KUALA LUMPUR, Dec 23 — Malaysia’s High Court has used Datuk Seri Najib Razak’s house arrest case to restate a fundamental constitutional principle: the Yang di-Pertuan Agong is a constitutional monarch, not an absolute ruler, and must therefore exercise his powers in line with the Federal Constitution — including when extending mercy to convicted persons.
In a detailed 41-page judgment, Justice Alice Loke Yee Ching explained why Najib failed in his attempt to have an alleged royal order for house arrest enforced, despite confirmation by the attorney general that such an order exists.
At the heart of the ruling is Article 42 of the Federal Constitution, which governs the power of clemency. The provision states that decisions on pardons, reprieves and respites must come after the King has received advice from the Pardons Board and only through the constitutionally prescribed decision-making process.
The judge noted that the 16th Yang di-Pertuan Agong had, on January 29, 2024, presided over a Pardons Board meeting in which Najib’s sentence and fine were reduced. That decision was accepted as valid. However, a separate additional order said to allow Najib to serve the remainder of his term at home was never discussed or decided at that Board meeting.
Because that additional directive did not originate from the Pardons Board process, the High Court held that it did not comply with Article 42 and was therefore invalid and incapable of being carried out.
Justice Loke emphasised that the role of the Pardons Board is not ceremonial. As a constitutional body, it plays an “important function of advising the Yang di-Pertuan Agong before a decision is made” on clemency matters. The judge stressed that the constitutional requirements — Board meetings, advisory function, and the King acting on that advice — collectively mean that the monarch cannot exercise mercy powers independently of the Board.
The High Court built its reasoning partly on the Federal Court’s August 13, 2025 decision in Najib’s case, which had already clarified that clemency powers are not absolute and must be exercised in accordance with constitutional limits and procedures. The Federal Court had also noted that any failure to adhere strictly to Article 42’s safeguards could render the entire clemency process open to challenge.
Justice Loke further anchored her analysis in a 2009 Court of Appeal decision from Perak, which she described as a leading authority on the nature of the constitutional monarchy in Malaysia. That earlier judgment observed that the functions and powers of the Yang di-Pertuan Agong are defined in the Federal Constitution, and that the Rulers’ prerogatives have to be exercised judiciously for the public good.
According to the High Court’s summary of that decision, the idea behind a constitutional monarchy is to preserve the Rulers’ sovereignty “within a constitutional framework”, balancing their authority with explicit limitations and restrictions.
The judgment also briefly contrasted constitutional monarchy with absolute monarchy, where rulers hold unchecked power. In Malaysia’s system, the Federal Constitution is the “supreme law of the Federation”, and even the King’s actions must conform to it.
Outside the courtroom, Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah argued that the High Court’s decision effectively waters down the Yang di-Pertuan Agong’s mercy powers by tying them strictly to Pardons Board proceedings. He insisted that the King should retain wider space to grant relief in exceptional situations and announced that Najib will appeal.
The appeal is expected to prolong legal and public debate over how far royal prerogatives extend within Malaysia’s constitutional structure — and how firmly they are bounded by the supreme law of the land when it comes to freedom, punishment and mercy.
