Najib’s house arrest case: Agong as ‘constitutional monarch’ means ruler’s powers must follow Constitution, court says

KUALA LUMPUR (Dec 23): Malaysia’s Yang di-Pertuan Agong is a “constitutional monarch”, which means the ruler’s must exercise his powers — even when it involves clemency or granting mercy such as pardoning convicted persons — according to the Federal Constitution, the High Court has said.

This was why former prime minister Datuk Seri Najib Razak yesterday failed in his court bid to serve his jail term at home, as the High Court found the former Agong’s house arrest order on Najib did not follow the procedures in the Federal Constitution.

In her 41-page written judgment released today, High Court judge Alice Loke Yee Ching made it clear that the Agong has to exercise his powers of mercy within the limits in the Federal Constitution.

“To reiterate, the Yang di-Pertuan Agong is a constitutional monarch, and he exercises powers and functions in accordance to the provision of the Constitution.

“The exercise of the prerogative power of mercy is no exception. It must be exercised within the legal framework providing for safeguards and limits in the Constitution,” the judge said in her conclusion.

Pardons Board has to give advice to Agong before the ruler decides 

The former Agong had during a January 29, 2024 Pardons Board meeting decided to pardon Najib by reducing his jail term and fine, but later made an additional order dated January 29, 2024 to let Najib serve the rest of his reduced jail time at home.

While the 16th Agong’s house arrest order on Najib has been confirmed by the attorney general to exist, the High Court said it is not valid and cannot be enforced or carried out.

This is because the former Agong’s additional order for Najib’s house arrest was not discussed or decided at a Pardons Board meeting, which means it did not comply with the Federal Constitution’s Article 42.

Based on Article 42, the High Court said the Agong can only make a decision on pardons, after going through a decision-making process that involves a Pardons Board meeting and the Pardons Board giving advice to the ruler.

“The Pardons Board as a constitutional body, has an important function of advising the Yang di-Pertuan Agong before a decision is made,” the High Court judge said.

The judge added that all the requirements in Article 42 mean that the Agong cannot make such decisions on his own or “independently” of the Pardons Board.

The judge had listed out many provisions under Article 42 in her judgment, including Article 42(4)(b) which provides that the Yang di-Pertuan Agong is to exercise his power — to grant pardons, reprieves and respites — on the Pardons Board’s advice.

High Court decision follows previous court decisions  

The High Court’s decision yesterday was also supported by and based on past decisions by the Court of Appeal and Federal Court.

The High Court cited excerpts from the Federal Court’s August 13, 2025 decision which allowed Najib to pursue his court bid for house arrest at the High Court, with Justice Loke emphasising certain points made by the highest court in Malaysia:

The Agong’s exercise of his powers of clemency (to grant mercy) is not absolute, and has to be carried out according to the constitutional limits in Article 42 (especially regarding advice and the procedure stated in Article 42);

Article 42(8) has a procedural and constitutional requirement for the Pardons Board’s meetings to be held in Agong’s presence and for the Agong to preside over such meetings;

Any failure to strictly follow Article 42’s procedural safeguards and substantive requirements will render the entire clemency process open to challenge in court, whether by constitutional challenge or judicial review.

The High Court said the Federal Court had made it clear that the existence of the house arrest order does not make it valid, and that whether it is valid depends on whether it follows the strict requirements of the Federal Constitution.

The High Court judge also quoted extensively from the Court of Appeal’s 2009 judgment in case, which had said the powers of the Yang di-Pertuan Agong as a “constitutional monarch” is defined in the Federal Constitution, and which noted that the rulers’ discretionary or prerogative power has to be exercised judiciously.

The High Court judge summarised the Court of Appeal as saying that the concept of a constitutional monarch “was to preserve the sovereignty of the Rulers within a constitutional framework, balancing their powers and privileged within defined constitutional limitations and restrictions”.

The Court of Appeal was also summarised as noting that the Federal Constitution recognises that rulers have discretionary prerogatives to decide on pardon, and as saying that rulers have to use such powers within limits.

“However, these powers are not unlimited and there are safeguards and limits to be observed, according to the Constitution which provides for the powers. Ultimately, these powers must be exercised judiciously and for the public good,” the High Court judge said in summary of the Court of Appeal’s 2009 decision.

The High Court also cited Article 42 and the same Court of Appeal judgment, when disagreeing that the Agong could make decisions — including on Najib’s house arrest — outside of the Pardons Board meeting.

Quick look at constitutional monarchy 

While there are countries that have an absolute monarchy where a ruler has absolute power, Malaysia like many countries have a constitutional monarchy system.

A quick look by Malay Mail at the glossary on Malaysia’s Parliament’s website shows “constitutional monarchy” being explained as: “A system of government in which a country is ruled by a King according to provisions in the Constitution. Malaysia practises Parliamentary Democracy under the Constitutional Monarchy government.”

The Federal Constitution is known as the supreme law or the highest law in Malaysia.

Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah yesterday claimed that the High Court ruling purportedly dilutes the powers of the Yang di-Pertuan Agong to grant mercy or pardon, as the court’s decision had said the Agong needed to exercise this power within the Pardons Board’s meetings.

Shafee has said that Najib will be appealing against the High Court’s decision yesterday.