[Senate Treaty Document 109-22]
[From the U.S. Government Publishing Office]
109th Congress Treaty Doc.
SENATE
2d Session 109-22
_______________________________________________________________________
TREATY WITH MALAYSIA ON MUTUAL LEGAL ASSISTANCE
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE UNITED STATES OF AMERICA AND MALAYSIA ON MUTUAL
LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED ON JULY 28, 2006, AT KUALA
LUMPUR
November 14, 2006.--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, November 14, 2006.
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 Treaty between
the United States of America and Malaysia on Mutual Legal
Assistance in Criminal Matters, signed on July 28, 2006, at
Kuala Lumpur. I transmit also, for the information of the
Senate, the report of the Department of State with respect to
the Treaty.
The Treaty is one of a series of modern mutual legal
assistance treaties being negotiated by the United States in
order to counter criminal activities more effectively. The
Treaty should enhance our ability to investigate and prosecute
a wide variety of crimes. The Treaty is self-executing.
The Treaty provides for a broad range of cooperation in
criminal matters. Under the Treaty, the Parties agree to assist
each other by, among other things: providing evidence (such as
testimony, documents, items, or things) obtained voluntarily
or, where necessary, by compulsion; arranging for persons,
including persons in custody, to travel to the other country to
provide evidence; serving documents; executing searches and
seizures; locating and identifying persons, items, or places;
examining objects and sites; freezing and forfeiting assets or
property; and identifying or tracing proceeds of crime.
I recommend that the Senate give early and favorable
consideration to the Treaty, and give its advice and consent to
ratification.
George W. Bush.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, September 27, 2006.
The President,
The White House.
The President: I have the honor to submit to you the Treaty
on Mutual Legal Assistance in Criminal Matters between the
United States and Malaysia signed on July 28, 2006. I recommend
that the Treaty be transmitted to the Senate for its advice and
consent to ratification.
The Treaty covers mutual legal assistance in criminal
matters. In recent years, similar bilateral treaties have
entered into force with a number of countries. This Treaty
contains all of the essential provisions of such treaties
sought by the United States. It will enhance our ability to
investigate and prosecute a wide variety of offenses. The
Treaty is self-executing and will not require implementing
legislation.
A detailed, article-by-article analysis is enclosed with
this report. The Department of Justice joins the Department of
State in favoring approval of this Treaty by the Senate at the
earliest possible date.
Respectfully submitted.
Condoleezza Rice.
Enclosures: As stated.
U.S.-Malaysia Mutual Legal Assistance Treaty
overview
The Treaty on Mutual Legal Assistance in Criminal Matters
between the United States and Malaysia creates for the first
time a treaty-based relationship of mutual legal assistance
between the United States and Malaysia.
The following is an article-by-article description of the
provisions of the Treaty.
Article 1 sets out the scope of assistance available under
the Treaty. Article 1 (1) requires the Parties to provide each
other the widest measure of mutual legal assistance in
connection with investigations and proceedings pertaining to
criminal matters. During the negotiations, both Parties
expressed their understanding that this creates an
international obligation on each Party to provide mutual legal
assistance. The Parties further expressed their understanding
that their international obligation would be carried out
pursuant to the terms of the Treaty and in compliance with
domestic laws.
Assistance is to be available for ``investigations and
proceedings pertaining to criminal matters.'' This terminology
is meant to incorporate not only the full range of proceedings
in a criminal case, including grand jury and other
investigative and pre-charge proceedings, but also ancillary
matters such as forfeiture proceedings that may be civil in
nature but are nonetheless covered by the Treaty because they
pertain to a criminal matter.
Article 1 (2) contains a non-exhaustive list of the major
types of assistance to be provided under the Treaty, including
producing evidence (such as testimony, documents, or items or
things) obtained voluntarily or, where necessary, by
compulsion; arranging for persons, including persons in
custody, to travel to the other country to provide evidence;
serving documents; executing searches and seizures; locating
and identifying persons, items, or places; examining objects
and sites; freezing and forfeiting assets or property; and
identifying or tracing proceeds of crime. Most of these types
of assistance are described in detail in subsequent articles in
the Treaty.
