HOUSE ARREST - IF IT IS NOT IN THE LAW THEN IS IT NONSENSICAL?

 Plus the Jabatan Penjara does not make 'house calls'.

Here is something interesting from Latheefa Koya the former Chief Commissioner of the Malaysian Anti Corruption Commission or MACC. Latheefa is also a seasoned lawyer.

 

I have a few comments about what Latheefa has said. First the easy parts.

The country is already a banana republic. Corruption has not been legitimised yet in Malaysia but we are getting there. There have been two major corruption cases where the charges against high profile people were dropped AFTER their defense had already been called. One was the Lembu Kondo case (aka cow mama) and the other was that 38 charges DNAAed.

After defense had been called means the Court had already found that the defendants  had a case to answer. The prosecution had already convinced the Court that they were guilty. Meaning they must now prove their innocence. Then suddenly the Prosecutor withdrew the prosecution against the accused people.

Then we had that lebai fellow from parti Pas saying that there was no provision for corruption under hukum syariah or hudud.  Corruption was not a crime under his idea of syariah law. 

Despite the Quran clearly prohibiting corruption.

Surah 2:188    وَلَا تَأْكُلُوٓا۟ أَمْوَٰلَكُم بَيْنَكُم بِٱلْبَـٰطِلِ وَتُدْلُوا۟ بِهَآ إِلَى ٱلْحُكَّامِ لِتَأْكُلُوا۟ فَرِيقًۭا مِّنْ أَمْوَٰلِ ٱلنَّاسِ بِٱلْإِثْمِ وَأَنتُمْ تَعْلَمُونَ

"Dan janganlah kamu makan harta orang di antara kamu dengan jalan yang salah, dan jangan pula kamu menghulurkan harta kamu (memberi rasuah) kepada hakim-hakim kerana hendak memakan  dari harta manusia dengan berdosa, padahal kamu mengetahui".

You should not eat other peoples' money and wealth wrongfully and you should not use money to bribe the judges and the authorities.

Obviously that lebai fellow does not know the Quran - a point that I keep repeating.

Ok now we come to the house arrest part. Latheefa Koya says that there is no provision under the law for house arrest.

I believe there were "restricted residence" provisions when we had the Internal Security Act, the Emergency Ordinances Act etc. However both these laws have been abolished.

The big question is which government authority will be in charge of monitoring such a thing as 'house arrest'?

Presently the Prisons Department or Jabatan Penjara is legally obliged to lock up criminals who have been found guilty and sentenced to prison by a Court. It must be an order of the Court. No order from the Court means the Jabatan Penjara cannot lock up anyone in any jail.

Then a jail or prison or place of detention must be gazetted as such. It must be a legally gazetted prison, lock up etc. 

The gomen cannot simply lock up or detain someone in an ungazetted place of detention.

A case in point was the illegal detention of Ummi Hafilda Ali in a hotel room in the late 1990s. The person who ordered that Ummi Hafilda Ali should be "detained" later went to jail for six years (for the first time in his life) for 'abuse of power'. Do you all recall who that person was?  What short memories you have.

A prison has to be legally gazetted and then the prison is also legally obliged to house the prisoner, to feed the prisoner, to provide the prisoner clothes and medical care etc. If something unforeseen happens to the prisoner (like he suffers injury, sudden death, poor health care) then the Jabatan Penjara is legally answerable.

So if someone is "sentenced" to house arrest (which according to Latheefa Koya does not exist under our laws) then which is the government authority that is legally responsible and liable for the "prisoners" welfare when he is placed under "house arrest"?

It cannot be the Jabatan Penjara anymore because the Jabatan Penjara does not make house calls. 

If you insist that a prisoner is placed under "house arrest" then surely you are responsible to make sure that the "prisoner" gets to eat THREE MEALS a day - of WAGYU beef? - under his house arrest.  

If the prisoner falls in the bathroom in his house or gets sick while under house arrest then the gomen will be held liable for his medical and other claims. He can even sue the gomen for negligence if he fell down in his bathroom and broke his hip bone. 

To ensure the safety of the prisoner the house may need renovation to fix special security features, alarms, cctv etc all of which must be paid for by the taxpayer.

If the prisoner's house has a swimming pool then the gomen may have to renovate the swimming pool to make sure it is not more than five feet deep (to prevent drowning). Or if the swimming pool is more than five feet deep the gomen may have to employ a full time lifeguard to keep an eye on the swimming pool - to make sure the prisoner does not accidentally drown. 

But exactly which gomen department can undertake all of the above? The answer is NONE. Because as Latheefa says there is no such thing as "house arrest" under the law.

So indeed this whole idea is quite nonsensical.

So if there is no provision under the law for "house arrest" then how did this idea get into that so called "addendum" that was "allegedly" prepared by the Pardons Board? 

Doesnt the Pardons Board have access to and gets the advice of the highest legal authorities in the country namely the Attorney General, the security agencies (like Police) and also the Jabatan Penjara?

But Latheefa says there is no provision for "house arrest" under the laws of Malaysia.

Lets take the argument one more step.  Lets say the prisoner is indeed placed under "house arrest". Then surely the Jabatan Penjara (Prisons Department) will have to "release" the prisoner from under their legal obligations because as Latheefa says 'there is no provision for house arrest under the law'. 

Plus the Jabatan Penjara does not make 'house calls'.

So which other gomen department or agency can monitor the welfare as well as the adherence to the "house arrest" of the prisoner?

And what exactly is house arrest? If the prisoner suddenly wants to begin praying FIVE TIMES a day at the masjid can he be prevented from praying at the masjid? It is his religious right. What about praying Friday prayers and sembahyang terawih at  the masjid for one whole month in the bulan puasa? What if the prisoner wants to attend Friday prayers at the Masjid Negeri Pulau Pinang? 

I dont think any of this is provided for under the law.  So if it is NOT provided for under the law then there is no law to be broken. So 'house arrest' means the prisoner will be quite free.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.