Can a Royal Pardon Come With a Leash Attached?

Can a Royal Pardon Come With a Leash Attached?

A pardon board can promise a great deal. But can it also fit the leash — or must Parliament forge that first?

by GK Ganesan September 19, 2026 57 Views

How the law lets the Pardons Board tag a prisoner at home, and why Parliament still has to forge the leash

On 18 September 2026 the Pardons Board granted Datuk Seri Najib Razak a conditional pardon.¹ He serves what remains of his sentence at home, until 23 August 2028, on payment of a RM50 million fine. One condition: he wears an electronic tag.

Lawyers, social media commentators immediately erupted like Anak Krakatoa. Half of them said the Board can do anything it likes. The other half said it can do nothing without an Act of Parliament. Both halves, as it happens, may not be all there, and the right answer is rather more interesting than either.

A short memory of how we got here

This is not the Board’s first attempt. In December 2025 the High Court struck down an earlier version of the same idea — an informal “Addendum,” made without a proper Board meeting, resting on no statute that so much as mentions house arrest.²

I wrote at the time that a Home Minister cannot gazette a mansion into a prison. The Board has since learned that lesson and followed the correct procedure. What it has not settled — because nobody has, yet — is whether anyone may lawfully watch a prisoner once he is home.

A Bill exists that would answer this cleanly.³

It sits in a parliamentary select committee, held up by a clause that has nothing to do with house arrest at all — rather like a parcel stuck in customs over the wrong stamp on someone else’s package.

Could an existing security law simply be borrowed?

No. Not POCA, not POTA, not SOSMA.⁴ Each of these watches a person who has not yet been punished — a suspected terrorist, a habitual criminal, an accused person awaiting trial.

Najib has already been tried, convicted, and sentenced. Reaching for a preventive-detention statute to manage a man serving a sentence would be a category error — rather like sending the fire brigade to a house that has already finished burning down.

So what can the law actually stand on?

Very little that was built for the purpose.

Section 43 of the Prisons Act 1995, read with regulation 111 of the Prisons Regulations 2000, lets the Commissioner-General release a prisoner “on licence,” with conditions attached.⁵

This is the very provision the High Court examined in December 2025, and found the Addendum too rigid to satisfy.

A licence issued this time, with conditions genuinely open to revision, sits rather more comfortably within the section.

But it is not, in truth, where the real power comes from.

The better argument: the Constitution needs no permission slip

Here is the point worth pausing on.

A constitutional provision always overrides an Act of Parliament — unless it limits itself. The Federal Court said the first half of that rule in Ah Thian v Government of Malaysia,⁶ and supplied the second half nearly twenty years later, in Public Prosecutor v Pung Chen Choon: some constitutional clauses hand Parliament the very power to cut them down.⁷

The document doing the real work here is not the Prisons Act.

The load-bearing power comes from the Pardons Board’s own order, resting on Article 42 of the Federal Constitution — not on any Act built for the purpose.

Three short facts follow, and the whole argument turns on them

The Constitution calls itself “written law.”⁸

It calls itself ‘supreme law’, voiding any provision — parliamentary or otherwise — that contradicts it.⁹

And anything older than the Constitution bends to it.¹⁰

Strip away the numbering, and the rule is this:

A constitutional provision beats an Act of Parliament, unless that provision limits itself.

Read that again please: there is a huge whale swimming below it.

So the absence of a Prisons Amendment Act does not leave the Pardons Board powerless.

The Board acts through the Constitution itself. Its power stands, limited only by whatever clause limits it — and that, at last, is the real question.

So on to the next question:

Does Article 42 limit itself?

Yes. Article 42(4)(a) places the pardon power among the “functions with respect to which federal law may make provision,” under Article 40(3).¹¹

Parliament was invited into this space from the day the Constitution was drafted. It has simply not yet walked in — rather like a guest who was handed a key years ago and has still not found the front door.

Some resist that reading, and their case is not a foolish one.

“A constitution”, they say, is “a living instrument” — its “words read to reach circumstances its framers never foresaw.”

Malaysian courts have said as much themselves, calling the Constitution an organic document rather than a frozen text, since Dato’ Menteri Othman Baginda v Dato’ Ombi Syed Alwi.¹²

On that view, the silence in Article 42 on monitoring, “should be read generously, and a self-limiting clause should bend before necessity.”

It is a real argument, and it deserves a real answer, not a wave of the hand

A living Constitution is not a blank cheque. Our own courts have fixed it a ‘basic structure’ — a core that no interpretation, however generous, may cut against, as the Federal Court held in Semenyih Jaya¹³ and again in Indira Gandhi.¹⁴

The doctrine did not begin here. It began in India, in Kesavananda Bharati v State of Kerala, where the Supreme Court shut a door that has stayed shut in Malaysia ever since.¹⁵

However elastic the wording of a constitutional clause, it cannot be read to swallow the very limit it was written to carry.

The doctrine of Necessity

Necessity fares no better as an escape route. The claim that, “a Pardons Board, left without a statute, must simply act as best it can”, gets the logic backwards — no statute should mean more restraint, not less.

A Pakistani court buried that kind of reasoning in Asma Jilani v Government of Punjab, disowning a “doctrine of necessity” an earlier bench had used to bless an unconstitutional government.¹⁶

Ask any law student and she will point you to an English court that had made the deeper point two centuries earlier.

