of international crimes and criminals, we cannot afford to be an isolationist
state. We need to cooperate with other states in order to improve our chances of suppressing
crime in our country.”88Government of the United States of America v. Purganan, supra. p. 653.

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MUTUAL LEGAL ASSISTANCE AND EXTRADITION IN THAILAND
Poonpol Ngearndee*

I. INTRODUCTION
Corruption, one of the serious crimes, has a wide range of devastating effects on thedevelopment of a country. Once the proceeds of corruption have been transferred abroad, thelimitations on state sovereignty to investigate and prosecute become obstacles topractitioners. Acknowledging the serious problem of grand corruption and the need for
improved mechanisms to combat its devastating effects, most countries have developed
arrays of tools that can be used to facilitate cooperation across borders in criminal matters.
The case becomes more complex because it touches upon the components ofinternational character or involves the matters of a state’s jurisdiction. When a crime has beencommitted in one country and the criminal has fled away to another country, there are
numerous practical and political factors that can impede cooperation. Also, if theinvestigation or prosecution is carried out in one country but the essential evidence or
witnesses exist in another country, how we can obtain such evidence or statements of such
witnesses is the question that needs to be answered. There still exist many problems, thedifficulties of which are beyond the capacity of a single state to deal with, especially under
the current situation. Every state must internationally cooperate with each other in theprevention and suppression. Assistance and coordination between states to combat the crime
can take many forms and is collectively known as “international cooperation.”
II. MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
A. Background and Evolution
Unlike that of European countries, mutual legal assistance in Thailand does not stemfrom extradition treaties. Before the promulgation of the Act on Mutual Assistance in
Criminal Matters B.E.2535 in 1992, there was no direct legislation to govern on this matter.
Any request of this kind was conducted in accordance with the “General principle ofinternational law” as clearly spelled out in Article 34 of the Civil Procedure Code, which isalso applicable in criminal cases by virtue of Article 15 of the Criminal Procedure Code.
Article 34 of the Civil Procedure Code provided that:
Where any proceeding is to be carried out wholly or in part though the medium ofor by request to the authorities in any foreign country, the Court shall, in theabsence of any international agreement or provision of law governing the matter,comply with the general principle of International Law.

*

Public Prosecutor, International Affairs Department, Office of the Attorney General, Thailand.

- 148 -

“General principle of international laws” in this regard includes comity, reciprocity, and“rules of due process”, as are generally recognized between and among the sovereign states.
When assistance regarding criminal matters is requested, the request thereof shall be sent
though diplomatic channels and then referred to the Ministry of Foreign Affairs to provide its
opinion, which was a very time-consuming process.
Mutual legal assistance in its modern sense, which encompasses all criminal matters,
began after the coming into force of the Act of Mutual Assistance in Criminal Matters B.E.
2535, as well as the conclusion of many treaties regarding this matter.
B. Legal Basics
Thailand adopted the Act on Mutual Assistance in Criminal Matters B.E. 2535 in 1992.
This Act is the main legislation to be applied to all processes of providing and seeking
assistance upon receiving requests from foreign states or Thai agencies; however, if it isinconsistent with the terms or provisions used by the treaties concluded between Thailandand such foreign countries, the treaty shall prevail. Assistance in Thailand may be grantedeven if no treaty exists between Thailand and the requesting state, provided that such statecommits to assist Thailand in a reciprocal manner when requested.
1.

Agencies and Organizations Responsible for these Matters
In ordinary dealing, the request for assistance shall be submitted through diplomaticchannels. However, if a mutual assistance treaty between Thailand and the requesting stateis in force, commitments of reciprocity and submission through diplomatic channels will be
waived. The request for assistance in such a case as well as other communications shall bemade directly to the Attorney General, who is the Central Authority of mutual legal
assistance as prescribed by the law.
2.

Conditions and Requirements to Request MLA(i) Forms of AssistanceIn Thailand, forms of assistance are basically understood to include certain forms of theprocesses of criminal case handling, as well as other indefinite conduct under the scope ofthe stipulated indefinite description. According to section 4 of the Act on Mutual Assistancein Criminal Matters B.E. 2535, “assistance” means assistance regarding investigation,
inquiry, prosecution, forfeiture of property, and other proceedings relating to criminal
matters. Categorization of the forms of assistance can be further enlightened by the provisionof Section 12 of the same Act to cover the following:(a)Taking statements of persons, providing documents, articles and evidenceout of Court, serving documents, searches, seizure of documents or articles,
locating persons(b)Taking the testimony of persons and witnesses or adducing documents andevidence in court, and requesting forfeiture or seizure ofproperty(c)Transferring persons in custody for testimonial purposes(d)Initiating criminal proceedings- 149 -

It is quite clear from the above provision that the terms “other proceeding”, stipulated in
Section 4, is capable to accompany other forms of assistance in the treaties with othercountries.
(ii) Authorities and Officials
In Thailand, according, to the Act on Mutual Assistance in Criminal Matters B.E. 2535
as well as treaties concluded with various countries, the “Central Authority” is the “Attorney
General or, the person designated by him.” The Central Authority is the official who takes themost predominant role in requesting assistance. Apart from the general function as thecoordinator to receive the request for assistance from the requesting state and transmitting itto the Competent Authorities concerned, as well as to receive the request seeking assistancepresented by the agency of Thai Government and deliver it to the Requested State, anotherequal or more significant task entrusted to the Central Authority is to determine the legality
and eligibility of all requests and processes. In this context the Central Authority is also
authorized to interpret the rule or announcement for the implementation of the whole process.
Determination of the Central Authority in all matters regarding the grading and seekingof assistance will be final except in two situations: firstly, if it is overruled by the Prime
Minister, and secondly, if a request relates to the issues of national sovereignty or security,
crucial public interest, international relations, political offences or military offences, andwhere the Advisory Board has a dissenting view and the Prime Minister agrees with suchdissenting view.
(iii) Competent Authority
The Competent Authority includes those officials who actually carry out the function
conforming to the request for assistance as notified by the Central Authority.
In Thailand, the Competent Authority includes the following:(1) The Police Commission General: to deal with the request for initiating criminal
proceedings and taking statements of persons, providing documents, articles, and evidenceout of Court, serving documents, searches, seizures, and locating persons.
(2) The State Attorney Director General for Litigation to deal with the request for
initiating of criminal proceedings and taking the testimony of persons and witnesses,
adducing documents and evidence, as well as requesting for forfeiture or seizure of property
in the Court.
(3) The Director General of the Correctional Department to deal with the request fortransferring persons in custody for testimonial persons.
(iv) Double Criminality
The principle of double criminality requires that the conduct underlying the assistancerequested must also be a criminal offence punishable under the law of the requested state,otherwise such request must be refused. This position in Thailand seems to be a compromise
between the concept of protecting the innocent’s rights and liberty by the principle of double
criminality on one hand, and the spirit of cooperation between and among states to support
and control crime on the other hand.

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While the Act on MLA places the principle of “Double Criminality as a prerequisite for
granting assistance, there are many treaties concluded with foreign states such as the UnitedStates, Canada, the United Kingdom, of which the principle of double criminality is not
required.” On the contrary, all said treaties impose obligations on each Contracting Party toprovide assistance to the other Contracting Party even if the underlying conduct so requested
does not constitute a criminal offence in the requested state.
(v) Refusal of Requests
In Thailand the grounds for refusal are stipulated both in the Act on MLA as well as
various treaties concluded with foreign states. The Act on MLA article 9 stipulated thatassistance to a foreign state shall be subject to the following conditions:(1) Assistance may be provided even if no mutual assistance treaty exists between
Thailand and the Requesting State, provided that such state commits to assist Thailand in asimilar manner when requested;(2) The act on which the request is based must be an offence punishable under Thai laws
unless Thailand and the Requesting State have a mutual assistance treaty between them, andthe treaty specifies otherwise, provided, however, that assistance must be conformed to theprovisions of this Act;
(3) A request may be refused if it affects national sovereignty or security, or other crucial
public interest of Thailand, or is related to a political offence;(4) Assistance shall not be related to a military offence.
As regards mutual legal assistance treaties, the clause related to the refusal of a request isusually prescribed similarly, for example.
“The Requested State may refuse to execute a request to the extent that” (a) the request
would prejudice the sovereignty, security, or other essential public interest to the Requested
State: or (b) the request is related to a political offense.
C. Conclusion
The Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992) of Thailand is thelaw providing assistance and seeking assistance regarding investigation, inquiry, prosecution,and forfeiture of assets if property and other proceedings relate to criminal matters to/from aforeign state. The Attorney General or the person designated by him is the Central Authorityof Thailand. One main function of the Central Authority is to consider and determine whether
to provide assistance to a requesting state; and whether to seek assistance from a foreign
government.
Assistance to a foreign state shall be subject to the following conditions:(i) Assistance may be provided even if no mutual assistance treaty exists between
Thailand and the requesting state, provided that such state commits to assist Thailand in asimilar manner when requested;- 151 -

(ii) The Act which is the cause of a request must be an offense punishable under Thailaws except when Thailand and the requesting state have a mutual assistance treaty thatspecifies otherwise;(iii) A request may be refused if it affects national sovereignty or security, or othercrucial public interest of Thailand, or relates to a political offense;(iv) Assistance shall not be related to a military offense.
States having mutual assistance treaties with Thailand shall submit their request forassistance directly to the Central Authority. States not having such treaties shall submit theirrequests through diplomatic channels.
III. EXTRADITION
A. Background and Evolution
As a civil law country, Thailand promulgated the Extradition Act B.E. 2551 in 2008,
which was adapted from the Extradition Act B.E. 2472 (1929). This Act is the fundamental
legislation for all extradition proceedings so far as it is consistent with the terms of any
Treaty, Convention or any Royal Proclamation issued in connection therewith. Thailand may
surrender to a foreign state the person accused or convicted of crime committed in thejurisdiction of that state even if no treaty exists, provided that by the laws of Thailand suchcrimes are punishable with imprisonment of no less than one year. In practice, however, adeclaration for reciprocal assistance, as well as certain requirements such as “double
criminality”, the principle of double jeopardy (ne bis in idem), must also be satisfied before
the request for extradition is accorded.
The request for extradition from a foreign state which does not have a treaty withThailand shall be sent through diplomatic channels, but the treaties usually contain provisions
on the procedure of cooperation, that a request may be sent directly through the Central
Authority, who is an exclusive center for extradition in the same way as the Central Authority
on mutual assistance in criminal matters. In Thailand, the Attorney General is the Central
Authority to expedite and facilitate enforcement of the incoming and outgoing requests for
extradition.
B. Legal Basics
By virtue of Section 18 of the Extradition Act, the preliminary investigation in court
must be made in accordance with the Criminal Procedure Code. In Thailand, there is an
option of provisional arrest that may involve a simplified request (basic facts, identifying
information) that can be completed and processed quickly. This provision is stipulated in
Section 14:
When there is an urgent necessity, the Requesting State may make a request forprovisional arrest and detention of the person sought. Such a request of theRequesting State having an extradition treaty with Thailand shall be transmitted to
the Central Authority. Where the Requesting State has no extradition treaty withThailand, it shall be transmitted though the diplomatic channels.

