The Sunday Star
by Roger Tan
A common evaluation system is needed urgently to check the
declining quality and standard of new lawyers in the country.
It is a matter of grave concern that with about 1000 law graduates entering the
legal profession every year, there is no common evaluation system to ascertain
and ensure their levels of competence.
The Bar Council has been advocating a Common Bar Course and Examination (CBE)
since the 1980s as a single entry point to the legal profession for both local
and foreign law graduates.
It is understood that the delay in implementing the CBE is partly due to
objections from local universities.
But it cannot be gainsaid that the quality and standard of lawyers have also
declined significantly since the 1980s. There is a common feeling among senior
legal practitioners that there is an “abject absence of rudimentary legal
skills” among the new entrants.
In 2008, a senior judge lamented on the poor quality of locally trained lawyers,
describing their standard as ranging from the “good to the grotesque”. (However,
some senior lawyers had also opined that the learned judge’s assessment applied
equally to the quality of judges since the 1980s.)
For example, one senior lawyer related this incident to me involving a senior
assistant registrar (SAR) and lawyers for both the plaintiff and defendant. The
SAR was tasked to read the judge’s order relating to costs. Both lawyers
recorded the amount of costs with interest at the rate of 80%!
When the senior lawyer asked his assistant, who was the counsel for the
plaintiff, about it, the latter said he did not understand why the SAR had
mentioned the interest at 80%. He added that when he checked with the counsel
for the defendant; the latter said it was common for the court to grant interest
at 80%, which is, of course, erroneous!
Hence, the point is, how could one have walked out of the court without even
understanding the court’s order? If the parties were not able to understand the
order, then they would also not be able to draft the order later. If what the
plaintiff’s counsel had said about the SAR and the other counsel was true, then
indeed all the three legally trained officers – SAR and the two lawyers - were
indeed half-past-six professionals!
Besides the decline in lawyering quality, there is an abysmal language skill
especially the command of the English language among the new entrants for
practice at the Bar. I have personally received a letter from a young lawyer
asking me to “ensure that (our) clients would be executed the documents!”
It follows that it is not unjustified to require the new entrants to also pass
an English Language Qualifying Examination. Whilst we can blame this decline on
our education system, we cannot ignore the fact that we are living in an
increasingly competitive global environment where international business is
transacted primarily in English.
It is also in the national interest for us to build up a pool of competent
practitioners in international law so that we can put across our nation’s case
in international forums and courts, which is made all the more necessary after
the Pulau Batu Puteh case before the International Court of Justice.
In fact, there were 13,350 practising lawyers in Peninsular Malaysia as of Dec
31 last year, with more than half having obtained their basic law degree
overseas.
The Legal Profession Act, 1976 (LPA) governs the admission of new entrants from
various streams to the legal profession as an advocate and solicitor.
To be admitted to the Malaysian Bar, one has to be a “qualified person” as
defined in the LPA; attain the age of 18; be of good character and not been
adjudicated bankrupt or convicted of any offence; be a citizen or permanent
resident of Malaysia; have served nine months of pupillage under a lawyer of at
least seven years’ experience; and have passed, or be exempted from, the Bahasa
Malaysia Qualifying Examination.
Three tables containing the relevant information of the legal practitioners and
their qualifications have been provided, and let me expound on it a little.
