High Court: Najib's House Arrest Order Invalid as Agong Must Follow Constitutional Procedures

The Kuala Lumpur High Court dismissed former Prime Minister Najib Razak’s bid for house arrest, ruling that the Yang di-Pertuan Agong, as a constitutional monarch, must exercise the prerogative of mercy strictly according to the Federal Constitution. In her 41-page judgment released today, Justice Alice Loke Yee Ching held that the former Agong’s January 29, 2024 addendum order allowing Najib to serve his reduced sentence at home was invalid because it was not deliberated or decided at a Pardons Board meeting, violating Article 42.

The court emphasised that the Agong cannot act independently of the Pardons Board, which must advise him before any clemency decision. The ruling aligns with prior Federal Court and Court of Appeal decisions stressing procedural safeguards. Najib’s lawyer Tan Sri Muhammad Shafee Abdullah announced plans to appeal.

House Arrest Order

Main Elements Said by the Court (in Points, Exactly as Stated)

“To reiterate, the Yang di-Pertuan Agong is a constitutional monarch, and he exercises powers and functions in accordance to the provision of the Constitution.”
“The exercise of the prerogative power of mercy is no exception. It must be exercised within the legal framework providing for safeguards and limits in the Constitution.”
“The Pardons Board as a constitutional body, has an important function of advising the Yang di-Pertuan Agong before a decision is made.”
The Agong’s exercise of his powers of clemency is not absolute, and has to be carried out according to the constitutional limits in Article 42 (especially regarding advice and the procedure stated in Article 42).
Any failure to strictly follow Article 42’s procedural safeguards and substantive requirements will render the entire clemency process open to challenge in court.
The existence of the house arrest order does not make it valid, and validity depends on compliance with the strict requirements of the Federal Constitution.
The powers of the Yang di-Pertuan Agong as a “constitutional monarch” are defined in the Federal Constitution, and discretionary or prerogative power has to be exercised judiciously.
These powers are not unlimited and there are safeguards and limits to be observed, according to the Constitution which provides for the powers. Ultimately, these powers must be exercised judiciously and for the public good.

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