Fahri, Azzat & Co. v Lembaga Kelayakan Profesion Undang-Undang Malaysia (W-02(A)-1919-11/2023)

MUHAMMAD KHAIRUL ANWAR BIN KHAIRUDDIN (NO K/P: 810818-06-5703) ... PERAYU-PERAYU DAN LEMBAGA KELAYAKAN PROFESION UNDANG-UNDANG ... RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan Kuala Lumpur, Malaysia (Bahagian Kuasa-Kuasa Khas) Permohonan Bagi Semakan Kehakiman No. WA-25-550-10/2022

Fahri, Azzat & Co (Sebuah Firma)

Muhammad Khairul Anwar bin Khairuddin (NO K/P : 810818-06-5703) DAN ... Pemohon-Pemohon Lembaga Kelayakan Profesion Undang-Undang ... Responden] CORAM SEE MEE CHUN, JCA WONG KIAN KHEONG, JCA AHMAD FAIRUZ BIN ZAINOL ABIDIN, JCA JUDGMENT Introduction [1] "Law degree Good, Articled Clerkship Better" was an article dated 10-6-2022 published in a blog "From The Bar Stool". The $ 2^{\mathrm{nd}} $ Appellant read the article, prompting him to apply for articled clerkship with the $ 1^{\mathrm{st}} $ Appellant. Before the articled clerkship could take off, the Respondent rejected the $ 2^{\mathrm{nd}} $ Appellant's application. [2] This is an appeal by the Appellants/Plaintiffs against the decision of the High Court (HC) dated 16-11-2023 in dismissing its judicial review (JR) application. The JR application was against the decision of the Respondent dated 5-8-2022 not to accept the $ 2 ^{nd} $ Appellant's articled clerk application premised on the Respondent's decision at a Board Meeting on 8-1-1985 to abolish articled clerkship as a mode of entry into the legal profession. [3] The reliefs sought by the Appellants are as follows: "(1) Bahawa Pemohon-Pemohon diberikan kebenaran untuk memohon suatu perintah certioarari untuk membatalkan keputusan Responden dalam bentuk surat bertarikn 5 Ogos 2022 bernombor rujukan LKPU.100-2/15/J1(1)/(22-321) ('Keputusan Responden') atas alasan bahawa Keputusan Responden adalah menyalahi undang-undang, melebih kuasa, tidak munasabah atau merupakan penafian terhadap jangkaan sah Pemohon-Pemohon atau kesemuannya atau sebahagian daripadanya;

Bahawa Pemohon-Pemohon diberikan kebenaran untuk memohon suatu perintah certioarari untuk membatalkan keputusan Responden yang telah dibuat di mesyuarat 8 Januari 1985 ('Keputusan 8 Januari 1985) atas alasan bahawa Keputusan 8 Januari 1985 adalah menyalahi undang-undang, melebihi kuasa, tidak munasabah atau merupakan penafian terhadap jangkaan sah Pemohon-pemohon atau kesemuannya atau sebahagian daripadanya;

Bahawa Pemohon-Pemohon diberikan kebenaran untuk memohon suatu deklarasi bahawa Keputusan Responden adalah menyalahi Akta Profesion Undang-Undang 1976 dan Kaedah-Kaedah Profesion Undang-Undang (Kerani Berartikel) 1979;

Bahawa Pemohon-Pemohon diberikan kebenaran untuk memohon suatu deklarasi bahawa Keputusan 8 Januari 1985 adalah menyalahi Akta Profesion Undang-Undang 1976 dan Kaedah-Kaedah Profesion Undang-Undang (Kerani Berartikel) 1979;

Bahawa Pemohon-Pemohon diberikan kebenaran untuk memohon suatu perintah larangan bagi tujuan untuk menghalang Responden daripada mengguna pakai Keputusan Responden di mesyuarat 8 Januari 1985 kerana Keputusan menyalahi Akta Profesion Undang-Undang 1976 dan Kaedah-Kaedah Profesion Undang-Undang (Kerani Berartikel) 1979;