The Treaty also authorizes provision of any other form of
assistance not prohibited by the laws of the state receiving
the request (referred to in the Treaty, as in other such
treaties, as the ``requested state'' or ``requested Party,''
while the state making the request is the ``requesting state''
or ``requesting Party''). As long as there is no specific legal
restriction barring the type of assistance requested, it may be
provided pursuant to the Treaty.
Article 1(3), a standard provision in U.S. mutual legal
assistance treaties, provides that the Treaty is intended
solely for government-to-government mutual legal assistance.
The Treaty is not intended to provide to private persons a
means of evidence gathering, nor is it intended to extend
generally to civil matters. Private persons in the United
States may continue to obtain evidence from Malaysia by letters
rogatory, an avenue of international assistance that the Treaty
leaves undisturbed. Similarly, the paragraph provides that the
Treaty is not intended to create any right in a private person
to suppress or exclude evidence provided pursuant to the
Treaty, or to impede the execution of a request.
Article 2 requires that each Party designate a ``Central
Authority'' to make and receive Treaty requests. The Central
Authority of the United States would make all requests to
Malaysia on behalf of federal and state agencies and local law
enforcement authorities in the United States. The Central
Authority of Malaysia would make all requests emanating from
officials in Malaysia.
In each state, the Central Authority is to be the Attorney
General or a person designated by the Attorney General. In the
United States, the authority to handle the duties of the
Central Authority under mutual legal assistance treaties has
been delegated to the Office of International Affairs in the
Criminal Division of the Department of Justice.
The Central Authority of the requesting state exercises
discretion as to the form and content of requests, as well as
the number and priority of requests. The Central Authority of
the requested state is responsible for receiving and evaluating
each incoming request; transmitting it to the proper agency,
court, or other authority for execution; and effecting a timely
response.
Article 2(1) provides that, in Malaysia, requests are to be
transmitted through the Ministry of Foreign Affairs to or from
the Central Authority. This pass-through is necessary because
of a provision of Malaysian law that requires use of the
diplomatic channel in Malaysia to transmit requests. There is
no such requirement in United States law, and the Treaty
specifically provides that requests need not pass through the
diplomatic channel in the United States. This provision also
does not affect transmission of evidence or other responses to
requests or any other followup communications, all of which,
pursuant to Article 2(5), are to be done directly between the
Central Authorities.
Article 3 sets forth the circumstances under which a
requested state's Central Authority may deny assistance under
the Treaty. Refusal under this Article is discretionary with
the Central Authority of the requested state. Several of the
grounds for refusal are common to most U.S. mutual legal
assistance treaties. So, for example, a request may be denied
if it relates to a political or a military offense, if it does
not conform to the requirements of the Treaty, or if its
execution would prejudice the sovereignty, security, public
order, or other essential interest of the requested state.
In addition, the Treaty provides that a request may be
denied if it relates to an act or omission that, if it had
occurred in the requested state, would not have constituted an
offense under the laws of that state punishable by a
deprivation of liberty for a period of one year or more, or by
a more severe penalty (Article 3(1)(e)). The United States does
not generally impose this requirement--known as ``dual
criminality''--on mutual legal assistance requests, but under
Malaysian law Malaysia is not permitted to provide assistance
in support of the investigation or prosecution of an offense
that is not recognized in Malaysia. To ensure that the Treaty
would be available for assistance in the types of cases in
which law enforcement authorities in the United States
generally require assistance, the negotiators undertook a
review of the respective criminal codes of the United States
and Malaysia. That review revealed broad areas of commonality
between the United States and Malaysia criminal codes,
establishing that a dual criminality refusal ground would not
unduly restrict the ability of U.S. authorities to obtain
assistance.
