Royal mercy, rule of law: making Malaysia's pardon and house-arrest system transparent

1. The constitutional framework

Article 42: the prerogative of mercy

Article 42 vests the power of pardon in the Yang di-Pertuan Agong for offences tried by court-martial and for offences in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, and in the Ruler or Yang di-Pertua Negeri for offences in each state. The power is exercised after a Pardons Board meeting presided over by the King or Ruler, at which the Board must consider the written opinion of the Attorney General before tendering its advice. The High Court restated this sequence in its December 2025 judgment: meeting, Attorney General's written opinion, advice, then decision.

Article 40: a constitutional monarch

Under Article 40(1A), inserted in 1994, the King acts on the advice of the Cabinet or a minister authorised by it, save in a small set of matters reserved to his discretion, such as appointing a Prime Minister who in his judgement commands the confidence of the majority of the Dewan Rakyat and withholding consent to a request to dissolve Parliament. Pardons sit within their own Article 42 procedure, which the courts have described as a royal prerogative exercised within constitutional limits.

Earlier reforms: 1983, 1993 and 1994

Malaysia has adjusted the Rulers' constitutional position before, through negotiated amendments. After the 1983 constitutional crisis over royal assent, Parliament amended the assent rules; a further 1994 amendment to Article 66 provides that a bill becomes law if assent is not given within 30 days. In 1993 the Rulers' personal immunity from legal proceedings was removed and a Special Court was created under Article 182 to hear cases by or against a Ruler in his personal capacity, with proceedings against a Ruler requiring the Attorney General's consent.

Article 38(4) and the amendment threshold

Any law directly affecting the privileges, position, honours or dignities of the Rulers needs the consent of the Conference of Rulers (Article 38(4), read with Article 159(5)), in addition to a two-thirds majority in each House of Parliament. Reform touching the Rulers' role can therefore only succeed with their agreement. That is a strong argument for proposals that improve procedure and transparency rather than reduce the prerogative itself.

Courts and pardon decisions

In Juraimi bin Husin v Pardons Board, State of Pahang [2002] 4 MLJ 529, the Federal Court held that the exercise of the prerogative of mercy is not amenable to judicial review, and that reviewing the decision-making process would amount to reviewing the decision itself. Later cases have narrowed that position at the edges: the Court of Appeal in 2017 allowed a challenge to proceed by reading Article 42 together with Article 40(1A), and in 2025 the courts entertained Najib's challenge to the addendum, a question of whether a valid order existed at all. The merits of mercy remain beyond the courts; whether the constitutional procedure was followed has become a live legal question.

2. The Najib case in sequence

The Pardons Board's 2024 statement gave no reasons, and its arithmetic, a "50 per cent" reduction that took the fine from RM210 million to RM50 million, drew public questions that were clarified only later. The addendum dispute then turned on whether a document that both sides agreed existed had been made through the constitutional process. The High Court's answer was that the King "cannot decide independently of the Pardons Board". That finding protects the institution: it confirms that mercy is exercised through a structured, advised process rather than personal discretion.

Why it happened, and why it backfired

The Pardons Board published no reasons for its January 2024 decision, so the motives of those involved are not known. What can be stated from the public record is the following.

• A collective body, not a single decision-maker. Under Article 42, the Federal Territories Pardons Board consists of the Attorney General, the Federal Territories Minister and up to three members appointed by the King, with the King presiding. At the 29 January 2024 meeting the members included Federal Territories Minister Dr Zaliha Mustafa and Attorney General Ahmad Terrirudin Mohd Saleh. Dr Zaliha later described the outcome as a "collective decision", while the Cabinet's stated position was that the decision rested with the King.^19,20,21
• Political context. UMNO, which Najib led from 2009 to 2018, joined Pakatan Harapan in the unity government formed in November 2022. In April 2023 the UMNO Supreme Council unanimously resolved to petition the King for a full pardon, backed by a memorandum from all 191 divisions; party president Ahmad Zahid Hamidi, also Deputy Prime Minister, publicly sought the King's compassion. Prime Minister Anwar Ibrahim said he had forwarded the application to the Board for discussion and denied acting under UMNO pressure.^22,23,24
• Who chaired. The meeting was chaired by the 16th Yang di-Pertuan Agong, Al-Sultan Abdullah of Pahang, one of the final official acts of his reign, which ended on 30 January 2024. Najib had represented the Pahang constituency of Pekan in Parliament since 1976.^1,25,26
• The case for mercy. Supporters framed the petition as compassion: UMNO appealed to the King's mercy for a former leader, citing a dissenting Federal Court judge's view that Najib had not received a fair hearing, and Anwar described the outcome as "a matter of compassion".^23,24
• The backlash. The one-page statement, with no reasons and a fine cut of about 76% described as a 50% reduction, drew wide criticism. A coalition of more than 60 civil society organisations asked for the Attorney General's written opinion under Article 42(9) to be disclosed; PKR MP Hassan Karim called for written reasons; and Bersih cited the decision in warning of street protests over stalled reforms. Najib's own camp was disappointed that a full pardon was not granted.^{3,21,27,28,29}