Bahawa Pemohon-Pemohon diberikan kebenaran untuk memohon suatu perintah mandamus yang mengarahkan Responden untuk mendaftaraikan kemasukan Pemohon Kedua dalam artikel selaras Akta Profesion Undang-Undang 1976 dan Kaedah-Kaedah Profesion Undang-Undang (Kerani Berartikel) 1979 dalam masa 14 hari dari tarikh penghakiman permohonan ini;” Parties and background facts [4] The Respondent is a body established under section 4 of the Legal Profession Act 1976 (the LPA). [5] The $ 1^{\mathrm{st}} $ Appellant is a firm of advocates and solicitors (the Firm). On 30-6-2022, the Firm offered the $ 2^{\mathrm{nd}} $ Appellant the position of articled clerk which he accepted. On 1-7-2022, the $ 2^{\mathrm{nd}} $ Appellant furnished the supporting documents for the purpose of registration of the articled clerkship. [6] On 7-7-2022 the $ 2^{n d} $ Appellant formally executed an instrument of clerkship, confirming the $ 2^{n d} $ Appellant's appointment as an articled clerk under the tutelage of the Firm. [7] On 29-7-2022, the Firm sent a letter to the Respondent with the registration application. On 5-8-2022, the articled clerkship application was rejected by the Respondent. This resulted in the ensuing JR application which was dismissed by the HC leading to this appeal. Decision of the HC [8] The Grounds of Judgment (GOJ) of the HC dated 29-1-2024 can be found in encl. 3/34-54. [9] The HC dealt with the preliminary objection (PO) raised by the Respondent that the JR application was premature and defective as the Appellants had not exhausted the grievance procedure before resorting to judicial review. [10] The HC noted this was a challenge on the decision of the Respondent which rejected the application of the Firm to register the $ 2^{n d} $ Appellant as an articled clerk. Reference to section 26 of the LPA was made where subsection (1) provides that "Any person dissatisfied with any decision of the Board may apply to a Judge for a review of the decision". [11] In paragraphs 18 to 20, the HC stated the following: "18. Section 26 of the LPA above clearly shows that there are provisions in the LPA for appeals against the decisions of the Respondent. The Applicants cannot unilaterally ignore this avenue of appeal. In choosing to do so, this judicial review application is defective.

It is my view that since the subject matter concerned is the decision of the Respondent, instead of applying to a Judge for a review of the decision by way of originating summons, the Applicants had short circuited by filing the judicial review application to this Court.

Therefore, it is my view that the Applicants therein are not entitled to initiate a judicial review proceedings against the Respondent herein as the Appellants had failed to exhaust the grievance procedure under Section 26 of the LPA before filing this judicial review application before this Court." [12] The HC referred to Robin Tan Pang Heng v Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2010] 9 CLJ 505, FC for the proposition that the existence of a statutory appeal is a bar to judicial review. [13] The HC thus found that the PO had merits and the Respondent's objection was upheld (paragraph 26 GOJ). [14] For completeness, the HC went on to consider the merits of the JR application. [15] The HC found that the Appellants had failed to comply with the requirements under the Legal Profession (Articled Clerks) Rules 1979 (the 1979 Rules). This was what was stated: "28. Upon perusal of the cause papers filed before this Court, I find that the Applicants have failed to comply with the requirements under the 1979 Rules. It is clear from the Respondents' Affidavit in Reply that the application has been declined due to the Applicants' noncompliance with several rules, notably Rules 3 and 4 of the 1979 Rules, among others:

Instead of the $ 2^{n d} $ Applicant, it was the $ 1^{s t} $ Applicant who purported to produce the documents under Rule 3;

Among other documents produced was a copy of "articles" that had been executed by the Applicants, not the proposed articles as required under the 1979 Rules; and

The "articles" that had been executed by the Applicants had provided for a date when the articles commenced. This is contrary to the 1979 Rules which provide that the date of registration of articles shall be when the articles are registered and not when the articles are signed/executed." [16] At paragraph 29, the HC next stated as follows: "29. Given the above, I am of the view that reasons for the decision may be given at a time later when the party was notified of the decision including during proceedings. Further, it would not be fatal or the failure of the Respondent to state reasons at the material time when there is no duty to give reasons." [17] For this, reference was made to The State Minerals Management Authority Sarawak v Gegah Optima Resources Sdn Bhd [2021] 1 MLJ 268, CA. [18] It was held that the Respondent is not obliged to provide reasons under the LPA but it did so anyway. [19] On the contention of different reasons being proffered on the rejection, namely abolition of articled clerkship and subsequently, noncompliance with the 1979 Rules, the HC found thus: "38. This Court is of the view that in any circumstance where the Respondent presents various reasons for its decision to the Applicants, this Court maintains the discretion to uphold any of the reasons by the Respondent, as long as any unfavorable reasons provided by the Respondent does not dominate the basis for the decision." Reference was made to Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19, CA. [20] The HC acknowledged that the Respondent had provided at least two distinct reasons for rejecting the application. The HC was of the opinion that even if the first reason was found wanting, the second reason demonstrates that the Appellants' application was flawed. The Appellants cannot force the Respondent to accept an application that does not comply with the 1979 Rules. Refer to paragraphs 40 to 42 GOJ. [21] It was also held in paragraph 43 GOJ that the Respondent has the discretion to decide on the registration of a person as an articled clerk, taking into account the objectives outlined in section 6 LPA. [22] The conclusion of the HC can be seen as follows: "Conclusion

The Applicants have failed to exhaust the recourse or remedies provided under the LPA and should not be permitted to pursue the judicial review application.

