[Senate Executive Report 104-30]
[From the U.S. Government Publishing Office]



104th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      104-30
_______________________________________________________________________


 
                    EXTRADITION TREATY WITH MALAYSIA

                                _______
                                

                 July 30, 1996.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

                   [To accompany Treaty Doc. 104-26]

    The Committee on Foreign Relations to which was referred 
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, 
having considered the same, reports favorably thereon with one 
proviso and recommends that the Senate give its advice and 
consent to the ratification thereof as set forth in this report 
and the accompanying resolution of ratification.

                               I. Purpose

    Modern extradition treaties (1) identify the offenses for 
which extradition will be granted, (2) establish procedures to 
be followed in presenting extradition requests, (3) enumerate 
exceptions to the duty to extradite, (4) specify the evidence 
required to support a finding of a duty to extradite, and (5) 
set forth administrative provisions for bearing costs and legal 
representation.

                             II. Background

    On August 3, 1995, the President signed an extradition 
treaty with Malaysia. The Treaty was transmitted to the Senate 
for its advice and consent to ratification on May 17, 1996. In 
recent years the Departments of State and Justice have led an 
effort to modernize U.S. bilateral extradition treaties to 
better combat international criminal activity, such as drug 
trafficking, terrorism and money laundering. The United States 
is a party to approximately 100 bilateral extradition treaties. 
According to the Justice Department, during 1995 131 
individuals were extradited to the United States and 79 
individuals were extradited from the United States.
    The increase in international crime also has prompted the 
U.S. government to become a party to several multilateral 
international conventions which, although not themselves 
extradition treaties, deal with international law enforcement 
and provide that the offenses which they cover shall be 
extraditable offenses in any extradition treaty between the 
parties. These include: the Convention for the Suppression of 
Unlawful Seizure of Aircraft (Hague), art. 8; the Convention to 
Discourage Acts of Violence Against Civil Aviation (Montreal), 
art. 8; the Protocol Amending the Single Convention on Narcotic 
Drugs of 1961, art. 14 amending art. 36(2)(b)(I) of the Single 
Convention; the Convention to Prevent and Punish Acts of 
Terrorism Taking the Form of Crimes Against Persons and Related 
Extortion that are of International Significance (Organization 
of American States), art. 3; the Convention on the Prevention 
and Punishment of Crimes against Internationally Protected 
Persons, including Diplomatic Agents, art. 8; the International 
Convention against the Taking of Hostages, art. 10; the 
Convention on the Physical Protection of Nuclear Materials, 
art. 11; and the United Nations Convention against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances (Vienna). 
These multilateral international agreements are incorporated by 
reference in the United States' bilateral extradition treaties.

                              III. Summary

                               A. general

    An extradition treaty is an international agreement in 
which the Requested State agrees, at the request of the 
Requesting State and under specified conditions, to turn over 
persons who are within its jurisdiction and who are charged 
with crimes against, or are fugitives from, the Requesting 
State. Extradition treaties can be bilateral or multilateral, 
though until recently the United States showed little interest 
in negotiating multilateral agreements dealing with 
extradition.
    The contents of recent treaties follow a standard format. 
Article 1 sets forth the obligation of contracting states to 
extradite to each other persons charged by the authorities of 
the Requesting State with, or convicted of, an extraditable 
offense. Article 2, sometimes referred to as a dual criminality 
clause, defines extraditable offenses as offenses punishable in 
both contracting states by prison terms of more than one year. 
Attempts or conspiracies to commit an extraditable offense are 
themselves extraditable. Several of the treaties provide that 
neither party shall be required to extradite its own nationals. 
The treaties carve out an exception to extraditable crimes for 
political offenses. The trend in modern extradition treaties is 
to narrow the political offense exceptions.
    The treaties include a clause allowing the Requested State 
to refuse extradition in cases where the offense is punishable 
by death in the Requesting State, unless the Requesting State 
provides assurances satisfactory to the Requested State that 
the individual sought will not be executed.
    In addition to these substantive provisions, the treaties 
also contain standard procedural provisions. These specify the 
kinds of information that must be submitted with an extradition 
request, the language in which documents are to be submitted, 
the procedures under which documents submitted are to be 
received and admitted into evidence in the Requested State, the 
procedures under which individuals shall be surrendered and 
returned to the Requesting State, and other related matters.

                          b. major provisions

1. Extraditable offenses: The dual criminality clause

    Article 2 contains a standard definition of what 
constitutes an extraditable offense: an offense is extraditable 
if it is punishable under the laws of both parties by a prison 
term of at least one year. Attempts and conspiracies to commit 
such offenses, and participation in the commission of such 
offenses, are also extraditable. If the extradition request 
involves a fugitive, it shall be granted only if the remaining 
sentence to be served is more than six months.
    The dual criminality clause means, for example, that an 
offense is not extraditable if in the United States it 
constitutes a crime punishable by imprisonment of more than one 
year, but is not a crime in the treaty partner or is a crime 
punishable by a prison term of less than one year. In earlier 
extradition treaties the definition of extraditable offenses 
consisted of a list of specific categories of crimes. This 
categorizing of crimes has resulted in problems when specific 
crime, for example drug dealing, is not on the list, and is 
therefore not extraditable. The result has been that as 
additional offenses become punishable under the laws of both 
treaty partners the extradition treaties between them need to 
be renegotiated or supplemented. A dual criminality clause 
obviates the need to renegotiate or supplement a treaty when it 
becomes necessary to broaden the definition of extraditable 
offenses.

2. Extraterritorial offenses

    In order to extradite individuals charged with 
extraterritorial crimes (offenses committed outside the 
territory of the Requesting State) such as international drug 
traffickers and terrorists, provision must be made in 
extradition treaties. The Malaysia Treaty states that the 
Requested State shall grant extradition for an offense 
committed outside the Requesting State's territory if the 
Requested State's laws provide that an offense committed 
outside its territory is punishable in similar circumstances 
(art. 2(5)). If the Requested State's laws do not provide that 
an offense committed outside its territory is punishable in 
similar circumstances, under the Malaysia Treaty the Requested 
State nevertheless has discretionary authority to grant 
extradition (art. 2(5)). The proposed treaty also states, 
however, that if the offense for which extradition is sought 
was committed within the territory of the Requested State, it 
may deny extradition (art. 2(4)).
    In the proposed treaty an obligation to extradite depends 
mostly on whether the Requested State also punishes Offenses 
outside its territory ``in similar circumstances.'' This, in 
effect, appears to be a dual criminality clause applied to 
extraterritorial offenses. The phrase ``in similar 
circumstances'' is undefined in each of the treaties that have 
such a requirement and in the Letters of Submittal from the 
Department of State to the President. The phrase appears to be 
sufficiently vague to give a reluctant Requested State ``wiggle 
room'' to avoid its possible obligation to extradite 
individuals for crimes committed outside its territory.

