(Sept 25): A pardon, reprieve or respite may be granted under Article 42 of the Federal Constitution following conviction. Neither a pardon, a reprieve, nor a respite, constitutes an exoneration of guilt or removal of wrongdoing. They do not “wipe the slate clean” of the prior conviction.
Chronology of salient events leading to Najib’s second pardon
- Following the 14th general election on May 9, 2018, it was reported that police conducted a series of searches and seizures in May 2018 at premises linked to former prime minister Datuk Seri Najib Razak and wife Datin Sri Rosmah Mansor in connection with investigations into 1Malaysia Development Bhd (1MDB). On June 27, 2018, police announced that the seized cash and valuables were estimated to be worth between RM900 million and RM1.1 billion comprising 11,991 items of jewellery, 401 watches, 16 watch accessories, 234 pairs of spectacles, 306 handbags, and RM114,164,393.44 in cash in various denominations (collectively referred to as seized assets), and on July 3, 2018, Najib was arrested in connection with investigations concerning SRC International Sdn Bhd, a former subsidiary of 1MDB;
- Following a lengthy trial in which 57 prosecution witnesses and 19 defence witnesses testified, on July 28, 2020, the High Court convicted Najib on all seven charges: one count of abuse of power, three counts of criminal breach of trust and three counts of money laundering involving RM42 million in SRC funds and sentenced him to 12 years’ imprisonment and a fine of RM210 million. On Dec 8, 2021, the Court of Appeal (COA) upheld his conviction and sentence. Thereafter, on Aug 23, 2022, the Federal Court unanimously dismissed his final appeal, and finally, on March 31, 2023, the Federal Court dismissed his application to review the foregoing decision. Judge Datuk Mohd Nazlan Mohd Ghazali, in the High Court, stated:
- “[2910]…what this court seeks to affirm is the sanctity of the rule of law and the supremacy of the Constitution. No one — not even one who was the most powerful political figure and the leader of the country enjoys a cloak of invincibility from the force of the law. Any notion to such effect is the very antithesis to Article 8 of the Constitution that enshrines that rule that all persons are equal before the law. The ascension of the accused to the pinnacle of the leadership of the nation and his grip on political power reposed in him by the citizens of this country the position of trust in our system of constitutional democracy. His conviction of all seven charges concerning abuse of position, criminal breach of trust and money laundering constitutes nothing less than an absolute betrayal of that trust…”
- The seized assets, made the subject of 1MDB-related forfeiture proceedings, were reportedly returned in the following manner, following the dismissal of such proceedings:
- June 17, 2021 — RM114,164,393.44 in cash to Najib through his representative. Najib and Umno had both claimed the cash; and
- By June 22, 2022 — 9,555 jewellery items, 277 handbags and all 234 pairs of spectacles to Rosmah, and 394 watches and 16 watch accessories to Najib;
- Nov 14, 2022 — the High Court dismissed the forfeiture application concerning the remaining 2,435 jewellery items, seven watches and 29 handbags. The Attorney General’s Chambers did not appeal, and the items were to be returned to Najib and Rosmah;
- Feb 2, 2024 — It was announced that the Pardons Board for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya had, on Jan 29, 2024, reduced Najib’s prison term from 12 years to six years and his fine from RM210 million to RM50 million relating to the SRC case (first pardon);
- April 26, 2024 — The Malaysian Bar sought leave to apply for judicial review to challenge the first pardon, naming the Pardons Board for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, and Najib as respondents. The Malaysian Bar seeks:
- to challenge the validity of the Pardons Board’s 2024 decision and advice; and
- an order prohibiting the Pardons Board from considering any pardon, reprieve or respite for Najib until all criminal proceedings against him have been exhausted, and until he has publicly accepted responsibility for his actions and expressed repentance and remorse;”
- Sept 3, 2024 — The Cabinet decided to introduce legislation concerning house arrest. The proposal was subsequently announced by the prime minister during the tabling of Budget 2025 on Oct 18, 2024;
- Nov 11, 2024 — The High Court refused the Malaysian Bar leave to proceed with its judicial review, and on Dec 3, 2024, the Malaysian Bar appealed to the COA, with the decision of the COA to be delivered on Jan 7, 2027;
- Dec 22, 2025 — Judge Alice Loke in the High Court dismissed on its merits Najib’s judicial review application seeking confirmation and implementation of a purported addendum to the first pardon, which was said to permit him to serve the remainder of his SRC sentence under “house arrest” (addendum order) (leave had been previously granted by the COA, and affirmed by the Federal Court on Aug 13, 2025). Loke held, among others, that the alleged addendum order was invalid because it had not been deliberated upon nor decided by the Pardons Board under Article 42 of the Federal Constitution, and that there was no legal mechanism to implement house arrest, stating:
- “[68]…I am of the view that a house arrest order is not capable of execution, there being no legal provision for such mechanism in Malaysia. The applicant’s counsel submitted that the means for implementation is in Section 43 of the Prisons Act 1995…
- [72] The release on licence in Section 43 is a decision of the commissioner general. He exercises his discretion, and in so doing is empowered to impose conditions for release. He determines the duration of the period of release and the place the prisoner is to proceed to. Notwithstanding the release, the prisoner can be recalled to prison at any time…
- [73]…it can hardly be said that this is the mechanism to implement house arrest…clearly the house arrest in the addendum order is at variance with the provisions relating to release on licence. It is my view that the release on licence is a statutory power given to the commissioner general alone…”;
Although Najib appealed against the above, he later withdrew his appeal without liberty to file afresh. The High Court's judgement therefore remains undisturbed, i.e. the issue of house arrest (if any) presently falls under the purview of the commissioner general of prisons.