The Applicants have failed to comply with the requirements under the 1979 Rules and the judicial review application would be an exercise in futility as the Applicants' application is flawed.

The Applicant's argument that the Respondent is estopped from offering reasons other than the one on 5.8.2022 is misconceived based on the Gegah Optima (supra) decision.

The Respondent has not made any attempt to alter its reason but has, in fact, provided additional reasons for rejecting the Applicants' application for Article.

Premised on the aforesaid reasons, I am of the view that the decision of the Respondent is not tainted with any error of law, irrationality and/or unreasonableness that warrants the intervention of this Court." Our decision [23] The JR application in essence seeks certioraris to quash the decisions of the Respondent dated 5-8-2022 and 8-1-1985. [24] The decision of the Respondent dated 5-8-2022 is as follows: [25] The decision essentially states that the $ 1^{\mathrm{st}} $ Appellant's articled clerk application was rejected as the Respondent had in its meeting on 8-1- 1985 abolished articled clerkship as a mode of entry into the legal profession. [26] Preliminary objection (PO) Whether section 26 LPA is a bar to JR application [27] We will first deal with the PO which found favour with the HC. The gist of the PO was that section 26 LPA provided an avenue for appeal to the Appellants such that they were prevented from filing the JR application where they ought to have instead appealed. [28] Section 26 LPA provides as follows:

If the Board fails to determine any request within six weeks after it has been first submitted to it, the applicant may apply under this section as if the request had been determined adversely to him. "26. (1) Any person dissatisfied with any decision of the Board may apply to a Judge for a review of the decision.

Every application under this section shall be made by summons in chambers on the petition of the appellant if he has filed a petition, otherwise by originating summons; the Judge hearing the application may in his discretion adjourn the application into open Court.

Every summons in chambers or originating summons, as the case may be, shall be supported by evidence on affidavit and shall be served together with the affidavit on the Board; such summons in chambers or originating summons shall not be heard before the expiry of twelve days after the date of service on the Board.

At or before the hearing of the application the Board may submit to the Judge a confidential report on the applicant; such report shall not be filed in Court but a copy thereof shall be furnished to the applicant.

A confidential report under this section shall be privileged.

At the hearing the Judge may dismiss the application or make any order under this Act as he considers fair and reasonable.

A Judge who is a member of the Board shall not hear any application under this section." (Emphasis added) [29] Section 26 has been considered in two cases where the reverse was argued by the Respondent. In those two cases, the Respondent took the position that the applicant concerned should not have resorted to section 26. [30] In Loganathan PL Suppiah v Lembaga Kelayakan Profession Undang-Undang Malaysia [1997] 3 CLJ 914, HC, the applicant filed an application for a review under section 26 LPA that the decision of the Respondent to set certain papers were ultra vires section 5(e) LPA. This provision concerns the Respondent's function to provide courses of instruction for, and for the examination of, persons whose qualifications are not sufficient to make them qualified persons except after undergoing the courses and passing the examinations. [31] The issue was whether the matter that formed the complaint of the applicant was a subject matter for review under section 26 LPA. The Respondent's position there was that it was not, as it was not a decision making process contemplated by section 26. [32] The high court was categorical in holding as follows at page 922: "... in the carrying out of a function under s. 5(e) of the Act, the defendant is not making any decision within the meaning of s. 26(1) of the Act ..." (Emphasis added) [33] In Loganathan, the Respondent was carrying out a function under section 5(e) LPA. Our instant case relates to carrying out a function under section 5(b) and (c) LPA which are: "(b) to provide courses of instruction for, and to regulate the training and instruction of, articled clerks;

