Lawyers weigh in on whether Agong can grant house arrest
Published: Apr 19, 2024 8:27 AM
Lawyers have expressed concerns over Najib Abdul Razak’s claims of a supplementary royal order for the former prime minister’s remaining jail sentence to be served under house arrest.
Speaking to Malaysiakini, legal practitioners raised questions on whether a royal pardon can include a “house arrest provision”.
Lawyer Goh Cia Yee opined that the powers of the Yang di-Pertuan Agong to grant a pardon should be limited to the legal avenues available for sentencing.
This, Goh said, would either be granting Najib a full pardon or a reduction of the former premier’s sentence.
“We are not sure at this juncture what the alleged addendum order means when it mentions house arrest.
“Did it specify the exact conditions of this house arrest? It could be extremely vague, which in turn would make such an order unenforceable. Does it mean a curfew or complete confinement at home?” he questioned.
Lawyer Andrew Khoo
Lawyer Andrew Khoo shared similar views.
Khoo was of the view that it might be unconstitutional for the Agong or Pardons Board to order a home detention.
Citing Articles 42(1) and 42(2) of the Federal Constitution, he voiced concerns about whether the Agong’s power to grant pardons and commute a sentence can include the power to direct that a convicted person serve his sentence in a particular way.
Article 42(1) stipulates that the Agong has the power to grant pardons, reprieves and respites in respect of all offences in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
Article 42(2) refers to any power conferred by federal or state law to remit, suspend, or commute sentences for any offence shall be exercisable by the Agong. It also mentioned that this power can be exercised without prejudice to any provision of federal law relating to the remission of sentences for good conduct or special services.
“The general question that might be asked is whether the words ‘pardons’, ‘reprieves’, ‘respites’, ‘remit’, ‘suspend’ and ‘commute’ can be said to extend to describing the manner in which a sentence is to be served,” Khoo told Malaysiakini.
Royal addendum
Najib is seeking leave to commence a judicial review for the implementation of the alleged supplementary order by the former Agong, linked to the partial pardon that halved his jail sentence to six years and discounted his fine from RM210 million to RM50 million.
According to his affidavit supporting his judicial review, the former Pekan MP claimed that the 16th Yang di-Pertuan Agong’s main royal order allowing the partial pardon was accompanied by a supplementary royal order containing the house arrest provision.
Lawyer Andrew Khoo shared similar views.
Khoo was of the view that it might be unconstitutional for the Agong or Pardons Board to order a home detention.
Citing Articles 42(1) and 42(2) of the Federal Constitution, he voiced concerns about whether the Agong’s power to grant pardons and commute a sentence can include the power to direct that a convicted person serve his sentence in a particular way.
Article 42(1) stipulates that the Agong has the power to grant pardons, reprieves and respites in respect of all offences in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
Article 42(2) refers to any power conferred by federal or state law to remit, suspend, or commute sentences for any offence shall be exercisable by the Agong. It also mentioned that this power can be exercised without prejudice to any provision of federal law relating to the remission of sentences for good conduct or special services.
“The general question that might be asked is whether the words ‘pardons’, ‘reprieves’, ‘respites’, ‘remit’, ‘suspend’ and ‘commute’ can be said to extend to describing the manner in which a sentence is to be served,” Khoo told Malaysiakini.
Royal addendum
Najib is seeking leave to commence a judicial review for the implementation of the alleged supplementary order by the former Agong, linked to the partial pardon that halved his jail sentence to six years and discounted his fine from RM210 million to RM50 million.
According to his affidavit supporting his judicial review, the former Pekan MP claimed that the 16th Yang di-Pertuan Agong’s main royal order allowing the partial pardon was accompanied by a supplementary royal order containing the house arrest provision.
He is seeking a court order to compel the home minister, the attorney-general, the Pardons Board, the federal government, and a few other respondents to confirm this alleged addendum in the partial pardon.
According to a copy of the judicial review bid, Najib claimed that the Agong issued the addendum on Jan 29, the same day as the main partial pardon order.
Najib is seeking a court order to compel the respondents to not only confirm the royal addendum but also to “forthwith remove the applicant from Kajang Prison facility to his known residences in Kuala Lumpur, where the applicant would continue to serve his imprisonment sentence under house arrest.”
