Real but Not Valid: The High Court on Najib’s Addendum Order and Article 42

In the High Court’s ruling of 22 December 2025, Datuk Seri Najib Razak established that the document he relied on was real and still lost the case. The court accepted that the then Yang di-Pertuan Agong had issued an “addendum order” on house arrest, yet held that it was not a valid exercise of the pardon power under Article 42 of the Federal Constitution and declined to order the Government to carry it out.

The appeal was withdrawn in April 2026, so the decision stands. It is useful background to the conditional pardon announced on 18 September 2026.

The order the court was asked to enforce

After the 61st meeting of the Federal Territories Pardons Board on 29 January 2024, it was announced that Najib’s 12-year term in the SRC International case had been reduced to six years and his fine from RM210 million to RM50 million.

On 1 April 2024 Najib applied for judicial review, the procedure by which the High Court supervises the legality of what public bodies do. He said the then Yang di-Pertuan Agong had also issued an addendum order allowing house arrest, and he sought mandamus, an order compelling a public authority to perform a legal duty. After a leave contest that reached the Federal Court, the substantive hearing came before Justice Alice Loke Yee Ching in the Kuala Lumpur High Court.

The constitutional machinery of mercy

The decision turns on Article 42. In paraphrase:

• Article 42(1) gives the Yang di-Pertuan Agong power to grant pardons, reprieves and respites for Federal Territories offences; Article 42(2) covers remission, suspension and commutation of sentences.

• Article 42(4)(b) requires the power to be exercised on the advice of a Pardons Board.

• Under Article 42(5), read with Article 42(11), the Federal Territories Board consists of the Attorney General, the Minister responsible for the Federal Territories and not more than three other appointed members.

• The Board meets in the presence of the Yang di-Pertuan Agong, who presides (Article 42(8)), and must consider any written opinion of the Attorney General before advising (Article 42(9)).

The grounds also refer to Article 40(1A), on acting in accordance with advice, and Article 40(3).

Six holdings

• The addendum order exists: the then Yang di-Pertuan Agong issued it.

• It is not valid. The 61st Pardons Board meeting neither discussed nor decided it, so Article 42’s requirements were not met.

• The Government has neither the power nor the duty to give effect to it, Najib has no right to have it enforced, and mandamus was refused.

• The argument that the addendum could stand as a respite failed. Nothing in Article 42 takes reprieves or respites outside the Board process, and the Article does not contemplate a decision made outside the Board’s meeting.

• As a second ground, a house-arrest order could not be executed because Malaysian law provides no mechanism for it. Release on licence under section 43 of the Prisons Act 1995, which lies in the discretion of the Commissioner General of Prisons, did not match what the addendum contemplated.

• The application was dismissed with no order as to costs.

Checking the process without judging the mercy

Malaysian courts have long treated the prerogative of mercy as non-justiciable: whether clemency should be granted, and on what terms, is not something a court will re-examine. The grounds cite the cases associated with that position, including the High Court and Supreme Court decisions in Sim Kie Chon, Karpal Singh v Sultan of Selangor and Juraimi bin Husin v Pardons Board, State of Pahang & Ors.

The judge distinguished an attack on the merits or outcome of a clemency decision from the present case, where it was the applicant who asked the court to enforce an order and the court first had to verify that the constitutional procedure had been followed. The court held that the non-justiciability principle did not arise on those facts. The Federal Court had earlier, on 13 August 2025, left the validity of the addendum to be decided at the substantive hearing.

Mandamus requires a clear legal right in the applicant and a corresponding legal duty on the respondent. Once the addendum was held invalid, neither could be shown.

Why the ruling still matters after September 2026

An appeal was filed on 29 December 2025. A notice of discontinuance followed in early April 2026, on terms that the appeal could not be filed afresh and with no order as to costs; court records cited by Malay Mail show it was struck out on 14 April 2026. No reasons were given.

The ruling’s message is that, in a constitutional monarchy, the prerogative of mercy is exercised through the machinery the Constitution prescribes, namely a Board meeting, the Attorney General’s opinion and the Yang di-Pertuan Agong presiding. The conditional pardon of 18 September 2026 was, as officially announced, decided at the Board’s 64th meeting, the procedural feature the court found missing from the addendum. Lawyers continue to debate the second ground, on the absence of a house-arrest mechanism; some consider that the Prisons Act 1995 already supplies a route. The question has not returned to court, and we express no view.

Practical takeaways

• The case turned on process, not authenticity: the document was accepted as real but had not passed through the Pardons Board.

• Courts do not second-guess mercy, but a court asked to enforce an order may check that the constitutional steps were followed.

• Existence and validity are different questions, and mandamus needs a clear legal right.

• A withdrawn appeal leaves the judgment below standing.

Status

As at 19 September 2026 this litigation is at an end. The Malaysian Bar’s separate appeal concerning the February 2024 sentence reduction is pending in the Court of Appeal (judgment reserved on 31 July 2026).

Authorities and sources

• Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] 2 MLJ 385; Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494.

• Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64; Juraimi bin Husin v Pardons Board, State of Pahang & Ors [2002] 4 MLJ 529.

• Federal Court, 13 August 2025, reported as The Attorney General of Malaysia v Dato’ Sri Mohd Najib bin Tun Haji Abdul Razak and another appeal [2025] 5 MLJ 944.

• Federal Constitution, Articles 40(1A), 40(3) and 42(1), (2), (4)(b), (5), (8), (9), (11); Prisons Act 1995, section 43.

• High Court grounds of 22 December 2025 as published by The Edge; Malay Mail, 22 and 23 December 2025; Malay Mail and The Star, 27 April 2026; The Star, 31 July 2026; Malay Mail and The Star, 18 and 19 September 2026.

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors