EXTRADITION IN MALAYSIA
LEGAL COMPLIANCE
OR POLITICAL CONVENIENCE?
N. SIVANANTHAN
Vice President, International Criminal Bar
The Netherlands
INTRODUCTION
Extradition is a formal process for the surrender
of fugitives, convicted or accused, from the
state where a fugitive is found to the state of
trial. It’s a legal arrangement designed to
prevent offenders from circumventing the
criminal justice system by crossing international
borders.
THE GOVERNING LEGISLATION
Extradition Act (EA) 1992 [Act 479]
Principally it provides for two basis for extradition:
• S.3 of EA 1992 – A treaty based extradition
• S.4 of EA 1992 – A non-treaty based
extradition
THE PROCEDURES FOR EXTRADITION
I.
The requesting country makes a requisition for the return of a “fugitive
criminal” (S.12 of EA 1992).
• Requisition is put forward through diplomatic channels to the Minister of
Home Affairs.
• Requesting country shall furnish a warrant of apprehension for the
fugitive criminal issued by that country.
• Particulars of the person and the facts and law under which the person is
accused or was convicted as well as evidence sufficient to justify the issue
of the warrant.
• If the Minister is satisfied that the warrant was issued by a person with
lawful authority, he will then authorise a Magistrate to issue a warrant for
the apprehension of the fugitive criminal.
• The Minister may refuse to authorise the Magistrate to issue a warrant if
he thinks that the offence is political in character or it is not an extradition
offence.
Procedures (Cont’d)
II.
A Magistrate may issue a provisional warrant based on information for
instance, from INTERPOL where the Minister must then be notified. The
Minister, if he thinks fit, may cancel such a provisional warrant (S.13 of
EA 1992).
III.
The “fugitive criminal” shall be remanded before he is brought to the
court for an inquiry into the case. The Sessions Court has jurisdiction to
hear extradition cases (S.18 of EA 1992).
IV. The Sessions Court, after receiving sufficient evidence, shall decide
whether a prima facie case has been established against the fugitive. If a
prima facie case has been made, the Court shall commit him and report
to the Minister. If a prima facie case has not been established, the court
will then discharge him. The Sessions Court is also empowered to
receive evidence to show that the fugitive should not be returned (S.19
of EA 1992).
V.
The fugitive criminal may also consent to waive the committal
proceedings and hence be subjected to any orders (S.22 of EA 1992).
Procedures (Cont’d)
VI. Upon issuance of the committal order by the Sessions Court, the fugitive
criminal may apply to the High Court for a writ of habeas corpus. Upon
the decision made by the High Court Judge, the aggrieved party may file
an appeal against the said decision to the Federal Court. (S.36 of EA
1992).
VII. Fifteen days after his committal to prison or after the conclusion of the
habeas corpus, the Minister may order the fugitive to be handed over to
the requesting country (S.21 of EA 1992).
VIII. The Minister has the power to discharge a fugitive criminal after being
committed to custody if it appears to the Minister that the case is trivial
in nature, the application was not made in good faith or for any other
reason that seems just (S.47 of EA 1992).
IX.
Fugitive criminals who are serving sentences in Malaysia may also be
returned to the requesting country for the purpose of a trial against him.
He will then be returned to Malaysia to complete his sentence and
subsequently be returned to the requesting country.
EXTRADITION - WITH A BINDING TREATY
It is universally understood that the state does not
have any obligation to surrender an alleged criminal to
a foreign state. This is in line with the principle
of sovereignty where every state has a legal authority
over the people within its borders. However where
there is an Extradition Treaty in place, Malaysia has the
obligation to consider the requests for extradition, and
the process will be dealt with in accordance with the
provisions of the treaty.
Presently, Malaysia has concluded bilateral treaties on extradition with six
countries and they are as follows:
1.
Extradition Treaty between Great Britain and Siam;
2.
Treaty for Mutual Surrender of Fugitive Criminals between Malaysia and
the Republic of Indonesia;
3.
Extradition Treaty between the Government of Malaysia and the
Government of the United States of America;
4.
Agreement between the Government of Hong Kong and the Government
of Malaysia for the Surrender of Fugitive Offenders;
5.
Treaty between the Government of Malaysia and the Government of
Australia on Extradition;
6.
