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.
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(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.
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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.

- 95 -

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.

- 96 -

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.

- 97 -

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.

- 98 -

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.

- 99 -

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.

- 100 -

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.

- 103 -

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.

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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

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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.

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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.

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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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