KUALA LUMPUR, Dec 23 — The High Court has said there are no laws in Malaysia that provide the mechanism for house arrest, and that this means that an order for former prime minister Datuk Seri Najib Razak to serve the rest of his jail term at home cannot be carried out.
In her 41-page written judgment released today, High Court judge Alice Loke Yee Ching said the former Yang di-Pertuan Agong’s house arrest order for Najib was not valid, as it did not follow the procedures in the Federal Constitution.
The judge said the High Court therefore cannot direct the Malaysian government to carry out house arrest on Najib as the Agong’s order was invalid, but also went on to say there are currently no laws for house arrest.
“In any event, I am of the view that a house arrest order is not capable of execution, there being no legal provision for such mechanism in Malaysia,” she said.
While Najib’s lawyer had argued that the Prisons Act 1995’s Section 43 enables house arrest to be carried out in Malaysia and on Najib, the judge disagreed.
Under Section 43, the Commissioner General of Prisons has the discretion to decide whether to release prisoners on licence, which means they will be allowed to serve their jail term outside of prison at a place specified by the Commissioner General, and based on conditions set by the Commissioner General.
The judge pointed out that Section 43 enables the Commissioner General to decide how long a prisoner would be released on licence, and that the prisoner can be recalled to prison at any time.
Separately, Regulation 111 of the Prisons Regulations 2000 also empowers the Commissioner General to release on licence a prisoner — who has served at least four years of their jail term — and to set the conditions for a prisoner’s release on licence.
The conditions are specified in a form in the Prisons Regulations’ Second Schedule, including the address where the prisoner has to go to and cannot leave without the Commissioner General’s consent, and the number of days the prisoner is released on licence, and to abstain from breaking the law and associating with persons of bad character.
“In the light of these provisions, it can hardly be said that this is the mechanism to implement a house arrest,” the judge said when referring to Section 43 and Regulation 111.
Since the former Agong’s add-on or addendum order already states that Najib will serve the rest of his six-year jail term at his Kuala Lumpur home, the judge said this house arrest order does not give the Commissioner General any discretion at all to decide on whether to recall Najib to prison or how long the release will last.
“In a release on licence, the Commissioner General decides on the duration.
“In the case of the Addendum Order, the duration of the house arrest has already been stipulated, leaving no discretion for the Commissioner General. He is also not given any discretion to recall the Applicant to prison,” the judge said, referring to Najib as the applicant.
“Clearly the house arrest in the Addendum Order is at variance with the provisions relating to release on licence. It is my view that the release on licence is a statutory power given to the Commissioner General alone,” the judge concluded when pointing out Najib’s house arrest order contradicts prison laws on release on licence.
Yesterday, the High Court rejected Najib’s bid to have the government carry out the 16th Yang di-Pertuan Agong’s January 29, 2024 addendum order for him to be placed on house arrest.
This is because the then Agong had decided to grant Najib a pardon in a January 29, 2024 Pardons Board meeting by cutting down his jail time and fine, but had made an additional order for Najib’s house arrest outside of the Pardons Board meeting, which means the Federal Constitution’s procedures were not followed.
The High Court’s decision yesterday means Najib will have to continue to remain at Kajang Prison, which is where he has been serving his jail term since August 2022.
He has been a prisoner for more than three years now.
Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah yesterday said his client would appeal to the Court of Appeal.