to provide for the examination of articled clerks wishing to become qualified persons;" Both relate to functions of the Respondent. [34] This would support the Appellants' contention that the carrying out of a function under section 5 LPA is not a decision within the meaning of section 26(1) LPA such that they must appeal under that provision. [35] We find and agree with the Appellants' submission that section 26(1) LPA is limited to decisions of the Respondent with regard to individual applications. This was illustrated by the examples provided by its counsel in Loganathan which the high court agreed with. This can be seen at page 922: "... They are the provisions relating to the decision of the defendant under s. 21 when the defendant refuses special leave sought to qualify an advocate and solicitor of less than seven years standing and not in active practice to be a principal, or where the defendant discharges the articles of the articled clerk pursuant to sub-s. 4 thereof. Another instance is where the defendant discharges the articles of the articled clerk under ss. 22 or 23 of the Act. .. Again, I share the view of En. Royan on this in that in the carrying out of a function under s. 5(e) of the Act, the defendant is not making any decision within the meaning of s. 26(1) of the Act for reading the said sub-section with the powers given to the Judge under sub-s. (7) thereof, ..." (Emphasis added) [36] We note that those provisions relate to decisions of the Respondent in regard to individual applications made pursuant to Part II LPA. So, for instance, section 21 relates to refusal of special leave of an advocate and solicitor of less than seven years to be a principal; section 22 deals with discharge of an articled clerk for unfitness; while section 23 deals with discharge generally. This is apparent from the requirements in section 26(5) which requires the submission of a confidential report of the applicant. If these were not related to individual suitability and qualification, there would be no necessity for such confidential report. Those decisions stand in sharp contrast to the instant application which deals with a policy decision of the Respondent to do away with articled clerkship as a mode of entry into the legal profession. [37] The Respondent submitted that in Loganathan, those references to provisions of LPA which were decisions were only examples and not conclusive. It suffices to state that the thrust of Loganathan is that functions of the Respondent under section 5 LPA are not the subject matter of an appeal under section 26. Even if those provisions referred to by its own counsel are examples, those examples can point towards an intention that the mechanism in section 26 LPA was designed towards decisions on individual suitability and qualification. [38] Loganathan also held that there was no power in the LPA for the Respondent to issue the Certificate of Legal Practice (CLP) to the applicant. This will tie in with the Appellants' contention that the Respondent here has no power to grant the Appellants the reliefs they seek. At page 922 this was stated: "... The learned Counsel further submits that even if he was wrong in relation to the function of the defendant to provide examination not being a decision, but in the light of sub-s. 26(7) the plaintiff would have no remedy because the Act does not have a provision allowing the Judge to order the defendant to issue the plaintiff with a Certificate in Legal Practice as sought for by the plaintiff in this application. The plaintiff on the other hand, made no submissions at all on this point. Again, I share the view of En. Royan on this in that in the carrying out of a function under s. 5(e) of the Act, the defendant is not making any decision within the meaning of s. 26(1) of the Act for reading the said sub-section with the powers given to the Judge under sub-s. (7) thereof, there is no power given by the Act for the Judge to make any order under it which in this case to order the defendant to issue the Certificate in Legal Practice to an aggrieved party. ..." (Emphasis added) [39] Loganathan was applied by this Court in Chan Kwai Chun v Lembaga Kelayakan [2002] 3 CLJ 231. There the applicant sought declaratory reliefs that the Respondent's nullification of the results of the CLP was flawed. On the first issue of whether the reliefs prayed for fall within the scope of section 26 LPA, this was said at page 238: "...For the respondents, it is submitted none of the reliefs sought by the appellant fall within the scope of s.26 of the Act. Under the aforesaid section, the court has jurisdiction to grant four types of remedies as specified under s. 21(1), s. 21(4), s. 22 and s. 23 of the Act, which sections do not apply to persons other than articled clerks. In support, the learned counsel for the respondent relied on the case of Loganathan a/l PL Suppiah v Lembaga Kelayakan Profession Undang-Undang Malaysia [1997] 3 CLJ 914. Tan Sri Zaki urged this court to give a purposive approach in construing s.26 of the Act. In response, En. Karpal Singh counsel for the appellant submitted that under s.26 of the Act, there was ample power for the court to grant reliefs sought if the court was satisfied that the respondent (board) was not justified in nullifying the examination result. In the court below, the learned trial judge said that in construing s.26(1), it should be read together with s.26(7) and he concluded that on the preliminary issue, the application could not appropriately be made under s.26 of the Act. We agree. The operative words of s.26(7) of the Act are "any order under this Act". On this issue, our finding is in the negative. On this ground alone, the appellant's case must fail." (Emphasis added) [40] Similarly, as in Loganathan and Chan Kwai Chun, the reliefs sought by the Appellants here, namely to grant the certiorari to quash the decisions dated 5-8-2022 and 8-1-1985 and the declarations that such decisions contravene the LPA and the 1979 Rules are orders which the court cannot make. This goes back to section 26(7) LPA where the Judge in a section 26(1) application can only "make any order under this Act" (emphasis added). [41] The Respondent referred to Robin Tan and Persatuan Pegawai Pegawai Bank Semenanjung Malaysia (ABOM) v Ketua Pengarah Kesatuan Sekerja Malaysia & Ors [2014] MLJU 1885, where the JR application was dismissed where the applicants had failed to exhaust the domestic remedies. In Robin Tan, the second leave question was "whether the existence of a statutory appeal procedure/alternative remedy is a bar to judicial review or declaratory reliefs". There, section 71A(1) of Trade Unions Act 1959 provides that any person dissatisfied with the decision of the Director General may appeal to the Minister. Subsection (3) states that "The Minister may, after considering such appeal, give such decision thereon as he deems just and proper." [42] At pages 466 and 467 the Federal Court stated as follow: [16] The second question could better be described as a consequence of the first question. Section 71A has provided a remedial mechanism within the framework of the trade union legislation, that is a specific procedure whereby an appeal lies to the Minister. The second question relates to another matter, that is since s. 71A(1) is applicable to an employer does it still permit the employer to have an option not to appeal, and additionally, instead have recourse to a court of law in order to challenge the registration. The declaratory orders sought