Equality before the law must prevail in administration of justice

The Malaysian human rights commission, Suhakam, expresses serious concern over the decision allowing former Prime Minister Najib Razak to serve the remainder of his sentence under ‘house arrest’.

While Suhakam respects the constitutional prerogative of the Agong in matters of pardon under Article 42 of the Federal Constitution, this decision raises significant concerns regarding equality before the law, the administration of justice, and public confidence in Malaysia’s commitment to accountability and the rule of law.

Article 8 of the Federal Constitution guarantees that everyone is equal before the law and entitled to its equal protection. This principle must remain at the heart of the criminal justice system.

Where a convicted person is permitted to serve a custodial sentence under substantially different conditions from other prisoners, there must be a clear legal basis, transparent and objective criteria, and safeguards against unequal or preferential treatment.

Any perception that status, position or influence may result in more favourable treatment risks eroding confidence in the equal administration of justice.

Suhakam is particularly concerned about the legal framework governing the present arrangement.

In December 2025, High Court judge Justice Alice Loke held that a house arrest order was not capable of execution because there was no legal provision establishing such a mechanism in Malaysia.

The court also rejected the argument that release on licence under section 43 of the Prison Act 1995 could simply be equated with house arrest.

Against this background, serious questions arise as to the legal basis, enforcement, monitoring and accountability of the present arrangement. Administrative guidelines or ad hoc arrangements should not substitute for a clear legislative framework.

The latest decision must also be considered in the context of the substantial clemency already granted in 2024. Najib’s original sentence of 12 years’ imprisonment in the SRC International case was reduced to six years, while his RM210m fine was reduced to RM50m.

Permitting the remainder of that reduced custodial sentence to be served at home represents a further significant concession.

The gravity of the underlying offences must equally remain in view. In the SRC International case, Najib was convicted on seven charges of abuse of power, criminal breach of trust and money laundering involving RM42m. His conviction and sentence were ultimately upheld by the Federal Court.

These were serious corruption offences involving public funds and an abuse of the trust attached to the country’s highest political office.

Public interest concerns are further heightened by Najib’s subsequent conviction in the 1MDB case on four charges of abuse of power and 21 charges of money laundering involving about RM2.2bn. The High Court sentenced him to 15 years’ imprisonment and imposed a fine of RM11.4bn.

Suhakam recognises that this conviction remains subject to the appellate process and should therefore be treated in accordance with the law pending the outcome of the appeal.

Suhakam also notes that there has been no clear public acknowledgement of wrongdoing or expression of remorse in relation to the SRC offences, despite the conviction having been conclusively upheld by the Federal Court.

Accountability and genuine remorse are relevant to the broader public understanding of clemency, particularly where serious corruption and abuse of public office are involved.

This decision therefore raises concerns extending beyond the circumstances of one individual. It risks weakening public confidence in the administration of justice and Malaysia’s anti-corruption efforts, particularly if it creates the perception that accountability for serious corruption operates differently for those who have held positions of power.

Such a perception would undermine the principle of equality before the law and the integrity of the justice system.

The rule of law is tested most clearly when it is applied to those who have held power. Any departure from the ordinary administration of a custodial sentence must therefore rest on a clear legal basis and be capable of transparent and objective justification.

Equality before the law cannot be merely a constitutional promise. It must be reflected consistently in the administration of justice, regardless of a person’s status, position or influence. – Suhakam

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