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What's extradition, and is it hard to bring a Malaysian criminal back from overseas?

over 5 years ago JS Lim





This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.




You might remember one of Malaysia’s high profile extradition cases - the story of Muhammad Rizalman. He had entered a young woman’s bedroom with his pants and underwear down after following her home. He was extradited to New Zealand from Malaysia on 14 October 2014 to face the New Zealand court, and after the proceedings, he served a 9 month house-arrest sentence.

Image from radionz

But probably the bigger case in everyone’s minds is that of Sirul Azhar Umar, who had been sentenced to death by hanging for the murder of Altantuya Shaariibuu. Sirul had fled to Australia, but he was not extradited back to Malaysia, because Australia has a law against extraditing people who are facing the death penalty. (more on this later)

There’s been some talk about Sirul getting extradited from Australia back to Malaysia early June 2018, following news about reopening the Altantuya Shaariibuu murder case. This has since been debunked by both Dr Mahathir and the Australian government. Though it looks like while he will not be extradited anytime soon, the Australian government has verified that discussions with the Malaysian government have taken place.

But if the question on your mind is “what is extradition anyway?”, we have you covered.


Extradition means sending someone back to where they committed a crime

Image from borderlandbeat

If you don’t know what “extradition” means, it’s basically when Country A catches a fugitive (a person who’s on the run) from Country B, and delivers that person back to Country B. For example, if you’re caught for stealing in Malaysia and flee to Thailand. The Thai government might catch you and then send you back to Malaysia.

It can happen both ways: a fugitive gets sent from Malaysia back to another country, or gets sent from another country back to Malaysia. But why do we need to use a fancy thing like extradition in the first place? Well...


Malaysian laws don’t apply outside of Malaysia

Image from stjent

We don’t want to go into the complex issues of international law here (so we don’t confuse you), so we’ll try to keep it simple.

Malaysian laws don’t apply in other countries because each country has their own laws. So, you can’t exactly prosecute Thai national using Thai laws for a crime that took place in Malaysia. This is not the most accurate example, but imagine you’re in trouble for insulting a client at work. You’re going to get disciplined by your superior, but not your family (because work rules don’t apply at home).

But, it wouldn’t be helpful to Malaysia if the Thai government refused to catch fugitives that run into Thailand - what if one day Thai fugitives ran to Malaysia too?. To solve the issue of escaped fugitives into another country, countries strike deals with each other called extradition treaties to decide what should be done (a treaty is basically a kind of contract between countries).

[READ MORE - If Malaysia has a disagreement with another country, how do they settle it?]

So does this mean that extraditing a fugitive is as simple as catching the fellow and then putting him on a plane? Not really, as there are certain conditions that must be fulfilled beforehand.


The crime committed must be extraditable

Section 6 of our Extradition Act 1992 provides that for extradition to happen at all, a fugitive must have committed an extradition offence. This is defined as a crime punishable by at least 1 year of prison, or death. The crime must also have happened either in Malaysia, or in a country that Malaysia has an extradition treaty with (although the Minister of Home Affairs can allow a request from countries that Malaysia does not have a treaty with).

Image from NST

The Extradition Act also imposes certain restrictions on who can be extradited in Section 8. The full list is rather long, so we’ve summarized them into a few points here:

  1. The fugitive must not be wanted for a political crime (but this does not include crimes motivated by politics, such as assassination)

  2. They must not be punished for race, religion, nationality, or political opinion

  3. There must be no legal technicalities that would stop the extradition

The procedure for an extradition to happen in Malaysia is as follows:

  1. A requesting country sends a warrant for the arrest of a fugitive to the Malaysian Minister of Home Affairs.

  2. The Minister verifies the document, and then tells a Magistrate Court to issue a warrant for the fugitive’s arrest. The Magistrate can also issue the warrant based on information from INTERPOL (the International Criminal Police Organisation).

  3. When the fugitive is caught, they are put before a Sessions Court in Malaysia and given a chance to show evidence that they should not be extradited.

  4. If the Sessions Court accepts the evidence, the fugitive will be released. But if a preliminary case has been proven, the fugitive is locked up until the Minister orders their surrender to the requesting country.

There are a few possible situations that can develop from here, such as the fugitive challenging his detention as unlawful, but we won’t get into them for the sake of simplicity.


Conditions in extradition treaties must also be followed

From there, we’ve briefly covered Malaysia’s extradition laws, but we need to remember that there are two countries involved here, so their own laws and conditions need to be taken into account as well.

Image from DFAT

Let’s use the Treaty Between The Government Of Australia And The Government Of Malaysia On Extradition as an example. The treaty contains a lot of the rules from our own Extradition Act on when extradition can happen, but there are also additional rules that must be complied with.

For example, Paragraph 2 of Article 3 states that death penalty cases cannot be extradited without discussion and agreement between the countries. Australia has abolished the death penalty, and their Attorney General’s department has stated that they will not extradite anyone facing the death penalty unless they’re assured the death penalty will not be carried out. In fact, Section 15B(3)(b) of the Australian Extradition Act 1988 states that:

“(3)  The Attorney‑General may only determine that the person be surrendered to the extradition country concerned if:
…(b) the Attorney‑General is satisfied that, on surrender to the extradition country, there is no real risk that the death penalty will be carried out upon the person in relation to any offence.” – emphasis added by ASKLEGAL

The countries that Malaysia signs extradition treaties with can very well refuse an extradition request if the treaty is not respected. This is why the Malaysian government is considering revoking Sirul Azhar’s death penalty for the murder of Altantuya, so that he can be extradited from Australia. While there might be a lot of rumours out there about the case, what actually will be done remains to be seen.

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JS Lim

Jie Sheng knows a little bit about a lot, and a lot about a little bit. He swings between making bad puns and looking overly serious at screens. People call him "ginseng" because he's healthy and bitter, not because they can't say his name properly.