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PART II

QUALIFYING BOARD

4. Qualifying Board.

There is established a body to be called the Qualifying Board.

5. Functions of Board.

The Board shall have the following functions:

(a) to prescribe the qualifications required for the entry of any person into articles with a view to his admission as an advocate and solicitor,

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

(c) to provide for the examination of articled clerks wishing to become qualified persons;

(d) to decide on the qualifications, if any, other than those set out in paragraphs (a) and (b) of the definition of "qualified person" in section 3, which may entitled a person to become a qualified person for the purposes of this Act;

(e) to provide courses of instruction for, and for the examination of, persons whose qualifications are not sufficient to make them qualified persons for the purposes of this Act except after undergoing the courses and passing the examination;

(f) to provide for the management and conduct of the Bahasa Malaysia Qualifying Examination.

6. 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 object of this Part and the functions of the Board.

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

(a) for regulating the meetings and proceedings of the Board;

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

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

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

(e) for the examination from time to time of articled clerk;

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

(g) for the appointment of lecturers and examiners and for the payment of fees to them;

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

(i) for prescribing the forms to be used and the fees to be paid under this Part.

(3) (Deleted by Act A567).

7. Membership of Board.

[Am. Act 1567] The Board shall consist of-

(a) the Attorney General who shall be the Chairman;

(b) two Judges nominated by the Lord President;

(c) the Chairman of the Bar Council; and

(d) a Dean of a Faculty of Law nominated by the Minister of Education.

8. Election of acting Chairman.

(1) The Chairman shall preside at meetings of the Board; and in the absence of the Chairman, the members of the Board present at the meeting shall elect an acting Chairman who shall have and exercise all the powers of the Chairman.

(2) The Chief Registrar shall be the Secretary of the Board

(3) The Board shall appoint such officers as it considers necessary and shall have power to pay remuneration to its employees.

9. Meetings of Board and quorum.

(1) The Board shall meet at such times and such places as the Chairman may appoint.

(2) The Board shall have power to fix a quorum for its meetings.

(3) Each member of the Board shall have one vote and the Chairman of the meeting shall have a casting vote, Qualified Persons

10. Admission of advocates and solicitors.

The High Court may at its discretion and subject to this Act admit as an advocate and solicitor of the High Court-

(a) any qualified person; and

(b) any articled clerk who has complied with section 25:

Provided that no person who is a qualified person by reason of his having passed the final examination for the degree or other qualification which makes him a qualified person under paragraph (a), (b) or (c) of the definition of "qualified person" in section 3 shall be admitted as an advocate and solicitor before the degree or other qualification has been conferred upon him.

11. Qualifications for admission.

(1) Subject to section 14, a qualified person may be admitted as an advocate and solicitor if he-

(a) has attained the age of eighteen years;

(b) is of good character and

(i) has not been convicted in Malaysia or elsewhere of a criminal offence as would render him unfit to be a member of his profession, and in particular, but not limited to, an offence involving fraud or dishonesty;

(ii) has not been adjudicated bankrupt and has not been found guilty of any of the acts or omissions mentioned in paragraph (a), (b), (c), (d), (e), (f), (h), (k) or (l) of subsection (6) of section 33 of the Bankruptcy Act, 1967;

(iii)has not done any other act which, if being a barrister or solicitor in England, would render him liable to be disbarred, disqualified or suspended from practice; or

(iv)has not been, or is not liable to be, disbarred, disqualified or suspended in his capacity as a legal practitioner in any other country;

(c) is either a Federal citizen or a permanent resident of Malaysia;

(d)has satisfactorily sewed in Malaysia the prescribed period of pupillage for qualified persons.

(2) As from the 1st January, 1984, no qualified person shall be admitted as an advocate and solicitor unless, in addition to satisfying the requirements of subsection (1), he has passed or is exempted from the Bahasa Malaysia Qualifying Examination.

12. Period of pupillage of qualified person.

(1) For the purposes of this Part, a qualified person shall during his period of pupillage be known as a "pupil", and a person with whom a pupil serves his period of pupillage or any part thereof shall be known as a "master".

(2) A qualified person shall, before he is admitted as an advocate and solicitor, serve a period of pupillage and, subject to this section and section 13, the prescribed period of pupillage shall be nine months.

