The High Court has ruled that Malaysia has no legal mechanism to implement house arrest, making it impossible for former prime minister Datuk Seri Najib Razak to serve the remainder of his prison sentence at home.
In a 41-page written judgment released today, High Court judge Datuk Alice Loke Yee Ching said the additional order purportedly issued by the former Yang di-Pertuan Agong placing Najib under house arrest was invalid, as it did not comply with procedures set out in the Federal Constitution.
As a result, the court said it could not direct the government to carry out the house arrest order. The judge further stressed that, regardless of the order’s validity, Malaysia currently has no law providing for house arrest as a form of punishment.
“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.
Najib’s legal team had argued that Section 43 of the Prisons Act 1995 allows for house arrest through a “release on licence” mechanism. However, the court rejected this interpretation.
Judge Alice explained that Section 43 gives the Commissioner General of Prisons discretion to temporarily release a prisoner on licence, specifying the place and conditions of release, while retaining the power to recall the prisoner to jail at any time.
She noted that Regulation 111 of the Prisons Regulations 2000 similarly empowers the Commissioner General to release eligible prisoners — those who have served at least four years — on licence, subject to strict conditions outlined in the regulations.
“These provisions can hardly be said to amount to a mechanism for house arrest,” the judge said. She pointed out that the former Agong’s addendum order stipulated the full duration of Najib’s remaining sentence to be served at his Kuala Lumpur residence, leaving no discretion to the Commissioner General to determine the length of release or to recall him to prison.
“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 fixed, leaving no discretion,” she said, adding that this contradicted the statutory framework governing release on licence.
The High Court yesterday dismissed Najib’s application to compel the government to enforce the addendum order dated Jan 29, 2024. The court found that while the Pardons Board had reduced Najib’s sentence and fine, the additional house arrest directive was issued outside the Pardons Board process and therefore did not follow constitutional requirements.
The ruling means Najib will continue serving his reduced sentence at Kajang Prison, where he has been incarcerated since August 2022.
Najib’s lead counsel, Tan Sri Muhammad Shafee Abdullah, said his client will appeal the decision to the Court of Appeal.