Extradition Treaty between the Government of Malaysia and the
Government of the Republic of India;
Simplified Extradition - Return of Fugitive Criminals to
Brunei and Singapore
With regards to Brunei and Singapore, special provisions are provided within
Part V S.25 – S.28 of the Extradition Act 1992 which largely simplifies the
extradition process for these countries without the need for a treaty.
I.
S.25 (2) EA 1992 – Allows extradition for offences punishable on
conviction with imprisonment for a term exceeding 6 months under the
laws of Brunei and Singapore.
II. S.26 EA 1992 – An arrest warrant issued by Brunei and Singapore can be
executed in any part of Malaysia after it has been endorsed by a
Magistrate in Malaysia.
III. S.28 EA 1992 - When the requested person is arrested on warrant, the
person must be produced before a Magistrate who will direct the
transfer of that person to the appropriate court in Brunei or Singapore.
EXTRADITION – WITHOUT A TREATY
In the event a country having no Extradition Treaty
with Malaysia makes a request to extradite a fugitive
criminal, Section 3 of EA 1992 clearly states:
“the Minister may personally, if he deems it fit to do so, give a
special direction in writing that the provisions of this Act shall
apply to that country in relation to the extradition thereto of that
particular fugitive criminal.”
When such a request is made, the Minister shall then
issue a Special Direction to enable the request to be
executed after the relevant legal preconditions for
extradition has been satisfied.
Muhammad Rizalman – Extradition request from New Zealand
• On 3rd of October 2014, New Zealand Government requested the Malaysian
Government to extradite Muhammad Rizalman Bin Ismail a Second Warrant
Officer at the Malaysian High Commission in Wellington.
• Muhammad Rizalman was accused of burglary and assault with intent to rape a
21 year old New Zealand citizen, Tania Billingsley at her home. He was charged
in the Wellington District Court and had invoked his diplomatic immunity and
returned to Malaysia on the 22nd of May 2014.
•
Since there is no binding treaty governing extradition between Malaysia and
New Zealand, the Minister of Home Affairs in Malaysia, has the prerogative to
decide whether to allow the extradition request based on the evidence put
before him.
• Both the Governments of New Zealand and Malaysia had agreed to commit and
expedite the legal process. On the 25th October 2014 Rizalman was extradited
back to New Zealand and on 27th October 2014 he was remanded after the
charges were read to him in Wellington District Court.
LEGAL PRECONDITIONS FOR EXTRADITION
Section 6 of EA 1992 should be referred to in the event a
request for extradition is put forward by the requesting country.
Extradition offences includes fiscal offences which is punishable
with imprisonment for not less than one year or with death
under the laws of the country having extradition treaties with
Malaysia where the Minister had granted an extradition order
and which if committed within the jurisdiction of Malaysia, is
punishable with imprisonment for not less than one year or with
death.
1) Political Offences - Section 6 of EA 1992
• Section 8 of EA 1992 states that a fugitive criminal shall not be
surrendered to the requesting country for reasons based on political
character or opinions.
• Article 3, paragraph A, of the United Nation’s Revised Manual on the
Model Treaty on Extradition defines ‘political offence’ which are
protected under the Extradition Act to be of non-violence, such as
prohibited criminal slander of the Head of State by a political opponent or
banned political activity.
• It’s agreed that while such an act might be acceptable in the requested
State, their political tolerance and freedom of speech may differ and thus,
the requested government should be reluctant to grant extradition for
such ‘political offences’.
• Since Malaysia’s court practice allows for the application of common law,
thus the definition given in the case of Regina v. Governor of Brixton
Prison, Ex-parte Schtraks (1964) AC 566 at page 591 to 592 comes in
handy.
• Viscount Radcliffe has clearly defined the phrase “offence of a political
character” to be that the fugitive is at odds with the state where he
applies for his extradition on some issue connected with the political
control or government of the country.
• The analogy of political is such phrases as “political refugee”, “political
asylum” or “political prisoner”.
2) Dual-Criminality
• The other significant requirement that must be adhered to in order for a
requesting country to extradite a fugitive criminal is the principal of dualcriminality.