3. Political offense exception

    In recent years the United States has been promoting a 
restrictive view of the political offense exception in 
furtherance of its campaign against terrorism, drug 
trafficking, and money laundering. The political offense 
exception in the Malaysia Treaty is a broader provision than is 
contained in other extradition treaties.
    The exclusion of certain violent crimes, (i.e. murder, 
kidnapping, and others) from the political offense exception 
has become standard in many U.S. extradition treaties, 
reflecting the concern of the United Stages government and 
certain other governments with international terrorism.
    The exclusion from the political offense exception for 
crimes covered by multilateral international agreements, and 
the obligation to extradite for such crimes or submit the case 
to prosecution by the Requested State, is now a standard 
exclusion and is contained in the proposed treaty. The 
incorporation by reference of these multilateral agreements is 
intended to assure that the offenses with which they deal shall 
be extraditable under an extradition treaty. But, extradition 
for such offenses is not guaranteed. A Requested State has the 
option either to extradite or to submit the case to its 
competent authorities for prosecution. For example, a Requested 
State could refuse to extradite and instead declare that it 
will itself prosecute the offender.

4. The death penalty exception

    Because Malaysia imposes the death penalty for certain 
crimes, such as drug trafficking, its provision varies from 
other treaties with countries that do not impose the death 
penalty and therefore may refuse extradition for an offense 
punishable by the death penalty in the Requesting State if the 
same offense is not punishable by the death penalty in the 
Requested State, unless the Requesting State gives assurances 
satisfactory to the Requested State that the death penalty will 
not be imposed or carried out. The Malaysia treaty goes a step 
further. It states that if an offense is punishable by the 
death penalty in the Requesting State but the same offense is 
not so punishable in the Requested State, the Requesting State 
shall not even make a request for extradition without prior 
consultation and agreement by both States.

5. The extradition of nationals

    The U.S. does not object to extraditing its own nationals 
and has sought to negotiate treaties without nationality 
restrictions. Many countries, however, refuse to extradite 
their own nationals. U.S. extradition treaties take varying 
positions on the nationality issue.
    The Malaysia Treaty contains the traditional nationality 
clause providing that neither party is obligated to extradite 
its own nationals, but that they may do so at their discretion 
(art. 3). Upon a refusal to extradite, the Requested State may 
be required by the Requesting State to submit the case to its 
authorities for prosecution.\1\
---------------------------------------------------------------------------
    \1\ An article in the Washington Post, A25, of June 28, 1996, 
reported that the Constitutional Court in Italy refused to allow the 
extradition to the United States of an Italian-born U.S. citizen or 
resident under the U.S.-Italy extradition treaty for a murder he 
committed in the United States despite U.S. assurances he would not be 
subject to the death penalty.
---------------------------------------------------------------------------

6. Retroactivity

    The proposed treaty states that it shall apply to offenses 
committed before as well as after it enters into force (art. 
21). These retroactivity provisions do not violate the 
Constitution's prohibition against the enactment of ex post 
facto laws which applies only to enactments making criminal 
acts that were innocent when committed, not to the extradition 
of a defendant for acts that were criminal when committed but 
for which no extradition agreement existed at the time.

The rule of speciality

    The rule of speciality (or specialty), which prohibits a 
Requesting State from trying an extradited individual for an 
offense other than the one for which he was extradited, is a 
standard provision included in U.S. bilateral extradition 
treaties, including the six under consideration. The Malaysia 
Treaty (art. 16) contains exceptions to the rule of speciality 
that are designed to allow a Requesting State some latitude in 
prosecuting offenders for crimes other than those for which 
they had been specifically extradited.

8. Lapse of time

    The Malaysia Treaty has no provision denying extradition if 
barred by the statute of limitations of either the Requesting 
or Requested State.

                  IV. Entry Into Force and Termination

                          a. entry into force

    This Treaty shall enter into force upon the exchange of 
instruments of ratification.

                             b. termination

    This Treaty shall terminate six months after notice by a 
Party of an intent to terminate the Treaty.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty on Wednesday, July 17, 1996. The hearing 
was chaired by Senator Helms. The Committee considered the 
proposed treaty on Wednesday, July 24, 1996, and ordered the 
proposed treaty favorably reported with one proviso by voice 
vote, with the recommendation that the Senate give its advice 
and consent to the ratification of the proposed treaty.

                         VI. Committee Comments

    The Committee on Foreign Relations recommended favorably 
the proposed treaty. The Committee believes that the proposed 
treaty is in the interest of the United States and urges the 
Senate to act promptly to give its advice and consent to 
ratification. In 1996 and the years ahead, U.S. law enforcement 
officers increasingly will be engaged in criminal 
investigations that traverse international borders. Certainly, 
sovereign relationships have always been important to 
prosecution of suspected criminals. The first recorded 
extradition treaty dates as far back as 1280 B.C. under Ramses 
II, Pharoah of Egypt. The United States entered into its first 
extradition treaty in 1794 with Great Britain. Like these early 
treaties, the basic premise of the treaties is to facilitate, 
under specified conditions, the transfer of persons who are 
within the jurisdiction of one nation, and who are charged with 
crimes against, or are fugitives from, the nation requesting 
extradition. Despite the long history of such bilateral 
treaties, the Committee believes that these treaties are more 
essential than ever to U.S. efforts to bring suspected 
criminals to justice.
    In 1995, 131 persons were extradited to the U.S. for 
prosecution for crimes committed in the U.S., and the U.S. 
extradited 79 individuals to other countries for prosecution. 
After the Senate ratified an extradition treaty with Jordan in 
1995, the U.S. Attorney General was able to take into custody 
an alleged participant in the bombing of the World Trade 
Center. His prosecution would not be possible without an 
extradition treaty. Crimes such as terrorism, transhipment of 
drugs by international cartels, and international banking fraud 
are but some of the international crimes that pose serious 
problems to U.S. law enforcement efforts. The Committee 
believes that modern extradition treaties provide an important 
law enforcement tool for combatting such crimes and will 
advance the interests of the United States.
    The proposed resolution of ratification includes a proviso 
that reaffirms that ratification of this treaty does not 
require or authorize legislation that is prohibited by the 
Constitution of the United States. Bilateral extradition 
treaties rely on relationships between sovereign countries with 
unique legal systems. In as much as U.S. law is based on the 
Constitution, this treaty may not require legislation 
prohibited by the Constitution.

                  VII. Explanation of Proposed Treaty

    The following is the Technical Analysis of the Extradition 
Treaty submitted to the Committee on Foreign Relations by the 
Departments of State and Justice prior to the Committee hearing 
to consider pending extradition treaties.

technical analysis of the extradition treaty between the united states 
                        of america and malaysia

    On August 3, 1995, the United States signed a treaty on 
extradition with Malaysia (``the Treaty''). In recent years, 
the United States has signed similar treaties with many other 
countries as part of a highly successful effort to modernize 
our law enforcement relations. The Treaty was signed in 
duplicate in both the English and Malay languages. While both 
texts are authentic, the Treaty is unusual in that it provides 
that, in the case of divergence of interpretation, the English 
text shall prevail. The Treaty is a major step forward in 
United States efforts to win the cooperation of countries in 
the region in combatting Asian organized crime, transnational 
terrorism, and international drug trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed in the United States. 
Malaysia has its own internal legislation on extradition \2\ 
which will apply to United States requests under the Treaty.
---------------------------------------------------------------------------
    \2\ Extradition Act 1992 (Act 479) & Akta Ekstradis, 1979 (Akta 
479), as amended July 15, 1992. The key sections of the Extradition Act 
that are germane to the interpretation and implementation of the Treaty 
are discussed in more detail in the technical analysis. The Malaysian 
delegation stated that in Malaysia statutes take priority over 
treaties, so if the Treaty conflicts with the Extradition Act, the 
provisions of the Act prevail. However, section 2 of the Act states 
that if the terms of an extradition arrangement vary from the terms of 
the Act, the Minister of Home Affairs may issue an order reciting the 
terms of the Treaty, and ``the provisions of this Act shall be applied 
to that country subject to any restriction, exception, modification, 
adaption, condition, or qualification contained in the order.''
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the United States delegation that conducted the 
negotiations.

