00:10Hello and good evening. I'm Melissa Idris. Welcome to Consider This.
00:14This is the show where we want you to consider and then reconsider what you know of the news of
00:19the day.
00:19The arrangements for Najib Razak to serve the remainder of his SRC sentence under house arrest
00:25have exposed complex questions about the execution of prison sentences and the legal framework governing home detention.
00:34Najib's residence has now been gazetted as a prison and the RM50 million fine has been paid.
00:42However, questions still remain such as what needs to happen next and what should the public reasonably be entitled to
00:50know about this arrangement.
00:52Well, joining me now is lawyer Niu Sin Yu. Sin Yu, thank you so much for joining me today.
00:57Let's start with where things currently stand.
01:00What is the legal position that, as we speak right now, what has legally taken into effect and what has
01:09not yet been taken, has taken effect?
01:12Can you explain to us?
01:14Thanks, Melissa, for having me.
01:17So, Dato Sri Najib has been sentenced for imprisonment in two cases.
01:23The first is the SRC, as you mentioned, and the second is the 1MDB.
01:28And we need to distinguish the two separate imprisonment sentences.
01:33For SRC, there is a royal pardon providing for Dato Sri Najib to serve the remainder under house arrest.
01:42The RM50 million fine has reportedly been paid and his residence has reportedly been gazetted as a prison under the
01:52Prisons Act.
01:53For 1MDB, there is a separate prison sentence.
01:58And as matters have been reported, there is no stay of execution on the prison sentence.
02:03Now, the AGC Attorney General Chambers says that there is uncertainty over how those sentences interact and the house arrest
02:17arrangement has not been implemented.
02:20So, that's currently where things stand.
02:24But I would like to make one thing clear over this whole confusion, if we can call it a confusion,
02:34that the YDPA's power of pardon is expressly recognized under Article 42 of the Federal Constitution.
02:41And that should be fully respected.
02:43And I don't think that really is in dispute.
02:45But the concern now is not on the pardon itself.
02:50And it's not over whether Dato Sri Najib deserves house arrest.
02:53It is over how the executive implements that pardon.
03:00And the executive must act within the law.
03:03And if the existing framework is absent or inadequate, then Parliament must decide whether, how and when,
03:14and of course the question of whether it should even legislate into being a house arrest regime.
03:22So, respecting the royal prerogative and insisting and obeying the rule of law, it goes hand in hand.
03:29Okay, Sinu, can you just elaborate a little bit about the confusion?
03:33So, talk to me about the possible legal interpretations.
03:38Where exactly does the confusion lie?
03:41And how, you said Parliament will resolve this.
03:45Can you elaborate a little bit more?
03:49Okay, let's break things down into a few issues.
03:54The biggest issue now is that Malaysia does not have a specific house arrest regime.
04:02So, let me explain that first before I go into the confusion.
04:05What the government has done is that it had relied on the Prisons Act to designate Dato Sri Najib's resident
04:12as a prison.
04:13So, that is a, it's not a substitute, but it's a placeholder for a house arrest mechanism.
04:21But, it raises an important question.
04:26Whether declaring a house a prison is the same thing as a house arrest.
04:32So, strictly speaking, Dato Sri Najib is still in prison, except that the prison is his home.
04:39And, that is a problem because once he's resident in the prison,
04:45what happens to other requirements governing prisons?
04:50So, what happens to having prison officers?
04:53What happens to security?
04:54What happens to visitors?
04:56And, what happens to his daily routines?
04:58Could, could other prisoners be lawfully placed there?
05:03What I'm saying is that,
05:07making his house a prison is not the same as having a house arrest regime.
05:13So, that is something that is still up in the air.
05:17So, in absence of having a specific house arrest regime, house arrest law,
05:25you have to go back to what laws govern prisons.
05:29That is the Prisons Act and the prisons regulations.
05:34And, that is a problem because you have regulations concerning prisoners' clothings.
05:42You know, how would Dato Sri Najib wear?
05:45Would he be wearing a prison uniform in his living room?
05:48And, you have regulations, for example, over food.
05:52Can Dato Sri Najib order grab food without permission?
05:56Can he order outside, take away?
06:00And, what about visitors?
06:02Would his family visiting him,
06:04require it to be searched every time they enter a prison?
06:08And, what about the other residents to the prison?
06:13If I can put it that way, because it sounds like it's not a prison.
06:16So, all this might sound funny to us,
06:18you know, but it does expose a serious legal issue that you have a very awkward situation
06:26where he is under house arrest, yet he is in the prison,
06:32and there is no logout to mediate between these two.
06:36So, the executive, the government, must identify the legal basis
06:41from any departure from the prisons regulations and the prisons act
06:47when it comes to his house arrest
06:52and the proper house arrest framework, it matters.
06:58So, now let me explain about the confusion
07:02which the Attorney General Chamber is raising here.
07:06He is saying that there is uncertainty
07:12over how the two sentences interact.
07:15the 1MDB sentence, as well as the SRC sentence.
07:19I personally struggle to see any ambiguity
07:22because, for me, the Section 292 of the Criminal Procedure Code is clear.
07:29And, Section 292 allows the sentencing court
07:33to direct whether a later sentence begins immediately
07:37or after an earlier sentence.
07:40And, in this case, there's been no report that the 1MDB court,
07:47let's call it the 1MDB court, in sentencing,
07:50has said that the 1MDB sentence
07:52were to take place concurrently with the SRC sentence.
