Important Note: This article is for general information and educational purposes only—not legal advice. It draws on the unreported written judgment of High Court Judge Alice Loke, High Court of Malaya, Judicial Review Application No. WA‑25‑136‑04/2024, delivered on 22 December 2025.
Why a House Arrest Bid Failed
On 22 December 2025, the Kuala Lumpur High Court dismissed former Prime Minister Datuk Seri Najib Tun Abdul Razak’s bid to serve the remainder of his reduced sentence under house arrest. The ruling, delivered by High Court Judge Alice Loke, did more than reject a claim—it reaffirmed a fundamental constitutional principle: the power of pardon, like all executive power, must follow the process laid down by the Federal Constitution. For law firms with public law or regulatory practices, and for organisations that engage with government decision-making, the judgment is a clear, practical reminder of how the courts supervise the boundaries of public power.
The Legal Tool: Judicial Review
Before examining the constitutional rule at the heart of the case, it helps to understand the legal tool Najib used to assert his claim: judicial review.
Under administrative law, any person affected by an act, decision, or inaction of a public body may challenge it. The aggrieved party can ask the court for remedies such as a prohibiting order, a declaration, or a quashing order (certiorari) against the act or decision that affects them.
Judicial review acts as a check and balance to ensure that public bodies do not abuse their power. When the court hears a judicial review application, its role is to determine whether the authority acted within its powers, followed fair procedures, and reached rational conclusions. With that framework in mind, the sequence of events that led Najib to file his application becomes crucial.
Sequence of Events
It began on 12 February 2024, when Najib, then serving his sentence at Kajang Prison, learned of an Addendum Order (AO). The AO, he was told, would allow him to serve the remainder of his reduced jail term under house arrest. The Order was a supplement to the pardon he had received on 29 January 2024, which reduced his prison sentence from 12 years to 6 years and his fine from RM210 million to RM50 million. Both the pardon and the supplementary order were issued by the then Yang di‑Pertuan Agong, Al‑Sultan Abdullah Ri’ayatuddin Al‑Mustafa Billah Shah.
Najib, through his solicitor, wrote to several authorities seeking confirmation of the AO’s details: the Home Minister, the Attorney‑General, the Pardons Board for the Federal Territory of Kuala Lumpur, Labuan and Putrajaya, the Minister in the Prime Minister’s Department (Law and Institutional Reform), and the Director General of the Legal Affairs Division at the Prime Minister’s Department.
When none of them replied, Najib applied for judicial review at the High Court, naming seven respondents: the five bodies he had originally written to, plus the Commissioner General of Prisons and the Government of Malaysia. The remedy he sought was an order of mandamus—to compel the relevant authorities to enforce the terms of the AO. Under those terms, Najib would be moved from Kajang Prison to his known residence, where he would serve the remainder of his sentence under house arrest.
By the time the case reached Judge Alice Loke, numerous issues—including whether the AO even existed—had been filtered out. The sole remaining question was whether the Addendum Order was legally valid.
The Core Question
To decide that question, Judge Alice had to examine whether the AO complied with Article 42 of the Federal Constitution. The King’s power to grant a pardon—the prerogative of mercy—derives from Article 42, which also sets out the exact process that power must follow. If the AO did not follow that process, it could not be enforced, and Najib would not be entitled to the relief he sought.
Najib’s Arguments
Najib’s legal team, led by counsel Tan Sri Muhammad Shafee Abdullah, advanced three arguments to persuade the court that the AO was valid and should be obeyed.
First, they submitted that because the AO was made under the King’s special constitutional power to grant mercy, the matter was non‑justiciable—the court could not step in and rule on its validity. Moreover, they argued that the government respondents had no standing to challenge the AO, as doing so would improperly interfere with the King’s prerogative.
Second, they contended that Article 42(1) of the Constitution gave the King three separate clemency powers: pardon, reprieve, and respite. The AO, they argued, was a respite and should not be treated like a full pardon. It fell entirely within the King’s personal discretion, and while the Constitution requires the Pardons Board to be consulted for a pardon, no such requirement applied to a respite.
Third, they argued that even if the Board’s involvement were required, the King was not obliged to make his decision during the Board’s meeting. He could consider the matter at the meeting and issue his decision later.
Respondents’ Arguments
The respondents—the Home Minister, Attorney‑General, Pardons Board, and others—took the opposite view. The AO, they argued, was not valid, and they therefore had no duty to obey it. Their position rested on the principle that the prerogative of mercy must follow the Constitution’s rules, and that principle determined whether the courts could review the Order.
When is a royal prerogative immune from judicial review? Only when the clemency power is exercised in accordance with Article 42. If the proper process is not followed, the courts may step in. The non‑justiciability defence works only if the constitutional requirements have been met.
The respondents maintained that this was not the case. They presented evidence that the AO did not comply with Article 42. The minutes of the 61st Pardons Board meeting, held on 29 January 2024, showed that the only decision made was to reduce Najib’s sentence and fine. His house arrest was not discussed.
The Court’s Decision
Judge Alice Loke held that as a constitutional monarch, the King must follow the Constitution when performing his official duties. The same applies to the prerogative of mercy. It must be exercised within the boundaries and protection set by the Constitution.
Because the AO was never discussed or voted on at the 61st Pardons Board meeting, it did not satisfy the requirements of Article 42 and was therefore invalid. As a result, the principle of non‑justiciability did not apply, and the court had the authority to review the Order. Consequently, the respondents had no duty to enforce the invalid order, and Najib had no right to the relief of mandamus. The judicial review was dismissed.
Conclusion
The heart of Judge Alice’s reasoning lies in the operation of Article 42. The Constitution, as the highest law, does not merely grant the King power—it prescribes the exact steps that power must follow. Under Article 42, before the King can grant any pardon, reprieve, or respite, the Pardons Board must first meet with the King presiding. At that meeting, the Board considers the Attorney‑General’s written opinion and then gives its advice. Only after that collective process does the King exercise his prerogative.
The Addendum Order failed not because of what it said, but because of how it was made. It appeared without the Board’s meeting, deliberation, or constitutional foundation. That made all the difference. When the process is missing, so is the protection that shields the decision from court scrutiny.
Ultimately, the High Court’s decision was about that simple, powerful idea we began with: constitutional power must be exercised constitutionally. The procedural steps are not obstacles to power. They are what make power legitimate.