Why Malaysia is looking at home detention for some prisoners, and who might be first in line

KUALA LUMPUR: When Malaysia’s Home Minister Saifuddin Nasution addressed parliament last Thursday (Nov 7) regarding a proposal to enact a new law that would allow for home detention, one familiar name made a frequent appearance. 
Former prime minister Najib Razak is currently pushing for the government to produce an addendum order reportedly issued by Malaysia’s former king Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah that allows him to serve the remainder of his reduced six-year sentence at home.
The former king had halved Najib’s 12-year jail term for corruption and cut his RM210 million (US$47 million) fine to RM50 million as one of his last official tasks before stepping down on Jan 30 this year.
The home detention proposal has been in the news after Prime Minister Anwar Ibrahim mentioned it during the tabling of the 2025 budget on Oct 18. 
Many immediately linked the proposal, which would allow offenders to stay at a designated place, such as a residence, care home, or workers’ dormitory throughout the detention period, to Najib’s bid for home detention.
And during Mr Saifuddin’s address last Thursday, several officials raised the question of the addendum and whether the new law would apply to the ex-premier. 
 
However, Mr Saifuddin did not directly address the questions about whether the addendum existed or otherwise, saying that the matter rested with the courts.   
“The court considered the addendum to be hearsay. The court’s decision is clear. The matter shouldn’t arise anymore,” he said to a question on the addendum by Kota Bharu parliamentarian Takiyuddin Hassan.  
Mr Saifuddin said that the home detention proposal was to solve the problem of overcrowding in prisons and that the focus of the ministry was the 28,000 prisoners who were under remand, and not those who had been convicted of their crimes.
“The Ministry’s intention of enacting this act is to address the issue of those in remand. It doesn’t apply to those who have been convicted … unless when we table it … there are parliamentarians who feel that those who have been convicted should also be taken into account. We will make a decision then. 
“For now, our intention (of enacting the law) is for those in remand while awaiting trial,” he said to a question by Bukit Gelugor parliamentarian Ramkarpal Singh Deo who asked if Najib, for example, would be eligible for home detention.   
Mr Saifuddin however said prisoners remanded for “serious” crimes including those that prescribed sentences of more than 10 years in prison would not be eligible for house arrest under the proposed new law. 
According to the Star, the bill is expected to be tabled in July next year.
While experts in the field said that the home detention idea was generally a good one, they stressed that clear guidelines needed to be established for its implementation, and that it should not be introduced just for cost-cutting reasons. 
Criminologist P. Sundramoorthy of Universiti Sains Malaysia (USM) told CNA that while home detentions offer many advantages, they also pose challenges that must be managed carefully to ensure justice and fairness. 
“The effectiveness of house arrest depends on the implementation and monitoring mechanisms in place, as well as the individual circumstances of those subjected to it,” he said, adding that an in-depth scientific study on the matter must be conducted before being implemented.
In a statement on Nov 6, the Malaysian Prisons Department said that there is an 11.24 per cent overcapacity in the number of inmates in 43 prisons around the country.
The prisons have a capacity of 74,146 but there are currently 87,419 inmates overall.
It said that 19 prisons, especially those located in the major cities, were experiencing overcapacity of more than 20 per cent.
The prisons department said that the current incarceration rate in Malaysia is 245 per 100,000 people, compared to the world average incarceration rate of 145 per 100,000 people.
Mr Dobby Chew, the chief executive officer of HAYAT – a human rights organisation – said that the home detention proposal could be seen as an expansion of the parole programme to reduce the prison population.  
Mr Chew said that coupled with suitable work opportunities, this alternative could be effective in keeping people out of the prison system and allowing them to contribute and reintegrate into society.
“In the long term, it would be to keep people from going back to prison, especially those who are young. We don’t want them to be stuck in the system and become a ‘full-time’ criminal,” he told CNA.
  
Mr Chew said that it made sense that the prisons would start with detainees who were under remand as they had yet to be proven guilty. 
Remand is the temporary detention of an individual after arrest, pending trial or other legal proceedings. An individual can be in remand after being charged if they are denied bail or are unable to pay the bail set by the court.
Criminal lawyer Salim Bashir said that Malaysia lacks specific laws to implement home detention, although the Home Minister had the exclusive power to decide and designate any location as a detention centre under the law.
He said that any new law should bestow on the court the discretion to decide whether the convicts or those in remand will be given home detention based on the facts and other relevant considerations. 
“The government needs to formulate some guidelines on eligibility but each distinct fact that led to convictions must be assessed individually by the courts before granting home detention,” he said, adding that home detention has made headway in many regional countries in Asia.    
Countries in the region that have home detention include Singapore, Vietnam, Indonesia, Philippines and Thailand.
Myanmar has also granted home detentions, including to prominent political figures such as opposition leader Aung San Suu Kyi.
In Malaysia, the prisons department has introduced several initiatives over the past years to reduce the longstanding issue of overcrowding.
Besides the parole system that was first introduced in 2008, the prisons department has also introduced the Licensed Release of Prisoners (PBSL) programme, where a total of 31,742 people were granted early release from 2022 to June of this year according to a report by the News Straits Times. 
In Malaysia, a prisoner becomes eligible to apply for parole after serving a minimum of half of a sentence that is at least one year in duration.
Prisoners can be considered for PBSL if they have sentences below three years and have served at least one-third of the sentence.
They also must have a guarantee from an employer, family or a non-governmental organisation to provide a place to live and a job following release, the New Straits Times reported. 
The prisons department in their Nov 6 statement said that besides reducing overcrowding, the alternatives to imprisonment could prevent high incarceration rates and save government costs.  
Former Home Minister Hamzah Zainudin was quoted as saying in news reports in 2021 that it cost the government almost RM5 billion over a five-year period from 2016 to 2021 to operate the country’s prisons, with the average expenditure for a single inmate around RM50 a day.          
Mr Saifuddin had said in parliament those remanded for serious crimes that are punishable by death or life sentences would not be eligible for home detention.  
He added that offences that involve national security, human trafficking, domestic violence and offences involving children for instance would not be eligible for home detention. 
He said that about 20,000 of the 28,000 detainees in remand currently could be considered for home detention while the other 8,000 were considered to come under the serious crimes category.  
Dr Sundramoorthy said house arrest should only apply to first-time, non-serious, and non-violent offenders. He hoped that besides those in remand, first-time convicts would also get a chance for home detention.  
“The same principles would apply for both,” he said.
He said that it was a “grave” mistake to send the first-timers who had not committed serious crimes to prison because it would cause them more harm than good.  
“Who are you going to be associating with in prison? You don’t want them to socialise with serious offenders and extend their network. Research has shown that those given chances are not likely to reoffend,” he said. 
The prisons department said in their statement that the recidivism rate or repeat offending under similar programmes such as parole is 0.24 per cent, compared to 17.6 per cent for those who only undergo rehabilitation in facilities or prisons.
Dr Sundramoorthy proposed an independent body of experts to study the models adopted by other countries including the likes of Singapore.   
    