by the appellant would have the effect of negating the decision of the 1st respondent. By praying for the declaratory orders the appellant is in effect appealing against the decision of the 1st respondent while a specific procedure has been laid down in the Act 262. By statute a second tier has been established whereby an appeal lies to the Minister. The word used in s. 71A(1)(b) is "may". In construing the word "may" generally, it could be contended that the word is permissive in relation to the person who is given the right to appeal in the sense that it gives the person a choice to prefer an appeal against the decision of the Registrar or not to. But in relation to the person who is to be affected by the appeal we do not see this as directory. The declaratory orders sought for seek to reverse the decision of the Registrar. Hence in that sense if an employer wishes to refute recognition then it is the mandatory procedure that is laid down that has to be resorted to for the legislation has identified the specific procedure whereby any person who is dissatisfied is to seek further recourse with the Minister if that person wishes to negate the decision of the Registrar. [17] In our opinion the legislation by stipulating that the decision of the Minister is to be final is itself indicative that when there is already stipulated a second tier identified in the legislation, courts are not authorised to interfere for the statutory right that has accrued is not purely formal but mandatory. In other words the statutory right has to be exhausted." (Emphasis added) [43] We find that the distinction in Robin Tan is that section 71A Trade Unions Act provides the alternative remedy in that it empowers the Minister to give such order sought by the applicants. Here, Loganathan and Chan Kwai Chun have held that the reliefs sought by the Appellants are not within the powers of the High Court. The decisions of Loganathan and Chan Kwai Chun are closest to our factual matrix. [44] We would conclude that there is no bar to the Appellants filing the JR application where the decision being challenged is not a decision within the meaning of section 26(1) LPA. The reliefs being sought by the Appellants are reliefs which the high court cannot grant. Exceptional circumstances [45] In any event, Robin Tan at page 470 concluded: "[25] In the final analysis, in the absence of exceptional or appropriate circumstances the answer to the second question is in the affirmative. This appeal is therefore dismissed with costs and the deposit goes to the respondents." (Emphasis added) [46] This means that even if there is a requirement to exhaust domestic remedies there can be an exception in the form of exceptional or appropriate circumstances. This brings us to Government of Malaysia & Anor v Jagdis Singh [1987] 2 MLJ 185, FC. At page 189 the following was stated: "A clear principle is reiterated here i.e. it is not a rigid rule that whenever there is an appeal procedure available to the applicant he should be denied judicial review. Judicial review is always at the discretion of the Court but where there are other avenue or remedy open to the applicant it will only be exercised in very exceptional circumstances. In answer to the first question we would therefore hold that the discretion is still with the Courts but where there is an appeal provision available to the applicant certiorari should not normally issue unless there is shown a clear lack of jurisdiction or a blatant failure to perform some statutory duty or in appropriate cases a serious breach of the principles of natural justice. (Emphasis added) [47] Jagdis therefore opens the door to judicial review even if there is an alternative remedy in those circumstances as listed above. The Respondent had no issue with Jagdis but was at pains to submit there were no such exceptional circumstances in this instance. [48] In Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama Sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1, FC it was stated at pages 39 to 41: "Speaking generally, it is right to say, that if an applicant in judicial review proceedings can demonstrate illegality, that is to say unlawful treatment, it would be wrong to insist that he exhaust his statutory right of appeal where one is available. Why should illegal action be not nipped in the bud by the quicker, more convenient and adequate remedy of Judicial Review rather appeal? It is, of course, true that convenience in this context means convenience not only for the parties but also in the public interest. (R. v. Huntingdon District Council; ex p. Cowan & Anor [1984] 1 WLR 501 (a Licensing appeal). But more to the point, in the present case, the main grounds on which the Society sought judicial review were based on distinct principles of public law or general issues of law, in particular, the Society had clearly raised an arguable case that the Council, a public body, had acted unfairly, abused its powers, and had raised the general question of the extent to which representations can bind public bodies. These grounds involve a consideration of generalised principles of public law developed by the courts to control the exercise of power by public authorities and, as such, judicial review would be the appropriate route to follow rather than appeal. (See eg. R v Inland Revenue Commissioners; ex p. Preston [1985] AC 835, R v Board of Inland Revenue; ex p MFK Underwriting Agencies Ltd & Ors [1990] 1 All ER 91). On a further ground also, in the present case, Judicial Review rather than appeal would be the appropriate route to follow because, by their application, the Society had raised issues of Law of public importance, going beyond the significance of the case itself. In other words, the principles involved in this case were more important than the case itself. So for example, in R v Huntington District Council, ex p. Cowan & Anor [1984] 1 All ER 58, Glidewell J permitted the applicant to proceed by judicial review to impugn a licensing decision rather than have recourse to the appeal procedure in a case where the applicant was raising for the first time the question of how the local authorities were to exercise their licensing functions under a particular statute. It was considered to be in the public interest that the court should give a ruling which would provide authoritative guidance for all local authorities. In our view, the present case, was such a case." (Emphasis added) [49] The exceptional circumstances where one need not exhaust the statutory remedy are that the Respondent's decision to abolish article clerkship has a wide impact on the public and not just the $ 2^{\mathrm{nd}} $ Appellant and section 26 LPA does not empower the Court to grant the reliefs sought by the Appellants. [50] Any each way, we find that the HC was not correct to uphold the PO. We would therefore dismiss the PO. Merits of the JR application Decision of the Respondent not to exercise its statutory function [51] The first ground advanced by the Appellants was that the Respondent had not exercised its statutory function under LPA. It will be recalled that the Respondent had decided in its meeting on 8-1-1985 to abolish articled clerkship as a mode of entry into the legal profession and it had on that basis on 5-8-2022 rejected the $ 2 ^{n d} $ Appellant's application. [52] The Respondent is established pursuant to section 4 LPA. Section 5 LPA confers upon the Respondent the functions with regard to articled clerkship as follows: "Functions of Board

