Malaysia Judicial Assistance


Malaysia Judicial Assistance

DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL.


PROVISO: This flyer seeks only to provide information; it is not an opinion on any aspect of U.S., foreign, or international law. The U.S. Department of State does not intend by the contents of this flyer to take a position on any aspect of any pending litigation.

APPLICABLE TREATIES OR OTHER AGREEMENTS

The Vienna Convention on Consular Relations, 21 UST 77; 596 UNTS 261; TIAS 6820 (Article 5);
U.S. - U.K. Bilateral Consular Convention, signed June 6, 1951, 3 UST 3426; 165 UNTS 121; TIAS 2494;
U.S. - U.K. Extradition Treaty, signed December 22, 1931; 12 Bevans 482

OBTAINING EVIDENCE

VOLUNTARY DEPOSITIONS: The taking of depositions of willing witnesses in Malaysia is governed by Article 5(f) and 5(j) of the Vienna Convention on Consular Relations (to which Malaysia and the United States are parties); U.S. - U.K. Consular Convention of 1951 (which continues in force between the U.S. and Malaysia); 22 U.S.C. 4215; 22 USC 4221; 18 U.S.C. App. Fed. R. Civ. P., Rules15 and 17; 28 U.S.C. Fed. R.Civ. P., Rules 28-31; 22 CFR 92.55 - 92.66 (general authority)

Voluntary depositions may be conducted in Malaysia regardless of the nationality of the witness, provided no compulsion is used. The witnesses may refuse to take an oath or refrain from answering any or all questions. Oral depositions or depositions on written questions may be taken by U.S. consular officers or by private attorneys from the U.S. or Malaysia at the U.S. Embassy or at another location such as a hotel or office, either on notice or pursuant to a commission (22 U.S.C. 4215; 4221; 18 U.S.C., Appendix, Rules of Criminal Procedure, Rules 15 and 17; 28 U.S.C., Appendix, Rules of Civil Procedure, Rules 28-31; 22 CFR 92.55 - 92.66 (general authority).

ARRANGING FOR CONSULAR ASSISTANCE: Consult our general flyer, Obtaining Evidence Abroad for a checklist of information inquirers will need to provide to the U.S. embassy or consulate to arrange consular depositions. If the services of a U.S. consular officer are required to administer an oath to the witness, interpreter and stenographer, such arrangements must be made in advance with the U.S. embassy directly. Contact the U.S. Embassy in Malaysia to schedule a deposition of willing witnesses directly on U.S. consular premises, to arrange the participation of a consular officer to administer oaths off-site, or to obtain information about court reporters, stenographers or interpreters.

PARTICIPATION BY LOCAL, STATE OR U.S. GOVERNMENT OFFICIALS: Local, State or U.S. Government officials must have formal U.S. Embassy and Host Country clearance before traveling to a foreign country to conduct informal interviews related to judicial assistance matters or depositions. If participation of such officials is envisioned, they should contact the East Asia and Pacific Division of the Office of American Citizens Services which will transmit the request for host country clearance to the U.S. Embassy in Kuala Lumpur for transmittal to the Foreign Ministry of Malaysia. Police clearance does not constitute formal host country clearance.

COMPULSION OF EVIDENCE (TESTIMONY, DOCUMENTS, ETC.): Compulsion of evidence is obtained in Malaysia pursuant to a letter rogatory. A letter rogatory is a request from a court in the U.S. addressed "to the Appropriate Judicial Authority" of the foreign country. For details about the process consult our general information flyer, Preparation of Letters Rogatory. We understand that letters rogatory are executed in Malaysia pursuant to Order 66, Rule 2, Rules of the High Court, 1980; Order 66, Rule 4(1), Rules of the High Court.

Any letter rogatory intended for use in Malaysia should include the following:
-- an offer of reciprocal assistance;
-- a statement expressing willingness to reimburse the Malaysian judicial authorities for costs incurred in execution of the letter rogatory;
-- the seal of the court and signature of the judge;

The letter rogatory must be transmitted by the court in the U.S. from which it originates or by attorneys(s) to this office for transmittal to the U.S. Embassy in Kuala Lumpur. The Embassy will forward the request via diplomatic note to the Foreign Ministry of Malaysia which will refer the matter to the Ministry of Justice which will assign it to a court in Malaysia for execution. Requesting counsel should be aware that when letters rogatory are executed by foreign courts which compel the appearance of a witness to answer written interrogatories, the evidence is taken in acccordance with the rules of the foreign court. In most cases an American attorney will not be permitted to participate in such a proceeding. Occasionally a foreign attorney may be permitted to attend such a proceeding and even to put forth additional questions to the witness. Not all foreign countries utilize the services of court reporters or routinely provide verbatim transcripts. Sometimes the presiding judge will dictate his recollection of the witness''s responses to his secretary. Generally letters rogatory worldwide, including those sent to the United States, take from six months to a year to execute.

TRANSLATIONS: English is the official language of Malaysia, therefore, no translation of letters rogatory and accompanying documents is required.

AUTHENTICATION: Malaysia does not require authentication of letters rogatory by the Embassy of Malaysia in the United States.

U.S. CONSULAR FEES: See 22 Code of Federal Regulations 22.1.

REQUESTS FROM STATE OR FEDERAL GOVERNMENT OFFICIALS : If the service is on behalf of the federal, state or local government, there is no fee.  If the letter rogatory is being transmitted at the request of a state or federal official no U.S. consular fee will be charged. However, local authorities in the foreign country may impose fees of their own which must be paid by the state or federal authority in the United States requesting the judicial assistance. You will be contacted if a federal appropriation number and fund code or remittance a check for foreign fees owed by state or local governments in the U.S. are necessary.

SERVICE OF PROCESS

Service of process can be effected in Malaysia in a variety of ways including:

International registered mail, return receipt requested.

Service by an agent can be accomplished by retaining a Malaysian attorney who will serve the documents and execute an affidavit of service at the U.S. embassy. There is a $55.00 fee for the U.S. consular officer's notarial service. Lists of attorneys are available from the Office of American Citizens Services, see Questions below.

Letters Rogatory. As noted above, letters rogatory are a cumbersome procedure. Before proceeding to attempt to effect service of process by letters rogatory, you may wish to consult local legal counsel in Malaysia to confirm that this is necessary. In some countries, in order to enforce any future American judgment in the foreign country, service must have been effected in a means recognized under local (foreign) law.

LISTS OF FOREIGN ATTORNEYS: Lists of foreign attorneys willing to represent U.S. citizens have been prepared by the American Embassy in Malaysia. Copies may be obtained from the Department of State, Office of American Citizen Services.

AUTHENTICATION OF DOCUMENTS: Malaysia is not a party to the Hague Legalization Convention Abolishing the Requirement for Legalization of Foreign Public Documents. Documents originating in Malaysia intended for use in the United States must be authenticated before a U.S. consular officer in Malaysia.

U.S. EMBASSY LOCATION: U.S. Embassy, Consular Section, American Citizens Services, 376 Jalan Tun Razak 50400, Kuala Lumpur, Malaysia or P.O. Box No. 10035, 50700 Kuala Lumpur, Malaysia; tel:011-603-2148-9011; fax: 011-60-3-2148-5801. The Consular sections e-mail is: klconsular@state.gov.