Text - Treaty Document: Senate Consideration of Treaty Document 104-26All Information (Except Treaty Text)

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[Senate Treaty Document 104-26]
[From the U.S. Government Publishing Office]

104th Congress                                              Treaty Doc.
 2d Session                                                    104-26  







               SIGNED AT KUALA LUMPUR ON AUGUST 3, 1995.


 May 17, 1996.--Treaty was read the first time and, together with the 
accompanying papers, referred to the Committee on Foreign Relations and 
            ordered to be printed for the use of the Senate.

                         LETTER OF TRANSMITTAL


                                     The White House, May 17, 1996.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith the Extradition 
Treaty between the Government of the United States of America 
and the Government of Malaysia, and a related exchange of notes 
signed at Kuala Lampur on August 3, 1995.
    I transmit also for the information of the Senate, the 
report of the Department of State with respect to the Treaty. 
As the report explains, the Treaty will not require further 
implementing legislation.
    This Treaty will, upon entry into force, enhance 
cooperation between the law enforcement communities of both 
countries. It will thereby make a significant contribution to 
international law enforcement efforts.
    The provisions in this Treaty follow generally the form and 
content of extradition treaties recently concluded by the 
United States. Upon entry into force of this Treaty, the 
Extradition Treaty between the United States and Great Britain 
signed at London, December 22, 1931, will cease to have effect, 
with certain exceptions, between the United States and 
    I recommend that the Senate give early and favorable 
consideration to the Treaty and give its advice and consent to 

