[Senate Treaty Document 104-26]
[From the U.S. Government Publishing Office]
104th Congress Treaty Doc.
SENATE
2d Session 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.
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.
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 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 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, non-disclosure 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 requires 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.
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.
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.