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C. Conditions and Requirements to Request Extradition
1. Extradition Offence
In Thailand, the Extradition Act B.E. 2551 does not directly specify the definition of
extraditable offences, while many treaties concluded between Thailand and foreign states do
so. According to Section 7 of the Extradition Act, which is applicable on a non-treaty basis,
it can be implied that the “extradition offences” according to Thai laws are such offences
punishable by death or with imprisonment of not less than one year: notwithstanding theprovision of extradition laws, treaties between Thailand and some foreign states wereconcluded upon the list of offences.
Not only the range of penalties of the offences that has to be taken into account, but also
the remaining period for its enforcement. Extradition will not be granted if the remaining
period for serving the penalty is less than six months, even if other elements to fulfill
extradition have been met.
2.

Reciprocity
The principle of reciprocity in extradition requires that the requested state, vice versa,
have the opportunity to request extradition for the same crime wherein the requesting state
would have to grant it. Reciprocity is considered to be a prerequisite claimed by the requested
state before extradition is accommodated in the case where no treaty with the requestingstates existed.
3.

Political Offences
For political Offences, as the exception for extradition, it has traditionally been acceptedthat states are entitled to decline to extradite a person on the basis that the request relates to a“political offence”. However this is not absolute, as this exception can be exempted when arequest involves violent crimes which are very dangerous and capable of carrying out serious
damage to lives and properties of innocent victims such as genocide, crimes against humanity
and war crimes.
In Thailand, the exception of political offences is stipulated in Section 9 but the
exception of political offences does not include the following crimes:(i) murder or willful crimes against the life or physical integrity of a Head of State or oneof the related parties or of a member of that family.
(ii) Offences under the treaty whereby Thailand is a party(iii) attempts, or coordination with the offender, to commit all said offences mentioned
above.
4. Military Offences
It is a recognized principle of Thai law that extradition is not available for militarycrimes which are not otherwise subject to criminal sanction. However, where the offence inquestion is an offence under military law and is also an extraditable offence under the nonmilitary, civilian laws, then extradition should not be refused.
5.

Extradition of Nationals
Thailand will not extradite Thai nationals. Refusal of an extradition request on thesegrounds is provided for both in the Extradition Act and often in treaties- 153 -

6.

Capital Punishment
Extradition may be refused where the offence for which extradition is being sought
carries the death penalty. Requested countries’ refusal of extradition requests based on capital
punishment, and their demands for assurances that the death penalty will not be imposed,
have been strongly protested by those countries that still retain capital punishment in theirsystems. In Thailand, national laws give authority to the executive branch to make thenecessary assurances that the death penalty will not be imposed or carried out in cases where
it otherwise is possible that the death penalty may be imposed (Extradition Act B.E.2551(2008) section 29).
7.

Evidentiary Tests
The Extradition Act requires that the Requesting State provide sufficient evidence of thealleged crime in support of its request for cooperation. Section 19 of the Act stipulated thatthe court shall order detention of the person sought for extradition when a prima facie casehas been established, indicating that such offence has been committed inside Thailand.
8.

Dual Criminality
In Thailand, the Extradition Act requires that the conduct constituting the extradition
offence be recognized as a criminal offence in both Thailand and the requesting state. This isreferred to the dual criminality principle which is now generally accepted that when the lawsof both states “appear to be directed to the same basic evil,” this is sufficient to establish dual
criminality. But there are many treaties between Thailand and other countries that do not
require dual criminality.
9.

Double Jeopardy
The principle of double jeopardy is part of the Extradition Act, Section 10, which
provides as follows: “The person sought for extradition shall not be liable to be tried or
punished again for an offence for which he has already been finally convicted or acquitted inaccordance with the laws by the Thai Court or the Requesting State Court.”
10. Speciality
The rule of speciality provides that the Requesting State must specify the offence oroffences for which it seeks the person’s return and that upon the subject’s return, theRequesting State shall only try that person for the offence covered in the request. The
following principle is in the Extradition Act, Section 11: “This rule of specialty will not bebarred if the requested state consents or the subsequent prosecution of a person who
voluntarily remains in Thailand more than 45 days after completion of the extradition process
or return to the Thailand.”C. Conclusion
The Extradition Act B.E. 2551 is the law providing for extradition. This includes, interalia, the nature and extent of the preparation required to understand the legal and procedural
framework, communication, and whether to seek a full order or provisional arrest of theperson.
(i) The Preparation of Requests
The extradition request must include the name of the person wanted for extradition,
along with a clear description of the conduct that constitutes the relevant offences andinformation about relevant law in the Requesting State. This information provided will assist- 154 -

the Requested State and the criminal justice agencies involved in the case in making theirdecisions.
(ii) Provide Sufficient Evidence
Thailand requires evidence to meet certain standards of proof, either to establish a prima
facie case or that an appropriate level of information has been included in the extradition
request.
(iii) Legal Basis for Requests
Extradition requests should clearly state the legal basis that the Requesting State isseeking to rely upon, such as an applicable treaty.
(iv) Assurances
It is good practice to anticipate and provide any assurances that may be necessary in theextradition request, for example that the person will not be sentenced to life imprisonment or
the death penalty.
(v) Language Requirement
The Extradition Act specifies that the request shall be made in Thai. Requesting Statesshould consider having not only the request itself translated in advance, but also any relevantlaws or other materials the Central Authority may need to consider, as part of deciding
whether to agree to extradite.
(vi) Transmitting Extradition Requests
In cases where there are treaties with Thailand, the requests for extradition are usuallytransmitted though the Central Authority; where no treaty exists, requests shall be transmitted
through diplomatic channels.
(vii) The Extradition Process
The Requesting State ought to make sure that any documents that are being provided as
evidence will comply with the formal requirements. When the extradition process is brought
before the court to determine if the conditions are met, then the person will be held in custodyor on bail to await surrender. The decision of the judge may be subject to appeal by the
person sought or the Public Prosecutor.
The extradition process can be simplified if the person, for whom extradition is sought,
waives his or her right to have an extradition hearing or consents to their surrender and returnto the Requesting State.

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APPENDIX 1
Treaties on Mutual Legal Assistance in Criminal Matters
Countries with which Thailand has Treaties on Mutual
Legal Assistance in Criminal Matters, and the days when the treaties
entered into force.
Countries

Signatory Date

1. U.S.A.
2. U.K.

19 March 1986
12 September
1994
3 October 1994
11 September
1997
20 May 1999

3. Canada
4. France
5. Norway

Place of
Signature
Bangkok
BangkokOttawaParis

21 June 2003
25 August 2003

Chiengmai
Seoul

22 September
2000
20 February 2005
6 April 2005

8 February 2004
26 February
2004
10. Sri Lanka
30 July 2004
11. Peru
3 October 2005
12. Belgium
12 November
2005
13. Australia
27 July 2006
14. Ukraine-

PhuketBangkok

7 June 2003
4 October 2009

Bangkok
Lima
Bangkok

3 October 2005
23 July 2010

Kuala Lumpur-

18 June 2009-

6. China
7. South
Korea
8. India
9. Poland

BergenDate of Entry
into force
10 June 1993
10 September
1997
3 October 1994
1 June 2000

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APPENDIX 2
Extradition Treaties
Countries with which Thailand has Treaties
Extradition, and the days when the treaties entered into force.
Countries
1. U.K.
2. Belgium
3. Indonesia
4. Philippines
5. U.S.A.
6. China
7. Cambodia
8. Bangladesh
9. Laos
10. South
Korea
11. Hong Kong
12. Australiaon

SignatoryDate
4 March 1911
14 January
1936
29 June 1976
16 March 1981
14 December
1983
26 August1993
6 May 1998
9 July 1998
5 March 1999
26 April 1999

Place of
Signature
Bangkok
Bangkok

Date of Entry intoForce
19 August 1912
14 January 1937

Bangkok
ManilaWashington
D.C.
Beijing

18 June 1980
7 December 1984
17 May 1991

Bangkok
Dhaka
BangkokSeoul

15 March 2001
1 March 2001
18 March 2001
31 March 2001

-

-

-

- 157 -

7 March 1999

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS AND
COOPERATION IN THE FIGHT AGAINST CORRUPTION IN
THAILAND*

Kiaitisakdi Putphan

I. INTRODUCTION
Corruption in itself is probably the most difficult crime to investigate and prosecute due
to its clandestine nature. The offenders can be even more professional than the investigators,
and they are cautious to cover up any trail of their crimes by taking advantage of
sophisticated technology and cross-jurisdictional loopholes. The situation is especiallyfrustrating when tackling bribery offences as the lack of eyewitness and apparent crime scene
evidence poses daunting challenges for the investigators. Complicating matters further,enhanced methods of travel and communication make it even easier for criminals to shieldthemselves from justice by simply crossing national boundaries. For them, boundaries do notconstitute obstacles; on the contrary, these transnational elements render the detection andprosecution of corruption offences more difficult and allow criminals to conceal the evidence
and profits of their crimes. Mutual Legal Assistance (MLA) is thus an important mechanism
through which states may help each other in the fight against international criminality in theareas such as locating witnesses and suspects, tracing money trails, requesting crossjurisdictional searches and extradition, as well as conducting joint investigations.
Significant efforts by international organizations such as the United Nations Office on
Drugs and Crime (UNODC) have highlighted their continued commitment to root out
corruption and bribery by the means of international cooperation and asset recovery. For
example, Chapter IV on International Cooperation of the United Nations Convention Against
Corruption (UNCAC) explicitly encourages States Parties to cooperate in criminal mattersand to consider assisting each other in investigations of, and proceedings in, civil andadministrative matters relating to corruption, especially by mutual legal assistance.
Mutual Legal Assistance (MLA) is a formal process to obtain and provide assistance ingathering evidence for use in criminal cases, to transfer criminal proceedings to another stateor to execute foreign criminal sentences. In some instances, MLA can also be used to recoverproceeds of corruption.1 In addition, the informal cooperation directly from agency to agency
is another type of cooperation that could bring an achievement of assistance and cooperation.
Both MLA and informal cooperation are indispensable means of international cooperation infighting corruption.

*

Legal Officer, The Office of National Anti-Corruption Commission, Thailand.
Mutual Legal Assistance, Extradition and Recovery of Proceeds of Corruption, the ADB/OECD AntiCorruption Initiative for Asia and the Pacific.
1- 158 -

II. FORMAL CHANNELS OF INTERNATIONAL COOPERATION IN FIGHTINGCORRUPTION THROUGH MUTUAL LEGAL ASSISTANCE
Traditionally, there are two channels through which jurisdictions seek out international
cooperation in criminal matters. In other words, when an anti-corruption agency is in need ofassistance from a foreign jurisdiction, it will use one or more of the following legal bases
when sending its MLA requests to a foreign jurisdiction:
1.

Treaty-Based Cooperation• Multilateral conventions, treaties, or agreements include the UN Convention against
Corruption, the OCED Anti-bribery Convention and the ASEAN
Treaty on Mutual Legal Assistance in Criminal Matters• Bilateral Mutual Legal Assistance Treaties or “MLATs”. Bilateral agreements givecountries greater flexibility over the preferred scope and degree of cooperationcompared to multilateral conventions.

2.

