Can the Najib Addendum override constitutional procedure? The High Court’s Answer

Can the Najib Addendum override constitutional procedure? The High Court’s Answer

Can a King’s mercy bypass constitutional procedure? In a landmark ruling, Justice Alice Loke says, “No”. She affirms that even royal prerogatives must give way to Constitutional ‘due process’.

by GK Ganesan December 24, 2025 7338 Views

A CRUCIAL POINT

On December 22, 2025, Justice Alice Loke delivered a judgment of profound constitutional importance. The Kuala Lumpur High Court rejected former Prime Minister Najib Razak’s bid to serve his sentence under house arrest.¹

Her decision raises delicate questions about how even the highest prerogatives of the Crown must operate within our written Constitution.

FIRST, A VITAL CAVEAT:

This is only the first stage. Najib has the right to appeal to the Court of Appeal, and then to the Federal Court. The legal principles discussed here remain provisional. Higher courts may see matters differently.²

WHAT HAPPENED?

Najib serves a six-year prison sentence for misappropriating RM42 million from SRC International. Originally sentenced to 12 years in 2022, he received a partial pardon in January 2024. His sentence was halved. His fine was reduced from RM210 million to RM50 million.³

But then something extraordinary occurred. An “Addendum Order” appeared. It was dated the same day as the pardon.⁴

This order directed that Najib serve his time under house arrest. Not in Kajang Prison. In his Kuala Lumpur home.⁵

The government refused to comply with it. Najib sued.⁶

After hearing the parties, Justice Loke said, No. The terms of the Adendum, she ruled, could not be carried out.⁷

HOW DOES THE KING GRANT PARDONS?

The Malaysian King possesses, like the UK monarch a magnificent prerogative of mercy. This is enshrined in Article 42 of the Federal Constitution. It is one of the King’s most noble powers.⁸

Yet the Constitution channels this power through a structured process. This is not to be misunderstood as any ‘diminishment’ of royal authority. Rather, it is the framework within which the King’s sovereignty is properly exercised.⁹

The due process is simple: a Pardons Board must convene. The Board comprises the Attorney-General, the relevant Minister, and three members appointed by the King. The Board meets ‘in the King’s presence’. He ‘presides over it’, with gracious authority.¹⁰

The Board considers the Attorney-General’s written opinion. It then tenders its considered advice to His Majesty. Only thereafter can a decision be made.¹¹

Article 40(1A) of the Federal Constitution is clear. When the King is advised by a constitutional body, His Majesty is ‘required to act on advice’. Art. 40(1A) states that His Majesty “shall accept and act in accordance with such advice”. This is not a limitation upon the King. It is the proper constitutional framework within which His Majesty’s prerogative is exercised.¹²

This provision was inserted in 1994 during important constitutional reforms. It reflects the principle of constitutional monarchy that our nation has adopted.¹³

WHAT DID THE PARDONS BOARD DECIDE?

The government disclosed the minutes of the 61st Pardons Board Meeting held on January 29, 2024.¹⁴

These minutes show one decision only. The sentence was reduced to six years. The fine was reduced to RM50 million.¹⁵

House arrest was not mentioned.¹⁶

Not discussed.¹⁷

Not advised upon.¹⁸

AND THEN AN ‘ADDENDUM’ EMERGED

It was termed a “supplementary order”. This language itself suggests it was made outside the Pardons Board process.¹⁹

Najib’s counsel argued that the King retained discretion to issue further orders later. They contended His Majesty could add terms after the Board meeting.²⁰

Justice Loke very courteously disagreed. She had to. The law bound her to.²¹

WHY DID THE COURT REJECT THIS ARGUMENT?

This is because the Constitution prescribes a mandatory constitutional process. This is not mere formality. It is the foundation of legality.²²

The Pardons Board must convene. The Attorney-General’s opinion must be considered. Advice must be tendered. The King then decides.²³

“Then and only then” can a valid order issue.²⁴

This process cannot be circumvented. Orders cannot be issued thereafter. Supplementary orders cannot be made outside the constitutional framework.²⁵ ²⁶

Why? Because the Constitution does not envisage His Majesty deciding independently of the Pardons Board.²⁷

The Board serves an essential constitutional function. The Attorney-General—the King’s principal legal adviser—is a member. His counsel must be considered.²⁸

This structure ensures that mercy is exercised with full deliberation. It ensures proper accountability.²⁹

BUT SURELY THE KING’S MERCY IS BEYOND JUDICIAL SCRUTINY?

For many years, Malaysian courts held that clemency decisions were “non-justiciable”. ‘Non-justiciable’ meant, the courts could not question them.³⁰

Cases such as Sim Kie Chon (1986) and Karpal Singh (1988) established this principle.³¹

Those cases involved prisoners seeking court declarations about whether a pardon should or should not have been granted. That concerns the substance of mercy: its merits.³²

This Najib objection is different. Najib does not ask whether he deserves house arrest. He asks whether constitutional procedure was followed.³³

It is a question of substance versus procedure.³⁴

Courts cannot review substance. But they must review procedure.³⁵

This distinction is vital. It protects the King’s prerogative whilst ensuring respect for law.³⁶

DO OTHER COMMONWEALTH NATIONS FOLLOW THIS APPROACH?

