ON April 23, the High Court ruled in the case of Suresh Kumar a/l Achuthan Krishnan v Lembaga Kelayakan Profesion Undang-Undang that a compensated pass is not a pass.

The applicant had filed an application for judicial review to obtain relief in relation to the decision of the Legal Profession Qualifying Board (LPQB) to reject the applicant’s application to register for the Certificate in Legal Practice (CLP) Examination.

The applicant’s application was rejected by the LPQB after he secured a “compensated pass” in property/land law from a UK-based university.

The following appeared in the judgment of the High Court, which is available on the Federal Court eJudgment Management System.

The LPQB is a statutory body established under Section 4 of the Legal Profession Act 1976 (LPA) and is empowered to decide on the qualifications which may entitle a person to become a “qualified person” within the meaning of Section 3 of the LPA for the purposes of admission as an Advocate and Solicitor in Malaysia.

Pursuant to its power, the LPQB, on 18 March 1995, issued a guideline known as the “New Guidelines on Qualifications and Requirements to Qualify to Sit for the Malaysian Certificate in Legal Practice (CLP) Examination (for Law Degrees from the United Kingdom)” (the 1995 Guidelines), which states, amongst others, the requirements for persons to qualify to be registered for the CLP Examination.

Part I Rule D (iv) of the 1995 Guidelines prescribes the criteria to be satisfied before a law degree is recognised – that is, the law degree must contain a minimum of 12 law subjects, which must include six core subjects, namely, law of contract; law of torts; constitutional law; criminal law; land law; and equity and trusts.

Each of the core subjects must be studied for the duration of one academic year and candidates must pass all six core subjects.

Ten years later, on 17 June 2005, the LPQB issued “A Statement on Six Core Subjects” that reiterates that candidates must pass the six core subjects, out of a minimum of 12 law subjects, and each of the core subjects must be studied for the duration of one academic year.

Accordingly, it is the LPQB’s established guidelines that the recognised qualification for the purposes of registration for the CLP Examination requires a candidate to have obtained a “pass” for the core subjects in the candidates’ LL.B examination.

In addition to the guidelines, the LPQB had also decided that candidates who have received a “compensated pass” for any of their core subjects will not be eligible to be registered for the CLP Examination. This was decided at a meeting of the LPQB on March 13, 2021.

On December 10, 2021, the applicant submitted his application to be registered for the 2022 CLP Examination. On May 24, 2022, it was published on the e-LPQB portal that the application by the applicant to be registered for the CLP Examination was rejected on the basis that “Calon tidak mematuhi syarat lulus 6 subjek teras. Calon memperoleh ‘compensated pass’ dalam subjek ‘property law’ iaitu salah satu subjek teras”.

By way of a letter dated June 7, 2022, the applicant appealed to the LPQB against the decision to reject his application to be registered for the CLP Examination. By way of a letter dated June 15, 2022, the LPQB rejected the applicant’s appeal.

By way of a letter dated June 17, 2022, the applicant again appealed to the LPQB, which the latter again rejected by a letter dated June 23, 2022, which further stated that the applicant’s application to be registered for the CLP Examination was permanent and final (“kekal dan muktamad”).

Five months later, on November 1, 2022, the LPQB received an email from the UK-based university which explained how the applicant received a “compensated pass” in property law. The university stated that:

1. The applicant made three attempts (the maximum number of attempts) at the property law module;

2. The applicant narrowly failed the property law module on two of these said attempts; and

3. The applicant was therefore only eligible to be granted a “compensated pass” in property law as per Regulation 8.7 of the university’s Undergraduate Laws 2018-2019 Regulations which stated that if a student failed a module three times, the student “may be eligible for a ‘compensated pass’ in respect of one module only” provided the student achieved a mark of 35%-39% in one of the attempts.

The LPQB considered the applicant had failed one of the core subjects, land law. The  applicant was therefore deemed ineligible to register for the CLP Examination as he had failed to meet the criteria required of him as prescribed under the applicable guidelines.

In his application for judicial review, the applicant contended that the LPQB was not cloaked with the jurisdiction to classify a “compensated pass” as a “fail”.

High Court judge Ahmad Kamal Md Shahid found the contention without merit. The judge said:

“It is undisputed that the (LPQB), under the (LPA), has the autonomy to establish the prerequisites for registering for the CLP Examination. The autonomy is recognised by the courts as matters within the prerogative of the relevant institution.

“The court’s reluctance to interfere with matters of qualification is demonstrated in the Court of Appeal case of Sivapalan a/I Govindasamy v Universiti Malaya (2020) 12 MLJ 354 where it was held that academic judgement and/or academic matters are not amenable to the supervision of the Court.

“In the instant case, the (LPQB) has established that candidates must achieve a ‘pass’ for all six (6) core subjects of the LL.B to be eligible for CLP Examination registration. The 1995 Guidelines make no mention of accepting a ‘compensated pass’ as equivalent to a ‘pass’.

“It is evident from the (UK-based university’s) emails… that when candidates (including the applicant) receive a ‘compensated pass’, it means that they had in fact failed that particular module and therefore, the  applicant had in fact failed one of his core subjects before he was given a ‘compensated pass’.”

The judge ruled that “it is well within the (LPQB)’s authority to equate a ‘compensated pass’ to a ‘fail’ under the 1995 Guidelines”.

The applicant is reported to be appealing the decision to the Court of Appeal. – May 23, 2024.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.