This article first appeared in Forum, The Edge Malaysia Weekly on April 22, 2024 - April 28, 2024

The matter of allowing non-­serious offenders to serve their prison sentence from home was unlikely to have been on the minds of Malaysians until last month.

On March 2, Minister of Home Affairs Datuk Seri Saifuddin Nasution said that the government had in principle agreed to implement the Licensed Release of Prisoners (PBSL) for offenders who are considered less dangerous and have four years or less of their sentence remaining.

The rationale given for allowing home detention for some prisoners is to ease overcrowding in jails.

Two days after making the announcement on PBSL, Saifuddin vehemently refuted allegations that it was related to the possibility that the likes of jailed former prime minister Datuk Seri Najib Razak could serve their remaining time at home.

Najib was sentenced to 12 years in jail and fined RM210 million on Aug 23, 2022. On Feb 2 this year, the Pardons Board, headed by the former King, halved the jail term to six years and reduced the fine to RM50 million.

Fast forward to the court proceedings last week.

Following an application by Najib, the High Court has set June 5 to decide on the existence of an addendum purportedly issued by the former King for the former prime minister to serve the remainder of his six-year sentence under house arrest.

The government’s PBSL proposal and Najib’s latest application are totally unrelated, but try telling that to ordinary folks.  

No matter how the unity government explains the situation, it will be hard for it to distance itself from Najib’s application.

Many would join the dots and assume that the government is preparing itself for the possibility that Najib may serve the rest of his jail term in the comfort of his home. Hence, if the PBSL were already in force, it would provide an avenue for many other prisoners to do the same.

From critics’ point of view, the implementation of the PBSL would be a way for the current administration to avoid being accused of double standards or of according special privileges to certain prisoners.

Even before the latest application to serve the remainder of his sentence at home, the fact that Najib’s file was fast-tracked to the Pardons Board was already being frowned upon.

Normally, a prisoner would need to serve at least one third of the sentence before his or her file goes to the Pardons Board. That is the normal practice as there is a long list of applications.

In Najib’s case, he had served only 18 months of his 12-year sentence when his file was brought to the board and his sentence cut by half.

Prime Minister Datuk Seri Anwar Ibrahim and his unity government stayed clear of the decision of the Pardons Board as it was entirely within the discretion of the King as the head of the country. The decision was made by the former King in the last few days of his term.

But surely the Anwar government cannot distance itself from the PBSL.

Nobody knows for sure if allowing prisoners to serve their sentence from home is a good move. If implemented, it will chart a new phase for Malaysia’s custodial system.

There are a few issues that need to be weighed carefully when it comes to allowing criminals, no matter what their crimes are, to serve their detention from home.

First, a person who has less than four years of his jail term left is not necessarily less harmful to society than someone with more years left.

The length of the prison term is determined by what is provided for in the law. Generally, the penalty for serious crimes such as armed robbery and murder is heavy. Many of them may not even get parole or one-third remission under the current system even after having served most of their jail sentence.

The jail term for lesser crimes such as cheating, petty theft, corruption and money laundering is shorter. The term is normally less than six years. With good behaviour, most of those found guilty of such crimes are released after serving two-thirds of their jail sentence.

The Prison Department already has a system to assess which prisoners are less dangerous. It is used to determine the early release of some prisoners when the occasion arises.

The general public does not know how the current assessment works and what the criteria are, but it has worked so far. There are no known cases of prisoners released early being repeat offenders.

So, why reinvent the wheel by introducing a system that allows some prisoners to serve their sentence at home?

Secondly, allowing prisoners to serve part of their term at home will not send the correct message to society. This is especially for those who are convicted of the loss of millions or billions that affect ordinary people.

The Malaysian judiciary does not have a history of meting out stiff jail terms for commercial crimes even though the losses are huge. The trials of those convicted of such crimes tend to take a long time.

And when the time for sentencing comes, many would have forgotten the gravity of the crime. The jail term or fine does not commensurate with the suffering of the victims who lost their money.

In other countries, the system tends to impose heavy penalties for commercial crimes.

For instance, last month, FTX founder Sam Bankman-Fried was sentenced to 25 years’ jail for causing the loss of billions belonging to customers who had stored their digital coins on the exchange he founded. FTX collapsed in November 2022 and Bankman-Fried was sent to jail less than 18 months later.

In Singapore, Soh Chee Wen, who was the chief conspirator of the 2013 penny stock fiasco that caused losses of S$8 billion, was handed a 36-year jail sentence. Soh’s co-conspirator, Quah Su-Ling, was sentenced to 20 years. The judgment was delivered in December 2022.

The lengthy sentences imposed on Soh and Quah serve as a deterrent to any potential stock market manipulator who might want to scam retail investors in Singapore.

In Vietnam, a property developer was recently sentenced to death in a case that caused US$27 billion in losses affecting 42,000 people.

In Malaysia’s case, Najib’s 12-year jail term for facilitating and receiving part of the US$4.5 billion that was stolen from proceeds due to 1Malaysia Development Bhd between 2010 and 2014 is one the longest custodial sentences ever meted out for a commercial crime. He was found guilty at all three levels of the legal system for the seven counts of crime he committed.

Coming back to the question of home detention, the outcome of the implementation of such a policy is not known. It is completely new to Malaysia, where even house arrest is rare.

The primary question that the government has to ponder is whether it will deter people from committing what is considered less serious crimes.

M Shanmugam is a contributing editor at The Edge

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