In the Lion City, for instance, the home detention scheme is aimed at promoting reintegration of inmates into society with the help of their family members and community. 
The inmates will serve their remaining sentences at their residences under specified conditions, which include curfew monitoring, urine testing and counselling. 
They could either be working, studying or involved in community service but will need to wear an electronic tag so that their whereabouts can be monitored.
Mr Saifuddin said those under home detention in Malaysia would also have to wear an electronic device. 
Mr Shahirul Khalid Mohamad of Persatuan Penempatan dan Pemulihan Penjara (PEMAAF) – an organisation that helps ex-convicts – said that while the idea on paper is a good one, it shouldn’t be implemented just for the sake of cutting costs.
 
Mr Shahirul believed that there was a chance that the people released could go back to crime if they didn’t have anything on the outside, such as a job to go to.  
“The government has to study this properly and before coming up with the law. This proposal could be seen as trying to do something but there are many aspects that have to be considered before the proposal can be carried out,” he told CNA.
He said that any effective reintegration and rehabilitation would require community participation. 
He said that not everyone would be accepted by their families or even have a family to go back to. He suggested jobs in the cleaning and agricultural sectors where there are not enough workers be provided to those under home detention.  
“This can also cut down our dependency on foreign workers,” he said.
Dr Sundramoorthy also said that community integration is an integral part of house arrest as it allows individuals to remain connected to their families and communities, helping to promote support systems crucial for rehabilitation.
He recommended that individuals under house arrest maintain employment and education, as this contributes to personal development and reducing recidivism.
Dr Sundramoorthy also said that the prisons department should not be in charge of those under home detention, and should leave it to a newly created probation department.
He believes that the prisons are better equipped to handle those imprisoned, while those on the outside need different expertise.  
“The mindset of the prison would be different from a probation department. The prisons should focus on their role, which is dealing with those in the institutions and the parolees, and not go beyond that,” he said.    
Mr Chew said that Malaysia has persisted in pursuing highly punitive criminal justice policies that only serve to exacerbate prison overcrowding and alienate the possibility of rehabilitation and reintegration. 
He said that many of Malaysia’s laws come with mandatory whipping sentences and very high fines. 
“The expansion of house arrest and other alternatives would give credence to the government’s pursuit of greater rehabilitative and restorative justice,” he said. 
 
In a statement on Oct 30, a group calling itself the CSO platform of reform said that while the proposal was in line with a modern society, it hoped for transparency in the legislative processes, for civil society to be engaged in their consultations and for clear implementation guidelines to be established.  
“Develop comprehensive guidelines that outline who qualifies for house arrest and under what conditions. Making these guidelines publicly available will help ensure accountability and maintain public trust in the justice system and ensure that justice serves all and (is) not designed for a select privileged group,” it said. 
“It is essential that any legislative measures uphold the principles of justice, ensuring that no individual, regardless of their past position, receives preferential treatment,” it added. 
Dr Sundramoorthy said that the authorities should not be given any discretionary power in the proposed new law and that it should be drafted in a “tight” manner.  
“The law must be clearly spelt out and there shouldn’t be any abuses where there can be loopholes for special privileges for prominent people,” he said.  
He cited the example of how authorities in Thailand are looking into claims that its former prime minister Thaksin Shinawatra was given privileged treatment during his detention at the Police General Hospital after returning home from exile last August before being allowed home detention for his one-year prison sentence.
Dr Sundramoorthy said that financial crimes such as the ones committed by Najib are serious.     
“The criminal breach of trust is a very serious offence based on the lengthy sentence. It also carries a whipping sentence although it doesn’t apply to Najib because of his age. Although there is no violence involved, it doesn’t mean that it is a non-serious offence,” he said. 
Mr Chew said that Najib’s offence was one that was against the broader society and didn’t merit home detention but believed that Najib could be considered for it if he was suffering from a critical health problem. 
Such thresholds, he believes, are important to consider in all cases when it comes to the home detention proposal. 
 
“Of course, the key consideration is what is the threshold? It is a political and logistical question,” he said.