The Board shall have the following functions:

to provide courses of instruction for, and to regulate the training and instruction of, articled clerks;

to provide for the examination of articled clerks wishing to become qualified persons;" [53] It cannot be gainsaid that the functions of the Respondent contained in section 5(b) and (c) LPA in relation to articled clerks are duties which the Respondent shall and is mandated to carry out. As stated in Benjamin William Hawks v PP [2020] 8 CLJ 267, FC, when a statute uses the word "shall', prima facie, it is mandatory. A statutory function in turn is equated to a statutory duty. Refer to section 3 Interpretation Acts 1948 and 1967 where "function" is defined to include power and duty. [54] Thereafter, there are various provisions in LPA vis-à-vis the Respondent and articled clerks. Section 6 LPA provides the following: "General power of Board and power to make rules

(1) In addition to any other powers conferred by this Act the Board may make rules and do all things which are necessary and incidental in order to carry out into effect the objects of this Part and the functions of the Board.

Without prejudice to the generality of subsection (1) but subject to this Part, the Board may in particular make rules-

... ;

for the taking and retaining of articled clerks by principals and for the conduct, duties and responsibilities of the parties;

for regulating the manner in which articled clerks serve their period of articleship;

specifying the subjects in which articled clerks are required to be proficient in;

for the examination from time to time of articled clerks;

for the exemption of articled clerks from courses of instruction or from examination;

...;

for the management and conduct of, and the exemption of certain categories of qualified persons and articled clerks from, the Bahasa Malaysia Qualifying Examination;