• According to the dual-criminality principle a person may be extradited
only when their actions constitute an offence in both the requesting and
requested country. The requesting country has no right to claim a person
in the event the act committed is not considered an offence punishable by
the domestic law of the requested country.
• This principle has been clearly laid out in the Malaysian case of Public
Prosecutor v. Lin Chien Ping [1993] 2 MLJ 34. In this High Court case, The
United States government had requested the extradition of the
respondent for the offence of conspiracy to import in excess of 1kg of
heroin into the United States between May 1991 and 20th March 1992
and importation of in excess of 1kg of heroin into the United States on
13th January 1992 as an aider and abettor.
• It was evident that the offences upon which the request was made by the
United States government fell within Section 6 (3) of EA 1992. It was not
disputed that the importation of drugs including heroin was an offence in
Malaysia where the punishment is not less than one year.
• However, High Court Judge Mokhtar Sidin agreed with the Sessions Court
Judge in saying that looking at the provisions of Section 6 of EA 1992, the
offences committed by the respondent against the United States were not
punishable under the laws of Malaysia since the second limb of Section
6(2b) was not satisfied.
• The Dangerous Drugs Act 1952 having no extraterritorial effect, offences
under it if committed outside the jurisdiction of Malaysia, is not
punishable under the laws of this country. As such the offences
committed by the fugitive criminal were not extradition offences under
the Extradition Act 1992.
• Thus, the High Court agreed with the Sessions Court Judge’s decision in
refusing to order the extradition of the respondent.
• Another recent case is the extradition request made for Alvin Tan Jye Yee.
The Malaysian Government has recently made a request to the
Government of the United States to extradite Alvin Tan Jye Yee who
absconded to the United States seeking political asylum after committing
an offence under the Sedition Act 1948.
• However, in line with the principle of dual-criminality, the United States
government is reluctant to allow for such request as sedition is no longer
an offence there.
3) Prima facie case has been proven
• The third precondition for extradition is for the Sessions Court in Malaysia
to decide whether a prima facie case has been proven against the fugitive
criminal.
• In Malaysia, the powers to hear extradition cases are embedded within
the jurisdiction of the Sessions Court as provided under Section 18 of EA
1992. The courts’ ability to scrutinise an extradition request provides an
essential safeguard against oppressive extradition requests by ensuring
that there is genuinely a complaint against the accused that is supported
by at least some evidence.
• Thus, the requesting country has to demonstrate that there is a ‘case to
answer’ by bringing in supporting evidence.
• The statutory law in Malaysia does not define what prima facie case is
when it comes to extradition cases.
• Nonetheless in Public Prosecutor v. Lin Chien Ping [1993] 2 MLJ 34, the
learned High Court Judge clearly states that when an act is presumed an
offence there must be evidence of a prima facie case otherwise there are
no offences for which a person could be extradited. For that, the Courts
must examine the evidence in the light of Malaysian laws including
whether the evidence is admissible under Malaysian law.
• The Sessions Court should at the beginning of the proceedings itself
determine whether the offences committed by the fugitive criminal could
be regarded as extradition offences under Section 6 of EA 1992. This
requirement has been clearly laid out by Augustine Paul J. in the High
Court case of Public Prosecutor v. Ottavio Quattrocchi [2003] 1 MLJ 225.
4) Doctrine of Speciality
• The Doctrine of Speciality also plays an important role in extraditing a
fugitive criminal.
• The Doctrine of Specialty is a principle of International Law that is
included in most extradition treaties, whereby a person who is extradited
to a country to stand trial for certain criminal offences may be tried only
for those offences and not for any other pre-extradition offences.
• This doctrine is developed in order to protect the requested country from
an abuse of its discretionary powers to extradite a fugitive criminal.
MUTUAL ASSISTANCE IN CRIMINAL
MATTERS ACT 2002 (MACMA 2002)
• The evolving and changing nature of telecommunications, technology and
travel has made it easier than ever for criminals to conduct illicit activities
across borders.
• The Mutual Assistance in Criminal Matters Act 2002 [Act 621] helps to
combat crimes across borders. The term mutual assistance has different
meanings in different countries.
• For example, the term mutual assistance is used in some systems to
describe international cooperation generally covering police to police
cooperation, extradition and transfer of prisoners as well as assistance in
gathering evidence via compulsory measures whereas in some countries
mutual assistance is only limited to gathering of evidence through
compulsory measures.
