This case analysis examines the judicial review application of Dato’ Sri Mohd Najib Tun Hj Abd Razak v. Menteri Dalam Negeri & Ors [2026] 2 MLRH 387 HC, which centers on the validity of a purported “Addendum Order” for house arrest.
1. Case Information
- Case Name: Dato’ Sri Mohd Najib Tun Hj Abd Razak v. Menteri Dalam Negeri & Ors.
- Court: High Court Malaya, Kuala Lumpur.
- Judge: Alice Loke Yee Ching J.
- Decision Date: 22 December 2025.
- Nature of Application: Judicial Review seeking an order of mandamus.
2. Background and Facts
The Applicant was convicted in the “SRC Case,” receiving 12 years of imprisonment and a fine of RM210 million. After his appeals were dismissed, he began serving his sentence in Kajang Prison and subsequently petitioned for a pardon under Article 42 of the Federal Constitution.
On 29 January 2024, the 61st Pardons Board Meeting was held, presided over by the Yang di-Pertuan Agong XVI (YDPA). Following this, an “Early Release Order” was announced, reducing his sentence to six years and his fine to RM50 million. The Applicant later claimed the existence of a supplementary “Addendum Order” issued by the YDPA, which allegedly directed that he serve his reduced sentence under house arrest instead of in prison. When the government respondents failed to confirm or execute this order, the Applicant filed for a judicial review to compel its enforcement via mandamus.
3. Key Legal Issues
The court identified the following pivotal issues:
- Validity of the Addendum Order: Was the order made in compliance with the procedural requirements of Article 42 of the Federal Constitution?
- Justiciability: Could the court scrutinize an order made under the royal prerogative of mercy?
- Legal Basis for House Arrest: Does Malaysian law provide a mechanism to execute a house arrest sentence?
4. Arguments of the Parties
- The Applicant: Argued that the Addendum Order was an exercise of the prerogative of mercy and thus non-justiciable. He further contended that house arrest constitutes a “respite,” which he claimed the YDPA could grant independently of the Pardons Board’s advice.
- The Respondents: Contended the order was invalid because it did not follow the mandatory procedure under Article 42. Evidence from the Pardons Board minutes showed that house arrest was never deliberated or decided upon during the official 61st meeting.
5. Court Analysis and Holding
The High Court dismissed the application based on the following findings:
- Failure to Comply with Article 42: The court emphasized that the YDPA is a constitutional monarch who must exercise the power of pardon within the framework of the Constitution. Article 42 requires the Pardons Board to meet, consider the Attorney General’s written opinion, and tender advice to the YDPA. Because the Addendum Order was not deliberated during the Pardons Board Meeting, it was not a valid order.
- Prerogative vs. Procedure: While the decision to grant mercy is a royal prerogative, it is subject to procedural limits. The court held that the principle of non-justiciability does not prevent the judiciary from determining whether the constitutional “safeguards and limits” were observed.
- Lack of Legal Framework for House Arrest: The judge noted that house arrest fundamentally alters the nature of imprisonment. Furthermore, the court found no legal provision in Malaysia for house arrest. Section 43 of the Prison Act 1995 (release on licence) was deemed inapplicable as it is a discretionary power of the Commissioner General, not a mechanism for court-ordered house arrest.
6. Conclusion
The court concluded that because the Addendum Order was invalid, the Respondents had no legal duty to enforce it, and the Applicant had no legal right to the relief of mandamus.
7. Appeal
This case is subject to further appeal.
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a qualified Advocate & Solicitor for your specific legal needs.
