[1].  Why not?

The Act does not recognise house arrest as a form of punishment. Nor does the Act provide any criteria when or how such a ‘declaration’ should be made.

Secondly, just because the Minister has the power to declare a house as a prison under the Act, does not mean that there is a legal basis for the imposition of any house arrest.

Further, it is not a permissible form of ‘pardon’ as is being suggested. That is the heart of the issue.

Finally, sec. 3 of the Act does not approve of any arbitrary declarations of prisons.

Let us explore why this is so.

[2].  The newsflash: “Home minister can approve house arrest under Prison Act, says Azalina”

MP Lim Lip Eng MP had asked two questions in parliament. First, if the government could declassify the minutes of the Federal Territories Pardons Board meeting. Second, if the law allowed former Datuk Seri Najib Razak to serve his sentence at his home. That resulted in the ministerial response that the press reported as:

“House arrest is already a permissible form of punishment under existing Malaysian law, with no need for new legislation.”

The implication was that sec. 3 of the Prison Act 1995 would allow Datuk Seri Najib to serve the remainder of his imprisonment at the comfort of his home.

Is this right? For answers, we need to analyse the Prison Act of 1995.

[3].  What does sec. 3 of the Prison Act say?

Section 3 of Malaysia’s Prison Act 1995 states:

“The Minister may, …, 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.”

The wording seems broad. But remember: the law says that even broad powers have limits. We need to understand two phrases:

[1].   “For the purposes of this Act.” [this, we shall have to discuss – and it is easy]; and

[2].   “Persons lawfully in custody.” [for present purposes, that means a convict sentenced to imprisonment].

[4].  What is the purpose of the Prison Act?

The Prison Act was enacted to regulate imprisonment — not to create privileges for specific individuals. Its preamble states that it aims “to consolidate and amend laws relating to prisons, prisoners and related matters”.

What does this mean? It means that any ‘declaration’ made under section 3 must accord with the overall objectives of imprisonment as outlined in the Act, and respect the punishment handed down by the courts.

[5].  What is a ‘prison’?

A “prison means any … place, … declared to be a prison under section 3 and shall include the grounds and buildings within the prison enclosure … and used by prisoners.” ¹ Sec. 2 Prison Act 1995

This definition makes it clear that a prison must operate as a secure facility where prisoners are confined under strict discipline. Referring to a residential home as a ‘prison’ contradicts this fundamental purpose.

[6].  Certain places can be used as ‘temporary prisons’ but under strict conditions

Section 8 allows inmates to be moved to ‘temporary’ prisons; that too under three conditions: ‘overcrowding’ or because of any ‘outbreaks of a disease’. If there are too many prisoners in one facility²Section 8(1)(a), Prison Act 1995: ‘Temporary prisons’  or an outbreak of disease renders conditions unsafe, temporary prisons may be used.³ Section 8(1)(b)

The Act also says that prisoners can be moved “for any other reason … necessary to a … temporary shelter and safe custody of any prisoner, … in temporary prisons.’⁴ Section 8(1)(b)  Just to be clear, ‘for any other reason’ cannot be that one of the prisoners is a convicted former prime minister.

Even then, strict rules apply. Temporary prisons must operate as regular prisons “for the purposes of this Act.” ⁵Sec. 8(2) Prison Act 1995 Prisoners must return to their original facilities once conditions improve.⁶Sec 8(3), Prison Act 1995 Their removal is strictly time-bound—limited to three months at first, ⁷Sec. 8(3) Prison Act 1995 and extendable up to a maximum of nine months – and no more.⁸Sec. 8(5) Prison Act 199

[7].  Why does a House Arrest defeat the purpose of imprisonment?

Imprisonment serves four key purposes: retribution, deterrence, incapacitation, and rehabilitation. Central to these purposes is the deprivation of liberty and removal of creature comforts.