To further provide certainty to U.S. (and Malaysian)
authorities seeking assistance, the Parties agreed to include
in an annex to the Treaty anon-exclusive list of offenses for
which they have already established that dual criminality exists. A
similar approach was previously adopted in the Mutual Legal Assistance
Treaty between the United States and the Republic of Korea. If a
request relates to an offense that appears on this annexed list,
pursuant to Article 3(2), the request may not be denied on the grounds
of an absence of dual criminality. The list in the Annex is not all-
encompassing--indeed, it does not include most common crimes for which
dual criminality is obvious--but rather is designed to cover some of
the types of offenses regarding which mutual legal assistance requests
are most commonly made. The Parties further agreed that the Annex could
be modified by an exchange of notes, without requiring amendment of the
Treaty. The Annex is an integral part of the Treaty.
Other grounds for refusal included in Article 3( 1) reflect
requirements in Malaysian law that a Central Authority maintain
the discretion to consider certain factors in evaluating
requests. Assistance may be refused if the request (a) was made
for the purpose of investigating a person on account of that
person's race, religion, sex, ethnic origin, nationality, or
political opinions; (b) relates to an offense for which a
person has already been convicted or acquitted by a court in
the requested state; or (c) relates to an offense of
insufficient gravity or an item of insufficient importance. The
negotiators expressed their views that these grounds for
refusal would be employed infrequently, if ever.
In keeping with the overall intent of the Treaty to
facilitate assistance, the Parties also included in Article 3
several provisions designed to limit the use of grounds for
refusal. Article 3(2), referred to above, restricts the use of
the ground of absence of dual criminality. Article 3(3)
provides that assistance shall not be refused solely on the
ground of bank secrecy or that the offense involves fiscal
matters. And Article 3(4) requires a Central Authority, before
refusing assistance under Article 3(1), to consult with its
counterpart in the requesting Party to consider whether
assistance can be given subject to such conditions as the
Central Authority of the requested Party deems necessary. If
the requesting Party accepts assistance subject to these
conditions, it is required to comply with them. Finally, if a
Central Authority refuses assistance, it is required under
Article 3(5) to inform the Central Authority of the requesting
Party of the reasons for the refusal.
Articles 4 and 5 prescribe the form and contents of
requests under the Treaty, specifying in detail the information
required in each request. If the information in the request is
not sufficient to enable the request to be executed, the
Central Authority of the requested state may ask for additional
information. A request for assistance must be in writing,
except that in urgent situations a request may be made in
another form so long as the request is confirmed in writing as
soon as possible thereafter. The requirement that requests be
in writing can be satisfied with an electronic version, the
authenticity of which can be verified. As both countries move
towards use of electronic signatures, it is anticipated that
this method might be used more frequently.
Article 6 concerns the execution of requests. Article 6(1)
includes three important concepts: the obligation to execute
requests, and to do so promptly; a requirement that competent
authorities do ``everything in their power'' to execute
requests; and the granting of authority to courts in the
requested state to issue subpoenas, search warrants, or other
orders necessary to execute requests. Taken together, the
latter two provisions specifically authorize United States
courts to use all of their powers to issue whatever process is
necessary to satisfy a request under the Treaty. They also
reflect an understanding that the Parties intend to provide
each other with every available form of assistance from
judicial and executive branches of government in the execution
of mutual legal assistance requests.
Article 6(2) addresses the manner in which requests are to
be executed. It creates a hierarchy for a requested state to
follow in determining the appropriate procedures for executing
a request. In the first instance, requests themselves may
specify a particular procedure to be followed, and such
specified procedures are to be followed unless prohibited by
law in the requested state. This can be important to ensure
that evidence collected in one state satisfies requirements for
admissibility at trial in the other. If no particular procedure
is specified in the request, the request is to be executed in
accordance with any specific provisions of the Treaty. Finally,
if neither the Treaty nor the request specifies procedures to
be followed, the requested state is to execute the request in
accordance with its domestic criminal procedure laws. The
negotiators intended this provision, like similar provisions in
other MLATs, to allow the requested state to use its
established procedures for obtaining evidence where procedures
are not otherwise specified, so long as those procedures do not
undermine the obligation in the Treaty to provide assistance.
See, e.g, In re Commissioner's Subpoenas, 325 F.3d 1287 (11th
Cir. 2003).