Article 1--Obligation to extradite

    This article, like the first article in every recent United 
States extradition treaty, formally obligates each Contracting 
State to extradite to the other persons accused or convicted of 
an extraditable offense, subject to the provisions of the 
remainder of the Treaty. The article refers to charges brought 
by the authorities ``in'' the Requesting State rather than 
``of'' the Requesting State because Malaysia's obligation to 
extradite to the United States encompasses state and local 
prosecutions as well as federal cases. It was agreed that the 
term ``convicted'' includes instances in which the person has 
been found guilty, whether or not a sentence has yet been 
imposed.\3\ The negotiators intended to make it clear that the 
Treaty applies to persons who have been adjudged guilty but 
fled prior to sentencing.
---------------------------------------------------------------------------
    \3\ See Stanbrook and Stanbrook, ``Extradition: The Law and 
Practice'' 25-26 (1979).
---------------------------------------------------------------------------

Article 2--Extraditable offenses

    This article contains the basic guidelines for determining 
what are extraditable offenses. The Treaty, like most recent 
United States extradition treaties, including those with 
Jordan, Jamaica, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 permits extradition for any offense punishable 
under the laws of both Contracting States by deprivation of 
liberty (i.e., imprisonment, or other form of detention) for 
more than one year, or by a more severe penalty such as capital 
punishment. Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime should obviate the need to renegotiate the Treaty or 
supplement it should both Contracting States pass laws dealing 
with a new type of criminal activity, or if the list 
inadvertently fails to cover an important type of criminal 
activity punishable in both Contracting States.
    During the negotiations, the United States delegation 
received assurances from the Malaysian delegation that United 
States offenses such as operating a continuing criminal 
enterprise \4\ would be extraditable, and that offenses under 
the racketeering statutes \5\ would be extraditable if the 
predicate offense would be an extraditable offense. The 
Malaysian delegation also stated that extradition would be 
possible for such high priority offenses as drug trafficking, 
terrorism, money laundering, tax fraud or tax evasion, crimes 
against environmental protection laws, and any antitrust 
violations which would be punishable in both Contracting States 
by one year of imprisonment.
---------------------------------------------------------------------------
    \4\ See 21 U.S.C. Sec. 848.
    \5\ See 18 U.S.C. Sec. Sec. 1961-68.
---------------------------------------------------------------------------
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling, causing or procuring the commission of, or 
otherwise being an accessory before or after the fact to an 
extraditable offense. Conspiracy charges are frequently used in 
United States criminal cases, particularly those involving 
complex transnational criminal activity, so it is especially 
important that the Treaty be clear on this point. Malaysia has 
no general conspiracy statute like Title 18, United States 
Code, Section 371. Therefore, paragraph 2 creates an exception 
to the ``dual criminality'' rule of paragraph 1 by making 
conspiracy an extraditable crime if the offense which was the 
object of the conspiracy is an extraditable offense.
    Paragraph 3 reflects the intention of negotiators for both 
Contracting States to interpret the principles of this article 
broadly. Judges in foreign countries are often confused by the 
fact that many United States federal statutes require proof of 
certain elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Malaysian 
authorities must treat United States mail fraud charges \6\ in 
the same manner as fraud charges under state laws, and must 
view the federal crime of interstate transportation of stolen 
property \7\ in the same manner as unlawful possession of 
stolen property. This paragraph also requires a Requested State 
to disregard differences in the categorization of the offense 
in determining whether dual criminality exists, and to overlook 
mere differences in the terminology used to define the offense 
under the laws of each Contracting State. A similar provision 
is contained in all recent United States extradition treaties.
---------------------------------------------------------------------------
    \6\ See 18 U.S.C. Sec. 1341.
    \7\ See 18 U.S.C. Sec. 2314.
---------------------------------------------------------------------------
    Paragraphs 4 and 5 deal with the fact that many United 
States federal crimes involve acts committed wholly outside 
United States territory. Our jurisprudence recognizes 
jurisdiction in our courts to prosecute offenses committed 
outside of the United States if the crime was intended to, or 
did, have effects in this country, or if the legislative 
history of the statute shows clear Congressional intent to 
assert such jurisdiction. This extraterritorial jurisdiction 
has proven especially useful in dealing with international drug 
trafficking. On the other hand, Malaysia's extradition law 
gives the Minister of Home Affairs the discretion to deny an 
extradition request if the offense was committed within 
Malaysian jurisdiction.\8\ It was suggested that the Treaty 
give each Contracting State the discretion to deny extradition 
in such circumstances. The United States has never agreed to a 
treaty provision quite so broad, although one treaty does 
permit denial if the offense occurred within the Requested 
State's territory.\9\
---------------------------------------------------------------------------
    \8\ Extradition Act 1992 Sec. 49(1)(b).
    \9\ A similar provision is found in article III(2) of the U.S.-
Ireland Extradition Treaty. July 13, 1983, T.I.A.S. No. 10813.
---------------------------------------------------------------------------
    The compromise reached is reflected in paragraphs 4 and 5, 
wherein the Contracting States agreed that the Requested State 
may grant or deny an extradition request that involves an 
offense that occurred within the Requested State's territory, 
its airspace and territorial waters, or on its registered 
vessels or aircraft.\10\ The negotiators anticipated that the 
Requested State will consult the Requesting State under article 
20 of the Treaty to discuss the matter before any request is 
denied under paragraph 4. If the request is denied, the 
Requested State must submit the case to its authorities for the 
purpose of prosecution. It is understood that the Requested 
State must consider prosecution, in good faith, and bring the 
offender to justice, if possible, but it is not obliged to 
prosecute if it determines that the facts and its law do not 
warrant it. At the same time, under paragraph 5, the Requested 
State may extradite for offenses committed outside of the 
Requesting State as long as the Requested State's law would 
permit it to prosecute similar offenses committed outside of 
its territory in corresponding circumstances. If the Requested 
State's laws do not provide, the final sentence of the 
paragraph states that extradition may be granted, but the 
executive authority of the Requested State also has the 
discretion to deny the request.\11\
---------------------------------------------------------------------------
    \10\ It was agreed that for these purposes, ``territorial waters'' 
mans ``territorial seas.'' Both the United States and Malaysia claim a 
territorial sea of twelve nautical miles.
    \11\ The importance of the issue of extraterritoriality was 
illustrated in the 1992 United States request to Malaysia for the 
extradition of Lin Chien Pang. Lin was a Thailand-based major exporter 
of heroin and a close associate of Burmese drug lord Khun Sa. The 
United States request was denied by both the trial and appellate courts 
solely on the basis that Malaysia would not have been able to charge 
Lin under the facts presented in the United States request as 
Malaysia's narcotics laws have no extraterritorial application. See In 
re a Requisition by the United States for the Return of LIN CHIEN PANG, 
Kuala Lumpur Sessions Court, Oct. 2, 1992; In re a Requisition by the 
United States for the Return of LIN CHIEN PANG, High Court of Malaysia 
at Kuala Lumpur, Jan. 11, 1993. Paragraph 5 remedies this problem by 
granting the executive authorities the discretion to extradite when 
there is a lack of extraterritorial application for the offenses for 
which extradition is sought.
---------------------------------------------------------------------------
    Some recent United States extradition treaties provide that 
persons who have been convicted of an extraditable offense and 
sentenced to imprisonment may be extradited only if at least a 
certain specified portion of the sentence (often six months) 
remains to be served on the outstanding sentence. The Treaty 
contains no such requirement. Provisions of this kind are an 
attempt to limit extradition to serious cases because of the 
significant costs associated with the process. However, the 
negotiators of the Treaty felt that the particular sentence 
imposed or outstanding is not necessarily an adequate measure 
of the seriousness of the crime.\12\ They preferred the 
exercise of discretion and good judgment in considering whether 
to extradite a person to serve the remainder of a sentence, not 
arbitrary limits in the terms of the treaty. This is the 
approach taken in our extradition treaties with other countries 
who follow the common law approach, including Jamaica, England, 
Canada, Australia, and New Zealand.
---------------------------------------------------------------------------
    \12\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979) 
(``Leniency in sentencing does not give rise to a bar to 
extradition''). Reliance on the amount of the sentence remaining to be 
served can also produce anomalous results. For instance, a murderer who 
escapes from custody with less than six months to serve on a sentence 
can hardly resist extradition on the basis that murder is not a serious 
offense.
---------------------------------------------------------------------------

