U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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29–118

" ! SENATE 104TH CONGRESS

2d Session

TREATY DOC.

1996

104–26

EXTRADITION TREATY WITH MALAYSIA

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE

UNITED STATES OF AMERICA AND THE GOVERNMENT OF MALAYSIA, AND A RELATED EXCHANGE OF NOTES SIGNED AT

KUALA LUMPUR ON AUGUST 3, 1995.

MAY 17, 1996.—Treaty was read the first time and, together with the

accompanying papers, referred to the Committee on Foreign Relations

and ordered to be printed for the use of the Senate.

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, May 17, 1996.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Extradition Treaty between

the Government of the United States of America and the Government of Malaysia, and a related exchange of notes signed at Kuala

Lampur on August 3, 1995.

I transmit also for the information of the Senate, the report of

the Department of State with respect to the Treaty. As the report

explains, the Treaty will not require further implementing legislation.

This Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of both countries. It will

thereby make a significant contribution to international law enforcement efforts.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

Upon entry into force of this Treaty, the Extradition Treaty between the United States and Great Britain signed at London, December 22, 1931, will cease to have effect, with certain exceptions,

between the United States and Malaysia.

I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, February 17, 1996.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty between the Government of the United States of

America and the Government of Malaysia (the ‘‘Treaty’’), signed at

Kuala Lumpur on August 3, 1995, and a related exchange of notes

signed the same date. I recommend that the Treaty and the related

notes be transmitted to the Senate for its advice and consent to

ratification.

The Treaty follows generally the form and content of extradition

treaties recently concluded by the United States. It represents part

of a concerted effort by the Department of State and the Department of Justice to develop modern extradition relationships to enhance the United States ability to prosecute serious offenders including, especially, narcotics traffickers and terrorists.

The Treaty marks a significant step in bilateral cooperation between the United States and Malaysia. Upon entry into force, it

will replace the Extradition Treaty between the United States and

Great Britain that was signed at London on December 22, 1931,

and entered into force on June 24, 1935. That treaty was applied

to the Federated and Unfederated Malay States as of July 31,

1939, and remained effective in Malaysia. That treaty has become

outmoded; the new Treaty will provide significant improvements

and enhance the ability of both countries to prosecute a broad

range of criminal activity. The Treaty can be implemented without

further legislation.

Article 1 obligates each Contracting State to extradite to the

other, pursuant to the provisions of the Treaty, any person charged

with or convicted of an extraditable offense.

Article 2(1) defines an extraditable offense as one punishable

under the laws of both contracting States by deprivation of liberty

for a period of more than one year, or by a more severe penalty.

Use of such a ‘‘dual criminality’’ clause rather than a list of offenses covered by the Treaty obviates the need to renegotiate or

supplement the Treaty as additional offenses become punishable

under the laws of both Contracting States.

Article 2(2) further defines an extraditable offense to include an

attempt or a conspiracy to commit, aiding or abetting, counselling,

causing or procuring the commission of or being an accessory before

or after the fact to any offense described in Article 2(1). For such

crimes, the Treaty accommodates the differences between U.S. and
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Malaysian criminal law (Malaysia, for example, has no general conspiracy statute) by creating an exception to the general requirements regarding dual criminality and the severity of punishment

if the underlying offense is an extraditable offense.

Additional flexibility is provided by Article 2(3), which provides

that an offense shall be considered an extraditable offense: whether

or not the laws in the Contracting States place the offense within

the same category of offenses or describe the offense by the same

terminology; and whether or not the offense is one of which United

States federal law requires the showing of such matters as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being merely for

the purpose of establishing jurisdiction in a United States federal

court.

With regard to offenses that the Requested State considers to

have been committed within its jurisdiction, Article 2(4) permits

the Requested State to deny extradition. The United States recognizes the extraterritorial application of many of its criminal statutes and frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States. Malaysia’s extradition law

gives the Minister of Home Affairs the discretion to deny an extradition request if the offense for which extradition request if the offense for which extradition is sought was committed within Malaysian jurisdiction. The Treaty will permit the Requested State to

grant or deny extradition in such circumstances and, if extradition

is denied, the Requested State shall submit the case to its competent authorities for the purpose of prosecution.

In addition, with regard to offenses committed outside the territory of the Requesting State, Article 2(5) provides that extradition

shall be granted if the Requested State’s laws provide for punishment of an offense committed outside of its territory to similar circumstances, and if the requirements of extradition under the Treaty are otherwise met. If the laws of the Requested State do not provide for punishment in similar circumstances, the executive authority of the Requested State may, in its discretion, deny extradition.