State power needs a positive source in law; it cannot simply be assumed. Entick v Carrington held, in 1765, that an official may not act merely because no statute forbids it.¹⁷

Turn that around, and it answers our question too — nobody escapes punishment because a statute describing its terms has not yet been written.

So the argument resolves, and resolves cleanly.

A constitutional provision beats a Parliamentary Act unless it limits itself.

Article 42(4)(a) limits itself.

No doctrine of living interpretation, however elastic, licenses a Pardons Board to read past a limit the Constitution itself built in.

The power to condition this pardon was real. Its edge was fixed from the start.

One more thing deserves saying plainly — not as a citation, but as a submission of my own

A Bill has in fact been tabled, and it sits in select committee over a clause unrelated to house arrest.

That is not the committee’s fault; Parliament owes the country careful scrutiny.

But scrutiny and delay are not the same animal, and where a man’s liberty turns on the answer, Parliament owes the country speed as well as care.

Biar lambat, asal selamat, the Malay proverb says — better slow than sorry — but slow has its own limit, and Parliament is close to finding it.

Is there a real risk this gets challenged as unlawful?

Yes, and it already has been, once.

December’s judgment is the proof: an arrangement for keeping a convict at home, resting on no express statute, was held invalid, and the attempt to enforce it failed.

A second challenge could aim narrower — at whether prison officers may lawfully install and monitor a device on private property, or enter to enforce conditions, without express statutory power to do either.

Article 8 of the Federal Constitution guarantees equal treatment before the law,¹⁸ and any sense that conditions are being invented, case by case, for one prisoner, invites exactly that argument.

The risk falls away once the Prisons (Amendment) Bill 2026 passes; until then, it stands.

Does Article 42 itself carry the power to impose monitoring conditions?

In part, yes — though conditioning a pardon is not the same as building the machinery to enforce it.

The United States Supreme Court settled the first half of that distinction in Schick v Reed: a president’s constitutional clemency power is broad enough to attach a condition, there ineligibility for parole, without any separate statute, so long as the condition is not itself unlawful.[mfn]Schick v Reed 419 US 256 (1974).[/mfn]

Article 42 speaks in similar terms.

But since the 1993 and 1994 Mahathirian amendments, the power to pardon is no longer a personal royal prerogative — it is a structured function of the Board, exercised on formal advice that includes the Attorney General, and reviewable for process, as December’s judgment confirmed.

So the Board could validly condition Najib’s liberty on wearing a device.

Instructing the Prisons Department to fit one, and giving its officers power to enter his home to check it, is a different act entirely — an executive act needing executive authority, which in our constitutional structure comes from Parliament, not the Palace.

The pardon can promise the leash. Only statute can supply the hand that holds it.

What can the authorities actually do right now, Bill or no Bill?

Mostly the ordinary tools of supervision, not anything electronic: scheduled visits, a duty to report at set intervals, restrictions on travel and visitors, and a duty to permit inspection of the residence.

None of this depends on the missing Bill — all of it can be made a condition of the pardon itself, a bargain Najib accepts in exchange for staying out of Kajang Prison.

Could an old-fashioned condition of licence do the job better than a tag?

Arguably, yes.

A condition that a man report to a police station, or admit an officer into his home, is not state power forced on an unwilling subject — it is a term he has accepted as the price of liberty, enforceable simply by taking that liberty back on breach.

Malaysian courts have long tolerated conditions of exactly that kind attached to bail, probation and licence.

An electronic device is different in kind.

It attaches to the body and runs continuously, and every jurisdiction that uses one has concluded the same thing: the device is serious enough to need its own statute.

South Korea confines its scheme tightly, to murder, kidnapping, robbery and sexual violence.¹⁹

England and Wales rest their home-detention curfew on section 246 of the Criminal Justice Act 2003, not on the royal prerogative of mercy.²⁰

Japan, more cautious still, has only this month begun piloting GPS tracking for paroled sex offenders, having relied until now on volunteer probation officers and simple reporting.

If the authorities want reporting and inspection, existing pardon conditions will do. If they want a tag, the safer road is the one Korea, England and Japan each eventually took: wait for the statute.

Will this become the template for every pardon to come?

Functionally, almost certainly. Politicians would love it to bits!

Legally, not quite — Malaysia has no doctrine by which one royal act binds a future Pardons Board, and each Board keeps full discretion, case by case.

But precedent in practice differs from precedent in law.

There is now a script — a properly convened Board, a fine, home confinement, a tag as condition — and future applicants, and future Boards, will reach for it, much as English pardons of earlier centuries hardened over time into settled administrative practice, long before Parliament wrote any of it into a statute.

The lesson of Korea, Japan, America and Britain alike is the same: this kind of practice works best, and survives challenge best, once Parliament has the last word, not precedent.

That is the unfinished business still sitting in select committee

Until it passes, Najib’s compliance rests less on any device than on his own word — and a leash, however constitutionally sound, is only as good as the hand not yet appointed to hold it.

∞§∞

This article is for general information only and is not legal or technical advice. Seek independent legal advice where appropriate.

Thanks to KN Geetha, TP Vaani, JN Lheela and Lydia Jaynthi of GK Legal, and Zaqy Al Fattah of Unsplash for the image. Claude (Anthropic) assisted with drafting and Perplexity Pro with fact-checking; the author is solely responsible for all views and errors.

Can a Royal Pardon Come With a Leash Attached?

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