When it comes to the application of the Mutual Assistance in Criminal
Matters Act in Malaysia Section 3 of the Act does list out the types of
assistance that is available such as:
i.
ii.
providing and obtaining evidence and things,
making of arrangements for persons to give evidence, or to assist in
criminal investigations,
iii. executing search and seizure,
iv. locating and identifying witnesses and suspects,
v. service of process,
vi. tracing, restraining of dealings in, freezing, forfeiture and confiscation of
proceeds of crime and instrumentalities of crime,
vii. recovering pecuniary penalties in respect of a criminal matter, and
viii. examining things and premises.
•
Section 4(1) of MACMA 2002, states that Malaysia does not limit its cooperation
with international organisation in matters relating to the types of assistance listed
under Section 3.
•
However, since Malaysia has its own Extradition Act 1992, Section 5 of MACMA
2002 has restricted the authorisation to extradite, or to arrest or detain any
person under this Act.
•
Section 4(3) of MACMA 2002 expressly provides that the Act does not prevent the
provision or obtaining of international assistance in criminal matters under other
written laws in Malaysia. The other provisions of law that allows for the gathering
of evidence in furtherance of international cooperation in criminal matters are:
1.
Order 66 of the Rules of Court 2012
Order 66 provides for requests of obtaining evidence for foreign countries
where a request is to be made to Malaysia through letters of request.
Originally Order 66 was meant for obtaining evidence for civil matters.
However, the Supreme Court in the cases of Dato’ Mohamed Hashim
Shamsuddin v Attorney General, Hong Kong [1986] 2 MLJ 112 and Lorrain
Esme Osman v Attorney General of Malaysia [1986] 2 MLJ 288 extended
their use to criminal matters.
2.
Part VII of the Dangerous Drugs (Forfeiture of Property) Act 1988
This part in the Act provides for Malaysia to render assistance for
drug related matters including for any investigation, inquiry, trial or
other proceedings in line with Malaysia’s obligations under Article 7
of the United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances 1988.
3.
Section 50 of the Extradition Act 1992
Section 50 allows for the taking of evidence in Malaysia for the
purpose of any extradition matter that is pending in a foreign court
while Section 52 provides for the taking of evidence in Malaysia for
transmission to a foreign country for use in any extradition
proceedings in that court to obtain the return of a fugitive criminal
to Malaysia.
• Under Section 17 of the Mutual Assistance in Criminal Matters Act 2002,
Malaysia may request and provide mutual assistance in criminal matters
to a treaty-partner State pursuant to a treaty on mutual assistance in
criminal matters that is in force between the two States.
• Section 18 provides that for non-treaty partner States, Malaysia may
provide mutual assistance in criminal matters in accordance with a Special
Direction from the Minister in charge with the responsibility for legal
affairs, on the recommendation of the Attorney General.
• The Attorney General is the designated Central Authority for Malaysia in
relation to all mutual assistance in criminal matters requests. Section 7 of
the Act states that all requests for mutual assistance in criminal matters
are to be made by or through the Attorney General which will then be
executed in accordance with Section 19 of the Act.
LEGAL COMPLIANCE OR POLITICAL CONVENIENCE
• It might seem that once all the procedures laid out in the Extradition Act
1992 are complied with and the Sessions Court is satisfied that all the
legal preconditioned are observed the fugitive criminal shall be
surrendered to the requesting country.
• However there are further sections under the Act that allow for the
decision of the Session Court to be challenged.
• The Home Minister has been accorded with far reaching powers under
Section 47 of EA 1992. This section allows the Minister to discharge a
fugitive criminal after the fugitive is committed to custody if it appears to
the Minister that the case is trivial in nature, the application was not
made in good faith or for any other reason that seemd just.
Mohammad Kamal Said (Manuel Amalilio)
•
Mohammad Kamal is wanted in the Philippines for duping thousands of Filipinos in
a 12 Billion Peso Ponzi scheme using his Aman Futures Group Philippines Inc.
•
He is facing criminal charges for the firm's alleged pyramid scam, the largest the
Philippines has ever seen. The Malaysian fled to Sabah in November 2012 after
President Aquino ordered his arrest. The Philippines government subsequently
made a formal request for the extradition of Mohammad Kamal.