Non-Treaty-Based Cooperation• A jurisdiction can seek assistance from a foreign jurisdiction through provisions in
the requested jurisdiction’s relevant domestic legislation on Mutual Legal Assistance.
For example, Thailand may grant assistance to a foreign jurisdiction even when notreaties, multilateral or bilateral, exist between Thailand and the requesting
jurisdiction, provided that the latter commits to assist Thailand in a similar manner
when requested, also known as the reciprocal principle.2
III. INFORMAL CHANNELS OF COOPERATION THROUGH ANTICORRUPTION AGENCIES: BACKGROUND OF THE NATIONAL ANTICORRUPTION COMMISSION (NACC)

The Thai political system includes three separate branches, namely the Executive branchheaded by the Prime Minister and the Cabinet; the Legislative Branch comprising the lower
and upper houses; and lastly the Judiciary Branch made up of courts of different levels. The
fourth branch is an independent organ established by the Constitution to check and balance
the government branches. These bodies include the National Anti Corruption Commission(NACC), the Auditor-General, the Ombudsman etc. To ensure their independence, theseagencies are not under the executive branch’s supervision and control.
The NACC is a law enforcement body charged with responsibilities of preventing andsuppressing public sector misconduct and corruption. It has broad duties and authorities,
which include inquiring into public sector corruption, examining the assets and liabilities ofpoliticians and high-level officials, inquiring into politicians and public officials suspected ofhaving accumulated unusual wealth (or illicit enrichment), as well as implementing
preventive anti-corruption measures in all social sectors. In addition, the NACC has thepower to investigate an individual or the private sector for corruption in cases where such

2

This principle is clearly specified in Section 9 or otherwise known as the “reciprocal clause” of Thailand’s Act
on Mutual Assistance in Criminal Matters.

- 159 -

individuals or the private sector is involved in corrupt offences conducted by public officials.3
A. NACC: International Cooperation
With regard to international cooperation, the NACC is by law the designated authority inhandling all international anti-corruption matters related to Thailand as stipulated in section
19 (14) of the Organic Act on Anti Corruption (No.2) B.E. 2554 (2011). Additionally, in
March of 2011, Thailand became a State Party to the United Nations Convention against
Corruption. The NACC also maintains observer status at the meetings of the OECD AntiBribery Working Group. At the regional level, the NACC is an active member in several
forums including the ADB/OECD Anti-Corruption Initiative in Asia and the Pacific and soon. The NACC is also very keen on establishing direct agency-to-agency cooperation withinternational organizations and foreign law enforcement agencies. This strategy has
tremendously helped the NACC in overseas corruption investigations, which will be
described in the latter part of this paper.
B. The Thailand Anti-Corruption Agreements Coordination Center (TACC)The Thailand Anti-Corruption Agreements Coordination Center (TACC) was establishedfollowing Thailand’s ratification of UNCAC to comply with section 19 (14) of the Organic
Act on Anti Corruption (No.2) B.E. 2554 (2011). The center serves as a national focal unit
for inter-agency coordination of anti-corruption efforts in Thailand, particularly thosepertaining to corruption suppression/investigation and fulfillment of obligations under
UNCAC. The TACC also handles cross-border corruption cases involving Thai officials or
politicians. Even before our ratification of UNCAC in March this year, the NACC was
already handling several high-profile international corruption cases and has worked closelywith law enforcement agencies in Asia, the US and Europe. Since the numbers oftransnational corruption cases are expected to increase significantly in the near future, the
TACC is preparing itself by strategically entering into cooperative agreements with potential
foreign counterparts. For instance, the TACC has entered into agreements, or Memoranda ofUnderstanding, and has already been working with anti-corruption agencies in the Czech
Republic, Morocco and other prospective agencies on an ad hoc, informal basis forcorruption investigation and intelligence exchange.
The NACC, by the TACC, has been very active in establishing bilateral cooperative
agreements/MoUs with overseas counterparts. This move is in fact in part of the fulfillmentof Article 48 of the United Nations Convention Against Corruption, which strongly
encourages direct agency-to-agency cooperation against corruption. These bilateralagreements enable the NACC and other anti-corruption agencies to address transnational
corruption on a real-time basis and with maximum efficiency and effectiveness.
C. Limitations of Formal Channels of Cooperation
The formal channels of cooperation are not without the limitations and challenges. The
examples are as follows:• Negotiating a multilateral convention is often a complicated and time-consuming task
• Respecting the uniqueness of legal and political systems of individual jurisdictions.
32007 Constitution of Thailand and the Organic Act on Counter Corruption B.E. 2542 (1999), as amended by
No.3 B.E. 2554 (2011).

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• States Parties to international conventions, such as UNCAC, have different levels of
readiness and capacity in implementing obligations of the convention• Bilateral MLAT requires both the requesting and requested jurisdictions to strictly
observe the legal restrictions and procedures imposed on them.
• The lengthy procedures involved in executing a request can make the process
ineffective in urgent cases.
The transmission process involved in the execution of a request of assistance byDiplomatic Channels takes much time due to the fact that the request has to be transmitted
through several agencies. For the request from Thailand, in cases in which the NACC would
like to seek assistance from anti-corruption counterparts in foreign countries, the NACC has
to contact the Attorney General, which is the Central Authority in Thailand; the request willthen be forwarded from the Central Authority to the Thai Ministry of Foreign Affairs forfurther transmission to its destination. When the request has been successfully executed, thecounterpart agency will then reverse that same process to get the requested information backto us. The requests made through diplomatic channels usually take up nothing less than six
months to a year to execute.
And in the cases in which Thailand already has a Mutual Legal Assistance Treaty, or
MLAT, with its foreign counterpart, transmission can be made through the central authoritiesof each country without having to go through the ministries of foreign affairs. This reduces
the time needed to about 3 months or longer, but the legal formalities involved in MLAT
requests could still be time-consuming and less effective in urgent cases such as requests tofreeze illegal proceeds in a bank account.
D. Informal Channels of AssistanceConsidering the various limitations and challenges through formal procedures above,formal means of cooperation alone are not always sufficient to carry out effective
international cooperation. As such, jurisdictions which are in the process of amending theirdomestic legal framework should take advantage of informal channels of assistance.
Jurisdictions that already have an adequate legal framework in place can also benefit from theeffective use of informal channels of assistance, which should be regarded as a practicalmeans to not only supplement, but also to be taken together with the formal channels of
assistance.
The difference between formal and informal assistance principally focuses on the speedwith which cooperation may be provided and the purpose for which what is obtained is to be
used. Because informal assistance often involves direct agency-to-agency communication,legal formalities and procedures can be greatly reduced so long as the execution of such
requests does not contravene the national law of the requested jurisdiction. Now, this allows
requests of assistance to be executed in an expeditious manner. However, the information
obtained through the informal channels can, in most instances, only be used as operational
intelligence.

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E. Types of Informal Assistance
It is important for law enforcement agencies to recognize that not all types of assistanceneed to be requested through the formal channels. The first step to facilitating effective
informal assistance is to classify the types of assistance according to the level of coercivenessor level of force to be used in executing a request. To give an example, it would be lesscoercive, or practically non-coercive, if the request pertains to getting information frompublic records compared to a request that involves a search and seizure that requires a court
order.
Informal assistance should be sought at the initial stages of investigation when the
primary goal is to obtain intelligence and information, after which the requesting agency can
decide whether to proceed with formal assistance. Informal assistance should, at a minimum,
include non-coercive investigative actions such as:• Sharing with each other, spontaneously or upon request, information of relevance forpreliminary fact inquiry, detection, substantiation and prevention of corruption• Providing of public records, such as land registry documents, company documents,
information about directors and shareholders• Identifying or locating a suspect, fugitive or material witness believed to be in thejurisdiction of the Requested Party• Taking statements of voluntary witnesses• Conducting surveillance activities
IV. CASE STUDIES: THE EFFECTIVENESS OF INFORMAL ASSISTANCE IN
INTERNATIONAL COOPERATION ON ANTI-CORRUPTION
A. Thailand – United States (Greens’ case)
The case involves a Hollywood couple bribing a Thai senior tourism official to unfairly
obtain concession rights to organize an international film festival in Bangkok. Through theinformation provided to the NACC by the United States FBI and Department of Justice, the
NACC was able to initiate its own formal inquiry of the Thai public official. In Thailand’s
subsequent MLA request to the US Department of Justice, the constant communication we
had maintained with our counterpart before, during and after the submission our MLA
request, helped expedite its execution.
B. Thailand – Korea
The NACC sought the assistance of the Supreme Prosecutor’s Office of the Republic ofKorea in locating the whereabouts of a Thai national wanted in connection with a corruption
case in Thailand. Although the NACC had gathered from intelligence operations that thesuspect had escaped to South Korea, it was not certain the suspect was still in South Korea.
After close consultation with the South Korean prosecutors the NACC decided to first seek
informal assistance to verify the whereabouts of the suspect. Because it was a request for
informal assistance, the counterpart was able to execute the NACC’s request promptly withminimum legal formalities.

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V. CONCLUSION
As mentioned before, the corrupt perpetrators can be even more professional than theinvestigators, and they are not subject to any limitations in their cross-border operations.
Thus, it is important that countries should put their efforts towards attempting to increasecooperation and coordination in order to fight corruption more effectively. There is also aneed for collective action internationally and domestically with greater cooperation for bothformal and informal channels. Three recommendations to achieve this goal are as follows:Firstly, countries whose legal frameworks are inadequate in providing international
cooperation in anti-corruption should make the amendment of their legal framework a toppriority.
Secondly, the responsible official should explore and exhaust informal channels of
assistance before resorting to formal MLA. In addition, we have to keep in mind that theformal and informal channels of assistance are not exclusive. They can be used to support
each other and to create synergy to enable more effective and efficient international
cooperation
And lastly, countries should strive to develop cooperation mechanisms that would help
build and strengthen trust among international and domestic anti-corruption stakeholders
because trust, above all, is the most important factor in successful international cooperation.
This will not only enhance smooth cooperation but will also improve the standard of criminal
justice and the efficiency in law enforcement in the respective countries.

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MUTUAL LEGAL ASSISTANCE IN THAILAND
Jiraporn Burintaravanich*I. INTRODUCTION
The globalization and high technology of worldwide communication creates a number of
new opportunities for complicated and cross-border crimes. A single country is not able tofight against corruption, terrorism, transnational crimes, cybercrimes or white collar offences
alone, so it is necessary to obtain extensive cooperation from many countries worldwide(international cooperation) to prevent the fugitives from escaping the realm of justice, toretrieve evidence, such as bank statements and business records, and to keep pace with thechanging circumstances of our country.
Cooperation measures or assistance to other countries are investigations, inquiries,
prosecutions and judicial proceedings (in civil, criminal or administrative cases), including
extradition as well as an exchange of the information of crimes, e.g. evidence, bank data,business records etc. Informal cooperation or initial enquiry is conducted by the police
through the International Criminal Police Organization (ICPO or Interpol).1
Mutual Legal Assistance is the assistance on a formal legal basis, basically in thegathering and transmission of evidence by the authority of one country to an authority inanother in response to the request for assistance.
Mutual Legal Assistance in Thailand in this paper will be divided into three parts: firstly,
Mutual Assistance in Criminal Matters; secondly, Extradition; and thirdly, International
Cooperation by the National Anti-Corruption Commission (NACC).
II. MUTUAL ASSISTANCE IN CRIMINAL MATTERS
A. Responsible Agencies and Organizations
1. Public Sector, i.e. the Foreign Ministry, the Interior Ministry, the Justice Ministry andRoyal Thai Police.
2. Independent Agencies, i.e. the Office of the Attorney General and courts of justice.
B. Providing and Seeking Assistance
1. Treaty Basis
Thailand has currently concluded Mutual Assistance in Criminal Matters treaties with 14
countries.2 The countries concluding Mutual Assistance in Criminal Matters Treaties with*

Legal Officer, Bureau of Legal Affairs, Office of National Anti-Corruption Commission (ONACC).
Mostly for gathering and exchanging information on crimes.
2
The United States of America, the United Kingdom of Great Britain and Northern Ireland, the Kingdom of
Norway, Canada, French Republic, the People’s Republic of China, the Republic of Korea (South Korea), theRepublic of India, the Republic of Poland, the Republic of Sri Lanka, the Republic of Peru, the Kingdom of
Belgium, the Commonwealth of Australia, Ukraine.
1- 164 -

Thailand have to send the request to the Central Authority.3 On the other hand, the countries
which do not have Mutual Assistance in Criminal Matters Treaties with Thailand can send
the request through the normal diplomatic channels (or by letters rogatory) as the condition
that the non-treaty requesting country commits to assist Thailand in a similar manner whenrequested (reciprocity).
2.

