The High Court has ruled that the Yang di-Pertuan Agong cannot exercise the royal prerogative of mercy independently and must act on the advice of the Pardons Board, as stipulated under Article 42 of the Federal Constitution.
Judge Alice Loke explained that Article 42 sets out a strict constitutional process for granting clemency. The Pardons Board must convene, consider the Attorney-General’s written opinion, and formally provide its advice before the King may make any decision. A royal decision made without this process is not valid.
The ruling came in dismissing former Prime Minister Datuk Seri Najib Razak’s judicial review application, which sought to enforce a royal addendum that would allow him to serve the remainder of his prison sentence under house arrest. Judge Loke noted that the 61st Pardons Board meeting only considered Najib’s applications for a full pardon and a reduced prison term, and the addendum order for house arrest was neither deliberated nor advised by the board.
“The minutes confirm the King’s decision only involved a reduction of imprisonment and fine. There was no mention of house arrest, and no advice was tendered by the Pardons Board,” she said, adding that the addendum did not comply with Article 42 and was therefore invalid.
The judge also rejected claims that the addendum could be treated as a form of ‘respite’ independent of the board, noting that Article 42 does not allow clemency decisions to bypass the board’s deliberation. Additionally, she ruled that a house arrest order is unenforceable under Malaysian law, as the authority to grant release on licence lies solely with the Commissioner-General of Prisons under Section 43 of the Prisons Act 1995.
Najib is currently serving a six-year reduced prison sentence in Kajang Prison after being convicted of misappropriating RM42 million from SRC International Sdn Bhd.
