This article first appeared in The Edge Malaysia Weekly on December 29, 2025 - January 4, 2026

PRIOR to Dec 22, lawyers said former prime minister Datuk Seri Najib Razak’s insistence that he was entitled to spend the remainder of his sentence under house arrest based on a royal addendum, hinged on whether such an order was valid and enforceable.

This was answered by an emphatic “no” when High Court Judge Alice Loke Yee Ching ruled that the supplementary order issued by the then Yang di-Pertuan Agong was not valid and cannot be enforced as the King cannot decide independently of the Pardons Board.

In deciding the unprecedented issue, Loke examined the arguments presented in Najib’s judicial review application and articulated the grounds for her ruling. The judge, who had agreed to bring forward the decision from Jan 5 to Dec 22 at the request of Najib’s lawyers, efficiently ensured that the written grounds in a 41-page judgment were made available to all parties the following morning.

In her judgment, Loke observed that the King is a constitutional monarch who exercises his powers and functions in line with the constitution.

She said although issues of clemency fall under the Rulers’ discretion, it has to be used within the framework enshrined in the Federal Constitution, particularly Article 42, which concerns the power of pardon and the process.

Highlighting portions of the declassified 61st Pardons Board’s meeting minutes where Najib’s pardon was deliberated, Loke said the then King had suggested a full pardon, but after listening to the board, it was decided that Najib would receive a reduced jail term and fine.

“More importantly is the fact that only one decision was made by the [King] during the meeting, mainly the reduction of the imprisonment term and fine. There was absolutely no mention of the house arrest.

“In the light of this evidence [...] it is indisputable that the house arrest was not deliberated at the Pardons Board meeting.

“The fact that it was referred to as a supplementary order confirms it. It then follows that the advice of the Pardons Board was not tended in respect of the house arrest. The obvious conclusion to draw from this is that the addendum order was not made following the procedure of Article 42,” she said.

She added that the additional order also “significantly alters” Najib’s imprisonment term and therefore was all the more reason to be deliberated upon at the meeting.

Her ruling means that Najib will end the year behind bars in Kajang Prison, serving the remainder of the sentence meted out on him following his conviction on all seven charges in the SRC International case and the apex court’s upholding in 2022 of the High Court’s 2020 verdict.

In 2024, the Federal Territories’ Pardons Board had slashed the ex-PM’s prison sentence to six years from 12 years, and reduced his fine from RM210 million to RM50 million.

Subsequently, Najib’s lawyers had alleged that the then King had issued an additional order — independent of the Pardons Board — allowing Najib to serve the remainder of the updated sentence under house arrest, bringing into question the legality of such an order. Najib then sought a judicial review.

His counsel Tan Sri Muhammad Shafee Abdullah said Loke’s decision would be appealed. How soon the matter can be heard depends on the courts’ schedule.

While the case could still proceed to the apex court, the High Court’s ruling offers some closure to an issue previously taken to the Federal Court for leave to be heard in full. The apex court had instructed that the matter be addressed at the High Court.

Prior to the matter landing in court, there were doubts as to whether the additional order actually existed until Attorney-General Tan Sri Mohd Dusuki Mokhtar confirmed in court that such a document did exist.

In his judicial review application, Najib had sought an order of mandamus to compel the government to execute the addendum to place him under house arrest. 

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