Table 1
List of institutions and the respective qualifications recognised
for entry into the legal profession |
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Country |
|
Institution |
|
Qualification |
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|
|
|
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Malaysia |
|
1. University of Malaya |
|
LL.B |
|
|
2. Legal Profession Qualifying Board |
|
CLP |
|
|
3. International Islamic University |
|
LL.B |
|
|
4. Universiti Kebangsaan |
|
LL.B |
|
|
5. Universiti Teknologi MARA |
|
LL.B |
|
|
6. Universiti Utara Malaysia |
|
LL.B |
|
|
7. Multimedia University |
|
LL.B |
|
|
|
|
|
|
Singapore |
|
1. University of Malaya in Singapore |
|
LL.B |
|
|
2. University of Singapore |
|
LL.B |
|
|
3. National University of Singapore |
|
LL.B |
|
|
|
|
|
|
United Kingdom |
|
1. Inner Temple |
|
Barrister-at-Law |
|
|
2. Middle Temple |
|
Barrister-at-Law |
|
|
3. Gray's Inn |
|
Barrister-at-Law |
|
|
4. Lincoln's Inn |
|
Barrister-at-Law |
|
|
5. The Law Society |
|
Solicitor |
|
|
|
|
|
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Ireland |
|
King's Inn |
|
Barrister-at-Law |
|
|
|
|
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|
Law graduates from the UK, Australia and New
Zealand who do not have any of the above qualifications may still be
admitted if they also pass the CLP exams provided they have obtained
their law degree from the following approved institutions: |
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United Kingdom* |
|
London University (External) |
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LL.B (with at least Second Class (Lower)
Honours) to be completed within seven years from Intermediate exams. |
|
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King’s College, London, London School of Economics
and Political Science, Queen Mary & Westfield College, London,
School of Oriental & African Studies, London, University College,
London, University College of Wales, Aberystwyth, University of
Wales, Cardiff, University of West of England, Bristol, University
of Northumbia at Newcastle, and Universities of Birmingham, Bristol,
East Anglia, Essex, Exeter, Hertfordshire, Hull, Leeds, Leicester,
Liverpool, Manchester, Nottingham, Nottingham Trent, Oxford Brookes,
Reading, Sheffield, Southampton and Warwick. |
|
LL.B |
|
|
University of Cambridge |
|
BA (Law Tripos) |
|
|
University of Oxford |
|
BA (Jurisprudence) |
|
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Queen's University, Belfast |
|
LL.B (must have taken English land law
option.) |
|
|
|
|
|
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Australia** |
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Australian National University, Macquarie
University, Monash University, Murdoch University, Bond University,
Queensland University of Technology and Universities of Adelaide,
Melbourne, New South Wales, Queensland, Sydney, Tasmania, Western
Australia and University of Technology, Sydney. |
|
LL.B |
|
|
|
|
|
|
New Zealand** |
|
Victoria University of Wellington and Universities
of Aukland, Canterbury, Otago and Waikato. |
|
LL.B |
|
|
|
|
|
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*A UK law graduate not from these
approved institutions can still be admitted here if he has been
admitted as either a barrister or solicitor in England or a
barrister in Ireland. |
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** This does not apply to graduates
qualified before May 1, 1999 or enrolled in the respective
universities on or before April 30, 1998 and eligible to be admitted
as a barrister or solicitor in the state in which the university is
situated, that is, they need not do the CLP exams again. After May
1, 1999, the graduates are required to sit and pass the CLP exams
and it does not matter if they have already been admitted as
barristers or solicitors there. |
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Source: Legal Profession Qualifying
Board. |
Table 1 deals with the academic qualifications of a
‘qualified person’, and the following should be noted:
> The qualifications, except for graduates of Universiti Malaya, National
University of Singapore and barristers of England, are determined from time to
time by the Legal Profession Qualifying Board (Qualifying Board) which is
chaired by the Attorney-General. Any change to the status of the three aforesaid
qualifications can only be made by way of a statutory amendment to the LPA.
> The law degree of the new Singapore Management University has still not been
recognised by the Qualifying Board. (Singapore only recognises the law degree of
University of Malaya for admission to the Singapore Bar.)
> The two-year exemption from Certificate in Legal Practice (CLP) examination
given to law graduates of Universiti Utara Malaysia (UUM) and Multimedia
University (MMU) in 2009 will expire on April 15, unless extended indefinitely
or for a further period by the Qualifying Board.
Table 2
Practising lawyers by qualification as at December 31, 2010 |
|
|
|
*Australia |
|
|
Bond |
|
116 |
Melbourne |
|
48 |
Adelaide |
|
17 |
Monash |
|
140 |
Queensland |
|
5 |
Queensland University of Technology |
|
18 |
New South Wales |
|
23 |
Western Australia |
|
10 |
Sydney |
|
34 |
Macquarie |
|
5 |
Australian National University |
|
35 |
Tasmania |
|
47 |
|
|
498 |
|
|
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*New Zealand |
|
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Canterbury |
|
41 |
Auckland |
|
8 |
Wellington |
|
19 |
Otago |
|
12 |
Waikato |
|
5 |
|
|
85 |
|
|
|
Inns of Court |
|
|
Gray's |
|
241 |
Inner |
|
154 |
Lincoln's |
|
1200 |
Middle |
|
419 |
King's |
|
7 |
|
|
2021 |
|
|
|
Solicitor of Supreme Court of England |
|
15 |
|
|
|
Advocate, Scotland |
|
1 |
|
|
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**CLP |
|
4841 |
|
|
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Local Universities |
|
|
Malaya |
|
1336 |
IIU |
|
2607 |
UKM |
|
695 |
UiTM |
|
508 |
MARA |
|
377 |
UUM |
|
54 |
MMU |
|
59 |
|
|
5636 |
|
|
|
SINGAPORE |
|
240 |
|
|
|
ARTICLESHIP |
|
13 |
|
|
|
GENDER |
|
|
Male |
|
7000 |
Female |
|
6350 |
|
|
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TOTAL |
|
13350 |
|
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*Graduated before May 1, 1999 or
before CLP is made mandatory for graduates from Australian and New
Zealand universities. |
|
|
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**Includes graduates from British
universities who are not either barristers or solicitors, and
graduates from Australian and New Zealand universities regardless
whether they are barristers or solicitors there. |
|
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Source: Malaysian Bar Council |
Table 2 particularises the qualifications of the 13,350
lawyers as at Dec 31 last year. It is interesting to note that the International
Islamic University is the single university which has produced the largest
number of lawyers in Malaysia.