Procedures(i) Requesting(a) Rendering assistance to a foreign state (incoming request)
The Requesting State has to send the request to the Thai authority (treaty based: directly toCentral Authority/non-treaty based: through diplomatic channels) with the requirements, e.g.
name of the authority of the Requesting State, matters, details or information, relevant laws
and purposes and necessities; furthermore, in case of forfeiture or seizure of property, thisrequires final court judgment or court order and description of the property and its location.
(b) Seeking assistance from a foreign state (outgoing request)
Thai agencies and organizations have to send the matter to the Central Authority with therequirements, e.g. name of the agency, matters, details or information, relevant laws,
purposes and necessities for seeking assistance.
(ii) Consideration
After the Central Authority has already considered and determined the request about thecomplement, 4 it will send the matter to the Board for an opinion. If the opinions of theCentral Authority and the Board dissent, the Central Authority has to send the case to thePrime Minister for ruling.
3.

The Offences(i) Classification of Offences Must be Punishable under Thai Law(ii) Severity of Offences
The other offences are provided by the Mutual assistance treaty between the Requestingstate and Thailand.
(iii) Grounds for Refusal
Thailand can refuse or be refused a request for assistance on the following grounds:(a) National sovereignty or security.
(b) Crucial public interests of Thailand.
(c) Related to a political offence.
(d) Related to a military offence.
C. Available Types of AssistanceThailand will provide for a full range of assistance to foreign States by:
3

The Attorney General or the person designated by him.
The request conforms to the forms, regulations, means and conditions defined by the Central Authority.
Furthermore, the request has followed the process correctly as well as accompanied by all appropriate
supporting documents.

4- 165 -

1. Inquiry and producing evidence
2. Providing documents and information in the possession of Government Agencies
3. Serving documents
4. Search and seizure
5. Transferring persons in custody for testimonial purpose
6. Locating persons
7. Initiating criminal proceedings upon request
8. Forfeiture or seizure of properties
II. EXTRADITION
A. Responsible Agencies and Organizations
1. Public Sector, e.g. the Foreign Ministry, the Interior Ministry, the Justice Ministry andRoyal Thai Police.
2. Independent Agencies, e.g. the Office of the Attorney General and courts of justice.
B. Conditions and Requirements of Request
1. Treaty Basis
Thailand has currently concluded extradition treaties with 14 countries 5 ; countries
concluding extradition treaties with Thailand have to send the request to the Central
Authority.6 Nevertheless, countries which do not have an extradition treaty with Thailand are
not banned from requesting in the latter extradition process. They can send the request
through normal diplomatic channels on the condition that the non-treaty requesting country
commits to extradite in a similar manner when requested (reciprocity).
2.

Procedure(i) Requesting(a) Rendering Extradition to a Foreign State (Incoming Requests)
The requesting state has to send the request to the Thai authority (treaty based: directly toCentral Authority/non-treaty based: through diplomatic channels) with the required details as
specified in the Regulation.
(b) Seeking Extradition from a Foreign State (Outgoing Requests)
The public prosecutors or Thai agencies and organizations can send the matter to theCentral Authority with the required details as specified in the Regulation.

5

The Commonwealth of Australia, the People’s Republic of Bangladesh, the Kingdom of Belgium, theKingdom of Cambodia, Canada, the People’s Republic of China, the Republic of Fiji, the Republic of Indonesia,
the Lao People’s Democratic Republic, Malaysia, the Republic of the Philippines, the Republic of Korea (South
Korea), the United Kingdom and the United States of America.
6
The Attorney General or the person designated by him.

- 166 -

(ii) Consideration
When the request is submitted through the diplomatic channels, the Ministry of Foreign
Affairs has to consider and render an opinion that the request may or may not affectinternational relations. This opinion is forwarded to the Cabinet for consideration; if the
Cabinet concurs with the opinion of the Ministry of Foreign Affairs, the Ministry of Foreign
Affairs shall accordingly submit the matter to the Central Authority.
After the Central Authority received the completed request from the State that has an
extradition treaty with Thailand or the Ministry of Foreign Affairs (non-extradition treaty
with Thailand and request through diplomatic channels), the Central Authority will notify the
Public Prosecutor to petition the Court for issuing the arrest warrant.
3.

The Offences(i) Classification of Offences
The offences must be the same category of offences, or the offences are denominated by
the same terminology, in the Requesting State and Thailand (dual criminality). These
offences must be punishable by death, imprisonment, deprivation of liberty, or other form ofdetention for a period from one year upward.
(ii) Severity of Offences
The other offences with punishment by imprisonment or by deprivation of liberty andother forms less than one year may be requested for extradition, if related to the offence forwhich the extradition has been granted whether the request has been made at the same timewith the initial request or afterward.
(iii) Grounds for Refusal
Thailand can refuse or be refused the extradition request on the following grounds:(a) The request for extradition is contrary to the laws of Thailand or the request is notprocessed in accordance with the procedure, is not accompanied with proper
documents and evidence or is not executable under certain necessary conditions.
(b) Political crimes7 or military crimes.8(c) Nationality of the person sought for extradition: if that person is not a Thai national ora Requesting State national.
(d) Existence of the death penalty: the Thai Government has to give assurances of nonexecution on offences punishable with death according to the Thai law but not up to
the punishment of death according to the law of the Requested State.
(e) The person sought for extradition was tried and acquitted after a final decision by theThai Court or the Requesting State Court to served, pardon or amnesty is granted, the7

The offence of political character does not include the following:(1) Murdering, inflicting bodily injury or depriving liberty of the King, Queen or Heir Apparent;(2) Murdering, inflicting bodily injury or depriving liberty of Head of the State, government leader or
immediate family members of such person;(3) Committing an offence not regarded as a political offence for the purpose of extradition according
to the treaty to which Thailand is a party.
8
Military offence means specific military criminal offences and not ordinary criminal offences.

- 167 -

statue of limitations has lapsed or there arises any other causes barring theproceedings against such person under the law of the Requesting State (double
jeopardy).
C. Available Types of Extradition
Thailand will extradite persons (arrested or witnesses) with relative documents andevidence after the request is submitted and considered by the Cabinet or the Central Authority.
III. INTERNATIONAL COOPERATION BY THE NATIONAL ANTI-CORRUPTIONCOMMISSION (NACC)
The National Anti-Corruption Commission (NACC) is the Constitutional Independent
Organization that responds to prevent and suppress corruption cases that involve State
officials.9
A. Powers and Duties
1. To inquire into facts and summarize cases along with an opinion in a submission to the
Senate for Removal from Office.
2. To inquire into facts and summarize cases along with an opinion to be referred to the
Attorney General for the purpose of prosecution before the Supreme Court ofJustice’s Criminal Division for Persons Holding Political Positions.
3. To inquire into and determine whether Persons Holding Political Positions and state
officials have become unusually wealthy and his or her assets shall be forfeited(devolve to the State).
4. To inquire and decide whether a person holding a political position or a State official
holding a position starting from a high-level executive or government official holding
a position starting from a division director has become unusually wealthy or has
committed an offence of corruption, malfeasance in office or malfeasance in judicial
office, or a related offence, including to take action against a State official or
government official holding a lower-level position who has jointly committed an
offence with the person holding such position or with a person holding a political
position, or who has committed an offence in such a manner that the NACC considers
an action appropriate as provided by the NACC.
5. To verify the accuracy and actual existence of, as well as changes in, assets andliabilities of Persons Holding a Political Position and State officials who submit the9State official means a person holding a political position, Government official or local official assuming a
position or having permanent salaries, official or person performing duties in a State enterprise or a State agency,
local administrator and member of a local assembly who is not a person holding a political position, official
under the law on local administration and shall include a member of a Board, Commission, Committee or of a
sub-committee, employee of a Government agency, State enterprise or State agency and person or group of
persons exercising or entrusted to exercise the State's administrative power in the performance of a particular act
under the law, whether established under the governmental bureaucratic channel or by a State enterprise or otherState undertaking.

- 168 -

account showing particulars of assets and liabilities under Chapter 3, Inspection ofAssets and Liabilities.
6. To monitor and administer the morality and ethics of persons holding political
positions.
7. To take action relating to foreign affairs and become a center for international
cooperation for the benefit of counter corruption so as to be in conformity with theinternational legal obligations and agreements pertaining to counter corruption.
B. Available Types of AssistanceIn case of International Cooperation, the NACC is the national authority for exchange of
information about corruption and cooperation with other agencies or entities in both Thailand
and other countries. The NACC, by the Thailand Anti-Corruption Agreement andCoordination Center (TACC), handles cross-border corruption cases involving Thai officials
or politicians.
The cooperation between NACC and other countries is the informal channel thatparallels the formal channels of Mutual Legal Assistance by the Central Authority, and
NACC and other countries may or may not have treaties or Memoranda of Understanding.
Available types of informal assistance are:
1. Sharing with each other (spontaneously or upon request) information of relevance forpreliminary fact inquiry, detection, substantiation and prevention of corruption.
2. Providing public records, such as land registry documents, company documents,
information about directors and shareholders.
3. Identifying or locating a suspect, fugitive or material witness believed to be in thejurisdiction of the requested party.
4. Taking witness statements of voluntary witnesses.
5. Conducting surveillance activities.
IV. CONCLUSION
For Thailand, the operation of Mutual Legal Assistance via formal channels (treaty
based: directly to Central Authority/non-treaty based: through diplomatic channels) is thegeneral way of assistance in criminal cases as provided by law. In a corruption case, Thailand
has the National Anti-Corruption Commission (the Constitutional Independent Organization)
to suppress and prevent such cases and cooperate with agencies or authorities of othercountries through informal channels.
of assistanceassistance andand cooperationcooperation ofof the Thailand Anti-Corruption
The informal channels
channel of
Agreement and Coordination Center (TACC) is in line with the operation of the Central
Authority in the formal channels, but the pros of informal channels include shorting the timeof coordination, which means the request can pass through the agencies or authorities of theother countries immediately (furthermore, the agencies or authorities can send the evidence,such as public records or information identifying the domicile of the accused person etc.).

