Azalina stretching prison's limits to breaking point

Azalina stretching prison's limits to breaking point

P Gunasegaram
Published: Mar 11, 2025 8:11 AM
Updated: 4:19 PM


COMMENT | Question: When was the proposal to detain people at home for prison sentences first mooted?

Answer: Why, after former prime minister and Umno president Najib Abdul Razak was found guilty of corruption and jailed, of course.

He is still facing other charges, but the move to effectively set him free under house arrest is still gathering momentum - but among Umno officials.

So, when we discuss the issue of home detention and the declaration of any premises as a prison, we need to be mindful of whose mouth such questionable assertions are coming from and what their motives are.

One of the main proponents for homes to be declared as prisons is Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said.

She said that, according to the Attorney-General’s Chambers, the Prison Act 1995 empowers the home minister to declare any home, building, or place a “prison” for the purpose of incarceration.

Can a home be a prison?

The implication: Najib can be released into his home to serve his sentence. And so too can anyone else serving any sentence for any offence however serious, so long as the home minister, that all-powerful person mightier than even the prime minister, sees fit, according to this line of incongruous argument.

But is that really the case? If it is not, why does the minister in charge of law and institutional reform float the idea that it may be okay in a parliamentary reply? Is that not highly irresponsible?

Let’s look at Section 3 of the Prison Act 1995. It says: The Minister may, by notification in the Gazette, declare any house, building, enclosure or place, or any part thereof, to be a prison for the purposes of this Act for the imprisonment or detention of persons lawfully in custody and may in like manner declare that any such prison shall cease to be a prison for the purposes of this Act.

The obvious purpose of this is to use other buildings as places of detention, presumably in a situation where there is no room in prison, not for a person to enjoy the freedom and luxury of being in his own home on the pretext of being under house arrest, for which no provision exists.

In some countries, house arrests are reserved for prisoners of conscience, political detainees who disagree with the government. Najib, a convicted felon on a criminal charge, is not in that category at all.

Stretching the limits of law

Pushing and stretching the limits of the law to the point of breaking it and its intention is not something the minister and the Attorney-General’s Chambers (AGC) should be doing for the advantage and privilege entirely of one prisoner, even if he was a former prime minister.

The implications of this and what the law permits are dealt with in detail in this excellent article titled “Can the Home Minister declare a 7-star hotel as a prison?” by lawyer GK Ganesan.

He explains why such an arrangement is not possible under the Prison Act and maintains that any order by a home minister is also subject to judicial scrutiny - it needs to be reasonable.

Let’s take a closer look at Section 3, which sets out the parameters for using other premises as a prison, in particular the phrase: …to be a prison for the purposes of this Act for the imprisonment or detention of persons lawfully in custody.

Unarguably, the place must be a prison - not a palatial residence - with lock-ups, steel bars, armed guards, security, no outside food, controlled visitors, etc.

Clearly, detention at home is not feasible, desirable or fair.

If decided otherwise, it is entirely political, in furtherance of a political settlement.

If it is allowed and pushed through by the Madani government, which now seems to be controlled and driven increasingly by what Umno leaders want, it will be supreme irony, allowing the person who permitted the largest kleptocracy in the world to be not even so much as rapped on the knuckles.

Ironically, the Madani government now stands in power from the backlash of 1MDB and its aftermath - Pakatan Harapan beat Najib’s Umno/BN regime soundly in 2018.

Anwar Ibrahim became prime minister in November 2022 through a coalition, including another contradiction in terms - Umno. Politics indeed makes strange bedfellows.

Special treatment for Najib?

There is continuing speculation on whether Najib is getting special treatment in prison. A former detainee, preacher Wan Ji Wan Hussin, said in March 2024 that Najib was indeed serving his sentence in the Kajang prison, albeit by receiving “very special treatment”.

He alleged that Najib was permitted to wear normal clothes instead of prison garb.

The Prison Department refuted the claims, stressing that every inmate was being treated equally and no “special treatment” was given to anyone, including Najib.

Indeed, Najib should not be given special treatment while in jail and should be allowed to serve his full sentence under the law like every other criminal.

Anything less amounts to a circumvention of the judicial process, a step down towards lawlessness.

P GUNASEGARAM says we all should be reminded of Lord Hewart’s maxim in 1924: “Justice must not only be done, but must also be seen to be done.”