Najib also seeks a mandamus order to compel the respondents to provide the original version of the royal addendum, costs, and any other relief deemed fit by the court.
He claimed in his affidavit to support the judicial review that his rights had been adversely affected and infringed upon by the respondents in ignoring his inquiries over the alleged royal addendum.
The respondents’ disregard of his request constituted a direct intrusion of his basic rights under the Federal Constitution and also amounted to direct contempt of the Agong, he added.
The former Umno president further alleged that the respondents were trying to conceal the existence of the alleged royal addendum.
No provision in legal framework
Goh pointed out that “house arrest” or “house detention” does not exist within the country’s legal framework.
“It is not an existing alternative to imprisonment,” he said.
Pasir Gudang MP Hassan Abdul Karim
Lawyer-cum-Pasir Gudang MP Hassan Abdul Karim agreed.
Speaking to Malaysiakini, Hassan said there are no regulations or subsidiary legislations about “house arrest”.
“I don’t hear any bill tabled in the Parliament for such provisions called ‘house arrest’.
“Without proper statutes or acts, nobody can apply for house arrest. This is totally against the principle of rule of law,” the PKR lawmaker asserted.
However, Khoo noted that Section 43 of the Prison Act 1995 allows for the release of any prisoner “on licence” but it is “subjected to any regulation made by the minister” - in this case, falls under the purview of Home Minister Saifuddin Nasution Ismail.
The provision also stipulates that the “conditions” for the release of any prisoner “may be specified in the licence”.
Previously, Bernama reported that the government had agreed in principle to implement the licensed prisoner release, through home detention, for prisoners serving jail time of four years and below, as an effort to reduce overcrowding in prisons.
Saifuddin was quoted as saying his ministry is in the process of examining the implementation method from the point of view of relevant legal provisions, and whether the existing laws and regulations need to be amended.
‘Not on the list’
However, Saifuddin assured that Najib is not on the list of prisoners who will be serving time under house arrest.
The minister told Malaysiakini previously that only prisoners serving less than four years of jail time, senior citizens, pregnant women and people with disabilities will be on the home detention list.
Lawyer-cum-Pasir Gudang MP Hassan Abdul Karim agreed.
Speaking to Malaysiakini, Hassan said there are no regulations or subsidiary legislations about “house arrest”.
“I don’t hear any bill tabled in the Parliament for such provisions called ‘house arrest’.
“Without proper statutes or acts, nobody can apply for house arrest. This is totally against the principle of rule of law,” the PKR lawmaker asserted.
However, Khoo noted that Section 43 of the Prison Act 1995 allows for the release of any prisoner “on licence” but it is “subjected to any regulation made by the minister” - in this case, falls under the purview of Home Minister Saifuddin Nasution Ismail.
The provision also stipulates that the “conditions” for the release of any prisoner “may be specified in the licence”.
Previously, Bernama reported that the government had agreed in principle to implement the licensed prisoner release, through home detention, for prisoners serving jail time of four years and below, as an effort to reduce overcrowding in prisons.
Saifuddin was quoted as saying his ministry is in the process of examining the implementation method from the point of view of relevant legal provisions, and whether the existing laws and regulations need to be amended.
‘Not on the list’
However, Saifuddin assured that Najib is not on the list of prisoners who will be serving time under house arrest.
The minister told Malaysiakini previously that only prisoners serving less than four years of jail time, senior citizens, pregnant women and people with disabilities will be on the home detention list.
Home Minister Saifuddin Nasution Ismail
“Najib is not included in that list,” he said.
Earlier, Harian Metro reported that Putrajaya’s newly proposed house arrest for prisoners was intended to reduce overcrowding in jails, not to be abused by convicted leaders.
Saifuddin had dismissed claims that the home detention policy was meant to allow Najib to serve his remaining prison term in the comfort of his home as ill-intentioned.
“Najib is not included in that list,” he said.
Earlier, Harian Metro reported that Putrajaya’s newly proposed house arrest for prisoners was intended to reduce overcrowding in jails, not to be abused by convicted leaders.
Saifuddin had dismissed claims that the home detention policy was meant to allow Najib to serve his remaining prison term in the comfort of his home as ill-intentioned.
Next will surface Royal Addendum No. 3 , specifying House Arrest with full freedom to travel within 100 km. If his house...
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