The lesson is institutional rather than personal: a lawful decision taken by a constitutional body lost public confidence largely because nothing was explained. That is the gap the proposals below aim to close.

3. House arrest: a policy without a law

The Home Ministry told Parliament on 6 October 2026 that the House Arrest Bill is still being finalised and vetted by the Attorney-General's Chambers, more than a year after it was described as being at its final stage. The Cabinet has agreed in principle to a framework allowing eligible remand detainees, people charged but held before trial, to be detained at home with electronic monitoring, with serious offences excluded. Rules on CCTV, ankle tags and permitted visitors have not been settled.

The policy driver is overcrowding: the Home Minister has said Malaysia's 41 prisons hold about 93,000 inmates against a capacity of around 75,000. The existing tool, section 43 of the Prison Act 1995, allows the Commissioner General to release a prisoner on licence with conditions and to recall them. It is an administrative release power, not a court-supervised regime of home detention with defined eligibility, monitoring standards or appeal rights.

4. Proposals: rule-based, not reduced

4.1 A Pardons Board (Procedure) Act

Set out in statute, with the Conference of Rulers' consent, how petitions are filed and listed; time limits for decisions; the content of the Attorney General's written opinion; minute-keeping; and a requirement that every decision be recorded in a single instrument. Publish the outcome and a short statement of reasons for decisions involving public office holders, with redaction for private and medical information. This would make any future "addendum" impossible by design.

4.2 Minimum-served criteria for corruption and abuse of power

For convictions involving corruption, criminal breach of trust by public officials or abuse of power, adopt published guidelines that a petition is ordinarily considered only after a set share of the sentence has been served and any order to repay or forfeit has been satisfied, with exceptions for grave illness or other humanitarian grounds stated on the record. Guidelines inform the Board's advice; they do not bind the Ruler's final decision.

4.3 A robust House Arrest Act

• Eligibility set by Parliament and applied by the courts, not by administrative or political discretion.
• Electronic monitoring standards, visitor rules and breach penalties in the Act or published regulations.
• Equal application: the same criteria for a remand detainee in Kajang and a former minister.
• A clear interface with Article 42, so that any home-confinement condition attached to a pardon is implemented under the same monitoring rules.

4.4 Reviewability of process, not merit

Codify what the courts have begun to recognise: an applicant or the Attorney General may ask a court whether the Article 42 procedure was followed, but never whether mercy should have been granted. This keeps the prerogative intact while giving the public confidence that it was properly exercised.

5. Gaps and risks

• Consent: any statute touching the Pardons Board may require the Conference of Rulers' consent; reforms must be designed with, not against, the Rulers.
• State variation: each state has its own Pardons Board; a federal law may only reach the Federal Territories unless states follow.
• Privacy: publishing reasons must protect victims, medical records and security information.
• Capacity: electronic monitoring needs funding, vendors and trained officers; a weak rollout would undermine trust.
• Perception: introducing house arrest while a high-profile case is pending risks being read as tailored to one person. Clear, general eligibility rules are the safeguard.
• Pending litigation: appeals in the addendum matter may refine the law; proposals should be revisited after any appellate ruling.

6. Open questions

When will the House Arrest Bill be tabled, and will it cover convicted prisoners as well as remand detainees? What procedure governs conditions attached to a conditional pardon? Will the Federal Territories Pardons Board publish its rules of procedure? These are matters for Parliament, the Executive and the Conference of Rulers working together.