                                                William J. Clinton.
                          LETTER OF SUBMITTAL


                                       Department of State,
                                     Washington, February 17, 1996.
The President,
The White House.
    The President: I have the honor to submit to you the 
Extradition Treaty between the Government of the United States 
of America and the Government of Malaysia (the ``Treaty''), 
signed at Kuala Lumpur on August 3, 1995, and a related 
exchange of notes signed the same date. I recommend that the 
Treaty and the related notes be transmitted to the Senate for 
its advice and consent to ratification.
    The Treaty follows generally the form and content of 
extradition treaties recently concluded by the United States. 
It represents part of a concerted effort by the Department of 
State and the Department of Justice to develop modern 
extradition relationships to enhance the United States ability 
to prosecute serious offenders including, especially, narcotics 
traffickers and terrorists.
    The Treaty marks a significant step in bilateral 
cooperation between the United States and Malaysia. Upon entry 
into force, it will replace the Extradition Treaty between the 
United States and Great Britain that was signed at London on 
December 22, 1931, and entered into force on June 24, 1935. 
That treaty was applied to the Federated and Unfederated Malay 
States as of July 31, 1939, and remained effective in Malaysia. 
That treaty has become outmoded; the new Treaty will provide 
significant improvements and enhance the ability of both 
countries to prosecute a broad range of criminal activity. The 
Treaty can be implemented without further legislation.
    Article 1 obligates each Contracting State to extradite to 
the other, pursuant to the provisions of the Treaty, any person 
charged with or convicted of an extraditable offense.
    Article 2(1) defines an extraditable offense as one 
punishable under the laws of both contracting States by 
deprivation of liberty for a period of more than one year, or 
by a more severe penalty. Use of such a ``dual criminality'' 
clause rather than a list of offenses covered by the Treaty 
obviates the need to renegotiate or supplement the Treaty as 
additional offenses become punishable under the laws of both 
Contracting States.
    Article 2(2) further defines an extraditable offense to 
include an attempt or a conspiracy to commit, aiding or 
abetting, counselling, causing or procuring the commission of 
or being an accessory before or after the fact to any offense 
described in Article 2(1). For such crimes, the Treaty 
accommodates the differences between U.S. and Malaysian 
criminal law (Malaysia, for example, has no general conspiracy 
statute) by creating an exception to the general requirements 
regarding dual criminality and the severity of punishment if 
the underlying offense is an extraditable offense.
    Additional flexibility is provided by Article 2(3), which 
provides that an offense shall be considered an extraditable 
offense: whether or not the laws in the Contracting States 
place the offense within the same category of offenses or 
describe the offense by the same terminology; and whether or 
not the offense is one of which United States federal law 
requires the showing of such matters as interstate 
transportation or use of the mails or of other facilities 
affecting interstate or foreign commerce, such matters being 
merely for the purpose of establishing jurisdiction in a United 
States federal court.
    With regard to offenses that the Requested State considers 
to have been committed within its jurisdiction, Article 2(4) 
permits the Requested State to deny extradition. The United 
States recognizes the extraterritorial application of many of 
its criminal statutes and frequently makes requests for 
fugitives whose criminal activity occurred in foreign countries 
with the intent, actual or implied, of affecting the United 
States. Malaysia's extradition law gives the Minister of Home 
Affairs the discretion to deny an extradition request if the 
offense for which extradition request if the offense for which 
extradition is sought was committed within Malaysian 
jurisdiction. The Treaty will permit the Requested State to 
grant or deny extradition in such circumstances and, if 
extradition is denied, the Requested State shall submit the 
case to its competent authorities for the purpose of 
    In addition, with regard to offenses committed outside the 
territory of the Requesting State, Article 2(5) provides that 
extradition shall be granted if the Requested State's laws 
provide for punishment of an offense committed outside of its 
territory to similar circumstances, and if the requirements of 
extradition under the Treaty are otherwise met. If the laws of 
the Requested State do not provide for punishment in similar 
circumstances, the executive authority of the Requested State 
may, in its discretion, deny extradition.
    Article 3(1) provides that neither Contracting State shall 
be bound to extradite its own nationals but the executive 
authority of the Requested State shall have the discretion to 
do so. In the event that extradition is denied on that basis, 
Article 3(2) requires the Requested State to submit the case to 
its competent authorities for the purpose of prosecution if the 
Requesting State so requests and if the laws of the Requested 
State so allow.
    As is customary in extradition treaties, Article 4 
incorporates a political offense exception to the obligation to 
extradite. Article 4(1) states generally that extradition shall 
not be granted for political offenses. Article 4(2) specifies 
three categories of offenses that shall not be considered to be 
political offenses:
          (a) a murder or other willful crime against the 
        person of a Head of State of one of the Contracting 