Article 3--Nationality

    Paragraph 1 states that neither contracting State shall be 
bound to extradite its own nationals, but each Contracting 
State shall have the power to do so if, in its discretion, it 
deems proper to do so. The United States ordinarily does not 
deny extradition on the basis of the offender's 
citizenship.\13\ However, Malaysian law gives Malaysia's 
Minister of Home Affairs the discretion to deny the request if 
the person sought is a Malaysian national,\14\ and while 
Malaysia does not routinely deny extradition on this ground, 
the Malaysian delegation insisted that the discretion to do so 
be reflected in the Treaty to ensure that the Treaty is 
consistent with Malaysian law. Thus, this paragraph permits the 
United States to extradite its nationals to Malaysia, in 
accordance with established policy favoring such extradition, 
and it is anticipated that Malaysia will extradite its 
nationals in most cases. Similar provisions appear in many 
recent United States extradition treaties.\15\
---------------------------------------------------------------------------
    \13\ See generally Shearer, ``Extradition in International Law'' 
110-14 (1970); 6 Whiteman, ``Digest of International Law'' 871-76 
(1968). Our policy of drawing no distinction between United States 
nationals and others in extradition matters is underscored by Title 18, 
United States Code, Section 3196, which authorizes the Secretary of 
State to extradite United States citizens pursuant to treaties that 
permit but do not expressly require surrender of citizens, as long as 
the other requirements of the treaty are met. 18 U.S.C. Sec. 3196.
    \14\ Extradition Act 1992 Sec. 49.
    \15\ See, e.g., Protocol Amending U.S.-Australia Extradition 
Treaty, Sept. 4, 1990, art. 3, T.I.A.S. No. --; U.S.-Costa Rica 
Extradition Treaty, Nov. 10, 1922, art. 8, 43 Stat. 1621, T.S. 668, 6 
Bevans 1033; U.S.-Mexico Extradition Treaty, May 4, 1978, art. 9, 31 
U.S.T. 5059, T.I.A.S. No. 9656.
---------------------------------------------------------------------------
    Paragraph 2 requires that if the Requested State refuses 
extradition on the basis of nationality, it must submit the 
case to its authorities for the purpose of prosecution if asked 
to do so by the Requesting State. The negotiators agreed that 
here, as in article 2(4), the Requested State's obligation is, 
in good faith, to consider prosecuting the person, but it is 
not obliged to prosecute if it determines, in its sound 
prosecutorial discretion, that the facts do not make out a 
criminal offense under its law, or it lacks jurisdiction to 
prosecute, or if there are other reasons not to proceed.

Article 4--Political and military offenses

    Paragraph 1 prohibits extradition for a political offense. 
This is a common provision in United States extradition 
treaties.
    Paragraph 2 describes three categories of offenses that 
shall not be considered to be political offenses.\16\
---------------------------------------------------------------------------
    \16\ These three categories are specifically listed in section 9 of 
Malaysia's Extradition Act 1992, and appear in almost all recent United 
States extradition treaties.
---------------------------------------------------------------------------
    First, the political offense exception to extradition does 
not apply where there is a murder or other willful crime 
against the person of a Head of State of a Contracting State or 
a member of the Head of State's family.
    Second, the political offense exception does not apply to 
offenses for which both States have the obligation pursuant to 
a multilateral treaty, convention, or international agreement, 
either to extradite the person sought or submit the matter for 
a decision as to prosecution. The conventions to which this 
clause would apply at present include the Convention for the 
Suppression of Unlawful Seizures of Aircraft (Hijacking),\17\ 
the Convention for the Suppression of Unlawful Acts Against the 
Safety of Civil Aviation (Sabotage),\18\ and the United Nations 
Convention Against the Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances.\19\
---------------------------------------------------------------------------
    \17\ Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192.
    \18\ Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570.
    \19\ Dec. 20, 1988, T.I.A.S. No. --. Both the United States and 
Malaysia are parties to the Single Convention on Narcotic Drugs, Mar. 
30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520 U.N.T.S. 204, and the 
Amending Protocol to the Single Convention, Mar. 25, 1972, 26 U.S.T. 
1439, T.I.A.S. No. 8118, 976 U.N.T.S. 3.
---------------------------------------------------------------------------
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or aiding or abetting, 
counselling or procuring the commission of or being an 
accessory before or after the fact to, the foregoing offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated.\20\ This is consistent 
with the longstanding law and practice of the United States, 
under which the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation.\21\
---------------------------------------------------------------------------
    \20\ There are similar provisions in many recent treaties. See, 
e.g., U.S.-Jamaica Extradition Treaty, June 14, 1983, art. III(3), 
T.I.A.S. No. --; U.S.-Spain Extradition Treaty, May 29, 1970, art. 
5(4), 22 U.S.T. 737, T.I.A.S. No. 7136, 796 U.N.T.S. 245; U.S.-
Netherlands Extradition Treaty, June 24, 1980, art. 4, T.I.A.S. No. 
10733; and U.S.-Ireland Extradition Treaty, July 13, 1983, art. IV(c), 
T.I.A.S. No. 10813.
    \21\ See Eain v. Wilkes, 641 F. 2d 504, 513-18 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 744 F. Supp. 904 (D. 
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
    Paragraph 4 provides that the executive authority of the 
Requested State may refuse extradition if the request involves 
offenses under military law that would not be offenses under 
ordinary criminal law.\22\
---------------------------------------------------------------------------
    \22\ An example of such a crime is desertion. See Matter of the 
Extradition of Suarez-Mason, 694 F. Supp. 676, 703 (N.D. Cal., 1988).
---------------------------------------------------------------------------

