Najib Razak’s ‘House Arrest’: Royal Addendum Raises Riveting Questions for Malaysia

One year ago on 29 January 2024, Malaysia’s former prime minister Najib Razak was granted a partial pardon by the Pardons Board presided over by the then Yang di-Pertuan Agong. The timing raised some eyebrows because it was just a day prior to the end of the Sultan of Pahang’s reign as the 16th Yang di-Pertuan Agong. The Board halved Najib’s prison sentence from 12 to six years and reduced his fine from RM210 million (US$47 million) to RM50 million or, in default, one more year of imprisonment.

Speculation was rife that the partial pardon for Najib could open the door to his political comeback. He began his jail sentence on 23 August 2022. With the possibility of parole after serving two-thirds of his reduced sentence, Najib could be a free man by 23 August 2026 — well before the next general election due by 17 February 2028.

Despite his possible early release, Article 48(1)(e) of the Constitution of Malaysia will apply. Najib will be disqualified for five years from membership of Parliament unless this disqualification is removed by the Yang di-Pertuan Agong under Article 48(3) on the PM’s advice. Another possibility for Najib is to submit a fresh petition to the new King for a “free pardon”.

These possibilities are, however, pre-empted by the recent disclosure of a Royal Addendum, which reportedly substituted Najib’s reduced prison sentence with house arrest. There are now riveting questions about the legal validity of this addendum, apparently issued without the participation of the Pardons Board.

First, Article 42(8) is clear that in the matter of pardons, the King cannot act entirely on his own. A constitutionally constituted Pardons Board presided over by the King must be convened.

Second, under Article 42(9), the Attorney-General’s (AG) written opinion shall be considered. It is doubtful that this was done in relation to the addendum mentioning house arrest.

Third, the Board is not a mere consultative body. Under Articles 42(4)(b), 42(9), 42(12)(a) and 42(12)(c) it tenders advice to the King.

Fourth, the term “advice” triggers Article 40(1A), which provides that “in the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice”. The use of the word “shall” implies that the advice must be accepted.

…the biggest contention is whether the King’s power of pardon is on advice or in his absolute discretion.

Fifth, once the Board tenders its advice, a decision is recorded and the meeting is adjourned. The courts will have to decide whether the King can, as an afterthought, issue an addendum, as reported, to alter the face of the proceedings. Or should he reconvene the Board to let it reconsider the petition?

Sixth, under Article 42, clauses (1), (2) and (10), Malaysia’s Pardons Board has the power to pardon, reprieve, respite, remit, suspend or commute a sentence. Does the King have the power under the law to order a clemency (like a house arrest) not enumerated in the Constitution? Can the King, on his own, add to the statutory clemencies?

Seventh, in relation to house arrest, sections 3 and 5 of the Prisons Act 1995 state that the Minister of Home Affairs may gazette any house, building, enclosure or place to be a prison for the purpose of imprisonment or detention of persons lawfully in custody. This power belongs to the Minister, not to the Board. Perhaps it is for this reason that the government is proposing new legislation on house arrest.

Eighth, the biggest contention is whether the King’s power of pardon is on advice or in his absolute discretion. In a long line of cases, most of them earlier than 1993 (when Malaysia’s monarchs lost their immunity), the courts have ruled that the power of pardon is an entirely discretionary royal prerogative. The approach in at least 10 decided cases, including Datuk Seri Anwar v Mohd Khairul Azam (2023), maintains that the King is not bound by advice and his discretion is unreviewable in a court of law.

This judicial view is difficult to reconcile with the evolving Constitution. Since the insertions of Articles 182 in 1993, 40(1A) in 1994 and 42(12) in 1993, the constitutional design appears to be that the power of pardon is subject to Article 40(1A) and is to be exercised on advice.

Article 182 abolishes royal immunity. Article 40(1A) clarifies that whenever advice is tendered to the King, it shall be binding. Article 42 defines the types of pardons and mandates consideration of the AG’s written opinion: Articles 42(12)(a) through (c) introduce rules about the monarch’s disqualification from presiding over the Board in enumerated conflict-of-interest situations.

Despite these new provisions, some appellate judges are abiding by pre-1993 interpretations that the monarch’s power of pardon is an ancient, inherent, and uncontrolled prerogative. Thus, there is a wide gap between what the post-1993 Constitution provides and what the executive-minded courts have interpreted the law to be.

In short, judicial interpretations have converted a controlled constitutional power into an inherent prerogative not subject to any control. Such an activist judicial interpretation has significantly enhanced the Malaysian monarchy’s constitutional power and position. Greater powers, of course, carry greater responsibilities.  

2025/15