- Dec 26, 2025 — In delivering the judgement on the 1MDB prosecution against Najib, judge Datuk Collin Lawrence Sequerah convicted Najib on four charges of abuse of power and 21 charges of money laundering involving approximately RM2.28 billion. Najib was sentenced to 15 years’ imprisonment and substantial financial penalties. The prison terms were ordered to commence after completion of the SRC sentence. Sequerah observed:
- “[6] The financial scandal that led to the charges being preferred against the accused was described in the press, locally and worldwide, as the largest episode of kleptocracy in the world. The scale of the plunder that took place (financially speaking, of course) made Atilla the Hun look like a choirboy by comparison…”;
- Dec 29, 2025 — Najib filed an appeal against his 1MDB conviction and sentence;
- June 23, 2026 — The Prison (Amendment) Bill 2026, which includes provisions concerning electronic monitoring devices (commonly used in house arrest in other jurisdictions), was tabled for first reading by the government and subsequently referred to two Parliamentary Special Select Committees for further scrutiny. This amendment bill has not yet been passed into law. The bill ends as follows:
- “This bill will involve the government in extra financial expenditure the amount of which cannot at present be ascertained.”
- Sept 18, 2026 — The Legal Affairs Division (BHEUU) of the Prime Minister’s Department announced that the Pardons Board for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya met on Sept 18, 2026. The BHEUU also announced that Najib had been granted a conditional pardon, permitting him to serve the remainder of his SRC sentence under house arrest until Aug 23, 2028, subject to payment of the reduced fine of RM50 million (second pardon).
House arrest and Umno's RM50 million fundraiser
Judge Loke in the addendum order case held that there is no legal provision for a house arrest mechanism in Malaysia. The home minister confirmed that no house arrest legislation exists and the relevant authorities are awaiting written notification of the terms of Najib’s second pardon. He also stated that the Cabinet has approved in principle the drafting and tabling of a House Arrest Act.
The reference to Kenneth Lee Fook Mun’s previous purported house arrest by way of a pardon does not constitute legal authority nor justification for saying that Malaysia has a formal legal “house arrest” framework. It is unclear if that case arose by way of a Pardons Board decision or under licence of the commissioner general of prisons under Section 43 of the Prisons Act 1995. Kenneth’s case also does not appear to have been tested in court nor to have received any judicial endorsement. Kenneth’s case therefore does not constitute a legal precedent for granting house arrest.
Finally, from our research to date, there appear to be no standard operating procedures or guidelines in place for house arrest. A whole new ecosystem of rules and procedures would be required to operationalise house arrest. There remain numerous legal uncertainties surrounding house arrest, Umno’s proposed RM50 million fundraiser and the second pardon in relation to the first pardon, which require further examination. However, given the reported return of the earlier RM114,164,393.44 to Najib’s representative, it is unclear why Umno needs to raise funds from the public. Such a public fundraiser may also involve other legal considerations. It is also unclear why it has been reported that Najib says most of his assets are frozen when it appears that more than enough of his assets (that were previously seized) have already been returned to cover the RM50 million fine, without the need for a public fundraiser. Perhaps there may be other assets (which were not seized around May 2018) which may have been frozen, but this is not clear nor have any details been made available publicly.
Greater transparency needed
The Malaysian Bar adopts the joint statement issued by civil society groups and individuals, including Datuk Ambiga Sreenevasan and Maria Chin Abdullah, and calls upon the Pardons Board and the Prime Minister’s Department to:
- declassify and publish the official minutes of the Pardons Board meeting(s) held regarding Najib’s first pardon and second pardon decisions; and
- fully disclose all conditions proposed to be attached to Najib’s house arrest, including monitoring protocols, enforcement authorities and the additional costs to taxpayers that a house arrest would entail.
This is yet another reason why the Malaysian Bar has consistently called for a meaningful freedom of information framework to guarantee public access to such information.
House arrest for other prisoners
Recent events may prompt other prisoners to petition for similar pardons, reprieves or respites. Accordingly, clear and objective criteria, made known in advance, are crucial to avoid any perceptions of preferential treatment for Najib. On what basis may any other convict or prisoner seek a similar pardon, reprieve or respite? Article 8(1) of the Federal Constitution (quoted by judge Nazlan in the SRC judgement), which provides the answer (and entrenches the constitutional right to equality before the law), reads as follows:
- “All persons are equal before the law and entitled to the equal protection of the law.”
While the law and house arrest ecosystem are still in the process of being formulated, it is axiomatic that the Pardons Board(s) will now receive many more petitions for house arrest.
Malaysian Bar’s next steps
The Malaysian Bar will, through its solicitors, challenge the decision and advice of the Pardons Board concerning the second pardon, while maintaining its appeal in relation to the Pardons Board’s decision and advice on the first pardon.
Anand Raj is the Malaysian Bar president.