[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\
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\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.
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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.
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\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.''
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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.
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\3\ See Stanbrook and Stanbrook, ``Extradition: The Law and
Practice'' 25-26 (1979).
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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.
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\4\ See 21 U.S.C. Sec. 848.
\5\ See 18 U.S.C. Sec. Sec. 1961-68.
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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.
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\6\ See 18 U.S.C. Sec. 1341.
\7\ See 18 U.S.C. Sec. 2314.
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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\
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\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.
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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\
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\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.
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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.
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\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.
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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\
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\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.
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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\
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\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.
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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\
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\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.
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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.
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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\
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\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\
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\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.
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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.
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\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\
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\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.
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\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\
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\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.