No house arrest for Najib, High Court decides

KUALA LUMPUR, Dec 22 — Former prime minister Datuk Seri Najib Razak failed in his court bid for house arrest today, which means he has to continue serving the rest of his six-year jail term at Kajang Prison.

High Court judge Alice Loke Yee Ching decided that the former Yang di-Pertuan Agong’s add-on order for Najib’s house arrest is invalid and cannot be carried out.

This is because the then Yang di-Pertuan Agong did not follow the requirements under the Federal Constitution's Article 42 when he made the add-on or addendum order for Najib to be placed under house arrest.

“The addendum order was not deliberated nor decided in the 61st Pardons Board meeting. There was no compliance with Article 42, consequently it is not a valid order,” the judge said.

She said this means the Malaysian government has “no power and no duty to obey and enforce” the house arrest order.

She also said this means that Najib has “no right” to ask for a court order to compel the Malaysian government to enforce the house arrest order.

Immediately after the decision, Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah told the High Court that his client would be appealing against today’s decision.

Here are the High Court’s reasons for rejecting Najib’s house arrest bid

In reading out the grounds of her judgment for close to 50 minutes, the High Court judge concluded that the Yang di-Pertuan Agong is a constitutional monarch, and that he exercises his powers and functions according to the Federal Constitution’s provisions.

The judge said that the Yang di-Pertuan Agong’s exercise of his prerogative powers of mercy must also be exercised within the limits and safeguards provided in the Federal Constitution.

The judge had then said the then Agong’s house arrest order was not valid as it did not comply with the Federal Constitution’s Article 42, and dismissed Najib’s court bid without giving any order for costs.

Earlier, the High Court judge listed the essential features of Article 42, which includes the Agong having the power to grant pardons, respite and reprieves.

Article 42 also requires the Pardons Board to give its advice to the Agong for the ruler’s exercise of his pardon powers, and the Pardons Board has to consider the attorney general’s written opinion before giving its advice.

Under Article 42, the Pardons Board shall include the attorney general, the federal territories minister and three others appointed by the Agong; and the Pardons Board’s meeting must be presided over by the Agong.

The judge noted that the only issue to be decided in Najib’s court bid today is whether the then Agong’s house arrest order was valid or not, and said this will ultimately determine whether the house arrest order can be enforced and whether Najib can go on house arrest.

The High Court today said the written minutes of the Pardons Board’s January 29, 2024 meeting that was shown to the court was admissible as evidence and also relevant to determine if the house arrest order is valid.

From these meeting minutes, the then Agong had initially proposed giving a full pardon, but the majority of the Pardons Board disagreed and the ruler later decided to only reduce Najib’s sentence.

The High Court said it was clear that this Pardons Board meeting which the then Agong presided over had only involved the ruler’s January 29, 2024 decision to reduce Najib’s jail time from 12 years to six years and to reduce his fine from RM210 million to RM50 million.

“It is patently clear the Pardons Board tendered its advice on the proposed full pardon and 50 per cent reduction in imprisonment term. More importantly is the fact that only one decision was made by the Yang di-Pertuan Agong during the meeting, namely the reduction of imprisonment term and fine. There was absolutely no mention of a house arrest,” the judge said based on the minutes.

Based on this written record of the Pardons Board meeting, the judge said “it is indisputable that the house arrest was not deliberated in the Pardons Board meeting” and that the house arrest addendum order being referred as a “supplementary order” also confirms this fact.

Since the house arrest issue was not discussed during the Pardons Board meeting, the judge said this means the Pardons Board did not give its advice on whether there should be house arrest: “The obvious conclusion to draw from this is the addendum order was not made following the procedure of Article 42.”

The judge said Najib had also implicitly conceded this, as his lawyer’s argument is that the then Agong’s add-on order for house arrest does not need to be discussed or decided in the Pardons Board meeting.

But the judge stressed that all the Article 42 requirements must be followed for an order by the Agong to be valid: “In other words, the Yang di-Pertuan Agong cannot decide independently of the Pardons Board.”

Since the add-on order of house arrest would significantly alter Najib’s imprisonment, the judge said that gives even more reason for this to be discussed during the Pardons Board meeting in line with Article 42.

The judge cited the Federal Court’s August 13, 2025 decision related to this case, where the highest court in Malaysia said the Agong’s exercise of his powers to pardon is also subject to constitutional limits in Article 42.

The judge said the Federal Court had stressed that the existence of the add-on house arrest order does not make it valid, as it will only be valid if it complies with the Constitution.

The High Court judge said the courts can decide on the validity of the then Agong’s add-on order for Najib’s house arrest, as the legal issue involved is on whether it complies with the constitutional requirements of Article 42 and this is justiciable or something which the courts can decide on.

The judge disagreed with Najib’s lawyer’s argument that the matter of Najib’s house arrest was so urgent that the then Agong could grant it as a respite, instead of deciding on it in the Pardons Board meeting as part of the pardons decision.

Pointing out that Najib’s reduced jail term was discussed in the Pardons Board meeting, the judge said there was no reason not to discuss the house arrest order in the same meeting.

“In any event, there is nothing in Article 42 to suggest the Pardons Board meeting can be dispensed with when the Yang di-Pertuan Agong makes an order of respite,” the judge said.

The judge said it was unnecessary to even decide if the add-on house arrest order is a “respite”, as she said the then Agong’s exercise of pardon, reprieve or respite all have to comply with the Article 42 procedures.

Shafee had previously tried to argue that the then Agong could make the house arrest order even outside of a Pardons Board meeting as it is purportedly a “respite” and not a pardon.

The High Court judge today rejected Shafee’s argument that the then Agong could make decisions outside of Pardons Board meetings and called Shafee's argument a “startling position”, as it could lead to arbitrary decisions and as Article 42 does not envisage that the then Agong’s decision could be made outside of such meetings.

“To conclude, the contention that the Yang di-Pertuan Agong is not bound to decide within the Pardons Board meeting is untenable.

“In the circumstances, premised on my reasoning above, the addendum order is not a valid order made in the exercise of the prerogative of mercy,” the judge said.

Following the High Court’s decision, Shafee informed that his client wants to appeal, and also requested the High Court judge to provide the written grounds of judgment as soon as possible to enable the appeal to proceed quicker at the Court of Appeal.

The High Court judge agreed to this request and said it would be given as soon as possible.