PUTRAJAYA: The Court of Appeal has unanimously ruled that the Legal Profession Qualifying Board exceeded its authority when it scrapped the articled clerkship programme.
The programme, provided for under the Legal Profession Act 1976 (LPA), allows individuals to read law without attending law school on a full-time basis.
A three-member bench chaired by Justice See Mee Chun said it is trite law that the board, being a statutory body, only has the powers conferred to it under the LPA, and must act within those parameters.
“When (the board) decided to abolish articled clerkship, it went beyond its powers,” she said when allowing an appeal by legal firm Fahri Azzat & Co and Khairul Anwar Khairuddin to set aside the High Court’s ruling in their judicial review application.
The bench went to quash the board’s decision made on Aug 5, 2022 rejecting Khairul’s application for articled clerkship.
The decision was premised on a board meeting held on Jan 8, 1985 which decided to do away with the programme as a mode of entry into the legal profession.
The landmark ruling on Monday appears to have paved the way for the revival of the programme for those who are keen to read and practise law.
The board may take its case to the Federal Court on appeal, but would first have to obtain leave from the apex court under Section 96 of the Courts of Judicature Act 1964
See, who sat with Justices Wong Kian Kheong and Ahmad Fairuz Zainol Abidin, said the LPA has been amended seven times since 1985 but none of the amendments did away with the programme.
She said the board may have discretion in the manner and extent of the execution of the articled clerkship programme, but the power to do away with it altogether is only vested in Parliament.
In a 32-page judgment, the judge said the board had acted ultra vires the LPA by not exercising its statutory duty.
“This was an irrational and unreasonable decision in the Wednesbury sense,” she said.
The Wednesbury principle requires a decision-making body to only employ such means as are reasonably necessary to achieve its legitimate aims.
“Other than rendering the article clerkship provisions in the LPA otiose, the (board’s) decision to abolish it was not made public,” See noted.
The board had contended that it would be absurd to require the enforcement of the articled clerkship provisions as the infrastructure to support it has vanished.
It was submitted that certain subjects, which had to be taken at Universiti Malaya, were no longer being offered.
“Be that as it may, the answer is not for the board to abolish it but rather to amend the Legal Profession (Articled Clerks) Rules 1979 to cater for that situation,” the judge said.
See said the board could establish a mechanism which would allow it to implement a suitable course of instruction and examination.
The facts of the case revealed Khairul read an article “Law Degree Good, Article Clerkship Better” published on “From the Bar Stool”, a blog, on June 6, 2022.
One month later he applied to be an article clerk with the law firm and was accepted. However, his application to the board to be allowed to pursue the programme was rejected.
The law firm and Khairul sought legal redress, contending that the board’s refusal of the application was illegal, irrational and a breach of their legitimate expectation.
On Nov 16 last year, the Kuala Lumpur High Court dismissed the judicial review application after hearing the merits of the case, giving rise to the present appeal.
Lawyers K Shanmuga, Joshua Wu, Jowyn Saw and Sabrina Ameen appeared for the appellants, while counsel Khoo Guan Huat and Danial Ahmad Terrirudin acted for the board.