(3) No qualified person shall, without the special leave in writing of the Bar Council, hold any office or engage in any employment of any kind, whether full-time or otherwise, during his period of pupillage, but nothing in this subsection shall preclude a pupil from receiving remuneration from his master.

13. Exemption from period and qualification for pupillage.

(1) Subject to subsection (4) a pupil shall serve his period of pupillage with an advocate and solicitor who is and has been in active practice in Malaysia for a total period of not less than seven years immediately preceding the date of commencement of his pupillage. Provided that the Bar Council may on special grounds allow a pupil to serve his period of pupillage with an advocate and solicitor of less than seven years standing.

(2) The Bar Council may allow a qualified person to serve different parts of his period of pupillage with different masters.

(3) The Bar Council may, in its sole discretion, exempt a qualified person from any period up to six months' pupillage upon application made to it supported by satisfactory evidence that-

(a) there are special circumstances justifying a shortening of the period of pupillage; or

(b) the applicant has for a period of not less than six months been a pupil or read in the chambers of a legal practitioner in active private practice, in the Commonwealth, of more than seven years' standing: or

(c) the applicant is an articled clerk in Malaysia; or

(d) the applicant has been engaged in active practice as a legal practitioner by whatever name called in any part of the Commonwealth for a period of not less than six months.

(4) A qualified person who has served in the Judicial and Legal Service for seven years shall be exempted from serving any period of pupillage provided his application for admission as an advocate and solicitor is supported by a certificate from the Attorney General to the effect that he is a fit and proper person to be admitted as an advocate and solicitor.

(5) The Bar Council may, in its sole discretion, upon an application made to it supported by satisfactory evidence in writing given by the Attorney General, exempt a qualified person who has served in the Judicial and Legal Service for at least three years from any period up to a maximum of six month's pupillage.

14. Filing of admission petition and enquiries, etc.

(1) Upon any petition for admission and enrollment, as an advocate and solicitor being filed, the Bar Council shall make or cause to be made full inquiries into the character of the petitioner and upon such petition being set down for hearing, to forward to the Chief Justice a confidential report of the result of such inquiries.

(2) All the State Bar Committees (if more than one) in the States in which a person applying to be admitted pursuant to section 15 has served his pupillage, shall upon the person's petition being set down for hearing make or cause to be made full inquiries into the character of the petitioner and the confidential report of the result of the inquiries shall be forwarded to the Chief Justice with such comments upon it as the Bar Council may consider necessary.

(3) If any of the reports referred to in subsection (1) or subsection (2) in unfavorable to the petitioner the Chief Justice may, if he thinks fit, direct such report to be filed in Court and a copy thereof to be sewed on the petitioner and, subject to such directions as the Court may give, such report shall be taken into consideration on the hearing of the petition.

(4) All reports and communications under this section shall be absolutely privileged.

15. Petition for admission with affidavit.

(1) This section shall apply to every person who proposes to apply to be admitted and enrolled as an advocate and solicitor.

(2) An application for admission under this section shall be by a petition to the Court and verified by affidavit.

(3) Every petitioner shall, not less than fourteen days before his petition is to be heard or such shorter period of the Court may allow, file an affidavit exhibiting-

(a) where applicable, true copies of any documentary evidence showing that he is a qualified person;

(b) two recent certificates as to his good character;

(c) a certificate of diligence from his master with whom he served his pupillage in cases where he is required to serve a period of pupillage, or in the absence of such certificate any other evidence as the Court may require showing that he has served such pupillage with diligence;

(d) where applicable, a certificate signed by the Secretary of the Board that the petitioner has attended the courses of instruction and passed the examinations, if any, required in his case under this Act;

(e) where applicable, a certificate from his principal that he has satisfactorily served the appropriate period as an articled clerk;

(f) true copies of any documentary evidence showing that he is either a Federal citizen or a permanent resident of Malaysia; and [Ins. Act A812]

(g) true copies of any documentary evidence that he has passed or is exempted from the Bahasa Malaysia Qualifying Examination.[Ins. Act A812]

(4) The petition, notice, affidavit and certificates referred to in this section shall be in the forms prescribed by the Board.

