High Time For A New Bar

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 plaintiffs 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

Country Institution Qualification
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
Ireland King’s Inn Barrister-at-Law

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:

United Kingdom* London University (External) LL.B (with at least Second Class (Lower) Honours) to be completed within seven years from Intermediate exams.
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)
Queen’s University, Belfast LL.B (must have taken English land law option.)
Australia** 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
*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.
** 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.
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
*New Zealand
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
**CLP 4841
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
TOTAL 13350
*Graduated before May 1, 1999 or before CLP is made mandatory for graduates from Australian and New Zealand universities.
**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.
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.

TheStar-06.02.2011-small

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.

*this article was first published in the Star on 06 February 2011.

Roger Tan 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.

He wishes to register his 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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Posted on 6 February 2011. You can follow any responses to this entry through the RSS 2.0.

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5 Responses to High Time For A New Bar

  1. This new admission has been gathering the attention of everyone that are being concern with this department. It sure is going to be worth of seeing the services they had been providing.

  2. That is not a good news and should be given attention immediately. https://ballsdirect.com/sports-balls/soccer-balls

  3. charlie chan

    its not shocking to hear lawyers leaving the profession. many left the country n of course the best brain n former chief of petronas is now working in SINGAPORE SEMBAWANG CORPORATION, IS this not a joke?

  4. L_J

    Sdr,

    Cadangan sdr Roger Tan bahawa masa sudah tiba untuk mewujudkan CBE tak terbantahkan, akan tetapi soalan $64 ialah entiti yang mana akan mengendali CBE ini. Jika entiti yg sedang mengendalikan CLP pada masa kini akan juga mengendalikan CBE, saya akan menentang CBE dengan sedaya upaya saya.

    Salam,

    LJ

  5. Umno led governments do not want good qualified lawyers around to express their views and fight their cases. Otherwise the AG and his team will look very very bad and also Umno can then claim they have assisted the Malay through NEP.