Article 3(1) provides that neither Contracting State shall be

bound to extradite its own nationals but the executive authority of

the Requested State shall have the discretion to do so. In the event

that extradition is denied on that basis, Article 3(2) requires the

Requested State to submit the case to its competent authorities for

the purpose of prosecution if the Requesting State so requests and

if the laws of the Requested State so allow.

As is customary in extradition treaties, Article 4 incorporates a

political offense exception to the obligation to extradite. Article 4(1)

states generally that extradition shall not be granted for political

offenses. Article 4(2) specifies three categories of offenses that shall

not be considered to be political offenses:

(a) a murder or other willful crime against the person of a

Head of State of one of the Contracting Parties, or of a member

of the Head of State’s family;

(b) an offense for which both Contracting Parties are obliged

pursuant to a multilateral international agreement to extradite
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the person sought or to submit the case to their competent authorities for a decision as to prosecution; and

(c) an attempt or conspiracy to commit, or aiding and abetting, counselling, or procuring the commission of or being an

accessory before or after the fact to, such offenses.

The Treaty’s political offense exception is narrower than that contained in the 1931 treaty it is to replace. It is substantially identical to that contained in several other modern extradition treaties

including the treaty with Jordan, which recently received Senate

advice and consent and is in force. Offenses covered by Article

4(2)(b) of the Treaty include:

—aircraft hijacking covered by the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague

December 16, 1970, and entered into force October 14, 1971 (22

U.S.T. 1641; T.I.A.S. 7192);

—aircraft sabotage covered by the Montreal Convention for the

Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal September 23, 1971, and entered into

force January 26, 1973, (24 U.S.T. 564; T.I.A.S. 7570); and,

—narcotics trafficking under the United Nations Convention

Against Illicit Traffic in Narcotics Drug and Psychotropic Substances, done at Vienna December 20, 1988, and entered into

force November 11, 1990.

Article 4(3) provides that extradition shall not be granted if the

executive authority of the Requested State determines that the request was politically motivated.

Article 4(4) permits the executive authority of the Requested

State to deny extradition for military offenses that are not offenses

under ordinary criminal law (for example, desertion).

Article 5 bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offense, but

does not bar extradition if the authorities in the Requested State

have decided not to prosecute or have decided to discontinue criminal proceedings against the person sought.

When an offense for which surrender is sought could be subject

to capital punishment in the Requesting State but the same offense

would not be subject to capital punishment in the Requested State,

Article 6 provides that no extradition request shall be submitted

without prior consultation and agreement by both States to the

making of such a request. An accompanying exchange of diplomatic

notes provides that, in interpreting and applying the Treaty, nondisclosure of relevant facts during such consultation, whether the

non-disclosure was deliberate or otherwise and whether such facts

were known or unknown at that time, would nullify the consultation and any resulting agreement reached by the Contracting

States. The notes further specify that neither Contracting State

shall deny automatically all requests to which Article 6 would

apply, nor exercise its discretion under Article 6 based solely on the

difference between the applicable punishments. This exchange

clarifies that all pertinent factors must be considered before a decision is made.

Article 7 establishes the procedures and describes the documents

that are required to support an extradition request. The Article re-
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quires that all requests be submitted through the diplomatic channel.

Article 7(3)(c) provides that a request for the extradition of a person sought for prosecution be supported by evidence justifying committal for extradition under the laws of the Requested State and

specifically eliminates any requirement of submitting a prima facie

case. An accompanying exchange of diplomatic notes clarifies that

Article 7(3)(c) shall be interpreted to require the United States,

when it is the Requesting State, to submit the information specified by Section 20 of the Malaysian Extradition Act of 1992, which

provides for a showing of probable cause—the same standard as

that recognized by United States courts when the United States is

the Requested State.

Article 8 establishes the procedures under which documents submitted pursuant to the provisions of this Treaty shall be received

into evidence.

Article 9 provides that all documents submitted by the Requesting State shall be in the language of the Requested State unless

this requirement is waived by the Requested State.

When the Requested State considers the documentation submitted in support of a request for extradition to be insufficient to fulfill

the Treaty requirements, Article 10(1) provides that the Requested

State shall request additional documentation and may set a time

limit for their submission. Pursuant to Article 10(2), if sufficient

documentation is not timely received to support the extradition request regarding a person sought who is in custody, the person may

be discharged from custody without prejudice to subsequent rearrest and extradition if additional documents are subsequently received.

Article 11 sets forth procedures for the provisional arrest and detention of a person sought pending presentation of the formal request for extradition. As is customary in modern extradition treaties, Article 11(1) provides that a request for provisional arrest may

be transmitted through the diplomatic channel or directly between

the United States Department of justice and its counterpart, here

the Attorney General’s Chamber in Malaysia.