        Parties, or of a member of the Head of State's family;
          (b) an offense for which both Contracting Parties are 
        obliged pursuant to a multilateral international 
        agreement to extradite the person sought or to submit 
        the case to their competent authorities for a decision 
        as to prosecution; and
          (c) an attempt or conspiracy to commit, or aiding and 
        abetting, counselling, or procuring the commission of 
        or being an accessory before or after the fact to, such 
The Treaty's political offense exception is narrower than that 
contained in the 1931 treaty it is to replace. It is 
substantially identical to that contained in several other 
modern extradition treaties including the treaty with Jordan, 
which recently received Senate advice and consent and is in 
force. Offenses covered by Article 4(2)(b) of the Treaty 
--aircraft hijacking covered by the Hague Convention for the 
        Suppression of Unlawful Seizure of Aircraft, done at 
        The Hague December 16, 1970, and entered into force 
        October 14, 1971 (22 U.S.T. 1641; T.I.A.S. 7192);
--aircraft sabotage covered by the Montreal Convention for the 
        Suppression of Unlawful Acts Against the Safety of 
        Civil Aviation, done at Montreal September 23, 1971, 
        and entered into force January 26, 1973, (24 U.S.T. 
        564; T.I.A.S. 7570); and,
--narcotics trafficking under the United Nations Convention 
        Against Illicit Traffic in Narcotics Drug and 
        Psychotropic Substances, done at Vienna December 20, 
        1988, and entered into force November 11, 1990.
    Article 4(3) provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request was politically motivated.
    Article 4(4) permits the executive authority of the 
Requested State to deny extradition for military offenses that 
are not offenses under ordinary criminal law (for example, 
    Article 5 bars extradition when the person sought has been 
convicted or acquitted in the Requested State for the same 
offense, but does not bar extradition if the authorities in the 
Requested State have decided not to prosecute or have decided 
to discontinue criminal proceedings against the person sought.
    When an offense for which surrender is sought could be 
subject to capital punishment in the Requesting State but the 
same offense would not be subject to capital punishment in the 
Requested State, Article 6 provides that no extradition request 
shall be submitted without prior consultation and agreement by 
both States to the making of such a request. An accompanying 
exchange of diplomatic notes provides that, in interpreting and 
applying the Treaty, non-disclosure of relevant facts during 
such consultation, whether the non-disclosure was deliberate or 
otherwise and whether such facts were known or unknown at that 
time, would nullify the consultation and any resulting 
agreement reached by the Contracting States. The notes further 
specify that neither Contracting State shall deny automatically 
all requests to which Article 6 would apply, nor exercise its 
discretion under Article 6 based solely on the difference 
between the applicable punishments. This exchange clarifies 
that all pertinent factors must be considered before a decision 
is made.
    Article 7 establishes the procedures and describes the 
documents that are required to support an extradition request. 
The Article requires that all requests be submitted through the 
diplomatic channel.
    Article 7(3)(c) provides that a request for the extradition 
of a person sought for prosecution be supported by evidence 
justifying committal for extradition under the laws of the 
Requested State and specifically eliminates any requirement of 
submitting a prima facie case. An accompanying exchange of 
diplomatic notes clarifies that Article 7(3)(c) shall be 
interpreted to require the United States, when it is the 
Requesting State, to submit the information specified by 
Section 20 of the Malaysian Extradition Act of 1992, which 
provides for a showing of probable cause--the same standard as 
that recognized by United States courts when the United States 
is the Requested State.
    Article 8 establishes the procedures under which documents 
submitted pursuant to the provisions of this Treaty shall be 
received into evidence.
    Article 9 provides that all documents submitted by the 
Requesting State shall be in the language of the Requested 
State unless this requirement is waived by the Requested State.
    When the Requested State considers the documentation 
submitted in support of a request for extradition to be 
insufficient to fulfill the Treaty requirements, Article 10(1) 
provides that the Requested State shall request additional 
documentation and may set a time limit for their submission. 
Pursuant to Article 10(2), if sufficient documentation is not 
timely received to support the extradition request regarding a 
person sought who is in custody, the person may be discharged 
from custody without prejudice to subsequent rearrest and 
extradition if additional documents are subsequently received.
    Article 11 sets forth procedures for the provisional arrest 
and detention of a person sought pending presentation of the 
formal request for extradition. As is customary in modern 
extradition treaties, Article 11(1) provides that a request for 
provisional arrest may be transmitted through the diplomatic 
channel or directly between the United States Department of 
justice and its counterpart, here the Attorney General's 
Chamber in Malaysia.
    Article 11(4) provides that if the Requested State's 
executive authority has not received the request for 
extradition and supporting documentation within sixty days 
after the provisional arrest, the person may be discharged from 
custody. However, upon application of the Requesting State, 
this period may be extended for up to thirty days after the 
