COMMENT | Constitutional and regulatory gaps in house arrest

COMMENT | Home Minister Saifuddin Nasution Ismail recently asserted that a pardons authority will decide the specific terms and restrictions for Najib Abdul Razak’s house arrest.

According to him, the specific regulatory terms, including surveillance, freedom of movement, and visitation protocols, fall strictly under the purview of the pardoning authority, rather than conventional prison administration.

This administrative arrangement directly impacts the judicial outcome of the former prime minister’s SRC International conviction. Under the conditional pardon, the convicted Najib is permitted to serve the remainder of his custodial sentence under house arrest until Aug 23, 2028.

With due respect, Saifuddin’s statement has heightened the ongoing legal debate regarding the implementation of house arrest in Malaysia.

Compounding the controversy is the fact that Malaysia has no specific statutory legislation governing the mechanisms and procedures of house arrest, as judicially stated by the High Court judge in Najib’s addendum case.

Anyway, a critical prerequisite remains, namely he must fully satisfy the RM50 million fine before transitioning to home confinement - a financial obligation for which the Umno is happily and actively mobilising funds as if their former president is a sainted hero.

As stated earlier, Saifuddin’s pronouncement has intensified constitutional debates within Malaysia’s legal community, primarily centring on the doctrine of ultra vires and jurisdictional boundaries. In fact, the Bar Council has resolved to mount a courtroom challenge against the recent decision concerning Najib.

Article 42(1) of the Federal Constitution explicitly empowers the Yang di-Pertuan Agong to grant "pardons, reprieves and respites." Nonetheless, the text provides no mechanism for the executive or the Pardons Board to devise bespoke, ongoing regulatory frameworks for non-custodial surveillance or house arrest.

Exceeding these limits and overstepping these boundaries could arguably conflict with the black letters and spirit of the Federal Constitution, which stands as the supreme law of the land that everyone must uphold, defend, and protect at all costs.

Under Section 26 of the Prisons Act ( Act 537), any person sentenced to imprisonment must be held in lawful custody under the sole jurisdiction and supervision of the Prison Department.

While Section 43 of the Act permits the minister to release prisoners on licence (parole), it contains no provision empowering a political or pardoning authority to bypass standard prison regulations to enforce a house arrest regime.

Finally, Sections 281 to 301 of the Criminal Procedure Code (CPC) meticulously outline provisions for the execution of sentences, including the suspension of sentences and the collection of fines.

Crucially, the CPC contains a legislative lacuna (loopholes) regarding "house arrest" as a formal method of sentencing or custodial modification, meaning any framework created ad hoc by the executive lacks secondary legislative backing.

Significant legal paradox

By attributing the power to dictate the operational terms of house arrest to the pardoning authority, the home minister's statement seemingly introduces a significant legal paradox.

Without a robust legislative apparatus to govern home confinement, executing such a conditional order creates an unprecedented administrative shift, leaving the operational mechanics of Najib's sentence highly vulnerable to judicial challenge.

Further, the political ramifications could severely compromise the credibility of our legal framework, thereby impeding the influx of foreign direct investment.

It stands to reason that the collective populace should not have to endure systemic disadvantages brought about by a single convicted individual.

There is a profound irony in a country suffering widespread setbacks due to the actions of one convicted individual.

More baffling still is the insistence of some politicians that a political partnership with Umno remains a sustainable path forward.

HANIPA MAIDIN is a former deputy minister of law.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

Minister: 'Pardon authority' to determine restrictions on Najib during house arrest

Govts change but authoritarian legalism stays, activist says after court defeat

Perks behind bars: Hanipa moots regular prison checks after Indonesia scandal

DAP leaders: Declassify Pardons Board meeting minutes on Najib house arrest