Najib’s house arrest: Not a get-out-of-jail free card — Hafiz Hassan

SEPTEMBER 19 — House arrest is not a get-out-of-jail free card.

That is why, as I wrote in Conditions for Najib’s house arrest to reflect govt’s resolve to fight corruption and abuse of power, Najib remains a prisoner, but serving his prison sentence under house arrest.

House arrest is not provided by law in Malaysia. But it can be enforced under the existing provisions of the Prison Act 1995 (Act 537).

First, since under Section 2 of the Act defines “prison” as “any house, building, enclosure or place, or any part thereof, declared to be a prison under Section 3”, the place or any part of it where the former prime minister is to serve his house arrest can be declared a prison.

Section 3 of the Act empowers the Home Minister to declare, by notification in the Gazette, “any house, building, enclosure or place, or any part thereof, to be a prison” for the purposes of the Act.

Second, under Section 12 of the Act, the Commissioner General of Prison may make and issue order, to be called Commissioner General’s Standing Orders, not inconsistent with the Act or of any regulations made under the Act.

Third, under Section 26(1) of the Act, a prisoner is deemed to be in the lawful custody of the Officer in Charge of the prison and therefore subject to prison discipline and to all written laws relating to prisons or prisoners and to the Commissioner General’s Standing Orders during the period of his imprisonment, whether or not he is within the precincts of a prison.

Accordingly, during the period of his house arrest, Najib should be deemed to be in prison and “shall be subject to all the same incidents as if he were actually in prison”.

Fourth, under Section 43 of the Act, the Commissioner General “may, at any time if he thinks fit, release on licence and on such conditions as may be specified in the licence, a prisoner serving any term of imprisonment.

The Commissioner General may also, “at any time… modify or cancel the conditions in the licence”.

Fourth, under Section 67 of the Act, the Home Minister may publish in the Gazette such regulations as may be necessary or expedient for the good management and government of prisons, and for carrying out or achieving the objects and purposes of the Act.

Accordingly, regulations made by the Minister may provide for Najib’s house arrest.

Regulations are subsidiary legislation, but law, nonetheless. They have the force of law, not unlike the Movement of Control Orders (MCOs) which were made under the Prevention and Control of Infectious Diseases Act 1988 (Act 342) to prevent the spread of the Covid-19.

Call Najib’s house arrest a CMO, if you like.

So, while there have been concerns and regrets expressed over Najib’s conditional pardon that allows the former prime minister to serve the remainder of his prison sentence under house arrest, the same can be enforced under provisions of the Act.

That makes Najib’s house arrest a rule of law sentence.

Not a get-out-of-jail free card.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.