As Gresham Sykes noted in ‘The Society of Captives’, imprisonment imposes “pains”: it is the loss of freedom, autonomy, and social bonds. These are all essential components of punishment.(Gresham Sykes, Jeremy Bentham, Dr Esther F.J.C. van Ginneke, Miranda Bevan, and Adam J. Kolber, etc.) ⁹ This concept was notably articulated by sociologist Gresham Sykes where he described the “pains of imprisonment”: (see Sykes’ his influential 1958 work, ‘The Society of Captives’). According to Sykes, these ‘pains’ include deprivation of liberty, goods and services, heterosexual relationships, autonomy, and security. He argued that these deprivations were intentionally imposed as moral condemnation and punishment, serving as profound threats to prisoners’ sense of self-worth and dignity. Sykes emphasized that such psychological and material deprivations represented a deliberate moral rejection or condemnation:(see Dr Esther F.J.C. van Ginneke, ‘The pain and purpose of punishment: A subjective perspective’ at https://howardleague.org/wp-content/uploads/2016/04/HLWP-22-2016.pdf and also Miranda Bevan, ‘The pains of police custody for children: a recipe for injustice and exclusion?’ at https://academic.oup.com/bjc/article/62/4/805/6412505). Again, philosophers known as ‘retributivists’ have similarly advocated for deprivation of liberty as a means of punishment. According to them, offenders deserve punishments proportionate to the severity of their crimes. So serious crimes warrant severe liberty deprivation. Less serious crimes deserve milder forms of imprisonment. (See Adam J. Kolber, ‘The End of Liberty’at https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=2450&context=faculty[/mfn].  Again, Jeremy Bentham (1748–1832) was an influential English philosopher, jurist, and social reformer. He founded the philosophical school of utilitarianism. Utilitarianism holds that actions, such as punishment, should be judged by their consequences – specifically, whether they maximize overall happiness or minimize pain and suffering.⁹ See for an introductory understanding, https://en.wikipedia.org/wiki/Jeremy_Bentham[/mfn] Bentham argued that because punishment inflicts pain, it can only be justified if it leads to greater societal benefit by preventing future crimes: (see  https://utilitarianism.net/guest-essays/bentham-and-criminal-law/). Jeremy Bentham also advocated imprisonment not only as a means of reform but also as a form of punishment that involved isolation and deprivation. It was Bentham’s philosophy influenced the development of penitentiaries in the late 18th and early 19th centuries, emphasizing solitude and removal from society to encourage penitence and rehabilitation:  See https://www.britannica.com/topic/prison.  Finally, see also https://www.perplexity.ai/search/as-a-matter-of-principle-philo-kSYfAF7tTvyDoMnHAiBmRQ#user-content-fn-1

Declaring a residential home as a “prison” undermines these principles. This allows a select group of convicts to enjoy comforts denied to other prisoners. It defeats the punitive intent behind incarceration by creating unequal treatment between ordinary prisoners and politically connected individuals.

[8].  Judicial Oversight on Ministerial Discretion

Ministerial discretion under Section 3 is not absolute. Courts have consistently held that discretionary powers must align with statutory purposes. They cannot be exercised arbitrarily.

In Padfield v Minister of Agriculture[1968] AC 997, Lord Reid emphasized that discretionary powers conferred on Ministers must be exercised in accordance with statutory objectives; arbitrary decisions are unlawful.¹⁰ Padfield v Minister of Agriculture, Fisheries and Food[1968] AC 997 (House of Lords) [1968] AC 997; [1968] UKHL 1 (House of Lords).  Similarly, in R (Anderson) v Secretary of State [2002] UKHL 46, the House of Lords ruled that sentencing decisions affecting liberty are judicial functions and cannot be overridden arbitrarily by ministers.¹¹ R (Anderson) v Secretary of State for the Home Department[2002] UKHL 46;[2003] 1 AC 837.

Malaysian courts have echoed these principles. In Pengarah Tanah dan Galian WP v Sri Lempah Enterprise[1979] 1 MLJ 135, the Federal Court ruled that executive discretion must not be arbitrary or capricious. More recently, in Hew Kuan Yau v Menteri Dalam Negeri[2022] MLJU 1571, it was held that ministerial discretion is subject to judicial review for legality and fairness.¹² See also:  Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat[2017] MLJU 535

These cases make it clear that Section 3 cannot be interpreted as granting unchecked power to convert imprisonment into house arrest.

