The High Court has ruled that the Yang di-Pertuan Agong cannot exercise the royal prerogative of mercy independently. He must act on the advice of the Pardons Board, as required by Article 42 of the Federal Constitution.
Judge Alice Loke stated that Article 42 outlines a strict process for granting clemency.
Constitutional Requirements for Clemency
The Pardons Board must meet, review the Attorney-General’s written opinion, and provide formal advice before any royal decision.
“These requirements do not envisage a decision by the King made independently of the Pardons Board,” she said.
While clemency is a royal prerogative, it must follow the constitutional framework.
Ruling on the Addendum Order
Loke dismissed Najib Razak’s judicial review application to enforce a royal addendum for house arrest.
The addendum was not discussed or decided during the 61st Pardons Board meeting, which only addressed a full pardon request and sentence reduction.
The meeting minutes showed the King’s decision solely involved reducing Najib’s prison term and fine.
There was no reference to house arrest, and the Pardons Board gave no advice on it.
“Therefore, the addendum order was not made in compliance with Article 42 and is not a valid exercise of the prerogative of mercy,” she said.
Loke also dismissed claims that the order qualified as ‘respite’ issuable without board input.
Legal Framework for House Arrest
She noted the order lacked urgency and that Article 42 requires board deliberation for all clemency decisions.
Furthermore, house arrest cannot be executed under Malaysian law, as release on licence falls under the Commissioner-General of Prisons’ sole discretion.
Section 43 of the Prisons Act 1995 vests this power exclusively in the Commissioner-General.
The addendum overrides that discretion and conflicts with the statutory framework.
Najib is serving a reduced six-year sentence in Kajang Prison following his conviction for misappropriating RM42 million from SRC International Sdn Bhd.