Sources

1. Pardons Board for the Federal Territories, media statement on the 61st meeting, 2 Feb 2024. bheuu.gov.my
2. Bernama, "Najib To Be Released In August 2028, Fine Reduced To RM50 Million", 2 Feb 2024. bernama.com
3. Reuters, "Sentence halved for Malaysia's ex-PM Najib, jailed in 1MDB scandal", 2 Feb 2024. reuters.com
4. CNA, "Malaysia's Pardons Board halves Najib's jail term to 6 years…", Feb 2024. channelnewsasia.com
5. Bernama, "Court Rejects Najib's Bid Over Alleged House Arrest Addendum", 22 Dec 2025. bernama.com
6. Malay Mail, "High Court: Najib's house arrest order can't be carried out, since no laws for this in Malaysia", 23 Dec 2025. malaymail.com
7. CNA, "Former Malaysia PM Najib Razak loses house arrest bid in High Court", 22 Dec 2025. channelnewsasia.com
8. Judgment summary, Dato' Sri Mohd Najib v Menteri Dalam Negeri & Ors. elaw.my
9. The Star, "House Arrest Bill still under AGC review, over a year after 'final stage'", 6 Oct 2026. thestar.com.my
10. The Star, "Home placement not house arrest", 8 Oct 2026. thestar.com.my
11. NST, "House arrest rules still being finalised, says Saifuddin", Oct 2026. nst.com.my
12. Malay Mail / Bernama, "Saifuddin Nasution: Proposed House Arrest Act focuses on remand detainees and prison overcrowding", 20 Sep 2026. malaymail.com
13. Prison Act 1995 (Act 537), section 43. mylaw.my
14. Juraimi bin Husin v Pardons Board, State of Pahang & Ors [2002] 4 MLJ 529 (Federal Court). case report extract
15. Malaysiakini, "Court of Appeal allows Anwar's bid to challenge Pardons Board's decision", 2017. malaysiakini.com
16. GK Legal, "How did the 1993 and 1994 constitutional amendments transform the exercise of clemency powers in Malaysia?" gkg.legal
17. UiTM, "The 1993 Constitutional Amendment: A Procedural Ultra Vires?" ir.uitm.edu.my
18. Federal Constitution of Malaysia (Articles 38, 40, 42, 66, 159, 181–183), Attorney General's Chambers. lom.agc.gov.my
19. Malay Mail, "Pardons Board agrees to cut Najib's jail term by half…", 2 Feb 2024. malaymail.com
20. FMT, "Pardons Board to issue statement on yesterday's meeting", 30 Jan 2024. freemalaysiatoday.com
21. Malaysiakini, "KINIGUIDE: Is the Pardons Board decision on Najib the Agong's call?", Feb 2024. malaysiakini.com
22. Malay Mail, "Umno to plead with Agong for Najib's pardon in SRC case, sec-gen says", 7 Apr 2023. malaymail.com
23. Sinar Daily, "Zahid also sought Agong's compassion to grant Najib full pardon", Apr 2023. sinardaily.my
24. ABC News, "Malaysians outraged by reduced jail sentence for … Najib Razak", 6 Feb 2024. abc.net.au
25. CNA, "Former Malaysian premier Najib Razak's jail term halved…", Feb 2024. channelnewsasia.com
26. Malaysiakini, "With incumbent jailed, Umno expected to appoint 'caretaker' for Pekan", Aug 2022. malaysiakini.com
27. The Vibes, "'Unjustified amnesty': Civil society coalition wants AG's written opinion to Pardons Board disclosed", Feb 2024. thevibes.com
28. Malaysiakini, "MP: Insult to rakyat if Pardons Board doesn't elaborate on Najib decision", Feb 2024. malaysiakini.com
29. The Straits Times, "Deliver on promises or face protests, Malaysian reform group Bersih tells Anwar government", Feb 2024. straitstimes.com

This analysis is offered with respect for the Malay Rulers and the constitutional institutions involved. It takes no position on any individual's guilt or eligibility for mercy. Evidence reflects reporting available at the research cutoff; corrections will be dated and recorded.

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