KUALA LUMPUR – The Federal Territories Pardons Board (FTPB) can determine the terms for a prisoner to undergo home imprisonment, even though Malaysia does not yet have a law permitting such a punishment, said lawyer Mohamed Haniff Khatri Abdulla.
Speaking to Scoop, Haniff explained that the board – chaired by the Yang di-Pertuan Agong – can convene to set terms for home imprisonment, including movement restrictions and healthcare arrangements.
“Under home imprisonment, the prisoner would have to spend the remaining sentencing period in their house and cannot leave for any events.
“For healthcare, when prisoners fall ill in prison, they are taken to the prison hospital where doctors are brought in. With home imprisonment, if they fall ill, the prison must be informed to arrange for doctors to visit their house,” he said.
The term “home imprisonment” is used instead of “house arrest” to reflect the nature of the punishment within the Malaysian legal context. While house arrest typically refers to a form of pre-trial confinement or a non-custodial measure used as an alternative to jail time for minor offences, home imprisonment involves serving a custodial sentence under strict conditions at home instead of in prison.
On the placement of wardens, Haniff said the Pardons Board could decide to station a certain number of wardens at the prisoner’s house to ensure compliance with the sentencing terms.
The lawyer made these remarks while discussing how the government should address requests for home imprisonment if the high court rules in favour of Datuk Seri Najib Razak being placed under such an arrangement in the future, despite the absence of enabling legislation.
Earlier today, the Court of Appeal issued a ruling remitting Najib’s judicial review on a royal addendum order for home imprisonment back to the High Court for hearing.
The three-member bench, in a 2-1 decision, referred the case back to the lower court, which had previously dismissed Najib’s application for judicial review of the addendum order.
Judge Datuk Azizah Nawawi, delivering the court’s decision, noted that the government had not contested the existence of the addendum order. She stated that since there was no challenge, the court “cannot ignore that there is an order and hence allows the evidence given.”
The King’s prerogative
Commenting on the addendum decree issued by the former Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah – whose existence was confirmed by the Pahang palace – Haniff asserted that the King’s pardoning power is neither limited nor constrained by existing laws. He emphasised the King’s prerogative in exercising his pardoning powers.
He cited the powers granted under Section 43 of the Prisons Act 1995, which allow the Home Minister to authorise the Prison Department’s commissioner-general to release prisoners on licence.
“Are you suggesting that because the Home Minister has this power, the King cannot exercise his prerogative to issue a similar order in his capacity as a pardoner?” Haniff asked.
Acknowledging the public dissatisfaction with the Pardons Board’s decision to reduce Najib’s jail sentence and fine, he urged the public to press their MPs to amend Article 42 of the Federal Constitution. This amendment would clarify the King’s authority to reduce, defer, remit, or suspend sentences for offences committed in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya.
“Until Article 42 is amended, do not question how a prisoner can be sent to undergo home imprisonment,” he added.
Why addendum order when there are prison regulations?
Meanwhile, another lawyer questioned why the FTPB needed to issue an order regarding Najib’s sentence when provisions under the Prison Regulations 2000 already allow for release on licence.
Speaking anonymously, the lawyer highlighted Regulation 111 of the Prison Regulations 2000, which gives the director-general of prisons discretion to release a prisoner on licence after serving at least four years, subject to conditions deemed appropriate.
Since Najib has served less than four years in prison, the lawyer argued he does not qualify for release under licence or placement under home imprisonment.
“The courts may need to consider whether the Pardons Board or the King, under Article 42 of the Federal Constitution, can specify where and how a sentence is served.
“This is because such decisions may not align with the constitutional terms ‘remit,’ ‘reduce,’ or ‘suspend,’ and there are existing regulations that empower the director-general to authorise releases on licence. How do we reconcile these?” the lawyer asked.
While some argue that the King’s decree must be followed as Malaysia practices constitutional monarchy, the lawyer emphasised that such decrees must be tested in court to ensure they conform to the constitution.
“If the constitutional provision on pardons only grants the power to remit or reduce, then the King has already done so by reducing Najib’s sentence from 12 to six years and his fine from RM210 million to RM50 million.
“Beyond that, can the King decree that Najib serve the rest of his sentence at home? Is that within his powers? Where does this fall under the wording of Article 42?” he questioned.
The federal government announced during the tabling of Budget 2025 that it would introduce a new law allowing convicts to serve their sentences at home. – January 6, 2025