Article 5--Prior prosecution

    This article will permit extradition in situations in which 
the offender is charged with different offenses in each 
Contracting States arising out of the same basic transaction.
    Paragraph 1 prohibits extradition if the offender has been 
convicted or acquitted in the Requested State for the offense 
for which extradition is requested. This is similar to language 
present in many United States extradition treaties.\23\
---------------------------------------------------------------------------
    \23\ Similar provisions appear in many treaties, including article 
5 of the U.S.-Jordan Extradition Treaty. Mar. 28, 1995, art. 5, 
T.I.A.S. No. --. In Malaysia, this provision will take precedence over 
sections 19(1)(h) and 20(d) (iv) and (v) of the Extradition Act 1992, 
which requires that extradition be denied if the person sought was 
acquitted in the Requesting State.
---------------------------------------------------------------------------
    Paragraph 2 makes it clear that neither Contracting State 
may refuse to extradite a person sought on the ground that the 
Requested State's authorities declined to prosecute the person, 
or instituted criminal proceedings against the person and 
thereafter elected to discontinue the proceedings. This 
provision was included because the decision of the Requested 
State to forego prosecution, or to drop charges already filed, 
may have resulted simply from a failure to obtain sufficient 
evidence or witnesses for trial, and the prosecution in the 
Requesting State may not suffer from the same impediments. This 
provision should enhance the ability to extradite to the 
jurisdiction that has the better chance of a successful 
prosecution.\24\
---------------------------------------------------------------------------
    \24\ The delegations discussed a provision for the Treaty that 
would have permitted the Requested State to deny a request if it had 
considered prosecuting the person sought, but decided not to prosecute. 
It was argued that such discretion would be useful in cases in which a 
person might wish to testify or otherwise assist the prosecution only 
if immunized from criminal prosecution and shielded from extradition as 
well. The Contracting States agreed that if the Requested State were to 
ask the Requesting State to withdraw an extradition request in order to 
facilitate the use of the person as a witness in the Requested State, 
the Requesting State should give careful and sympathetic consideration 
to the request.
---------------------------------------------------------------------------

Article 6--Capital punishment

    This article was the subject of extensive discussion at the 
negotiations. In the United States, capital punishment is 
usually imposed only if a homicide occurred.\25\ In Malaysia, 
the death penalty is imposed for several offenses involving no 
loss of life \26\ and is mandatory for drug trafficking.\27\ 
The extradition treaty currently in force is silent on this 
subject, but the United States wanted a provision on this issue 
in the Treaty to bring the Treaty in line with other modern 
United States treaties that permit the Requested State to 
decline extradition if the offense for which extradition is 
sought is punishable by death in the Requesting State but not 
in the Requested State--unless the Requesting State provides 
assurances that the person sought will not be executed.\28\ It 
was felt that cases might arise in which the Requested State 
might not wish to surrender a person to the other to face a 
death sentence for activity not punishable by death in the 
Requested State.
---------------------------------------------------------------------------
    \25\ The United States Supreme Court has held that to apply capital 
punishment to a person whose offense, however reprehensible, did not 
take another person's life may violate the Constitution's prohibition 
against cruel and unusual punishment. Coker v. Georgia, 433 U.S. 585 
(1976).
    \26\ Malaysia imposes the death penalty for murder, illegal 
possession of firearms, drug trafficking, kidnapping and gang-robbery 
resulting in death, and some offenses related to treason, such as 
waging war against or ``imagining, inventing, devising, or intending 
the death'' of Malaysia's king.
    \27\ Under section 3(B) of Malaysia's Drug Trafficking Act, the 
death penalty is mandatory for drug trafficking. The law creates a 
presumption of trafficking from possession of more than a prescribed 
amount of certain drugs. Malaysia's Attorney General recently 
instructed prosecutors not to file section 3(B) charges unless actual 
trafficking can be shown, thus ruling out capital charges based on mere 
possession coupled with the legal presumption.
    \28\ See e.g., U.S.-Netherlands Extradition Treaty, June 24, 1980, 
art. 7, T.I.A.S. No. 10733; U.S.-Ireland Extradition Treaty, July 13, 
1983, art. 6, T.I.A.S. No. 10813.
---------------------------------------------------------------------------
    This article deals with this sensitive subject by requiring 
that if the person sought could be subject to capital 
punishment in the Requesting State but would not be subject to 
capital punishment in the Requested State for the same offense, 
no extradition request may be submitted without prior 
consultation and agreement by both Contracting States. Since 
extradition cannot be granted unless an extradition request has 
been made, and both Contracting States must agree to the making 
of the request under this article, the Requested State 
effectively can block extradition of a person under this 
article by withholding agreement to the making of the request.
    Since article 6 is somewhat unusual, the negotiators 
discussed its practical operation at great length. It was 
agreed that the executive authorities of the Contracting States 
would apply this article.\29\ The United States delegation 
assured the Malaysian delegation that the United States has no 
predisposition to deny automatically all requests under this 
provision, and that it would not exercise discretion under 
article 6 based solely on any difference in the applicable 
punishments alone. Rather, the United States would consider all 
of the factors in the case, including the age and health of the 
person sought, the penalty United States courts would likely 
impose in a similar case, and whether extradition would be 
consistent with our constitutional requirements (i.e., whether 
a United States court would deem execution to be cruel and 
unusual punishment).
---------------------------------------------------------------------------
    \29\ When the United States is the Requested State, the Secretary 
of State decides whether to agree to the request, in coordination with 
the Department of Justice.
---------------------------------------------------------------------------
    Malaysia wanted the discretionary decision under this 
article to be made before the formal request is submitted in 
order to avoid obliging the Requesting State to request 
publicly extradition, supply the supporting evidence, and 
pursue the matter successfully in the Requested State's courts, 
only to have the Requested State deny extradition at the last 
minute on death penalty grounds. The United States preferred 
that the discretionary decision be made after all litigation on 
the request has been concluded, since new facts might emerge 
during the extradition hearings.\30\ These differing approaches 
were reconciled in the diplomatic notes accompanying the 
Treaty, which provide that neither Contracting State would be 
bound by any initial agreement to extradite under article 6 if 
relevant new information arises after the agreement. The notes 
state that if ``* * * 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 term 
``or otherwise'' means that the initial agreement would be 
invalid even if the new information was unknown to the 
Requested State when consultations occurred.
---------------------------------------------------------------------------
    \30\ The United States anticipated that only in exceptional cases 
would a different conclusion be reached by the executive authority of 
the Requested State following court proceedings than would have been 
communicated to the Requesting State during pre-request consultations. 
In such rare instances, the different conclusion would be predicated 
entirely or in part on the existence of significant facts that arose or 
became known to the Contracting States after the initial consultations.
---------------------------------------------------------------------------
    Article 6 is most likely to arise in narcotics cases. 
Neither Contracting State wanted this clause to interfere with 
the important shared goal of combating drug trafficking. 
Indeed, the United States delegation reiterated our 
government's support for Malaysia's vigorous anti-narcotics 
measures. According to the Department of State International 
Narcotics Control Strategy Report for 1994: ``The Government of 
Malaysia (GOM) recognizes the seriousness of the narcotics 
threat domestically and internationally, and conducts a 
serious, well-funded and well-administered anti-narcotics 
program, which includes law enforcement, primary prevention, 
treatment and education.''