..." [55] Section 10 provides that the High Court may at its discretion admit as an advocate and solicitor any articled clerk who has complied with section 25. Sections 20 to 25 are devoted entirely to articled clerks, pertaining to qualification, conditions to be principal and discharge of clerk, discharge of clerk for fitness, discharge of clerk generally, period of articles and conditions of articles and condition of admission of articled clerk. These provisions can be said to support the Respondent in the discharge of its statutory function. [56] It is also trite law that a statutory body such as the Respondent only has powers and duties conferred upon it by LPA and it has to act within those powers. When it decided to abolish articled clerkship, it went beyond its powers as there is no such power in LPA for it to do so. Such power lies with Parliament. [57] There is nothing in LPA which confers on the Respondent the power to abolish articled clerkship. We were informed that LPA has been amended 7 times since 1985, the year of the decision to abolish articled clerkship, but none of these amendments abolished articled clerkship. In fact, vide Legal Profession (Amendment) Act 1983 which came into force on 16-12-1983, section 25(2) was inserted that as from 1-1-1984, no articled clerk could be admitted unless, in addition to satisfying the requirements in subsection (1), he has passed or is exempted from the Bahasa Malaysia Qualifying Examination. The latest amendment in 2016 did not touch on articled clerkship, much less abolish it. [58] Counsel for the Respondent informed this Court that during proceedings in the High Court, it was conceded that only Parliament could discontinue articled clerkship but the Respondent had certain discretion to determine how the programme could proceed. Reference was made to Hj Awang Tengah Hj Awang Amin v Sabah Public Service Commission Government of the State of Sabah [1998] MLJU 10: "As discussed earlier in this judgment, art. 37(1) imposes a duty upon the 1st defendants to do certain functions as stated therein in connection with members of the Sabah Public Service. But that should not be construed as leaving the 1st defendants without any decision-making power or any element of discretion. In de Smith's Judicial Review of Administrative Action (4th Edition,) at p. 283-284 it is stated thus: "An authority may have a discretion whether to exercise a power, and a discretion in the manner of exercising it. But discretionary powers are frequently coupled with duties. ... an apparently absolute duty cast by statute upon a public authority may be interpreted to permit the exercise of discretion in the manner and extent of its performance." (Emphasis added) [59] Inasmuch as the Respondent may have discretion in the manner and extent of the execution of articled clerkship, we find that this cannot extend to its abolition, and which as acknowledged by counsel, is only vested in Parliament. [60] We are thus of the considered opinion that the Respondent acted ultra vires LPA when it did not exercise its statutory duty and instead abolished articled clerkship. [61] Further, the abolition of articled clerkship renders all provisions in LPA pertaining to it, otiose. These provisions are section 5(b) and (c), section 6(b) to (f) and sections 20 to 25. This was an irrational and unreasonable decision in the Wednesbury sense. Other than rendering the articled clerkship provisions in LPA otiose, the Respondent had not performed its statutory function, the decision to abolish was not made public and the decision was made soon after the legislative insertion of section 25(2) which showed Parliament's intention to continue and not abolish. [62] The Respondent contended that it would be absurd to require the enforcement of the articled clerkship provisions as the administrative and institutional infrastructure to support it has vanished. It was submitted that certain subjects which had to be taken at University Malaya were no longer offered. Be that as it may, the answer is not for the Respondent to abolish articled clerkship but rather to amend the 1979 Rules to cater for that situation. It is within the control of the Respondent to establish the mechanism and to enact amendments to implement a suitable course of instruction and examination. A tale of two reasons [63] It is not disputed that when the Respondent dismissed the articled clerkship application by letter dated 5-8-2022, the reason provided was the abolition of articled clerkship as decided in a meeting held on 8-1-1985 (the first reason). [64] In the course of the JR proceedings, another reason was provided in the Respondent's affidavit in reply affirmed on 8-2-2023 as follows (the second reason): "9. I am also advised by the Respondent's solicitors and verify believe that the Applicants have not complied with the requirements under the 1979 Rules. The Rules provide that:

1 It must be the person who seeks to enter into articles with an advocate and solicitor to produce the relevant documents under rule 3;