- 169 -

Thus, Mutual Legal Assistance (Mutual Assistance in Criminal Matters and Extradition)in avariety
varietyofofchannels,
channels,via
viaformal
formalchannels
channels(treaty(treaty based:based: directly
directly toto Central Authority/nontreaty based: through diplomatic channels) and via informal channels (through the National
Anti-Corruption Commission, especially the Thailand Anti-Corruption Agreement andCoordination Center), is an efficient way to cooperate with Thailand and other countries forsuppression and prevention of complicated crimes and cross-border crimes, e.g. corruption,
terrorism, cybercrimes, white collar offences etc.
After Thailand ratified the United Nations Convention against Corruption B.E. 2546
(2003) and became a State Party since B.E. 2554 (2011), Thailand has an obligation to
implement UNCAC 2003 (chapters 3-5) by drafting and amending the three relevant laws, i.e.:
A. The Thai Penal Code
1. Adding the terms of “foreign public officials” and “officials of public internationalorganizations”.
2. Adding the criminalizing of offences towards public officials and the abuse offunctions or position relating to foreign public officials or officials of public
international organizations.
3. Adding the suspension of statutes of limitations periods in cases in which an offender
evaded prosecution overseas or having such statutes of limitation periods restart after
being back for prosecution.
B. The Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992) by adding theprinciples of tracing, freezing, and confiscating of property transferred overseas
C. The Proceeds of Crime Act by focusing on measures to facilitate asset recovery
Thailand will have measures to handle cross-border crimes or transnational crimes toreach a goal of international cooperation, especially to prevent and suppress corruption whenthese three important draft Acts are enacted.
In addition, the National Anti-Corruption Commission looks forward to amending thelaw by adding the Thailand Anti-Corruption Agreement and Coordination Center as theCompetent Authority for the Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992),
and providing the power to the National Anti-Corruption Commission to give Mutual Legal
Assistance to other countries via formal and informal channels.
V. RELEVANT LAWS AND REGULATIONS ON MUTUAL LEGAL ASSISTANCE
A. The Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992)
B. Regulation of the Central Authority on Providing and Seeking Assistance in Criminal
Matters B.E. 2537 (1994)
C. The Organic Act on Counter Corruption B.E. 2542 (1999)
D. United Nations Convention against Corruption 2003

- 170 -

E. Constitution of the Kingdom of Thailand B.E. 2550 (2007)
F. Extradition Act B.E. 2551 (2008)- 171 -

COUNTRY PRESENTATION OF VIET NAM
Thi Quynh Anh Ngo*

Mr. Chairman,
Your Excellencies and distinguished guests,
First of all, I would like to thank the hosts, Japan and UNAFEI, for organizing thisimportant event so that the participating countries can share experiences in mutual legal
assistance and extradition. Then, we can strengthen the rule of law and our judicial systems
and legal infrastructure in order to successfully cooperate and effectively combat crimes.
In my presentation, I would like to introduce Vietnamese regulations on basic
mechanisms and procedures concerning MLA and extradition; agencies responsible for thesematters; conditions and requirements to request MLA and extradition; some difficulties copedwith during the process of execution and some typical cases; experiences and instances of
MLA and extradition; and some recommendations for enhancing the effectiveness of theassistance.
A.

Basic Principles Relating to Mutual Legal Assistance and Extradition
The Law on Mutual Legal Assistance of Viet Nam was passed by the National
Assembly and entered into force on July 2008. This law provides for principles, competences,and procedures of executing legal assistance in civil and criminal matters, extradition andtransfer of sentenced persons between Viet Nam and foreign countries; and responsibilities ofstate agencies of Viet Nam in mutual legal assistance.
1.

Mutual Legal Assistance in Criminal Matters(i) Competent Agencies
According to Article 64 of the Law on Mutual Legal Assistance, the Supreme People's
Procuracy (SPP) is the Central Authority of MLA activities of Viet Nam. The SPP has
responsibility to receive, send, monitor and urge the execution of requests for mutual legal
assistance in criminal matters; consider and decide on execution and request the appropriate
People’s Procuracy or investigation agency to execute requests for mutual legal assistance incriminal matters; and to refuse or postpone the execution of a request for mutual legal
assistance within its competence.
The SPP delegates those functions to its Department of International Cooperation and
MLA in criminal matters. The contact details are as follows: The Department of International
Cooperation and MLA in criminal matters, the SPP of Viet Nam.
Address: 44 Ly Thuong Kiet Street, Ha Noi, Viet Nam
Phone: +84 38255058 – ext 428.
*

Head of Division for Mutual Legal Assistance in Criminal 㧹atters, International Cooperation Department,
Supreme People's Procuracy of Vietnam.

- 172 -

Email: tttp_mla@vks.gov.vn
Other state agencies involved: Investigation bodies and courts at all levels.
(ii) Scope of Assistance
Under the provisions of this Law (Article 17), forms of mutual legal assistance incriminal matters between Viet Nam and foreign states include: service of documents andother records and documents concerning mutual legal assistance in criminal matters;summoning of witnesses, experts, and persons who have rights and obligations in the case;collection and provision of evidence; criminal prosecution; exchange of information; andother forms of mutual legal assistance in criminal matters.
Within its authority and responsibilities provided by law, the SPP, as the Central
Authority, has to directly manage, receive and organize the implementation of those MLA
cases.
(iii) Procedures for an In-coming Request
Requests from the competent authorities of foreign countries will be sent to the SPP of
Viet Nam directly under regulations of treaties or through diplomatic channels. After
receiving an MLA request sent by a foreign competent authority, the SPP records it in theRegister of requests for legal assistance in criminal matters, checks its validity and transmits
it to the agency conducting the Vietnamese criminal proceedings for execution. If the request
is not valid, the SPP returns it to the competent authority of the requesting State and specifies
the reasons therefore. The SPP also offers translation services for those documents that havenot been translated into Vietnamese.
If a request is under executing authority of the Investigation Police Office or the
Security Investigation Agency of the Ministry of Public Security, the SPP will transfer it to
the appropriate agency of the Ministry of Public Security to execute. If a request is under theauthority of the People's Procuracy at the provincial level, the SPP will transfer it to theprovincial People's Procuracy to implement.
A document containing the results of a request's execution is sent back by the agency
conducting the Vietnamese criminal proceedings; then, the SPP sends it to the competentauthority of the requesting State according to the international treaty to which Vietnam andthat foreign state are parties, or through diplomatic channels.
If the request cannot be executed, exceeds the time limit required by the foreigncompetent authority, or needs additional conditions to execute, the agency conducting theVietnamese criminal proceedings shall inform in writing the Supreme People's Procuracy of
the reasons therefore so that the SPP can notify the competent authority of the requesting
State.
(iv) Conditions for Refusal or Postponement of the Execution of a Foreign Request(a) A foreign request will be refused in one of the following circumstances:- It is not in conformity with Vietnamese laws or the obligations of Viet Nam under theinternational treaties to which Viet Nam is a party;- 173 -

- The execution of the request may jeopardize the sovereignty or national security ofViet Nam;- The request is for prosecution of a person for criminal conduct of which that person
has been convicted, acquitted or granted a general or special reprieve in Viet Nam;
- The request relates to criminal conduct for which the statute of limitations has elapsed
according to the Penal Code of Viet Nam;
- The request relates to a violation of law which does not constitute a criminal offence
under the Penal Code of Viet Nam.
(b) The execution of a foreign request for legal assistance in criminal matters may be
postponed if the execution of that request would create an obstacle to the investigation,prosecution, trial, or the enforcement of a judgment in Viet Nam. After deciding to refuse or
postpone the execution of a request, the SPP will inform the requesting State of the reasons
therefore and measures to be taken.
2.

Extradition(i) Competent Agencies
The Law on Mutual Legal Assistance of Viet Nam stipulates the responsibility of the
Ministry of Public Security as the Central Authority for extradition (Article 65). The Ministryof Public Security must receive, send, consider, and execute foreign requests for extradition.
Other state agencies involved are the SPP and the Supreme People’s Courts, the provincial
People’s Procuracies and Courts.
(ii) Extraditable Offences
Extraditable offences are offences punishable, under the criminal laws of both Viet
Nam and the requesting state in force at the time of extradition, by imprisonment for a periodof at least one year, life imprisonment, or death, or in cases where the offender has beensentenced by the court of the requesting State to imprisonment and the remaining term of
imprisonment to be served is at least six months.
However, it will not matter whether the laws of both Viet Nam and the requesting state
place the referred conduct within the same category of offence or denominate the offence by
the same terminology.
Where the referred offence has been committed outside the territory of the requestingstate, extradition may be granted if it is a criminal offence under the Penal Code of Viet Nam.
(iii) Conditions for Refusal of Extradition(a) Compulsory refusal: Viet Nam will not grant extradition in any of the following
circumstances:- The person whose extradition is requested is a Vietnamese citizen;- Under the laws of Viet Nam, the person whose extradition is requested cannot be
prosecuted or does not have to serve the sentence imposed due to lapse of the statute oflimitations, or for other legitimate grounds;- 174 -

- The person whose extradition is requested for prosecution has been convicted under a
final judgment by a Vietnamese court for the conduct to which the request relates or the casehas been suspended according to the criminal procedure laws of Viet Nam;
- Where the competent authorities of Viet Nam have reasonable grounds to believe thatthe request for extradition has been presented with a view to prosecuting or punishing theperson sought by reason of race, religion, sex, nationality, social status, or political opinions;- Where the request for extradition relates to more than one offence and each offence ispunishable under the laws of the requesting State but does not meet the demands ofextraditable offences under Vietnamese laws.
(b) Optional refusal: The agencies conducting criminal proceedings of Viet Nam may
refuse to grant extradition in any of the following circumstances:- The conduct committed by the person whose extradition is requested does notconstitute an offence under the Penal Code of Viet Nam;
- The person whose extradition is requested is being prosecuted in Viet Nam for theoffence for which extradition is requested.
(iv) Procedures
After receiving the request for extradition and the accompanying documents sent by aforeign competent authority, the Ministry of Public Security will enter this fact in theextradition register and examine the validity and feasibility of the request. The Ministry of
Public Security may request the foreign competent authority to furnish additional information.
If that additional information is not received by the Ministry of Public Security within 60
days from the date of sending the request for that information, it will return the dossier ofrequest for extradition to the requesting state and inform that state of the reasons for the
return. If the dossier is valid, the Ministry of Public Security will transmit the dossier to thecompetent People's Court at the provincial level for consideration and decision.
The Provincial People's Court where the person whose extradition is requested isresiding, detained or serving the sentence of imprisonment must entertain the request
transmitted by the Ministry of Public Security and inform in writing the People's Procuracy at
the same level. Within the time limit for considering the request for extradition, the People's
Court at the provincial level may request the foreign competent authority for clarification of
uncertain points in the request for extradition. The request for extradition and the reply willbe transmitted through the Ministry of Public Security of Viet Nam.
Within four months of consideration, the People's Court at the provincial level will
issue one of the following decisions: (1) consider the request for extradition if it satisfies all
the requirements prescribed; (2) suspend the consideration of the request and return thedossier of request to the Ministry of Public Security if any reason renders the consideration of
the request impossible. Then, the People's Court at the provincial level must consider therequest for extradition within 30 days of the issuance of the decision to consider the request
and transmit a set of the dossier of request to the People's Procuracy at the same level. The
request for extradition will be considered at a hearing of a chamber consisting of three judges,
one of whom shall chair the hearing, and a representative of the People's Procuracy at thesame level. The People's Court at the provincial level will send the decision to the person- 175 -

whose extradition is requested, to the People's Procuracy at the same level, and to the
Ministry of Public Security for exercising their legal rights and duties.
The person whose extradition is requested has the right to appeal; the People's
Procuracy at the same level and the Supreme People's Procuracy have the right to protest thedecision issued by the People's Court at the provincial level. The Supreme People's Court
reviews any decision of the People’s Court at the provincial level which is appealed orprotested. The appellate court will decide whether to extradite or refuse to extradite theperson sought. The Ministry of Public Security will arrange the execution of the decision on
extradition and inform in writing the requesting State thereof.
B.