07:56So, the legal position then should be
07:59that once the SRC sentence has been completed,
08:04then only the 1MDB sentence starts.
08:10And, the SRC sentence is only due to be completed,
08:16I think, sometime in August 2028.
08:18So, there's a lot of time for the Attorney General Chambers
08:24to sort out any confusion
08:28pending the completion of the SRC sentence.
08:32So, I don't understand
08:35what ambiguity there is
08:37in terms of the law
08:39when it comes to the running of these two sentences.
08:43Okay, well, wouldn't that mean that
08:46should Najib be released into house arrest
08:50at his home, gazetted as a prison,
08:53he would then have to go back to Kajang Prison
08:56to serve the 1MDB sentence come August 2028.
09:01Would that be an accurate interpretation?
09:05Not necessarily,
09:07but because, I go back to my stopping point,
09:11his house has been gazetted as a prison.
09:14So, he can, in theory,
09:17continue to serve the 1MDB sentence
09:20in a prison
09:21because his house is already a prison.
09:27But, everyone else could also
09:30apply to be transferred to that prison.
09:33Okay.
09:34Because there should be uniformity
09:37over all prisons.
09:39Well, that brings me to my next question.
09:43Could this set a precedent?
09:44I'm just wondering,
09:45would the same terms of a house arrest
09:49that apply to Najib
09:51apply to any other prisoner
09:54who might qualify under this future,
09:57this type of, this framework?
10:01Yes, definitely.
10:03Because when the Home Minister
10:08gazettes a residence as a prison,
10:11for all intents and purposes,
10:13it makes that place a prison.
10:16So, in theory,
10:18the Home Minister could make such orders
10:21saying that,
10:22oh, Mr. So-and-so,
10:24Datuk So-and-so,
10:25Tan Sri So-and-so,
10:26I'm not suggesting any names
10:28or any existing cases.
10:30But, yeah,
10:31he could, in theory, do that
10:33because a precedent has been said.
10:36So, why should others
10:37who might be in a similar position
10:40as Dr. Sri Najib
10:42not try to appeal
10:44or apply
10:46for similar arrangements
10:48to be made?
10:50And this is why
10:51it's important
10:51to have a house arrest regime.
10:53Because we seem to be,
10:55we as in our country,
10:58but more on the government,
10:59seem to be improvising
11:01as we go along.
11:04Sinu, you said earlier
11:05that the legal confusion
11:08or the confusion here
11:10should be resolved
11:11in Parliament.
11:12Can you explain
11:13what you mean by that?
11:15And can authorities
11:16still proceed
11:17with the house arrest
11:18while these questions
11:20remain unanswered
11:21or unresolved?
11:25Well,
11:26let's deal with the government
11:28and what the government
11:29should do now.
11:31For me,
11:32the government
11:32has taken a position.
11:34It has chosen
11:35a mechanism
11:39and decided to gazette
11:40Dr. Sri Najib's
11:41residence as a prison.
11:43So, they've opened that door
11:44and they've stepped through it.
11:46And now,
11:47they cannot turn back
11:48without a good reason.
11:50The reason that
11:51we have heard so far
11:53legally,
11:54it is indefensible
11:56because Section 292
11:58is clear.
12:00So, as thing stands,
12:02the executive,
12:02the government,
12:03they should implement
12:05this arrangement
12:06unless
12:08there's another bar to it
12:09which I do not see.
12:11but that cannot be
12:14the end of the matter
12:15because
12:16parliament now
12:18needs to
12:20enact
12:21a proper
12:22house arrest law
12:24at the earliest
12:24opportunity.
12:27And parliament
12:28needs to,
12:29in that law,
12:30set out the
12:30eligibility,
12:32the conditions,
12:34the enforcements,
12:35and the safeguards
12:37against the abuse
12:38of such laws.
12:41So, any
12:41existing arrangement
12:43which
12:43the government
12:44has patched together
12:46in order to implement
12:48this
12:48house arrest,
12:50that could then
12:51be brought under
12:52this new regime
12:53assuming parliament
12:55legislates
12:55and assuming parliament
12:57even agrees
12:58to legislate.
12:59Because parliament
12:59may say that,
13:00look,
13:00I think
13:01for society
13:03it's not good
13:04to have a house arrest regime.
13:06They may say that
13:06it's parliament.
13:07Everyone
13:08exercises a different
13:09constitutional role.
13:10Parliament makes law.
13:12Government
13:13implements them
13:14and executes them.
13:15So,
13:16assuming that parliament
13:17does do so,
13:18then there needs to be
13:18a transition
13:20from this
13:22I don't know
13:23what to call this.
13:23Let's call it a patchwork
13:24to this
13:27assuming that
13:28there is a new
13:29legislation
13:29new legislation.
13:31So,
13:31we cannot continue
13:33to improvise
13:34criminal sentence
13:36in a
13:37case that
13:38has
13:39the attention
13:40of the world.
13:42Definitely.
13:43Siniu,
13:43thank you so much
13:44for joining me
13:44and helping us
13:45think through
13:46some of these
13:46really confusing
13:49questions
13:49at this time.
13:50I appreciate your time.
13:51That was
13:52Lawyer News Siniu
13:53and we're going to
13:53take a quick break
13:54here on Consider This.
13:55We'll be back with more
13:56so stay tuned.
14:00glad to be here.
14:06Take care.
