Najib’s ‘house arrest’: Mercy without a rulebook

On 18 September, the Pardons Board for the Federal Territories announced a decision that shook the country.

The king granted a conditional pardon to former Prime Minister Najib Razak. Instead of finishing his SRC International sentence in prison, Najib may serve the rest of it under ‘house arrest’ until August 2028. The condition is that he pays a RM50m fine.

This is unprecedented in recent memory.

The public reaction went beyond disappointment. For a country that spent almost 10 years living with the fallout of 1MDB, the prospect of a powerful convict moving from a prison cell to his own home did not look like mercy.

A separate court case about Najib’s earlier sentence reduction is still going on. The Court of Appeal will give its decision on 7 January 2027. This essay stays away from the legal questions in that case.

It asks a different question: when the law allows something that most people feel is deeply unfair, what has gone wrong – and who can fix it?

A lawful decision

The Swiss thinker Ferdinand de Saussure warned of what he called “the tyranny of the letter”.

This is the danger that the written form of something starts to matter more than the living thing it was meant to describe. Our argument about the pardon is a good example.

Critics say the house arrest is unlawful because the Prisons Act only recognises actual prisons. The bill that would allow home detention is still stuck in a parliamentary committee.

They point to Justice Alice Loke. In December 2025, she rejected Najib’s earlier attempt to enforce a so-called addendum order. She said a house arrest order “is not capable of execution, there being no legal provision for such mechanism in Malaysia”.

But that remark does not restrict the king’s power to pardon, or to “remit, suspend or commute” sentences – to cut them short or change them.

The reason is simple. The king’s power of clemency comes from the Federal Constitution, in Article 42. The Prisons Act is an ordinary law made by Parliament. The Constitution reigns supreme: where the two meet, the ordinary law gives way.

The government says that if the king can shorten a sentence, he can also set conditions on it.

G25 and some constitutional lawyers disagree.

But on the law as it stands today, the king acted within his powers.

That is the paradox. The words of the Constitution were followed. Yet the decision has left the public feeling that the law has been used against them. The letter was satisfied. Its legitimacy was not.

Two kinds of justice

The deepest hurt from 18 September is the feeling that there is one law for the powerful and another for everyone else.

Article 8 of the Constitution promises that everyone is equal before the law and entitled to its equal protection.

The public knows the stories. Ordinary people are sent to prison for years for stealing groceries or small sums of money, just to get by. Set that beside a man convicted of abuse of power, breach of trust, and money laundering who may now serve his time at home, and the contrast is impossible to ignore.

When the state builds a special arrangement for one prominent prisoner, Article 8 stops looking like a promise to everyone. It starts looking like a privilege for a few.

The objections have not come only from politicians. G25, the group of prominent retired senior civil servants, called the arrangement a travesty of justice and asked the board to withdraw it.

Suhakam, the national human rights commission, said on 21 September that equality before the law must come first. It said special one-off arrangements cannot take the place of a proper law passed by Parliament.

The government is left defending a decision that, to many people, proves one thing. If the crime is big enough and the person important enough, the system will bend.

Mercy and accountability

Almost every country gives someone the power to pardon. It is a safety valve for cases where the strict outcome of a trial would be too harsh, or where forgiveness serves the country better than punishment.

Half a century ago, the English judge Lord Diplock described its limits in one sentence: “Mercy is not the subject of legal rights. It begins where legal rights end.” Our own Supreme Court later adopted it in the Sim Kie Chon case.

That sentence explains why the courts have stayed out of pardons. Equality, fairness and the rules of sentencing all belong to the world of legal rights. A pardon sits outside that world.

As the law stands today, the courts will not examine how the pardons board reached its advice. The Court of Appeal said so in the Anwar Ibrahim v Khairul Azam case in 2023. Whether that will still be the law after 7 January is not something this essay tries to answer.

Justice Loke’s ruling makes sense in its own setting. The addendum failed because the proper process was not followed. The September pardon did follow the process: the board was convened as Article 42 requires. So the pardon stands.

That shows the limits of relying on the words alone. A decision can be completely lawful and still have no moral standing with the people it affects.

Malaysia is not the only country to pardon controversial figures, but our system stands out for how well insulated it is.

In the US, a president who grants a pardon answers for it at the next election.

In the UK, a pardon is granted on the advice of the justice secretary. The government of the day carries the responsibility, and the courts can, in some circumstances, look at it.

Malaysia’s system is a mix. The king sits with a pardons board that includes the attorney general, a minister and other appointed members.

That should spread the responsibility. But on the law as it currently stands, the final decision has been treated as the king’s own.

The result is awkward for everyone. The government takes the public anger for a decision it did not, in law, make – and the anger is splitting its own coalition.

The pardon of 18 September will be remembered as the day the words of the Constitution and the public’s sense of justice pulled apart. Under the letter of Article 42, the king acted within his powers.

But the decision was carried out with no law in place to govern house arrest. That deepened the feeling that the rule of law works differently for the powerful.

The answer is not more court cases about the king’s powers. The answer is Parliament.

If the government wants to win back public trust, it must pass the stalled home detention law. It must also make it a clear, open system with published rules, available to every prisoner who qualifies, whoever they are and whatever their connections.

Mercy may begin where legal rights end. But a democracy cannot work if mercy looks like a lift reserved for the elite.

Equality returns only when Parliament turns a one-off exception into a rule for everyone. Until it does, the letter of the law will keep smothering the justice it was written to protect.

KC Koay is a Kuala Lumpur-based independent analyst with over 40 years in corporate restructuring, crisis management and financial advisory services. A London-registered professional engineer with an MBA in finance from the University of Hull, he has spent four decades in self-directed legal study, from the University of Malaya library, while working on contractual arrangements and dispute resolution.  

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