Experiences and Instances of MLA and Extradition
In 2011 and the first 6 months of 2012, Viet Nam received 74 MLA requests and 2
extradition requests from other countries, mostly from European countries. Viet Nam also
sent 54 MLA requests and 2 extradition requests to foreign countries. The MLA requests
sought mainly are for serving of documents, providing of evidence, and criminal prosecution.
Actually, the content of MLA requests are more and more complicated and diverse, involving
many areas and serious crimes such as murder, drug-related crimes, corruption, fraudulent
appropriation of property, money laundering, etc. There is a increasing trend of not only the
number but also the character and nature of requests.
During the process of executing MLA and extradition requests, Viet Nam copes withsome difficulties such as the time-consuming nature of the process, differences of laws andregulations, taking testimony or statements via video link, attendance of foreign officers,
death penalty issues, languages, etc. Specifically, the law on criminal procedure of Viet Nam
provides a time limit for each stage of the investigation, prosecution and trial while the MLA
requests have no time limits for execution. Some cases took up to a year or longer to resolve;
some cases from 2009 are still unresolved. That is the obstacle causing delay to the domestic
criminal procedure of the cases having outgoing MLA requests. The death penalty is still
applied in the Vietnamese system of punishment. Some MLA requests relating to crimes canbe punished with the death penalty, and it is one of the refusal conditions of foreign countries.
Besides, Vietnamese laws do not permit the measure of taking testimony or statements via
video link and the attendance of foreign officers in the process of resolving domestic criminalcases. However, Viet Nam recently has implemented projects of judicial reform including
supplementing and amending laws relating to criminal procedure and international
cooperation. Those matters mentioned above have been taken into consideration.
Typical successful case: one of the most successful instances is the assistance between
Viet Nam and Japan in 2010 - 2011. That was a case of tax evasion and unfair competition
crimes that happened in a Japanese company (short name is PCI) having its head office inTokyo. This company had some contracts with a Vietnamese company and undergroundagreements with the Vietnamese director to receive mutual personal benefits. That
Vietnamese director also was a defendant of a criminal case for receiving bribes in Viet Nam.
In order to get enough evidence to prove the crimes, both competent agencies of Japan andViet Nam sent requests to each other asking for assistance in providing information anddocuments in their respective jurisdictions. Because there is no MLA treaty between Japan
and Viet Nam, the assistance based on assurance of reciprocity and the MLA requests weresent through diplomatic channels. As a result, the competent authorities of Japan had usedevidence from Viet Nam to prosecute and punish Japanese criminals. Respectively, with- 176 -

thousands of papers as evidence from the Japanese, the Courts in Viet Nam successfully
adjudicated the corruption case and sentenced the accused to 20 years’ imprisonment.
C.

Some Recommendations
To speed up the process, a network of Central Authorities with full details of contact
persons should assist the close coordination, information exchange and activities onenhancing legal assistance of countries.
The contents of sending requests should have enough information related to the caseand its legal basis, including information on the time limit for domestic procedures to resolve
the case.
Organizing more seminars on special subjects and working groups will help
participating countries share information, updates on foreign laws in force and learning
experiences with others.
Southeast Asian countries must establish a cooperating mechanism to share informationand suitable modes of operation to deal with transnational cases where criminal acts takeplace in both countries or where the person to be extradited is a foreigner who engaged incriminal acts in the territory of other countries.
Thank you for your attention.

- 177 -

CHAIR’S SUMMARY- 179 -

Chair’s Summary
Sixth Regional Seminar on Good Governancefor Southeast Asian Countries
International Cooperation: Mutual Legal Assistance and Extradition(12-14 December 2012, Tokyo, Japan)
1. The Sixth Regional Seminar on Good Governance for Southeast Asian Countries,
hosted by the United Nations Asia and Far East Institute for the Prevention of Crimeand the Treatment of Offenders (UNAFEI), was held in the Main Conference Roomof the Ministry of Justice of Japan, in Tokyo from 12 to 14 December 2012.
2. Officials and experts from the following countries and organizations attended theseminar:Cambodia; Indonesia; Lao PDR; Malaysia; Myanmar; Philippines; Thailand;
Vietnam; the Seoul High Prosecutors’ Office of the Republic of Korea; theAttorney-General’s Chambers of Singapore; the Ministry of Justice of Japan;
the National Police Agency of Japan; and the Ministry of Foreign Affairs ofJapan.
3. Officials and experts from the following organizations also joined the seminar:
The Basel Institute on Governance; Beijing Normal University; ILANUD; andthe Korean Institute of Criminology.
4. Mr. Tatsuya Sakuma, Director of UNAFEI, delivered the opening speech, expressing
his gratitude to the above countries and organizations for their participation.
5. Mr. Kenichi Kiyono, Deputy Director of UNAFEI, provided an overview oninternational cooperation, emphasized the importance of international cooperation tocombat corruption, and identified common obstacles and measures to overcome them.
6. Speakers from the Ministry of Justice of Japan, the Seoul High Prosecutors’ Office of
the Republic of Korea and the Attorney-General’s Chambers of Singapore gavecomprehensive presentations on the frameworks of mutual legal assistance andextradition and discussed practical issues.
7. In the country presentations, the participants outlined their respective countries’ basic
mechanisms and procedures for mutual legal assistance and extradition, conditions
and requirements for rendering assistance, the scope of offences, available types ofassistance, grounds for refusal, and their experiences and successful instances ofcooperation. Some countries pointed out the practical challenges of requesting andreceiving mutual legal assistance and extradition and advocated constructive
proposals to solve these issues.
8. The speaker from Beijing Normal University presented the legal framework andpractice of mutual legal assistance in China. The speaker from the Basel Institute on- 181 -Governance addressed the universal legal framework for mutual legal assistanceregarding asset recovery.
9. During discussions, participants and speakers pointed out various obstacles they face
regarding international cooperation, such as the lack of knowledge on legislation,requirements and procedures of mutual legal assistance and extradition, the lack ofpersonal and professional interaction between central authorities, problems with thetranslation of formal requests into the requested country’s official language, delay inthe execution of requests, and a lack of well-trained personnel involved ininternational cooperation.
10. During the Meeting, the participants shared the following views and ideas toovercome challenges:-

The importance of establishing an effective and clear framework of mutual legal
assistance and extradition, particularly the identification and designation of
responsible and effective central authorities.

-

The benefit of having a forum for the exchange of updates on the formal andinformal frameworks of international cooperation and having a mechanism forsharing contact information.

-

The necessity of prompt execution of requests for mutual legal assistance andextradition, and transparency in the process of receiving and executing therequests.

-

The importance of facilitating and utilizing informal channels before thesubmission of formal requests, enhancing the network between counterpartners.

-

The benefit of using English versions of the requests in informal consultation or as
formal requests, where appropriate.

-

The importance of building confidence and trust between counterparts at central
authorities and related agencies to facilitate international cooperation.

-

The benefit of holding annual conferences of central authorities and other relatedorganizations, such as this Good Governance Seminar, to make the internationalframework of mutual legal assistance and extradition more effective and to boost
mutual understanding and relations of trust.

-The importance of learning from other countries’ experiences and exchanging
good practices.

11. The visiting experts and participants expressed their thanks and appreciation to theJapanese Ministry of Justice and UNAFEI for hosting this Sixth Good GovernanceSeminar for Southeast Asian Countries.
Tokyo, 14 December 2012

- 182 -

- 183 -

IDN

JPN

KOR

Yes

No

English and French English is
are available
acceptable

Non-ConvictionYes
Based Confiscation?

(Is English version
acceptable?)

Yes

Dual criminality
required?
Language

No

No

No

is Lao and English(both)

Yes

Prosecution Service MOFA, MOJ,
Ministry of Public
Security, Supreme
People's Court(through MOJ(through MOJ

Yes (exceptions by Yes (Discretion)
treaties)
Japanese (cannot be English
substituted but can acceptablebe supplemented by
English version)

MOJ, PPO, NPA,
PoliceMinister of Law and MOJ (MOFA if no MOJ
Human Rights
treaty)MOFA)

Requested (Central) MOJ (MFA if noAuthority
treaty)Police, AG, PP,
KPKMinister of Law and MOJ, NPA (MOFA MOJ
Human Rights
if no treaty)
MOFA)

MOJ, Prosecutor
General, AntiCorruption Unit

No

Yes

Yes

Yes
(after Yes
ratification in 2008)
No
Yes

Not ratified yet

Yes

Yes

Who is involved in
executing therequest?

LAO

Act on International None
Judicial Mutual
Assistance in
Criminal Matters
No(with No (withreciprocity)
reciprocity)

Can UNCAC be Yes
the basis?
Member of ASEAN Yes
MLAT?
Requesting
MOJ (MFA if no(Central) Authority treaty)

Yes1980 Law onInternational
Assistance inInvestigation
No (with
reciprocity)Yes

No (with
reciprocity)

2006 No.1 Act on
MLA in Criminal
Matters

Compulsory judicial Yes
intervention possible
without treaties?

No (with
reciprocity)

Treaty required?

KHM

Code of Criminal
Procedure (CCP)

MLA

Domestic Law

MMR

Yes

Yes

Yes

Police, MACC,
Central Bank,
Multimedia &Communication
Commission,
Customs,
Immigration etc

AGC

AGC

Yes (after
ratification)
Yes (Secretariat)

VNM

Yes

Yes

No

Burmese andEnglish (both)

Yes

Yes

Yes

No

Yes

No

PoliceCommissioner
General, State
Attorney Director
for Litigation,
Director General of
the Correctional
Department
Yes
Yes (exceptions bytreaties)
Must be in English Yes

No

SPP translates therequestYes

Investigation Police
Office, Security
Investigation
Agency of Ministryof Public Security,
Court

OAG (MOFA if no SPP (MOFA if notreaty)treaty)No

Yes

DOJ, OMB (only for AGC
MOHA and otherStates Parties toorganizations(MOFA if no treaty) UNCAC)
AGC, Ministry of
DOJ, OMB,
Bureau of Special
Investigation (BSI), National Bureau of Law, relevant law
Investigation (NBI), enforcement
Myanmar Police
agencies
Force, Ministry of AMLC (for bankrecords)?
Home Affairs

Yes

No

Yes

Yes

OAG (MOFA if no SPP (MOFA if notreaty)treaty)Yes

Yes

Yes, if reciprocity
No (if execution
would require court undertaking
providedintervention)

No (with
reciprocity)

No (with
reciprocity)

No (with
reciprocity)

THA

No (with
reciprocity)

SGP

Mutual Assistance 1992 Act in Mutual 2008 Law on MLA
in Criminal Matters Assistance on
Criminal Matters
Act

PHL
None

DOJ, OMB (only for AGC
MOHA and otherStates Parties toorganizations(MOFA if no treaty) UNCAC or in theabsence of bilateraltreaty with 䌴䌨䌥Philippines)

Yes

Not ratified yet

2004 Mutual
2002 Mutual
Assistance inAssistance in
Criminal Matters
Criminal Matters
Law
Act
No (with
No (If no treaties,
special direction by reciprocity)
the Minister ofLegal Affairs with
AG’s
recommendation isrequired)Yes if reciprocity is No
given & dual
criminality satisfied