Article 7--Extradition procedures and required documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to articles in most recent United States extradition 
treaties.
    Paragraph 1 requires that each formal request for 
extradition be submitted through the diplomatic channel.\31\ A 
formal extradition request may be preceded by a request for the 
provisional arrest of the fugitive under article 11, and 
provisional arrest requests need not be initiated through 
diplomatic channels if the requirements of article 11 are met.
---------------------------------------------------------------------------
    \31\ This is consistent with section 12(1) of Extradition Act 1992.
---------------------------------------------------------------------------
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Most of the 
items listed in paragraph 2 enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, paragraph 2(c) calls for ``a statement of 
the provisions of the law describing the essential elements of 
the offense for which extradition is requested,'' thereby 
enabling the Requested State to determine easily whether there 
would be a basis for denying extradition for lack of dual 
criminality under article 2.
    Paragraph 3 describes the additional information needed 
when the person is sought for trial in the Requesting State; 
paragraph 4 describes the information needed, in addition to 
the requirements of paragraph 2, when the person sought has 
already been tried and convicted in the Requesting State.
    Paragraph 3(c) requires that if the fugitive is a person 
who has not yet been convicted of the crime for which 
extradition is requested, the Requesting State must provide 
such evidence as would justify committal for extradition under 
the laws of the Requested State, provided that neither 
Contracting State shall require, as a condition to extradition 
pursuant to the Treaty, that the other prove a prima facie case 
against the person sought. This provision is described in more 
detail in an exchange of diplomatic notes accompanying the 
Treaty, and, as described, it will alleviate a major practical 
problem with extradition from Malaysia. The Treaty currently in 
force permits extradition only if ``* * * the evidence be found 
sufficient, according to the laws of the High Contracting Party 
applied to, either to justify the committal of the prisoner for 
trail, in the case the crime of offense had been committed in 
the territory of such High Contracting Party, or to prove that 
the person is the identical person convicted by the courts of 
the High Contracting Party who makes the requisition.* * *'' 
Malaysian courts have interpreted this clause to require that a 
prima facie case against the defendant be shown before 
extradition will be granted.\32\ By contrast, United States law 
permits extradition if there is probable cause to believe that 
an extraditable offense was committed and the offender 
committed it.\33\ To eliminate this imbalance in the burden of 
proof for extradition, Malaysia agreed to amend its internal 
procedures to permit extradition based on probable cause if the 
Treaty expressly prohibits the prima facie standard.\34\ Thus, 
paragraph 3 states that neither Contracting State may require a 
prima facie case. An exchange of diplomatic notes accompanying 
the Treaty specifies that Malaysia must supply evidence of 
probable cause when it seeks extradition from the United 
States, and the United States will supply Malaysia with 
information satisfying Malaysia Extradition Law section 20 when 
the United States seeks extradition from Malaysia. It is 
understood that Malaysia's Minister for Home Affairs will issue 
an order under Extradition Act 1992, section 4, directing that 
probable cause be the standard of proof for extradition under 
the Treaty rather than a prima facie case under section 19 or 
no evidence under section 20. This clause should dramatically 
improve the ability of the United States to extradite from 
Malaysia, and will be a useful precedent in dealing with other 
former British colonies.
---------------------------------------------------------------------------
    \32\ Extradition Act 1992 Sec. 19(4).
    \33\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Sec. 476 comment b.
    \34\ The Malaysian delegation offered to extradite without any 
review of the evidence, as section 20 of its Extradition Act permits, 
if the United States would reciprocate. This was an offer the United 
States delegation could not accept without implicating constitutional 
violations.
---------------------------------------------------------------------------
    Paragraph 4 lists the information needed to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of probable cause is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions even 
absent a specific treaty provision.\35\
---------------------------------------------------------------------------
    \35\ See e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2d Cir. 1991); Clark, 470 F. 
Supp. 976.
---------------------------------------------------------------------------
    Some United States treaties contain a provision describing 
the documentation needed for extraditing a person who was found 
guilty in absentia. There is no provision on this matter in the 
Treaty because neither the United States nor Malaysia convicts 
persons in absentia.

Article 8--Admissibility of documents

    This article governs the authentication procedures for the 
documentation provided in extradition requests.
    The primary documents in each extradition request are the 
warrant of arrest (in the case of a person sought for 
prosecution), the judicial documents proving that the person 
sought has been convicted (in the case of a person sought to 
serve a sentence), and the depositions or statements or other 
evidence containing proof of the offense. This article 
specifies that these documents, or copies thereof, will be 
admissible in extradition proceedings if they have been signed 
or certified by a judge, magistrate, or other competent 
authority of the Requesting State. This requirement is taken 
from Malaysian law,\36\ and it is understood that in the case 
of a request from the United States, the term ``competent 
authority'' would include a notary public, a clerk of the 
court, or any other person who ordinarily signs or issues such 
documents, or the officials in the Department of Justice who 
typically authenticate extradition documents. The article also 
requires that when the United States is the Requesting State, 
the documents must be certified with the official seal of the 
United States Attorney General or other ``Minister of State'' 
such as the Secretary of State as required by Malaysian 
law.\37\ When Malaysia is the Requesting State, the documents 
must be certified by the principal diplomatic or consular 
officer of the United States resident in Malaysia, as is 
required by United States law.\38\
---------------------------------------------------------------------------
    \36\ See Extradition Act 1992 Sec. 24.
    \37\ See Extradition Act 1992 Sec. 52.
    \38\ See 18 U.S.C. Sec. 3190.
---------------------------------------------------------------------------
    Paragraph (c) permits documents to be admitted into 
evidence if they are authenticated in such other manner as may 
be permitted under the law of the Requested State. For example, 
there may be information obtainable in the Requested State 
itself that is relevant and probative to extradition. Under 
paragraph (c), the Requested State is permitted to consider 
that information if the information satisfies its ordinary 
rules of evidence.\39\ This ensures that evidence that is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
authenticated pursuant to the Treaty. This paragraph also 
should ensure that relevant evidence that would normally 
satisfy the evidentiary rules of the Requested State is not 
excluded at the extradition hearing based on an inadvertent 
error or omission in the authentication process.
---------------------------------------------------------------------------
    \39\ See Extradition Act 1992 Sec. 50.
---------------------------------------------------------------------------

Article 9--Translation

    This article requires that all extradition documents be 
translated into the language of the Requested State unless this 
requirement is waived by the Requested State. Malaysia's 
official language is the Malay language, but several languages 
are widely used, including English and several Chinese 
dialects. It is anticipated that all extradition documents for 
each Contracting State will be submitted in English.

