Constitutional lawyer Andrew Khoo said neither the Federal Constitution nor the existing prison laws expressly provided a framework for home detention of prisoners serving ordinary criminal sentences.
He said although prisons came under federal jurisdiction and were governed by the Prisons Act, there were currently no specific rules regulating how a convicted prisoner should serve a sentence at home.
"As far as home detention and ankle monitoring are concerned, they are not yet part of our law for prisoners.
"There are provisions involving monitoring under anti-terrorism laws, but not under the ordinary criminal law framework," he said when contacted.
Khoo said the Prisons (Amendment) Bill 2026, which was tabled in Parliament in June, had sought to introduce changes to the prison system.
However, the bill has yet to be passed after the government deferred it and referred it to parliamentary special select committees for further scrutiny.
Khoo said the Pardons Board's decision involving Najib was therefore entering largely untested territory.
"When the Pardons Board specifies home detention for Datuk Seri Najib, in a sense they are charting new ground.
"Even under the proposed amendments, the home detention framework was not meant to cover the kind of sentence that Najib was given," he said.
He said the offences for which Najib was convicted and the prison sentence imposed on him did not appear to fall within the category contemplated under the proposed framework.
"That was meant for smaller or less serious offences.
"So this is now charting new ground," he said.
Khoo said the lack of an existing legal framework also raised practical questions over the terms of Najib's detention.
"There are no rules and no conditions that presently govern this.
"The announcement talks about terms and conditions, but these have not been specified.
"So there is a whole area of uncertainty.
"If you want to be a bit cheeky, can he have a jamuan? How many people can he meet? Can he meet people?" he said.
Khoo said the authorities would therefore have to formulate a specific set of rules governing Najib's house arrest.
"They have to create a framework of terms and conditions for him to comply with.
"Maybe they are drafting something now. But as it stands, there are no existing regulations on how someone is to be detained under home detention," he said.
He also questioned whether Section 3 of the Prisons Act, which deals with the declaration of prisons and places of imprisonment, could be stretched to accommodate home detention.
"Section 3 was not meant to cover home detention.
"It was not intended to create a hotel or a house as a place of detention," he said.
Khoo said the arrangement could also raise constitutional questions under Article 8 of the Federal Constitution, which guarantees equality before the law.
He said the Pardons Board was also bound by the Constitution in exercising its powers.
"The question is whether this amounts to special treatment. Are they creating an exception?
"It is something that has to be looked at, including whether it complies with Article 8 of the Federal Constitution," he said.
Official parliamentary records show that the Prisons (Amendment) Bill 2026 was given its first reading on June 23 before being referred to the relevant parliamentary select committees on June 25.
The government said during parliamentary proceedings that the proposed amendments were aimed, among others, at addressing prison overcrowding, strengthening prison governance and expanding rehabilitation programmes in the community. - NST
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