[9].  Today, deprivation of liberty by imprisonment remains a central principle of punishment

Deprivation of liberty itself remains broadly accepted as central to imprisonment.

Modern penal systems still rely heavily on confinement—restricting freedom of movement—as the fundamental punitive measure.

[10].  Why section 3 should not be extended

There is no statutory basis for house arrest under Malaysian law. Allowing such an interpretation would undermine judicial authority.

It will violate the principle of the separation of powers, enshrined in Malaysia’s Constitution.¹³Article 121(1) Malaysian Federal Constitution

Article 121(1) vests judicial power exclusively in courts. It is the courts that have the authority to sentence convicts.

Permitting ministers unrestrained discretion to declare private residences as prisons undermines judicial independence. It allows a government to interfere with the severity of a punishment – to make it ‘more comfortable’.

Again, using sec. 3 for house arrest creates inequality before law.

Article 8(1) guarantees equal treatment for all citizens under Malaysian law.¹⁴ Article 8: Equality – “8(1) All persons are equal before the law and entitled to the equal protection of the law.” Favouring politically influential convicts, over ordinary prisoners creates a two-tiered justice system: one for elites enjoying luxurious detention conditions; and another for ordinary convicts subjected to harsher standards of incarceration.

Indiscriminate use of discretionary powers, such as those provided under sec. 3 also erodes public confidence in the administration of justice. This creates the perception –and points to the realities – of political favoritism.

The principle of the rule of law requires transparency, fairness, and impartiality in the administration of criminal justice.  Any arbitrary use of sec. 3 violates the ‘basic fabric’ of the Constitution.¹⁵ See the two dissenting judgements in Leeth v Commonwealth (1992) 174 CLR 455 ;[1992] HCA 29 (High Court of Australia); and the criticism of the majority by Gaudron J in Kruger v Commonwealth (1997) 190 CLR 1;[1997] HCA 27 (High Court of Australia); and the overarching principle in Kesavananda Bharati Sripadagalvaru & Ors v State of Kerala & Anr, AIR 1973 SC 1461, that held that held that that certain fundamental constitutional principles—such as equality before law, constitutional amendments can not alter or undermine the rule-of-law, separation-of-powers, or even judicial independence.

[11].  What can we learn from other Commonwealth jurisdictions?

In Commonwealth countries like Australia and New Zealand, house arrest is strictly regulated by a specific Act. It is also strengthened and supervised by judicial oversight – not ministerial discretion.

In Australia, Article 120 ensures uniform treatment across federal prisoners. There, ministers have no power at all to arbitrarily designate private residences as prisons.

In New Zealand, home detention is limited to minor offenses. And it is subject to strict monitoring by probation officers.

These systems prevent abuse by ensuring transparency and accountability through judicial control—not governmental interference.

[12].  Public Interest – and what the Madani government promised in 2024

In October 2024, the Malaysian government publicly declared that the proposed house arrest legislation was aimed at ‘reducing prison overcrowding’ and ‘promoting restorative justice’ — and not to benefit specific individuals convicted for serious corruption offenses.¹⁶ https://thediplomat.com/2024/10/house-arrest-bill-not-related-to-najib-case-malaysias-government-says/

and https://www.benarnews.org/english/news/malaysian/govt-denies-house-arrest-bill-for-najib-10252024155337.html

Any deviation from this stated intent would constitute an improper use of legislative authority.

[13].  Conclusion

Section 3 of the Prison Act 1995 cannot be interpreted as granting unchecked power to the minister to convert imprisonment into house arrest. Such misuse violates constitutional principles like separation of powers and equality before the law while undermining public trust in justice administration.

True service to the nation requires integrity—not privileges or excuses for corruption. Courts have consistently rejected claims of national service as mitigating factors for corrupt leaders; policymakers should do the same.

Let justice prevail over favouritism – and let section 3 serve its intended purpose: proper administration of prisons – not political convenience.

∞§∞

Gratitude:

The author thanks Mr UK Menon, Mr G Naidu, Miss KN Geetha, Miss TP Vaani, Miss JN Lheela and Miss Lydia Jaynthi.

The image is from Evan Krause of Unsplash, to whom we express our gratitude.

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