Article 6(3) states that the Central Authority of the
requested state shall represent the requesting state or make
other arrangements for representing the requesting state in the
execution of a request for assistance. Thus, it is understood
that if execution of the request entails action by a judicial
authority or administrative agency, the Central Authority of
the requested state shall arrange for the presentation of the
request to that court or agency at no cost to the requesting
state.
Under Article 6(5), if the Central Authority of the
requested state determines that execution of a request would
interfere with an ongoing investigation or proceeding
pertaining to a criminal matter in that state, it may postpone
execution or make execution subject to conditions deemed
necessary after consultations with the Central Authority of the
requesting state. If the requesting Party accepts assistance
subject to such conditions, it must comply with them.
Article 6(6) is meant to address the possible circumstance
in which the Central Authority of the requested state believes
that the provision of assistance is likely to create a
significant safety risk, for example, to a prospective witness
or his or her family members. In such a circumstance, which the
negotiators concluded would be unusual, the Parties would
consult on reasonable measures to address the safety concern.
Confidentiality and limitations on use of evidence obtained
under the Treaty are addressed in Article 7. Although requests
themselves are generally not confidential, the requesting Party
may ask that the request, the supporting documents, action
taken pursuant to the request, and even the fact that
assistance is granted be kept confidential (Article 7(2)). The
requested Party is to use its best efforts to comply with such
a request, but if assistance cannot be granted without
breaching the confidentiality requirements, the decision
whether to proceed is left to the requesting Party.
Article 7(1) requires that information or evidence provided
under the Treaty not be used for investigations or proceedings
other than those stated in the request without the consent of
the requested Party. The requested Party may also request that
the information or evidence produced under theTreaty be kept
confidential or be used subject to certain conditions (Article 7(3)).
The default rule, however, is that such information or evidence is not
confidential, and Article 7(5) also provides that once such information
or evidence has been disclosed in a public judicial or administrative
proceeding, it may be used for any purpose. Moreover, the Treaty is
explicit that it does not preclude the disclosure of information to the
extent that there is an obligation to disclose it under the
Constitution of the requesting state in a criminal prosecution. This
contingency, found in Article 7(4), was included to ensure that the
United States would be able to satisfy any obligations to disclose
information under its Constitution, such as set forth in Brady v.
Maryland, 373 U.S. 83 (1963). Malaysia's delegation indicated that
there is no corresponding obligation under its laws.
As with other provisions of the Treaty, the confidentiality
protections and use limitation provisions of Article 7 are for
the benefit of the two governments that are Parties to the
Treaty, and invocation and enforcement of these provisions is
entirely a matter for the Parties.
Article 8 is the first of a series of articles that spell
out in detail the procedures to be employed in the case of
specific types of requests for assistance outlined in Article
1(2). Article 8 addresses the obtaining of evidence, whether it
is a statement or testimony, documents, records, or particular
items or things. A person from whom evidence is sought under
the Treaty may appear voluntarily to provide such evidence, or,
if necessary, the Treaty authorizes the Parties to compel
production of evidence. This compulsion may be accomplished by
subpoena or any other means available under the laws of the
requested state. Article 8(2) specifically provides that use of
compulsory process is authorized regardless of whether the
proceeding for which the evidence is sought takes place in a
court in the requesting state. This provision was necessary to
ensure that Malaysia would be empowered to compel witness
testimony when requested for use in U.S. grand jury
proceedings.
Article 8(3) requires the requested Party to permit persons
specified in the request to be present during execution of the
request and, where permitted by law, to question the person
giving testimony or evidence. Even where direct questioning is
not permitted, persons could be permitted under this provision
to propose questions to be asked of a witness. Consistent with
Article 1(3), this provision does not create a right for
private persons to be present during the execution of the
request.
Article 8(4) contains the first of several provisions in
the Treaty addressing the authentication of evidence produced
pursuant to the Treaty. Similar provisions are found at Article
9(3) and 14(3). In the case of requests by Malaysia, the
request will specify any authentication requirements that might
apply. In the case of requests by the United States, evidence
produced under the Treaty is to be authenticated by use of one
of the forms appended to the Treaty. The appended forms are an
integral part of the Treaty. It is the intent of the Parties
that evidence produced and authenticated according to the
procedure set forth in the Treaty be admissible in evidence in
the requesting state.