Article 11(4) provides that if the Requested State’s executive authority has not received the request for extradition and supporting

documentation within sixty days after the provisional arrest, the

person may be discharged from custody. However, upon application

of the Requesting State, this period may be extended for up to thirty days after the expiration of the sixty-day period. Article 11(5)

provides explicitly that discharge from custody pursuant to Article

11(4) does not prejudice subsequent rearrest and extradition upon

latter delivery of the extradition request and supporting documents.

Article 12 specifies the procedures governing surrender and return of persons sought. It requires the Requested State to provide

prompt notice to the Requesting State regarding its extradition decision. If the request is denied in whole or in part, Article 12 also

requires the Requested State to provide an explanation of the reasons therefor. If extradition is granted, the person sought must be

removed from the territory of the Requested State within the time

prescribed by the law of the Requested State.
IX

Article 13 concerns temporary and deferred surrender. If extradition is sought of a person being prosecuted or serving a sentence

in the Requested State,the Requested State may postpone the extradition proceedings until its prosecution has been concluded or

until any sentence imposed has been served. Alternatively, that

State may temporarily surrender the person to the Requesting

State for the purpose of prosecution. A person who is temporarily

surrendered is to be kept in custody by the Requesting State and

returned to the Requested State after conclusion of the proceedings.

Article 14 sets forth a non-exclusive list of factors to be considered by the Requested State in determining to which State to surrender a person sought by more than one State.

Article 15 provides, to the extent permitted under the law of the

Requested State, for the seizure and surrender to the Requesting

State of property connected with the offense for which extradition

is granted. Such property may be surrendered even when extradition cannot be effected due to the death, disappearance, or escape

of the person sought. Surrender of property may be deferred if it

is needed as evidence in the Requested State and may be conditioned upon satisfactory assurances that it will be returned. Article

15 imposes an obligation to respect the rights of third parties in

affected property.

Article 16 sets forth the rule of specialty for this Treaty. It provides, subject to specific exceptions, that a person extradited under

the Treaty may not be detained, tried, or punished for an offense

other than that for which extradition has been granted, unless a

waiver of the rule is granted by the executive authority of the Requested State. Similarly, the Requesting State may not extradite

such person to a third state for an offense committed prior to the

original surrender unless the Requested State consents. These restrictions do not apply if the extradited person leaves the Requesting State after extradition and voluntarily returns to it or fails to

leave the Requesting State within fifteen days of being free to do

so.

Article 17 permits surrender to the Requesting State without further proceedings if the person sought provides written consent

thereto. The Requested State may require that such surrender

shall be subject to the rule of specialty set out in Article 16.

Article 18 governs the transit through the territory of one Contracting State of a person being surrendered to the Other State by

a third state.

Article 19 contains provisions on representation and expenses

that are similar to those found in other modern extradition treaties. Specifically, the Requested State is required to bear expenses

for the legal representation of the Requesting State in any proceedings arising out of a request for extradition. The Requested State

shall bear the costs in the event it must retain private counsel to

pursue the extradition request. The Requesting State is required to

bear the expenses related to the translation of documents and the

transportation of the person surrendered. Article 19(3) clarifies

that neither State shall make any pecuniary claim against the

other State arising out of the arrest, detention, examination, or

surrender of persons sought under the Treaty.
X

Article 20 states that the United States Department of Justice

and the Attorney-General’s Chambers of Malaysia may consult

with each other directly or through the facilities of INTERPOL in

connection with the processing of individual cases and in furtherance of maintaining and improving Treaty implementation procedures.

Article 21, like parallel provisions in almost all recent United

States extradition treaties, states that the Treaty shall apply to offenses committed before as well as after the date the Treaty enters

into force.

Entry into force is addressed in Article 22. That Article provides

that the Treaty, together with an exchange of notes interpreting

certain portions of the Treaty, shall enter into force when both parties have notified each other through a further exchange of diplomatic notes of the completion of their respective requirements for

entry into force. Upon the Treaty’s entry into force, the Extradition

Treaty between the United States of America and Great Britain,

signed at London December 22, 1931, will cease to have effect between the United States and Malaysia, except with respect to pending extradition proceedings in which the extradition documents

have already been submitted to the courts of the Requested State.

Under Article 23, either Contracting State may terminate the

Treaty at any time upon written notice through the diplomatic

channel to the other Contracting State, with termination effective

six months after the date of such notice.

A Technical Analysis explaining in detail the provisions of the

Treaty is being prepared by the United States negotiating delegation and will be submitted separately to the Senate Committee on

Foreign Relations.

The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate at an early date.

Respectfully submitted,

WARREN CHRISTOPHER.
(1)
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