Yes. The distinction is now well-established across the Commonwealth.³⁷

In Yong Vui Kong (2011), Singapore’s Court of Appeal held that decisions on clemency are not reviewable “on merits”. Yet they remain subject to scrutiny for “illegality, irrationality, or procedural defects.” ³⁸

The UK Court of Appeal confirmed in R v Secretary of State, ex parte Bentley (1994) that the royal prerogative is reviewable when affected by legal error.³⁹

Malaysia’s own Federal Court signaled this approach in August 2025. The Addendum Order’s existence does not automatically render it valid. Validity depends on “adherence to the strict requirements of the Federal Constitution”.⁴⁰

The Federal Court was emphatic. Article 42’s procedural safeguards are, “both procedural and constitutional in nature”. His Majesty is, “required to act on the considered advice of the Pardons Board”. His function, “is therefore inextricably tied to the deliberations and recommendations made by the Board”.⁴¹

Could it be clearer?

EVEN IF PROCEDURE WAS WRONG, COULD THE ORDER STILL BE EXECUTED?

No. This is because of a second, independent reason.⁴²

Malaysian law contains no mechanism for house arrest.⁴³

Section 43 of the Prisons Act 1995 allows the Commissioner-General to, “release prisoners on licence”.

But this is a discretionary power; and not a constitutional power related to pardons.⁴⁴

The Commissioner-General decides whether to grant release: where the prisoner goes; how long it lasts; and when to recall him.⁴⁵

The Addendum Order mandated house arrest for six years. At Najib’s Kuala Lumpur residence. With no provision for recall.⁴⁶

It stripped the Commissioner-General of all discretion.⁴⁷

“Clearly the house arrest is at variance with the licence provisions,” Justice Loke concluded.⁴⁸

Without legal machinery, the order cannot be executed. How would it work? Who supervises him? Under whose authority? For how long? Can it be revoked? ⁴⁹

The Prisons Act vests these powers in the Commissioner-General. The Addendum Order removes them.⁵⁰⁵¹

You cannot execute what the law does not provide.⁵²

WHAT IS THE DEEPER PRINCIPLE?

It is called the “separation of powers.” ⁵³

Malaysia’s Constitution establishes distinct spheres for the legislature (read, ‘Parliament’), the executive (read, ‘the Government of the day’), and the judiciary (read, ‘the courts’).

The King exercises clemency—a noble prerogative rooted in correcting injustice.⁵⁴⁵⁵

Yet executive action, even royal action, must remain subject to law.⁵⁶

As the UK Court of Appeal said in Bentley, the prerogative is “now a constitutional safeguard against mistakes”.⁵⁷

Courts do not judge whether mercy was rightly granted. But they must ensure constitutional procedures are followed.⁵⁸

WHY DOES PROCEDURE MATTER?

Because procedure is the essence of legality.⁵⁹

The Pardons Board exists not as ceremony but as a constitutional body. The Attorney-General—the government’s principal legal adviser—is a member.⁶⁰

These requirements ensure mercy is not arbitrary. They ensure proper deliberation. They ensure accountability.⁶¹

Without them, executive power would operate without legal constraint. That contradicts the rule of law.⁶²

About 800 years ago, Henry de Bracton wrote: “No one is above the law, not even the King”. This principle runs through Commonwealth constitutional law.⁶³

As a constitutional monarch, the King must act within law and Constitution. He must uphold the rule of law.⁶⁴

Justice Loke’s judgment vindicates this principle. No power—not even the King’s prerogative of mercy—operates above law.⁶⁵

WHAT HAPPENS NEXT?

Najib remains in Kajang Prison. He has served more than three years of his six-year sentence.⁶⁶

He will appeal to the Court of Appeal. Two arguments will likely follow.⁶⁷

First, whether Article 42 mandates all clemency decisions during the Board meeting. Or whether the King retains discretion to issue supplementary orders.⁶⁸⁶⁹

Second, whether Malaysian law truly lacks house arrest provisions. Or whether Section 43 can be interpreted flexibly.⁷⁰

On the first point, the Federal Court has already signalled reservations. The 1993-1994 constitutional amendments further support a structured reading.⁷¹

On the second point, Justice Loke’s analysis is difficult to fault. Section 43 vests discretion in the Commissioner-General. An order removing that discretion cannot implement Section 43.⁷²

WHY SHOULD ORDINARY MALAYSIANS CARE?

Because this concerns you.

If constitutional procedures can be bypassed, who else faces that risk? If supplementary orders can be issued in secret, what stops any abuse of power? ⁷³

The rule of law protects everyone. It ensures predictability. It means no one—however powerful—is above law.⁷⁴

Justice Loke’s judgment preserves these principles.

Whether higher courts agree remains to be seen. But now, the Constitution has spoken.⁷⁵

And the Constitution has said: “procedure matters. Process matters. Law matters.” ⁷⁶

Even for their Majesties, the Kings.

∞§∞

We thank Zheng Khoo of Unsplash for the image.

The author thanks Miss KN Geetha, Miss TP Vaani, Miss JN Lheela and Lydia Jaynthi.

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Can the Najib Addendum override constitutional procedure? The High Court’s Answer

A CRUCIAL POINT

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