Certificates of Cooperation: Process needs to be clear

What is the process in which a Certificate of Cooperation gets issued? How and when are the decisions made?

These were the main questions on my mind coming out of Mohammad Ridzuan bin Md Ali’s appeal on Thursday morning. A five-judge court had been convened – for the first time in almost two decades – but had not been able to provide any clarity on the issue as Ridzuan’s criminal motion was dismissed on procedural grounds.

Ridzuan and Haleem: same charge, different sentence

Ridzuan and his friend Abdul Haleem Abdul Karim were both arrested in May 2010 and charged with trafficking 72.5g of heroin. Both had sought to plead guilty at first, but were not allowed to do so as they were both capital cases. So they went to trial and were convicted in 2013.

The Attorney-General’s Chambers (AGC) granted Haleem a Certificate of Cooperation, and he was sentenced to life in prison with 24 strokes of the cane. Ridzuan, on the other hand, did not receive a Certificate of Cooperation, and the judge had no choice but to sentence him to death.

The Straits Times reported that when Haleem heard his friend would be sent to the gallows, he asked the judge not to spare him.

Choking with emotion, he told Justice Tay Yong Kwang: “If you are sparing my life and not sparing his life, I’d rather go down with him.”

But the judge replied: “The court does not have complete discretion to do whatever you want me do.” 

Abdul Haleem then pointed out that he and his friend faced the same charges.

The judge told him: “You have certification from the Attorney-General’s Chambers, he does not.”
– ‘Drug courier spared the death penalty’, The Straits Times, 11 April 2013

Besides the appeal against his conviction, Ridzuan’s lawyers had sought on Thursday morning to ask the court to issue a mandatory order to compel the AGC to issue Ridzuan a Certificate of Cooperation. But the Court of Appeal did not have the power to grant such an order; an application has to be made to the High Court instead. Whether the High Court will order the AGC to issue Certificates of Cooperation remains to be seen.

Questions relating to the Certificate of Cooperation

The amendments to the mandatory death penalty are welcome in the sense that it allows judges a little more latitude in their sentencing. But this process of granting (or not granting) Certificates of Cooperation has always been a point of concern.

The judges in court on Thursday had briefly asked Deputy Public Prosecutor Francis Ng about the process of issuing Certificates of Cooperation. DPP Ng responded that the framework offers the “greatest flexibility”, so as to help the accused to offer to cooperate at any time and “be considered” by both the Central Narcotics Bureau (CNB) and the public prosecutor.

This gives us little assurance; it doesn’t tell us how “substantive cooperation” is defined, or what the CNB and public prosecutor will take into consideration when they make their decision. There is no demonstration of transparency in this process, and no effort made to address the issue of how the issuing of such certificates give investigators and prosecutors enormous power over a person’s life or death – perhaps even more than judges have.

DPP Ng had tried to explain that the process would not disadvantage couriers with little information to give. Even if an accused person insists that he/she did not know that he/she was carrying drugs, he/she would still be able to give information on the people who had given him the bag to carry.

But this is exactly what Cheong Chun Yin did; claiming that he had not known he was carrying heroin (he believed they had been gold bars), he nonetheless provided CNB with the name, description and phone number of the man who had recruited him. Yet Chun Yin has not received a Certificate of Cooperation, and still sits on death row.

What informed the decision to not grant him a Certificate?

The Certificate of Cooperation is a crucial aspect of the amendments to the mandatory death penalty for drug trafficking. It is one of the criteria that determines whether the court is allowed to exercise discretion or not. The process towards granting such a certificate should, at the very least, be transparent and clear. Otherwise, how are we to tell if accused persons who have been denied the Certificate were unfairly prejudiced in some way or another?

By: Kirsten Han

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