Article 10--Additional documentation

    This article states that if the Requested State considers 
the documents furnished in support of the request insufficient 
under the Treaty, it shall request that the Requesting State 
submit necessary additional documents. While the Requested 
State may set a time limit for the submission of such 
additional documents, it also may grant a reasonable extension 
of the time limit, upon request. This article was intended to 
oblige the Requested State to review any extradition documents 
it receives under the Treaty, alert the Requesting State of any 
perceived deficiencies in the documents, and provide reasonable 
time for remedying those deficiencies. The provision also 
provides a basis for the Requesting State to seek and receive 
from the courts considering the case in the Requested State a 
reasonable extension of time to obtain and transmit the 
additional documents or evidence to cure any defects found by 
either the courts or the government of the Requested State.

Article 11--Provisional arrest

    This article describes the process by which a person 
located in a Contracting State may be arrested and detained 
while the formal extradition request is being prepared.\40\
---------------------------------------------------------------------------
    \40\ Similar provisions appear in all recent United States 
extradition treaties. The topic of provisional arrest is dealt with in 
Malaysia's Extradition Act 1992, sections 13(1)(b), 14 and 16.
---------------------------------------------------------------------------
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made directly between the United 
States Department of Justice and the Attorney-General's 
Chambers in Malaysia. The provision also indicates that 
INTERPOL may be used to transmit such a request.\41\ Experience 
has shown that the ability to use such direct channels in 
urgent situations can be crucial, as, for example, when a 
fugitive is poised to flee from a jurisdiction.
---------------------------------------------------------------------------
    \41\ Similar provisions appear in many recent United States 
extradition treaties and in Malaysia's Extradition Act 1992, section 
13(2).
---------------------------------------------------------------------------
    Paragraph 2 lists the information that the Requesting State 
must provide in support of such a request.
    Paragraph 3 states that the Requested State must take 
appropriate steps to secure the arrest, and the Requesting 
State must be advised promptly of the outcome of its request.
    Paragraph 4 provides that the fugitive may be discharged 
from custody if the Requesting State does not file a formal 
request for extradition and supporting documents with the 
executive authority of the Requested State within 60 days of 
the date on which the person was arrested pursuant to the 
Treaty.\42\ When the United States is the Requested State, the 
``executive authority'' would include the Secretary of State 
and the United States Embassy in Kuala Lumpur.\43\ The 
Requested State has the discretion to extend the 60-day period 
by up to 30 additional days.
---------------------------------------------------------------------------
    \42\ Extradition Act 1992, section 16, permits a magistrate 
handling a provisional arrest request to order the fugitive held ``for 
such reasonable period of time as * * * he may fix, and for this 
purpose the Magistrate shall take into account any period in the 
relevant extradition arrangement relating to the permissible period of 
remand upon provisional arrest of a fugitive criminal.''
    \43\ Cf. Clark, 470 F. Supp. 976.
---------------------------------------------------------------------------
    Although the person sought may be released from custody if 
the documents are not received within the 60-day period or any 
extension thereof, the extradition proceedings against the 
fugitive need not be dismissed. Paragraph 5 makes clear that a 
person's discharge from custody based on the Requesting State's 
failure to submit the timely formal extradition request and 
supporting documentation shall not prejudice the subsequent 
rearrest and extradition of that person if the extradition 
request and supporting documents are delivered at a later date.

Article 12--Decision and surrender

    This article requires that the Requested State promptly 
notify the Requesting State of its decision on the extradition 
request. It is anticipated that such notification will be 
provided through diplomatic channels. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article requires that the executive authorities of 
the Contracting States agree on a time and place for surrender 
of the person. The Requesting State must remove the fugitive 
within the time prescribed by the law of the Requested State, 
or the person may be discharged from custody, and the Requested 
State may subsequently refuse to extradite for the same 
offense. United States law requires that such surrender occur 
within two calendar months of the finding that the offender is 
extraditable,\44\ or of the conclusion of any litigation 
challenging that finding,\45\ whichever is later. The law in 
Malaysia specifies that the surrender must take place within 
three months of committal to prison for return to the 
Requesting State.\46\
---------------------------------------------------------------------------
    \44\ 18 U.S.C. Sec. 3188.
    \45\ Jimenez v. U.S. District Court, 84 S. Ct. 14, 11 L.Ed.2d 30 
(1963) (decided by Goldberg, J., in chambers); see also Liberto v. 
Emery, 724 F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 
(5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (1978).
    \46\ Extradition Act 1992 Sec. 43.
---------------------------------------------------------------------------

Article 13--Temporary and deferred surrender

    Occasionally, a person sought for extradition already may 
be facing prosecution or serving a sentence on other charges in 
the Requested State. This article provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment imposed. Similar 
provisions appear in our recent extradition treaties with 
Jordan, the Bahamas, and Australia.
    Paragraph 1 provides that the Requested State may postpone 
the surrender of a person who is serving a sentence in the 
Requested State until the full execution of the punishment is 
imposed.\47\ The provision's wording makes it clear that the 
Requested State may postpone the initiation of extradition 
proceedings as well as the surrender of a person being 
prosecuted or serving a sentence.
---------------------------------------------------------------------------
    \47\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
    Paragraph 2 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of a successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
permits resolution of the charges sooner; (2) it makes possible 
serving any sentence in the Requesting State concurrently with 
the sentence in the Requested State; and (3) it permits defense 
against the charges while favorable evidence is fresh and more 
likely to be available. Similar provisions are found in many 
recent extradition treaties.

Article 14--Requests for extradition made by several States

    This article reflects the practice of many recent United 
States extradition treaties in listing some of the factors that 
the executive authority of the Requested State must consider in 
determining to which country a person should be surrendered 
when reviewing requests from two or more countries for 
extradition. For the United States, the Secretary of State 
makes this decision; \48\ for Malaysia, the decision is made by 
the Minister of Home Affairs.\49\
---------------------------------------------------------------------------
    \48\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \49\ Extradition Act 1992 Sec. 48.
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Article 15--Seizure and surrender of property

    This article provides that to the extent permitted by its 
laws, the Requested State may seize and surrender all articles, 
documents and evidence connected with the offense for which 
extradition is granted.\50\ The article also provides that 
these items may be surrendered to the Requesting State even if 
extradition cannot be effected due to the death, disappearance, 
or escape of the person sought.
---------------------------------------------------------------------------
    \50\ Similar provisions are found in all recent United States 
extradition treaties and in Malaysia's Extradition Act 1992, section 
45.
---------------------------------------------------------------------------
    Paragraph 2 provides that the Requested State may condition 
its surrender of property in such a way as to ensure that the 
property is returned as soon as practicable and may defer 
surrender altogether if the property is needed as evidence in 
the Requested State. The surrender of property under this 
provision is expressly made subject to due respect for the 
rights of third parties in such property.