MYS㪚㫆㫄㫇㪸㫉㪸㫋㫀㫍㪼㩷㪣㫀㫊㫋㩷㫆㪽㩷㪪㫐㫊㫋㪼㫄㫊㩷㫆㪽㩷㪤㪣㪘㩷㪸㫅㪻㩷㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㩷㫀㫅㩷㫋㪿㪼㩷㪧㪸㫉㫋㫀㪺㫀㫇㪸㫋㫀㫅㪾㩷㪚㫆㫌㫅㫋㫉㫀㪼㫊- 184 -㩷㪧㫉㫆㫍㫀㫊㫀㫆㫅㪸㫃㩷㪸㫉㫉㪼㫊㫋㫇㫆㫊㫊㫀㪹㫃㪼㪖㩷㪛㫌㪸㫃㩷㪺㫉㫀㫄㫀㫅㪸㫃㫀㫋㫐㫉㪼㫈㫌㫀㫉㪼㪻㩷㪖㪜㫏㫋㫉㪸㪻㫀㫋㪼㩷㫆㫎㫅㫅㪸㫋㫀㫆㫅㪸㫃㫊㪖㪮㪿㫆㩷㫀㫊㩷㫀㫅㫍㫆㫃㫍㪼㪻㩷㫀㫅㪼㫏㪼㪺㫌㫋㫀㫅㪾㩷㫋㪿㪼㫉㪼㫈㫌㪼㫊㫋㪖

㪠㪛㪥㪰㪼㫊㩷㩿㪘㫉㫋㪅㩷㪌㪏㪈㪀㪥㫆㩷㩿㪘㫉㫋㪅㩷㪌㪍㪍㪀㪥㫆㫋㩷㫉㪸㫋㫀㪽㫀㪼㪻㩷㫐㪼㫋

㪰㪼㫊

㪰㪼㫊

㪥㫆㩷㩿㪼㫏㪺㪼㫇㫋㫀㫆㫅㫊㩷㪹㫐㫋㫉㪼㪸㫋㫀㪼㫊㪀㪰㪼㫊㪤㪦㪡㪃㩷㪧㪧㪦

㪤㫀㫅㫀㫊㫋㪼㫉㩷㫆㪽㩷㪣㪸㫎㩷㪸㫅㪻 㪤㪦㪝㪘㪟㫌㫄㪸㫅㩷㪩㫀㪾㪿㫋㫊㫋㪿㫉㫆㫌㪾㪿㩷㪤㪦㪝㪘㪛㫀㫊㪺㫉㪼㫋㫀㫆㫅㪡㪧㪥㪈㪐㪌㪊㩷㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㪣㪸㫎㪥㫆㩷㩿㫎㫀㫋㪿
㫉㪼㪺㫀㫇㫉㫆㪺㫀㫋㫐㪀㪤㫀㫅㫀㫊㫋㪼㫉㩷㫆㪽㩷㪣㪸㫎㩷㪸㫅㪻 㪤㪦㪝㪘㪟㫌㫄㪸㫅㩷㪩㫀㪾㪿㫋㫊㫋㪿㫉㫆㫌㪾㪿㩷㪤㪦㪝㪘㪰㪼㫊㪈㪐㪎㪐㩷㪥㫆㪅㪈㩷㪘㪺㫋㩷㫆㫅㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㪥㫆㩷㩿㫎㫀㫋㪿
㫉㪼㪺㫀㫇㫉㫆㪺㫀㫋㫐㪀㪤㪦㪡㪃㩷㪧㪞㪃
㪧㫆㫃㫀㪺㪼㪃㩷㪘㪞㪃㩷㪢㪧㪢㪠㫅㫍㪼㫊㫋㫀㪾㪸㫋㫀㫆㫅㪚㪿㪸㫄㪹㪼㫉㩷㫆㪽㩷㪧㪿㫅㫆㫄㪧㪼㫅㪿㩷㪚㫆㫌㫉㫋㩷㫆㪽㪘㫇㫇㪼㪸㫃
㪰㪼㫊㩷㩿㪘㫉㫋㪅㩷㪌㪍㪐㪀㪰㪼㫊㩷㪩㪼㫈㫌㪼㫊㫋㪼㪻㪤㪦㪡㩷㩿㫋㪿㫉㫆㫌㪾㪿㩿㪚㪼㫅㫋㫉㪸㫃㪀㩷㪘㫌㫋㪿㫆㫉㫀㫋㫐 㪤㪦㪝㪘㪀㩷㩿㪘㫉㫋㪅㪌㪎㪐㪀㩷㪚㪸㫅㩷㪬㪥㪚㪘㪚㩷㩷㪹㪼㪰㪼㫊㫋㪿㪼㩷㪹㪸㫊㫀㫊㪖㩷㪩㪼㫈㫌㪼㫊㫋㫀㫅㪾㪤㪦㪡㩿㪚㪼㫅㫋㫉㪸㫃㪀㩷㪘㫌㫋㪿㫆㫉㫀㫋㫐㪥㫆㩷㩿㫎㫀㫋㪿
㫉㪼㪺㫀㫇㫉㫆㪺㫀㫋㫐㪀㪃㩷㪘㫉㫋㪅㪌㪍㪎㪀㩷㪫㫉㪼㪸㫋㫐㩷㫉㪼㫈㫌㫀㫉㪼㪻㪖㪢㪟㪤㪉㪇㪇㪎㩷㪚㪚㪧

㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㪛㫆㫄㪼㫊㫋㫀㪺㩷㪣㪸㫎

㪣㪘㪦

㪰㪼㫊

㪛㫀㫊㪺㫉㪼㫋㫀㫆㫅

㪰㪼㫊

㪰㪼㫊

㪥㫆

㪰㪼㫊

㪉㪇㪈㪉㩷㪣㪸㫎㩷㫆㫅㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㩿㫎㫀㫋㪿 㪰㪼㫊

㪤㪰㪪

㪤㪤㪩

㪰㪼㫊

㪛㫀㫊㪺㫉㪼㫋㫀㫆㫅

㪰㪼㫊

㫅㪆㪸

㫅㪆㪸

㫅㪆㪸

㪈㪐㪐㪉㩷㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㪈㪐㪇㪊㩷㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㪘㪺㫋㪘㪺㫋㩷㩿㫅㫆㫋㩷㫎㫆㫉㫂㫀㫅㪾㪀㫅㪆㪸㪥㫆㪥㫆㩷㩿㪪㫇㪼㪺㫀㪸㫃㫉㪼㪺㫀㫇㫉㫆㪺㫀㫋㫐㪀㪛㫀㫉㪼㪺㫋㫀㫆㫅㩷㫆㪽㪤㫀㫅㫀㫊㫋㪼㫉㩷㫆㪽㩷㪣㪼㪾㪸㫃㪘㪽㪽㪸㫀㫉㫊㩷㫎㫀㫋㪿㩷㪘㪞㵭㫊㫉㪼㪺㫆㫄㫄㪼㫅㪻㪸㫋㫀㫆㫅㪀㪥㫆㪰㪼㫊㪰㪼㫊㩷㩿㪸㪽㫋㪼㫉㪥㫆㫋㩷㫉㪸㫋㫀㪽㫀㪼㪻㩷㫐㪼㫋㫉㪸㫋㫀㪽㫀㪺㪸㫋㫀㫆㫅㪀㫅㪆㪸㪤㪦㪡㩿㫋㪿㫉㫆㫌㪾㪿 㪧㪼㫆㫇㫃㪼㵭㫊㩷㪪㫌㫇㫉㪼㫄㪼 㪤㫀㫅㫀㫊㫋㪼㫉㩷㫆㪽㩷㪟㫆㫄㪼㪤㪦㪝㪘㪀㪧㫉㫆㫊㪼㪺㫌㫋㫆㫉㪘㪽㪽㪸㫀㫉㫊㩷㩿㪘㪞㪚㪼㫏㪸㫄㫀㫅㪼㫊㪀㩷㫋㪿㫉㫆㫌㪾㪿㪤㪦㪝㪘㵭㫊㩷㪻㫀㫇㫃㫆㫄㪸㫋㫀㪺㪺㪿㪸㫅㫅㪼㫃㫊
㪤㪦㪡㩿㫋㪿㫉㫆㫌㪾㪿 㪧㪼㫆㫇㫃㪼㵭㫊㩷㪪㫌㫇㫉㪼㫄㪼 㪤㫀㫅㫀㫊㫋㪼㫉㩷㫆㪽㩷㪟㫆㫄㪼
㫅㪆㪸
㪤㪦㪝㪘㪀
㪧㫉㫆㫊㪼㪺㫌㫋㫆㫉㪘㪽㪽㪸㫀㫉㫊㩷㩿㪘㪞㪚㪼㫏㪸㫄㫀㫅㪼㫊㪀㩷㫋㪿㫉㫆㫌㪾㪿㪤㪦㪝㪘㵭㫊㩷㪻㫀㫇㫃㫆㫄㪸㫋㫀㪺㪺㪿㪸㫅㫅㪼㫃㫊
㪧㫉㫆㫊㪼㪺㫌㫋㫀㫆㫅㪤㪦㪝㪘㪃㩷㪤㪦㪡㪃㪩㫆㫐㪸㫃㩷㪤㪸㫃㪸㫐㫊㫀㪸㫅㪆㪸㪪㪼㫉㫍㫀㪺㪼
㪤㫀㫅㫀㫊㫋㫉㫐㩷㫆㪽㩷㪧㫌㪹㫃㫀㪺 㪧㫆㫃㫀㪺㪼㪃㩷㪤㪸㪾㫀㫊㫋㫉㪸㫋㪼㪪㪼㪺㫌㫉㫀㫋㫐㪃㩷㪪㫌㫇㫉㪼㫄㪼 㪚㫆㫌㫉㫋㪃㩷㪪㪼㫊㫊㫀㫆㫅㫊
㪚㫆㫌㫉㫋
㪚㫆㫌㫉㫋

㪢㪦㪩
㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㩷㪘㪺㫋㪧㪟㪣㪛㫀㫊㪺㫉㪼㫋㫀㫆㫅㩿㪼㫏㪺㪼㫇㫋㫀㫆㫅㫊㩷㪹㫐㫋㫉㪼㪸㫋㫀㪼㫊㪀
㪰㪼㫊

㩷㪰㪼㫊

㩷㪰㪼㫊

㪛㪦㪡㪃㩷㪥㪙㪠㩷㩿㪥㪸㫋㫀㫆㫅㪸㫃 㩷㪘㪞㪚㪃㩷㪤㫀㫅㫀㫊㫋㫉㫐㩷㫆㪽㪙㫌㫉㪼㪸㫌㩷㫆㪽㪣㪸㫎㪃㩷㪤㪸㪾㫀㫊㫋㫉㪸㫋㪼㪠㫅㫍㪼㫊㫋㫀㪾㪸㫋㫀㫆㫅㪀㪃㪩㪼㪾㫀㫆㫅㪸㫃㩷㪫㫉㫀㪸㫃
㪚㫆㫌㫉㫋
㪰㪼㫊
㩷㪰㪼㫊

㩷㪘㪞㪚

㩷㪘㪞㪚

㪛㪦㪡

㩷㪰㪼㫊㪃㩷㫌㫅㫃㪼㫊㫊㪻㪼㪺㫃㪸㫉㪼㪻
㪺㫆㫄㫄㫆㫅㫎㪼㪸㫃㫋㪿㪺㫆㫌㫅㫋㫉㫀㪼㫊
㩷㪥㫆

㪛㪦㪡

㪪㪞㪧
㩷㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㩷㪘㪺㫋㪥㫆㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㩷㪣㪸㫎㩿㪧㪅㪛㪅㩷㪈㪇㪍㪐㪀
㪰㪼㫊