(5) The petitioner shall file his petition at the Registrar's Office at the Central Registry accompanied by notices intimating that he has so petitioned; such notices shall be posted and continue to be posted at all the High Courts for three months before the petitioner is admitted and enrolled as an advocate and solicitor.

16. Filing of petition and objection.

(1) A copy each of the petition and the affidavit required to be filed under section 15 together with the true copies of each document exhibited pursuant to that section shall, within seven days of the filing thereof in the Registrar's Office, and not less than ten days or such shorter period as the Court may allow before the date fixed for hearing the petition, be served on the Attorney General, the Bar Council and the State Bar Committee of the State in which the pupil has served any part of his period of pupillage.

(2) If the Attorney General, the Bar Council or any State Bar Committee intends to object to any petition, there shall be served on the petitioner and filed in the Registrar's Office, not less than three clear days or any shorter period as the Court may allow before the date fixed for hearing the petition. a notice of objection which shall set out in brief terms the grounds of objection.

(3) On a notice of objection being filed the petition shall be fixed for hearing within one month or as soon as may be before a Judge of the High Court.

(4) The Attorney General, the Bar Council or the State Committee need not be represented at the hearing of any petition unless the Attorney General, the Bar Council or the State Bar Committee, as the case may be, intends to object to that petition; but no order shall be made upon any petition unless the Court is satisfied that the petition, affidavit and true copies of each document have been duly served as required by subsection (1).

17. Entering of caveat against admission.

(1) Any person may enter a caveat against the admission of any petitioner and upon such caveat being entered no application for the admission of the petitioner shall be heard unless a notice of hearing of not less than three clear days has been served on the person entering the caveat.

(2) Every caveat under this section shall be entered in the Registrar's Office and shall contain the full name, occupation and address of the caveator, a brief statement of the grounds of his objection and an address for service.

(3) If at any time after the admission and enrollment of any petitioner as an advocate and solicitor, it is shown to the satisfaction of the Court that any petition, affidavit, certificate or other document filed by a petitioner contains any statement which is false or misleading in substance or a suppression of any material fact the name of the petitioner may be removed from the Roll.

(4) Where an advocate and solicitor has been removed from the Roll pursuant to subsection (3), the Registrar shall upon any further petition for admission made by the same person bring this fact to the notice of the Court and the Court shall, in the absence of special circumstances, refuse to grant such further petition.

18. Admission in special cases.

(1) Notwithstanding anything contained in this Act, the Court may, for the purpose of any one case and subject to the following subsections, admit to practise as an advocate and solicitor any person who, if he was a citizen of, or a permanent resident in Malaysia, would be eligible to be admitted as an advocate and solicitor of the High Court and no person shall be admitted to practise as an advocate and solicitor under this subsection unless-

(a) for the purpose of that particular case he has, in the opinion of the Court, special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia; and

(b) he has been instructed by an advocate and solicitor in Malaysia.

(2) Any person applying to be admitted under this section shall do so by originating motion verified by his own affidavit, or that of the advocate and solicitor instructing him, stating the names of the parties and the brief particulars of the cause or matter in which the applicant intends to appear, and exhibiting in the affidavit the consent of the applicant to appear in the cause of matter; the originating motion and affidavit or affidavits shall be served on the Attorney General, the Secretary of the Bar Council and of the State Bar Committee in the State where such cause or matter is to be heard and the other party or parties to the cause or matter; at the time of such service the applicant shall pay one hundred Ringgit each to the Secretary of the Bar Council and of the State Bar Committee to cover their costs incurred in the application.

(3) Before admitting a person under this section the Court shall have regard to the views of each of the persons served with the application.

(4) The Registrar shall, on payment of the prescribed fee, issue to every person admitted under this section a certificate to practice specifying in it the causes or matters in which he is permitted to appear; and any person to whom a certificate to practise has been issued under this subsection shall for the purpose of his employment in such causes or matters be deemed to be a person to whom a certificate to practise has been issued under section 29.

(5) The Registrar shall not enter upon the Roll but shall keep a separate roll for the names of persons admitted under this section.

(6) In this section the words "cause or matter" include any interlocutory or appeal proceedings connected with any cause or matter.