Article 16--Rule of specialty

    This article covers the principle known as the rule of 
specialty, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of specialty prevents a request for extradition from being 
used as a subterfuge to obtain custody of a person for trial or 
service of a sentence on different charges that may not be 
extraditable under the Treaty or properly documented at the 
time that the request is granted.
    Since a variety of exceptions to the rule have developed 
over the years, this article codifies the current formulation 
of the rule by providing that a person extradited under the 
Treaty may only be detained, tried, or punished in the 
Requesting State: (1) for the offense for which extradition was 
granted or any lesser offense proved by the facts on which 
extradition was grounded; (2) for an offense committed after 
the extradition; and (3) for an offense for which the executive 
authority of the Requested State consents.\51\ Paragraph 
1(c)(ii) permits the Contracting State that is seeking consent 
to pursue new charges to detain the person extradited for 90 
days, or for such longer time as the Requested State may 
authorize, while the Requested State makes its determination on 
the application.
---------------------------------------------------------------------------
    \51\ In the United States, the Secretary of State has the authority 
to consent to a waiver of the rule of specialty. Berenguer v. Vance, 
473 F. Supp. 1195, 1199 (D.D.C. 1979). For Malaysia, the Minister for 
Home Affairs maintains this authority. Extradition Act 1992 Sec. 8(e).
---------------------------------------------------------------------------
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for an offense 
committed prior to his surrender without the consent of the 
Requested State.\52\
---------------------------------------------------------------------------
    \52\ Thus, the provision is consistent with Malaysian law on this 
topic and with provisions in all recent United States extradition 
treaties. Extradition Act 1992 Sec. 8(f).
---------------------------------------------------------------------------
    Finally, paragraph 3 permits the detention, trial, or 
punishment of an extraditee for additional offenses, or 
extradition to a third state if: (1) that person leaves and 
returns voluntarily to the Requesting State; or (2) that person 
does not leave the Requesting State within 15 days of being 
free to do so.

Article 17--Waiver of extradition proceedings

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings in order to expedite 
their return to the Requesting State. This article provides 
that when a fugitive consents to return to the Requesting State 
after being advised by a competent judicial authority of the 
effect of such consent under the law of the Requested State, 
the person may be returned to the Requesting State without 
further proceedings. The negotiators anticipated that in such 
cases, there would be no need for the formal documents 
described in article 7 or for further judicial proceedings of 
any kind.
    If the person sought returns to the Requesting State before 
the Secretary of State signs a surrender warrant, the United 
States would not view the waiver of proceedings under this 
article as an ``extradition.'' United States practice has long 
been that the rule of specialty does not apply when a fugitive 
waives extradition and voluntarily returns to the Requested 
State. However, Malaysian law and policy differ; Malaysia might 
wish the rule of specialty to apply in some cases in which a 
waiver of proceedings occurred.\53\ Thus, paragraph 2 permits 
the Requested State to require that the rule of specialty in 
article 16 apply to surrenders pursuant to article 17.\54\
---------------------------------------------------------------------------
    \53\ See Extradition Act 1992 Sec. 22.
    \54\ Cf. U.S.-Netherlands Extradition Treaty, June 24, 1980, art. 
16, T.I.A.S. No. 10733.
---------------------------------------------------------------------------

Article 18--Transit

    Paragraph 1 empowers each Contracting State to authorize 
transit through its territory of a person being surrendered to 
the other Contracting State by a third state.\55\ Requests for 
transit are to contain a description of the person whose 
transit is proposed and a brief statement of the facts of the 
case with respect to which transit is sought. The paragraph 
permits the request to be transmitted either through the 
diplomatic channel, or directly between the United States 
Department of Justice and the Malaysian Ministry of Home 
Affairs. INTERPOL channels may be used to transmit such a 
request. However, the negotiators agreed that the diplomatic 
channels will be employed as much as possible for requests of 
this nature.
---------------------------------------------------------------------------
    \55\ A similar provision is present in all recent United States 
extradition treaties and in Malaysia's Extradition Act 1992, section 
40.
---------------------------------------------------------------------------
    Paragraph 2 describes the procedure each Contracting State 
should follow when seeking to transport a person in custody 
through the territory of the other. Under this provision, no 
advance authorization is needed if the person in custody is in 
transit to one of the Contracting States, is travelling by 
aircraft and no landing is scheduled in the territory of the 
other Contracting State. Should an unscheduled landing occur, a 
request for transit may be required at that time, and the 
Requested State may grant the request in its discretion. The 
Treaty ensures that the person shall be detained until a 
request for transit is received and the transit is effected, so 
long as the request is received within 96 hours of the 
unscheduled landing.

Article 19--Representation and expenses

    Paragraph 1 provides that the United States will represent 
Malaysia in connection with a request from Malaysia for 
extradition before the courts in this country, and the Malaysia 
will arrange for the representation of the United States in 
connection with United States extradition requests to Malaysia.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which are to be paid by the 
Requesting State. The negotiators recognized that cases may 
arise in which the Requesting State may desire to retain 
private counsel to assist in the Requested State's presentation 
of the extradition request. It is anticipated that in such 
cases the fees of private counsel retained by the Requesting 
State must be paid by the Requesting State.
    Paragraph 3 provides that neither Contracting State shall 
make a pecuniary claim against the other in connection with 
extradition proceedings, including a claim arising out of the 
arrest, detention, examination, or surrender of the fugitive. 
The negotiators intended this provision to include any claim by 
the fugitive for damages or reimbursement of legal fees or 
other expenses occasioned by the execution of the extradition 
request.

Article 20--Consultation

    This article provides 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 an individual extradition case or 
in furtherance of maintaining and improving procedures for 
implementing this Treaty. A similar provision is found in 
recent United States extradition treaties.\56\
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    \56\ See, e.g., U.S.-Jordan Extradition Treaty, Mar. 28, 1995, art. 
20, T.I.A.S. No. --. See also extradition treaties awaiting to be 
entered into force: U.S.-Belgium Extradition Treaty, Apr. 9, 1987, art. 
19, T.I.A.S. No. --; U.S.-Switzerland Extradition Treaty, Nov. 11, 
1990, art. 24, T.I.A.S. No. --; U.S.-Philippines Extradition Treaty, 
Nov. 13, 1994, art. 18, T.I.A.S. No. --; U.S.-Hungary Extradition 
Treaty, Dec. 1, 1994, art. 21, T.I.A.S. No. --.
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Article 21--Application

    The Treaty, like most of the other United States 
extradition treaties negotiated in the past two decades, is 
expressly made retroactive covering offenses that occurred 
before as well as after the Treaty enters into force.

Article 22--Entry into force

    The first paragraph of this article provides for the entry 
into force of the Treaty, together with the accompanying 
exchange of notes interpreting certain portions of the Treaty, 
when the Contracting States have notified one another through a 
further exchange of diplomatic notes that the requirements for 
entry into force under their respective laws have been 
completed.
    Paragraph 2 of this article provides that the 1931 
Extradition Treaty between the United States and the United 
Kingdom, which governs extradition between the United States 
and Malaysia, will cease to be in effect upon the entry into 
force of this Treaty. However, it will still be in effect in 
extradition proceedings that were submitted and in effect prior 
to the entry into force of this Treaty.

Article 23--Termination

    This article contains standard treaty language describing 
the procedure for termination of the Treaty by either 
Contracting State by giving written notice through the 
diplomatic channels to the other State. The termination shall 
become effective six months after the date of such notice.

              VIII. Text of the Resolution of Ratification

    Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of 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. The Senate's advice and consent is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:

          Nothing in the Treaty requires or authorizes 
        legislation or other action by the United States of 
        America that is prohibited by the Constitution of the 
        United States as interpreted by the United States.