㪫㪟㪘

㪭㪥㪤

㪤㫀㫅㫀㫊㫋㫉㫐㩷㫆㪽㩷㪧㫌㪹㫃㫀㪺㪪㪼㪺㫌㫉㫀㫋㫐

㪤㫀㫅㫀㫊㫋㫉㫐㩷㫆㪽㩷㪧㫌㪹㫃㫀㪺㪪㪼㪺㫌㫉㫀㫋㫐

㪥㫆㪥㫆㩷㩿㫎㫀㫋㪿
㫉㪼㪺㫀㫇㫉㫆㪺㫀㫋㫐㪀㪉㪇㪇㪏㩷㪣㪸㫎㩷㫆㫅㩷㪤㪣㪘

㪰㪼㫊

㪰㪼㫊

㪧㫌㪹㫃㫀㪺㩷㪧㫉㫆㫊㪼㪺㫌㫋㫆㫉㪃 㪪㪧㪧㪃㩷㪪㫌㫇㫉㪼㫄㪼㪚㫆㫌㫉㫋㪧㪼㫆㫇㫃㪼㩾㫊㩷㪚㫆㫌㫉㫋㪃㪧㫉㫆㫍㫀㫅㪺㫀㪸㫃㩷㪧㪼㫆㫇㫃㪼㩾㫊㪧㫉㫆㪺㫌㫉㪸㪺㫀㪼㫊㩷㩽㪚㫆㫌㫉㫋㫊
㪰㪼㫊㩷㩿㪼㫏㪺㪼㫇㫋㫀㫆㫅㫊㩷㪹㫐 㪰㪼㫊㫋㫉㪼㪸㫋㫀㪼㫊㪀㪥㫆㪥㫆㪦㪘㪞㩷㩿㪤㪦㪝㪘㩷㫀㪽㩷㫅㫆㫋㫉㪼㪸㫋㫐㪀

㪦㪘㪞㩷㩿㪤㪦㪝㪘㩷㫀㪽㩷㫅㫆㫋㫉㪼㪸㫋㫐㪀

㪰㪼㫊㪉㪇㪇㪏㩷㪜㫏㫋㫉㪸㪻㫀㫋㫀㫆㫅㪘㪺㫋㪥㫆㩷㩿㫎㫀㫋㪿
㫉㪼㪺㫀㫇㫉㫆㪺㫀㫋㫐㪀

SPEAKERS, PARTICIPANTS AND ORGANIZERS
Speakers & PNI
1)
Dr. Sandeep Chawla (UNODC)
Deputy Executive Director
United Nations Office on Drugs and Crime
2)

Dr. Zhenjie ZHOU (CCLS)
L.L.D., Associate Professor
Deputy Director of the Institute for Foreign and Comparative
Criminal Law, College for Criminal Law Science
Beijing Normal University

3)

Elias Domingo Carranza (ILANUD)
Director
United Nations Latin American Institute for the Prevention of Crime and theTreatment of Offenders

4)

Dr. Kim Il-Su (KIC)
President
Korean Institute of Criminology

5)

Dr. Yeon Seong-Jin (KIC)
Senior Research Fellow
Korean Institute of Criminology

6)

Dr. An Sung-Hoon (KIC)
Associate Research Fellow
Korean Institute of Criminology

7)

Dr. Chun Hyun-Wook (KIC)
Associate Research Fellow
Korean Institute of Criminology- 185 -

8)

Dr. Kim Young-June (Korea)
Director of Criminal Trial Department
Seoul High Prosecutors’ Office

9)

Mr. Severino H. Gaña, Jr. (Philippines)
Deputy Prosecutor General
National Prosecution Service
Department of Justice10)

Ms. Nor’ashikin Binte Samdin (Singapore)
Deputy Senior State Counsel
Attorney
Attorney-General’s
General’s Chambers

11)

Mr. Pedro Gomes Pereira (Basel Institute, Switzerland)
Asset Recovery Specialist
International Centre for Asset Recovery (ICAR)
Basel Institute on Governance

12)

Dr. Kittipong Kittayarak (Thailand)
Permanent Secretary for Justice
Ministry of Justice13)

Ms. Sommanat Juaseekul (Thailand)
Legal Officer
International Affairs Division
Ministry of Justice14)

Ms. Sudarak Suvannanonda (Thailand)
Foreign Affairs Officer
International Affairs Division
Ministry of Justice15)

Ms. Wanvilas Nittayasuthi (Thailand)
Foreign Affairs Officer
International Affairs Division
Ministry of Justice- 186 -

Overseas Participants
Cambodia
1)

Mr. Kuy Chhay
Deputy Director General
Anti Corruption Unit

2)

Mr. Khemlin Ku
Deputy Director of Central Authority
Ministry of JusticeIndonesia
3)
Mr. Chuck Suryosumpeno
The Head of International Legal Cooperation Division
The Attorney General’s Office
4)

Mr. Adnan Pandu Praja
Commissioner
Corruption Eradication Commission (KPK)

5)

Ms. Dian Novianthi
Directorate of Fostering Networks between Commission and Institutions
Corruption Eradication Commission (KPK)

6)

Mr. Achmad Taufik
Directorate of Fostering Networks between Commission and Institutions
Corruption Eradication Commission (KPK)

7)

Mr. Abeh Intano
Deputy Director for Central Authority Unit
Ministry of Law and Human Rights

Lao P.D.R.
8)
Mr. Phongsavanh Phommahaxay
Academic
Anti-Corruption Inspection Department
Government Inspection Authority- 187 -

9)

Mr. Somphet Chanthalivong
Vice Head of Division, Research and Training Institute
The Office of the Supreme People’s Prosecutor

Malaysia10) Ms. Baizura Binti Kamal
Senior Federal Counsel
International Affairs Division
Attorney General’s Chambers
11)

Ms. Roziza Sidek
Deputy Public Prosecutor
Legal and Prosecution Division
Malaysian Anti-Corruption Commission (MACC)

Myanmar12) Mr. Thein Htay
Bureau of Special Investigation
Ministry of Home Affairs
13)

Ms. Htu Htu Ngwe
Director
Union Attorney General's Office

Philippines
14) Ms. Mary Grace Reyes Quintana
State Counsel IV
Department of Justice15)

Mr. Manuel Tambaoan Soriano, Jr.
Acting Director, Prosecution Bureau III
Office of the Special Prosecutor
Office of the Ombudsman- 188 -

Thailand16) Mr. Poonpol Ngearndee
Public Prosecutor
International Affairs Department
Office of the Attorney General
17)

Mr. Kiatisakdi Putphan
Legal Officer
Bureau of Legal Affairs
The Office of National Anti-Corruption Commission (ONACC)

18)

Ms. Jiraporn Burintaravanich
Legal Officer
Bureau of Legal Affairs
The Office of National Anti-Corruption Commission (ONACC)

Viet Nam
19) Mr. Hoanh Song Nguyen
Vice Director of Department of Public Prosecutions and Supervision over theInvestigation of Corruption Crime
Supreme People's Procuracy
20)

Ms. Thi Quynh Anh Ngo
Head of Division for Mutual Legal Assistance in Criminal Matters, International
Cooperation Department
Supreme People's Procuracy

Adviser (Japan)
1)
Mr. Masamichi Kamimura (Japan)
Director, International Affairs Division
Criminal Affairs Bureau, Ministry of Justice2)

Mr. Tomohiro Kusunoki
Attorney, International Affairs Division
Criminal Affairs Bureau, Ministry of Justice- 189 -

3)

Mr. Yoshihisa Tsukida
Superintendent, Deputy Director for International Investigative Operations
Organized Crime Department, Criminal Investigation Bureau
National Police Agency

4)Ms. Miho Ikeda
Prosecutor
International Safety and Security Cooperation Division and International Legal
Affairs Division
Ministry of Foreign Affairs

Organizers
1)
Mr. Tatsuya Sakuma
Director
UNAFEI2)

Mr. Kenichi Kiyono
Deputy Director
UNAFEI

3)

Ms. Kumiko Izumi
Professor
UNAFEI

4)

Mr. Fumihiko Yanaka
Professor
UNAFEI5)

Mr. Shinichiro Iwashita
Professor
UNAFEI6)

Mr. Thomas L. Schmid
Linguistic Adviser
UNAFEI- 190 -

SEMINAR SCHEDULE
The Sixth Regional Seminar on Good Governance for Southeast Asian Countries- International Cooperation: Mutual Legal Assistance and Extradition 12-14 December 2012
Main Conference Room, Ministry of Justice, Tokyo
Host㧦
United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders (UNAFEI)
Tuesday, 11 December
17.00-18.00:
Registration
18:00-19.30:
Reception hosted by UNAFEI (on the 11th floor of KKR Hotel)
Wednesday, 12 December
8.30:
Assemble at the lobby of KKR Hotel
9.20-09.25:
Welcome and Announcements
09.25-09.40:
Opening Ceremony
Opening Address by Mr. Tatsuya Sakuma, Director, UNAFEI
Address by the Honourable Mr. Katsuyuki Nishikawa, Vice Ministerof JusticeGroup Photo
09.40-09.50:
Coffee/Tea Break
09.50-10.00:
Introductory Remarks by Mr. Kenichi Kiyono, Deputy Director,
UNAFEI
10.00-10.30:
Presentation by Speaker (Ministry of Justice of Japan)
10.30-11.00:
Presentation by Speaker (Attorney-General’s(Attorney General’s Chambers of Singapore)
11.00-11.30:
Presentation by Speaker (Korea)
11.45-13.00:
Lunch at Hibiya Palace hosted by the Korean Institute of Criminology
13.15-14.15:
Observation Tour of Tokyo District Public Prosecutors’ Office14.30-18.00:
Joint Ceremony for UNAFEI’s 50th and ACPF’s 30th Anniversaries
19.00-21.00:
Party for UNAFEI’s 50th and ACPF’s 30th Anniversaries (at KKR
Hotel)
Thursday, 13 December
09.00:
Assemble at the lobby of KKR Hotel
9.50-10.20:
Country Presentation (Philippines)
10.20-10.50:
Country Presentation (Cambodia)
10.50-11.20:
Country Presentation (Thailand)
11.20-11.30:
Q & A Session
11.30-13.30:
Lunch
13.30-14.00:
Country Presentation (Lao PDR)

- 191 -

14.00-14.30:
14.30-15.00:
15.00-15.10:
15.10-15.25:
15.25-16.05:
16.05-16.35:
16.35-16.45:
16.45-17.00:
17.00-18.00:

Country Presentation (Myanmar)
Country Presentation (Viet Nam)
Q & A Session
Coffee/Tea BreakCountry Presentation (Indonesia)
Country Presentation (Malaysia)
Q&A Session
Coffee/Tea BreakDiscussion

Friday, 14 December
8.50:
Assemble at the lobby of KKR Hotel
9.40-10.00:
Presentation by Speaker (Beijing Normal University)
10.00-10.30:
Presentation by Speaker (Basel Institute on Governance)
10.30-11.00:
Discussion, Statement of Chairman
11.00-11.20:
Coffee/Tea Break
11.20-11.30:
Closing Ceremony
12.00-12.45:
Farewell Lunch
Afternoon:

Tokyo Tour; Imperial Palace, Asakusa, and Tokyo Sky Tree

- 192 -

APPENDIX___________________________________________________________
PHOTOGRAPHS
Commemorative PhotographOpening Address by Director Sakuma
Address by Vice Minister of Justice Nishikawa
Presentation by the Delegation from Myanmar
Presentation by Speaker Samdin of Singapore___________________________________________________________

UNAFEI- 193 -

Commemorative PhotographOpening Address by Director Sakuma- 194 -

Address by Vice Minister of Justice Nishikawa

Presentation by the Delegation from Myanmar- 195 -

Presentation by Speaker Samdin of Singapore- 196 -