19. Right of appeal by objectors

The petitioner under section 16 and the applicant under section 18 and any one or more of the following namely the Attorney General, the Board, the Secretary of the Bar Council or the Secretary of any State Bar Committee objecting to any petition or to the making of any order on an originating motion pursuant to section 18 shall have a right of appeal to the Supreme Court. Provided that a Judge who have made the order appealed from shall not be a member of the Supreme Court.

20. Qualification for articled clerks.

(1) Except as authorised by this Act and any rules made by the Board no person shall enter into articles with a view to his admission as an advocate and solicitor unless he-

(a) has attained the age of seventeen years;

(b) is of good character; and

(c) has the necessary educational qualifications as may be prescribed by the Board.

(2) For the purposes of this Part, a person who has entered into articles with an advocate and solicitor shall be known as an "articled clerk" and an advocate and solicitor who takes an articled clerk shall be known as a "principal".

21. Conditions to be a principal and discharge of clerk.

(1) No advocate and solicitor shall, without the special leave in writing of the Board, qualify as a principal unless he has been in active practice as an advocate and solicitor in Malaysia for a period of not less than seven years immediately preceding the commencement of the articles and is in active practice.

(2) No principal shall have more than two articled clerks at the same time.

(3) No principal shall take or retain any articled clerk after he has ceased from active practice as an advocate and solicitor in Malaysia or while the articled clerk is employed by another advocate and solicitor.

(4) If any advocate and solicitor takes an articled clerk in contravention of this section the Board may of its own motion discharge the articles of the articled clerk upon such terms, including terms as to return of any premium, as the Board thinks fair and reasonable.

22. Discharge of clerk for unfitness.

If any allegation is made to the Board as to the unfitness of an articled clerk to he an advocate and solicitor, and the Board, after inquiring into that allegation is satisfied that the articled clerk is unfit to be an advocate and solicitor, the Board may of its own motion discharge the articles of that articled clerk upon such terms, including terms as to return of any premium, as the Board thinks fair and reasonable.

23. Discharge of clerk generally.

If the Board is satisfied on application made either by a principal or an articled clerk that the articles ought to be discharged, the Board may discharge the articles upon such terms, including terms as to return of any premium, as the Board thinks fair and reasonable.

24. Period of articles and condition of articles.

(1) The period of articles for an articled clerk who is a graduate of a University recognised by the Board for the purpose of this section shall be three years.

(2) The period of articles for every other person shall be five years.

(3) No articled clerk shall, without the special leave in writing of the Bar Council, hold any office or engage in any employment of any kind, whether full-time or otherwise, during his articles but nothing in this subsection shall preclude an articled clerk from receiving remuneration from his principal.

25. Condition of admission of articled clerk.

(1) Subject to sections 22 and 23 and any rules made by the Board no articled clerk shall be admitted and enrolled as an advocate and solicitor unless he-

(a) has satisfactorily served the prescribed period of articles;

(b) has attended such courses of instruction as may generally or specially be prescribed by the Board; and

(c) has passed such examination as may be prescribed by the Board.

(2) As from the 1st January 1984, no articled clerk shall be admitted and enrolled as an advocate and solicitor unless, in addition to satisfying the requirements of subsection (1), he has passed or is exempted from the Bahasa Malaysia Qualifying Examination.

26. Appeal from the decision of Board to Judge.

(1) Any person dissatisfied with any decision of the Board may apply to a Judge for a review of the decision.

(2) 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).

(3) 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.

(4) 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

(5) 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.

(6) A confidential report under this section shall be privileged.

(7) At the hearing the Judge may dismiss the applications or make any order under this Act as he considers fair and reasonable

(8) A Judge who is a member of the Board shall not hear any application under this section.

27. Hearing by Judge, a member of Board.

A Judge who is a member of the Board shall not hear any petition for admission.

28. Roll of advocates and solicitors

(1) The Registrar shall keep a Roll of advocates and solicitors with the dates of their respective admission.

(2) The name, with the date of admission, of every person admitted shall be entered upon the Roll in the order of admission.

(3) Every person admitted as an advocate and solicitor shall pay the prescribed fee and the Registrar shall deliver to him an instrument of admission signed by the Chief Justice or the Judge who admitted the petitioner.

(4) This section shall not apply to persons admitted under section 16.

(5) The Roll shall be open to inspection without payment by any person during office hours.