expiration of the sixty-day period. Article 11(5) provides 
explicitly that discharge from custody pursuant to Article 
11(4) does not prejudice subsequent rearrest and extradition 
upon latter delivery of the extradition request and supporting 
    Article 12 specifies the procedures governing surrender and 
return of persons sought. It requires the Requested State to 
provide prompt notice to the Requesting State regarding its 
extradition decision. If the request is denied in whole or in 
part, Article 12 also requires the Requested State to provide 
an explanation of the reasons therefor. If extradition is 
granted, the person sought must be removed from the territory 
of the Requested State within the time prescribed by the law of 
the Requested State.
    Article 13 concerns temporary and deferred surrender. If 
extradition is sought of a person being prosecuted or serving a 
sentence in the Requested State,the Requested State may 
postpone the extradition proceedings until its prosecution has 
been concluded or until any sentence imposed has been served. 
Alternatively, that State may temporarily surrender the person 
to the Requesting State for the purpose of prosecution. A 
person who is temporarily surrendered is to be kept in custody 
by the Requesting State and returned to the Requested State 
after conclusion of the proceedings.
    Article 14 sets forth a non-exclusive list of factors to be 
considered by the Requested State in determining to which State 
to surrender a person sought by more than one State.
    Article 15 provides, to the extent permitted under the law 
of the Requested State, for the seizure and surrender to the 
Requesting State of property connected with the offense for 
which extradition is granted. Such property may be surrendered 
even when extradition cannot be effected due to the death, 
disappearance, or escape of the person sought. Surrender of 
property may be deferred if it is needed as evidence in the 
Requested State and may be conditioned upon satisfactory 
assurances that it will be returned. Article 15 imposes an 
obligation to respect the rights of third parties in affected 
    Article 16 sets forth the rule of specialty for this 
Treaty. It provides, subject to specific exceptions, that a 
person extradited under the Treaty may not be detained, tried, 
or punished for an offense other than that for which 
extradition has been granted, unless a waiver of the rule is 
granted by the executive authority of the Requested State. 
Similarly, the Requesting State may not extradite such person 
to a third state for an offense committed prior to the original 
surrender unless the Requested State consents. These 
restrictions do not apply if the extradited person leaves the 
Requesting State after extradition and voluntarily returns to 
it or fails to leave the Requesting State within fifteen days 
of being free to do so.
    Article 17 permits surrender to the Requesting State 
without further proceedings if the person sought provides 
written consent thereto. The Requested State may require that 
such surrender shall be subject to the rule of specialty set 
out in Article 16.
    Article 18 governs the transit through the territory of one 
Contracting State of a person being surrendered to the Other 
State by a third state.
    Article 19 contains provisions on representation and 
expenses that are similar to those found in other modern 
extradition treaties. Specifically, the Requested State is 
required to bear expenses for the legal representation of the 
Requesting State in any proceedings arising out of a request 
for extradition. The Requested State shall bear the costs in 
the event it must retain private counsel to pursue the 
extradition request. The Requesting State is required to bear 
the expenses related to the translation of documents and the 
transportation of the person surrendered. Article 19(3) 
clarifies that neither State shall make any pecuniary claim 
against the other State arising out of the arrest, detention, 
examination, or surrender of persons sought under the Treaty.
    Article 20 states that the United States Department of 
Justice and the Attorney-General's Chambers of Malaysia may 
consult with each other directly or through the facilities of 
INTERPOL in connection with the processing of individual cases 
and in furtherance of maintaining and improving Treaty 
implementation procedures.
    Article 21, like parallel provisions in almost all recent 
United States extradition treaties, states that the Treaty 
shall apply to offenses committed before as well as after the 
date the Treaty enters into force.
    Entry into force is addressed in Article 22. That Article 
provides that the Treaty, together with an exchange of notes 
interpreting certain portions of the Treaty, shall enter into 
force when both parties have notified each other through a 
further exchange of diplomatic notes of the completion of their 
respective requirements for entry into force. Upon the Treaty's 
entry into force, the Extradition Treaty between the United 
States of America and Great Britain, signed at London December 
22, 1931, will cease to have effect between the United States 
and Malaysia, except with respect to pending extradition 
proceedings in which the extradition documents have already 
been submitted to the courts of the Requested State.
    Under Article 23, either Contracting State may terminate 
the Treaty at any time upon written notice through the 
diplomatic channel to the other Contracting State, with 
termination effective six months after the date of such notice.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the United States negotiating 
delegation and will be submitted separately to the Senate 
Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate at an early 
    Respectfully submitted,
                                                Warren Christopher.