Also, as of Jan 28, 2011:
> There were 13,346 lawyers; of whom 6,992 and 6,354 are respectively men and
women.
> In terms of ethnicity, there were 5,190 Malays; 5,025 Chinese; 2,517 Indians;
485 Punjabis and 129 Eurasians and others.
> In terms of number of years of practice, there were 1972 lawyers with one to
three years of practice; 2,037 (three to seven years); 2,983 (seven to 12
years); 4,244 (12 to 20 years) and 2,110 lawyers have 20 years of practice or
more.
> In terms of age, 2,384 lawyers were under 30; 4847 (31-40); 3,537 (41-50);
1,648 (51-60) and 930 lawyers were aged 60 and above.
As regards Table 3 which shows the number of lawyers admitted in 2009 and 2010,
it is obvious that women have been busy becoming lawyers in the last two years!
It follows that as Malaysian lawyers are coming from so many diverse educational
streams, there is an urgent need for uniformity by undertaking a critical review
of the entire legal education especially when we are producing a surfeit of
lawyers annually.
Need to be professional
It is for this reason that there have been constant calls for many decades now
for the CBE to be implemented as the ultimate sieve in the admission of new
practitioners in order to ensure lawyering quality and competency.
Further, the CLP course has to be replaced by the CBE because it is too
examination oriented, and not practical skills oriented. This is understandable
as the CLP was originally designed in 1984 only as a temporary stop-gap measure
to assist those Malaysians who were not able to sit for the English Bar Finals
Examinations because they failed to obtain at least a Second Class (Lower
Division) Honours in their British university law degree.
To my mind, law schools should just concentrate on the academic aspect of legal
education, and leave the professional training in the form of CBE to the
Qualifying Board, Bar Council and the Judicial and Legal Services. Passing the
CBE should not just be the pre-requisite for new entrants to the legal
profession, but also for new recruits for the Judicial and Legal Services.
Pending the implementation of the CBE, the Qualifying Board should also
periodically review the teaching and training of law graduates from our local
universities. If the standard is not maintained, then the exemption from the CLP
examination currently granted to their law graduates should be removed.
As regards foreign law graduates, the Qualifying Board has already reduced the
number of approved British universities from 66 to just 30, and Australian and
New Zealand law graduates are now required to sit and pass the CLP examination
even if they have been admitted as barristers or solicitors in New Zealand or
any state of Australia.
In this regard, the Qualifying Board should be commended for setting up in 2008
an evaluation team headed by the Chief Registrar of the Federal Court which
comprised judges, officers from the Attorney General’s Chambers and senior
members of the Malaysian Bar to determine if UUM and MMU law graduates should be
exempted from the CLP examination. As a result, law graduates from the two
universities are now required to undergo a training course on practical skills
before they can become “qualified persons” under the LPA even though they are
exempted from the CLP exam. This exemption will expire on April 15, and the team
would return soon to the universities to undertake a review.
In fact, so much has already been said and written in the last 20 years about
the urgent need of reforming our decrepit legal education, and we are already
sorely lagging behind many Commonwealth countries in this respect. But
regrettably, there appears to be a total lack of a sense of urgency on the part
of the various stakeholders to come to grips with this unsatisfactory state of
affairs which is certainly not in the public interest.
*The writer is the head of the Bar Council’s evaluation team appointed by
the Qualifying Board to assess the Bachelor of Law degree of UUM and MMU to
determine if their graduates should be exempted from the CLP examination. You
can follow him on Twitter at
www.twitter.com/rogertankm.
**I wish to
register my appreciation to Chin Oy Sim, Kwan Yin Cheng, Ezane Mansor Obaid and
Lilian Chong of the Bar Council Secretariat for gathering and providing me
useful information for this article.
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