In the event that a person from whom the request seeks
testimony, documents, records, or items of evidence asserts a
right to decline to provide such evidence (such as a privilege
or immunity), Article 8(5) establishes two different methods to
proceed depending on which state's law is invoked. If the claim
is based on the requested state's law, it is to be resolved by
the authorities of the requested state. If, however, the claim
is based on the laws of the requesting state, the evidence may
nonetheless be taken and the claim resolved by the authorities
of the requesting state, although the requested state may
request a statement from the requesting state of its views as
to the validity of the claim. This formulation allows each
Party to resolve privilege claims made under its own laws.
Article 8(6) provides that the Parties may agree to the use
of live video or television links or other appropriate
communications facilities for the purpose of executing a
request for the taking of testimony on a case-by-case basis.
Such technologies are to be employed according to the laws and
procedures of the requested state. The United States can use
and has used video technology, for example, to provide
testimony to other countries upon request pursuant to 28 U.S.C.
Section 1782.
Article 9 addresses provision of documents or other records
in the possession of government agencies. The Parties are
obligated to provide to each other copies of publicly available
records upon request. With respect to documents that are not
publicly available, whether to provide such documents is left
to the discretion of the requested Party.
Article 10 provides a mechanism for the requesting Party to
ask for the voluntary attendance in its territory of a person
located in the requested state as a witness or expert in
proceedings or to assist in an investigation. The requesting
Party must indicate the extent to which the person's expenses
will be paid, as well as any arrangements for the person's
safety and accommodation while in the requesting state.
Article 11 provides a similar mechanism for persons in
custody in the requested state. A need sometimes arises for the
testimony in one country of a person who is incarcerated in
another country. For example, a witness incarcerated in one
country may have to give testimony in the presence of an
incarcerated defendant in the other country. Attendance of the
person is still voluntary, but is also subject to the
discretion of the Parties and agreement of the Central
Authorities. In addition, the Treaty imposes certain conditions
on such transfers: the person must be held in custody by the
requesting Party, unless otherwise authorized by the requested
Party; the requesting Party must return the person in custody
to the requested Party at the conclusion of the matter, or as
soon as circumstances permit or as otherwise agreed; the return
of the person shall not require any extradition or other
proceedings, such as immigration proceedings; and the period
that the person is in custody in the requesting state shall be
counted towards the person's period of imprisonment or
detention in the requested state.
When persons agree to travel to a requesting state to give
evidence, whether in custody or not, Article 12 authorizes the
Central Authority of the requesting state, in its discretion,
to give such persons a guarantee of ``safe conduct.'' This
would ensure that a person attending in the requesting state
would not be subject to service of process or any restriction
on personal liberty by reason of any acts or convictions that
preceded that person's departure from the requested state. It
is understood that this provision would not prevent action
against a person for perjury or any other crime committed while
in the requesting state--rather, it applies only to past
offenses. Under Article 12(2), any safe conduct so provided
would cease seven days after the Central Authority of the
requested state is notified that the person's presence is no
longer required, or if the person has left the requesting state
and voluntarily returns to it. Of course, as the Treaty sets
forth, this article does not preclude a state from holding a
person in custody as required by Article 11(2).
While Article 11 addresses the transfer of persons in
custody from one Party to the other, Article 13 addresses the
situation in which one Party may need to bring persons in
custody through the territory of the other on the way to or
from third states in order to participate in an investigation
or proceeding. Article 13(2) provides that the state through
which the person transits has the authority and obligation to
keep that person in custody during the transit unless otherwise
agreed.
Article 14 obligates the requested Party to execute a
request for the search, seizure, and delivery of any documents,
records, or items or things if the request includes the
information justifying such action under the laws of the
requested state. For requests from Malaysia to the United
States, this means that a request would have to be supported by
a showing of probable cause for the search. The evidentiary
standard required under Malaysia law for requests by the United
States is similar.