•
The Home Affairs Minister had exercised his power under Section 47 of the EA
1992 to not extradite Kamal to the Philippines. It is understood that Mohammad
Kamal's family had made a representation to the Minister of Home Affairs in
regards to this matter enabling him to exercise his powers under Section 47.
•
It is also widely reported that Manuel Amalilio is the nephew of Sabah Chief
Minister Datuk Seri Musa Aman. Chief Minister Musa Aman is also the brother of
Malaysian Minister of Foreign Affairs Dato Seri Anifah Aman. Musa has admitted
that Mohammad Kamal is a “distant relative” but denied that he had interfered in
the Philippines’s extradition request.
S.36 of the Evidence Act 1992 also allows a fugitive criminal to apply to the High
Court for a writ of habeas corpus upon issuance of a committal order for extradition
by the Sessions Court.
Sajad Farhadi
• Farhadi, the son of an Iranian VIP is wanted by the US for more than 30 criminal
counts. The US government had requested his extradition from Malaysia for
committing conspiracy to violate the Iranian Embargo, export control forfeiture
and the smuggling of goods in the Northern District of California. A Sessions
Court in Malaysia issued the extradition order.
• Farhadi made a habeas corpus application to the High Court and the presiding
Judge allowed the application stating that the corresponding offences preferred
against Farhadi had failed to satisfy the cardinal principle of dual criminality and
that they were not extradition offences.
• The Attorney-General’s Chambers appealed against this decision to the Federal
Court. A five panel quoram agreed with the decision made by the High Court
initially which allowed Farhadi’s writ of habeas corpus.
• Section 19(4) of EA 1992 - The Public Prosecutor may apply to the High
Court for a review of the order of discharge by the Sessions Court on any
question of law, within ten days from the decision made by the Sessions
Court.
• Section 37 (1) of EA 1992 – Provides the High Court with the power to
review.
• Section 37 (6) of EA 1992 – The High Court may then confirm, vary or
quash the order or make a new order in substitution for the order
quashed, and this order shall be final and conclusive. The landmark case
of Ottavio Quattrocchi established this.
Ottavio Quattrocchi
•
The Government of India had made a request for the extradition of Ottavio, an
Italian residing in Malaysia, accusing him of the commission of the offences of
'criminal conspiracy’ in cheating and dishonestly inducing delivery of property.
•
The Sessions Court Judge held that his arrest was illegal in view of the absence of
charges in the proceedings.
•
The Prosecutors promptly applied for a review of the order to the High Court. The
High Court Judge held that failure to supply the Court and the respondent with the
charges was fatal and dismissed the appellant's application.
•
Before the Court of Appeal, the main issue raised was whether, in an extradition
proceeding, there was a right of appeal from the decision of the High Court to the
Court of Appeal. The Court of Appeal held that the decision was not appealable
and struck out the appeal.
•
A further appeal was made to the Federal Court and it was held that there was no
right of appeal to the Federal Court in view of S. 37(6) of the EA 1992 and S. 87(1)
of the CJA.
Hamza Kashgari
•
Hamza Kashgari fled Saudi Arabia after a controversy erupted when he posted on
his Twitter account, a conversation he imagined to have had with the Prophet
Mohammed. A directive was issued for his arrest for blasphemy.
•
Hamza fled the country, hoping to secure political asylum in New Zealand but was
arrested in Kuala Lumpur while in transit and a few days later Malaysia deported
Hamza to Saudi Arabia where he is to face charges of blasphemy. Attempts were
then made by the Home Minister to masquerade this process as an extradition
exercise but Malaysia did not have an extradition treaty with Saudi Arabia.
•
The offence of blasphemy also does not satisfy the dual criminality requirement
and Malaysia was under no legal obligation to return Hamza to Saudi Arabia.The
Malaysian government acted only in its own interests and chose to prioritise
diplomatic relationship over the lawful rights of Hamza Kashgari.
•
After deportation to Saudi Arabia, Hamza was held for nearly 2 years in detention
without trial. On the 29th October 2013 he was released but the Saudi government
has refused to comment on the reasons for his release.