2 Among other documents to be produced would be a copy of "proposed articles"; and;

3 The date of registration of articles shall be when the articles are registered and not when the articles are signed/executed." The second reason was in relation to the Appellants' failure to comply with the 1979 Rules. [65] It was contended by the Appellants that the second reason was an afterthought as it was raised about six months later and should not be taken into account. It was further contended that the HC was wrong to have relied on Gegah Optima Resources as in that case, no reason was provided at the time of decision and the reason was only provided during the judicial review application. [66] In Gegah Optima Resources, this Court ultimately found as follows at page 294: [72] The learned judge did not address any of these reasons at all; taking the position that because no reasons were given at the time of the issuance of the impugned letters, a reasonable inference that the first appellant had not exercised discretion in accordance with the law, was triggered. This understanding and application of the law, too, is incorrect. Although the reasons may not have been given at the material time of the letters, the fact remains that the reasons were made known at the time of consideration by His Lordship. Once placed before the court, we are duty bound to examine and consider those reasons with a view to ascertaining if the allegations of breaches of the rules of natural justice have been made out; that the decisions reached were devoid of reason and invalid under the Wednesbury principles and discretion must be exercised in favour of quashing those decisions." (Emphasis added) [67] This meant that even if the reason was given later, the Court is required to consider such a reason to ascertain if the allegations of breach of natural justice are made out or that the reason is invalid under the Wednesbury principles. What it means is that we cannot dismiss the second reason outright. [68] In Dr Mohd Nasir bin Ibrahim, there were two reasons given for the refusal to register a society at the national level. At page 225 this was said: [24] Here we have a case where the Minister relied on two grounds to deny registration of PSM at the national level. One, as I have already said, is a good reason. The other is a bad reason. In my judgment where a public decision-maker gives two reasons - a good one and a bad one - for his decision the court is entitled to uphold the ultimate decision provided that the bad reason was not the overriding consideration on which the decision is based. The authorities on the point are legion." (Emphasis added) [69] Hence it may well be argued that even if the first reason on the abolition of articled clerkship is found lacking, the second reason of noncompliance with the 1979 Rules can still be sustained. As an added measure, the Respondent submitted there was no contradiction between the reasons. Even if the articled clerkship was not abolished, the $ 2^{\mathrm{nd}} $ Appellant has still to comply with the 1979 Rules. [70] In considering the second reason, we must not lose sight of the fact that there was already a first reason. In that sense, this differs from Gegah Optima Resources where there was only one reason and Dr Mohd Nasir bin Ibrahim where there were two reasons given at the time of the decision. As we are obliged to consider the second reason, we refer to R (on the application of B) v Merton London Borough Council [2003] 4 All ER 280 as to how the second reason ought to be taken into account. At pages 289 and 290 these were the applicable principles laid down: [41] In my judgment in Nash v Chelsea College of Art and Design [2001] EWHC 538 (Admin), [2001] All ER (D) 133 (Jul), (2001) Times, 25 July, I sought to summarise the principles applicable to this issue. [34] In my judgment, the following propositions appear from the above authorities: (i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in [R v Northamptonshire CC, ex p W[1998] ELR 291 at 299]) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the court accept subsequent evidence of the reasons. (ii) In other cases, the court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap: (a) Whether the new reasons are consistent with the original reasons. (b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee. (c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b). (d) The delay before the later reasons were put forward. (e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly. [35]... [36] Secondly, the court should bear in mind the qualifications and experience of the persons involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members." (Emphasis added) [71] We do agree with the HC that there was non-compliance with the 1979 Rules. The non-compliance was that the proposed articles of clerkship were executed and effective on 7-7-2022 whereas the 1979 Rules required it to come into effect on the date of registration by the Respondent; the articles were not proposed as it had already been executed and effective and the required documents were submitted by the Firm and not the $ 2 ^{n d} $ Appellant. [72] Even if the second reason is true, the fact remains there was a delay of six months from the day of the 5-8-2022 letter dismissing the application to the day of the second reason. The fact that it took six months for the second reason to emerge would even support the Appellants' contention that this was an afterthought as this true reason should have been the one and only reason to be disclosed at the time of dismissing the application. The second reason that there was non-compliance with the 1979 Rules would in fact mean that articled clerkship had not been abolished and this would be in turn contrary to the first reason. [73] Another factor alluded to by Merton LBC is the qualifications and experience of the persons involved. Here, the membership of the Respondent as provided in section 7 LPA are all from the legal fraternity. [74] At its highest, the second reason only means that the Appellants will not be able to obtain the relief in paragraph 6 for a mandamus to compel the Respondent to register the $ 2^{\mathrm{nd}} $ Appellant as an articled clerk. To that extent, we agree that the Respondent cannot be forced to accept an application which does not comply with the 1979 Rules. [75] This cannot negate the first reason which is still staring at us; and our earlier finding that the abolition of articled clerkship is unreasonable and irrational still stands. Conclusion [76] For the above reasons, we find merits in the appeal. We allow the appeal and the order of the HC dated 16-11-2023 is set aside. We allow order in terms of encl. 8, paragraphs 1 to 5. We allow RM10,000.00 costs here and below, to the Appellants subject to allocatur. (SEE MEE CHUN) Judge Court of Appeal Malaysia Dated: 9-12-2024 Counsel for the Appellants: Shanmuga a/I Kanesalingam (Joshua Wu Kai-Ming, Jowyn Saw & Sabrina Ameen with him) Messrs Fahri, Azzat & Co Petaling Jaya Counsel for the Respondent: Khoo Guan Huat (Muhammad Danial bin Ahmad Terrirudin with him) Messrs Skrine Kuala Lumpur Watching brief for the Bar Council: Farez Jinnah Tetuan Farez Jinnah Petaling Jaya Cases referred to: Robin Tan Pang Heng v Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2010] 9 CLJ 505, FC The State Minerals Management Authority Sarawak v Gegah Optima Resources Sdn Bhd [2021] 1 MLJ 268, CA Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19, CA Loganathan PL Suppiah v Lembaga Kelayakan Profession Undang Undang Malaysia [1997] 3 CLJ 914, HC Chan Kwai Chun v Lembaga Kelayakan [2002] 3 CLJ 231. Persatuan Pegawai-Pegawai Bank Semenanjung Malaysia (ABOM) v Ketua Pengarah Kesatuan Sekerja Malaysia & Ors [2014] MLJU 1885 Government of Malaysia & Anor v Jagdis Singh [1987] 2 MLJ 185, FC Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1, FC Benjamin William Hawks v PP [2020] 8 CLJ 267, FC Hj Awang Tengah Hj Awang Amin v Sabah Public Service Commission Government of the State of Sabah [1998] MLJU 10 R (on the application of B) v Merton London Borough Council [2003] 4 All ER 280 Legislation referred to: Legal Profession Act 1976, sections 4, 5, 6, 7 and 20 to 26 Legal Profession (Articled Clerks) Rules 1979, Rules 3 and 4