Former Malaysian Bar president Salim Bashir says Section 3 of the Prisons Act 1995 could provide the legal basis for Datuk Seri Najib Razak to serve his sentence under house arrest.
PETALING JAYA: Malaysia has no specific law governing house arrest, but Section 3 of the Prisons Act 1995 could provide the legal basis for Datuk Seri Najib Abdul Razak to serve the remainder of his sentence at home, said former Malaysian Bar president Salim Bashir.
Under Section 3, he said the Home minister has the power to declare a house, building, enclosure or other place as a prison, effectively allowing it to be treated as a place of detention.
Salim said the provision could therefore be interpreted as allowing Najib’s residence to be designated as the place where he serves the remainder of his sentence.
The arrangement would put Malaysia’s existing prison law to a new test, as authorities navigate a form of detention for which there is no dedicated statutory framework.
“Since this is an unprecedented move, the prison authorities have to navigate this uncharted territory by ensuring security preparations and compliance with imposed conditions.”
Salim said serving a sentence at home should not be mistaken for freedom, as a prisoner would remain subject to conditions and controls despite being outside prison walls.
“Individual serving detention at home is not absolutely free in real sense, except the convict is serving the sentence outside the prison wall and will be subjected to conditions and live in a controlled environment.”
Such controls, he said could typically include restrictions on movement, reporting obligations and electronic monitoring, although the specific conditions governing Najib’s house arrest have not been publicly disclosed.
Malaysia already has mechanisms allowing prisoners to serve sentences outside conventional prison confinement, including release on licence under Section 43 of the Prisons Act and parole under Section 46.
But Salim said house arrest is a different arrangement and Malaysia would need a clearer legislative framework if it were to be used more widely.
“Malaysia must formulate specific laws on house arrest like Singapore.”
He cited Singapore’s Home Detention Scheme, under which eligible offenders can serve part of their sentence at home subject to strict conditions.
In Malaysia, parole allows eligible prisoners to return to the community under supervision and conditions, while house arrest centres on confinement to a designated residence.
Universiti Malaya Faculty of Law senior lecturer and criminologist Dr Haezreena Begum said Malaysia should also be cautious about describing Najib’s case definitively as the first of its kind, given the country’s history of restricted residence and other forms of supervision outside prison.
Malaysia, she said, did not currently have an established house arrest or home detention programme for convicted prisoners comparable to its parole system.
The distinction is significant because a house-arrest arrangement would keep the prisoner confined to a particular residence, whereas parole allows an eligible prisoner to live in the community under supervision while completing the sentence.
Najib was granted a conditional pardon last Friday allowing him to serve the remainder of his SRC International sentence under house arrest until Aug 23, 2028, subject to payment of a RM50 million fine and compliance with the conditions imposed.
A breach of the conditions would result in the conditional pardon being revoked and Najib returning to prison. – by Harith Kamal