Article 15 provides for determining the whereabouts in the
requested state of persons (such as witnesses, potential
defendants, or experts) or items or things when such
information is requested. The Treaty requires only that the
requested state use its ``best efforts'' to locate the persons
or items or things sought. The extent of such efforts will
vary, of course, depending on the quality and extent of the
information provided by the requesting state concerning the
suspected location and last known location. The obligation is
limited to persons or items or things that are reasonably
believed to be in the territory of the requested state. Thus,
the United States would not be obliged to attempt to locate
persons or items that may be in third countries.
Article 16 relates to service of documents. It creates an
obligation on the Parties to use their best efforts, upon
request, to serve documents relating to a criminal
investigation or proceeding such as summonses, complaints,
subpoenas, or notices. When the document pertains to a response
or appearance in the requesting state, it must be transmitted a
reasonable time before the scheduled response or appearance.
The Parties chose not to set a fixed period of time for this
obligation, as circumstances may vary.
Article 17 obligates the Parties, upon request and to the
extent permitted by their domestic laws, to endeavor to locate,
trace, restrain, freeze, seize, forfeit, or confiscate the
proceeds and instrumentalities of crime or recover pecuniary
penalties. The types of actions that could be undertaken in the
United States under this Article include actions to seize and
forfeit property under 18 U.S.C. Section 981, which can be and
is employed to temporarily restrain or to seize assets or
proceeds of offenses committed abroad. The language of this
Article, however, does not require either state to take any
action that would exceed its domestic legal authority. Thus it
does not mandate, for example, institution of forfeiture
proceedings against property located in the United States in
the absence of statutory authority to institute such
proceedings.
Once property is confiscated, Article 17(2) permits the
Party in control of the property to share it with the other
Party or otherwise dispose of it in accordance with its own
laws. United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property where, among other requirements, such transfer
is authorized by an international agreement. This Article
provides such authorization for asset sharing with Malaysia.
Article 17(3) requires the rights of bona fide third
parties to be respected in any action taken under this Article.
Article 18 states that this Treaty shall not prevent the
Parties from providing assistance to each other through the
provisions of other treaties, arrangements, or practices that
may be applicable, or through the provisions of their national
laws. Thus, for example, the Treaty would leave the provisions
of U.S. and Malaysian law on letters rogatory completely
undisturbed, and would not alter any practices or arrangements
concerning investigative assistance or prohibit the Parties
from developing other such practices or arrangements.
Article 19 addresses the costs associated with providing
assistance. As is standard in U.S. mutual legal assistance
treaties, Article 19 provides that the requested Party must pay
all costs relating to the execution of a request, except for
the following items to be paid by the requesting Party: fees of
private counsel retained at the request of the requesting
Party; fees and reasonable expenses of expert witnesses; costs
of translation, interpretation and transcription; and
allowances and expenses related to travel of persons pursuant
to Articles 10 and 11. The article also providesthat the
requesting Party shall pay the travel expenses of custodial or
escorting officers, and the costs of utilizing live video links or
other similar facilities, subject to agreement between the Parties.
Finally, Article 19(3) provides that, in the event that fulfilling a
request would require extraordinary and substantial resources,
including expenses, consultation between Central Authorities shall
occur in order to determine the terms and conditions for execution.
Article 20 provides for consultations between the Central
Authorities to promote the effective use of the Treaty. The
Parties discussed the importance of regular consultations
between Central Authorities. Such contacts generally result in
development of practical measures to more effectively implement
the Treaty.
Article 21 is a dispute settlement clause. In keeping with
the intent of the Treaty to make the Central Authorities the
primary points of contact between the two governments in
implementation of the Treaty, the Central Authorities are also
expected to resolve any disputes that arise. The article
provides, however, that if the Central Authorities are not able
to reach accommodation after a reasonable period, disputes
shall be resolved through the diplomatic channel. No external
dispute resolution mechanism is contemplated or provided for.
The final clauses are contained in Article 22. The Treaty
will enter into force upon exchange of instruments of
ratification. It is expressly retroactive--that is, once in
force, it shall apply to all requests presented between the
Parties regardless of when the acts or omissions constituting
the offense occurred. Article 22 also provides procedures for
termination of the Treaty, but specifies that termination shall
not prevent completion of any requests made prior to
termination.