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This article is written by Steven Thiru
This article was first published in PRAXIS, Chronicle of the Malaysian Bar July-Sept 2011 Issue and is reproduced with the permission of Bar Council, on behalf of the Malaysian Bar.
Raising the Bar — A riposte
In the last edition of Praxis (Apr–June 2011), senior lawyer Roger Tan lamented that the quality of lawyering in Malaysia has palpably declined over the past two decades. He also pointed out that the various stakeholders have not done enough to deal with this “unsatisfactory state of affairs” that plagues the legal profession today.
Bar Council is undoubtedly a critical stakeholder, enjoined by the Legal Profession Act 1976 to uphold the standards of the Malaysian legal profession. The purpose of this article is to shed some light on the efforts undertaken by Bar Council to establish a uniform system of training for new entrants to the legal profession, known as the Common Bar Course (“CBC”). In its sweep, the CBC is intended to address many of the concerns expressed over the quality and standards of our lawyers.
It is noteworthy that the deterioration of quality/standards is not peculiar to the legal profession. Indeed, it appears that this is today a general malaise that is pervasive the world over. In a prescient article published in The Times of London recently (“Schools are churning out the unemployable”), Harriet Sergeant noted that young school leavers in the United Kingdom generally lack “basic employability skills”. She recounted the experience of a managing director of a medium-sized Information Technology company, who interviewed 52 fresh graduates for middle management positions, and said:
On paper they looked “brilliant students”. Each had three As at A level and 2:1 degree. He shook his head. “There’s a big difference between people passing exams and being ready for work.”
This was obvious even before the interview began. Of the 52 applicants, half arrived late. Only three of the 52 walked up to the managing director, looked him in the eye, shook his hand and said, “Good morning”. The rest “just amble in”. When he asked them to solve a problem, only 12 had come equipped with a notebook and pencil.
The three who had greeted him proved the strongest candidates and he hired them. Within a year they were out because of their “lackadaisical” attitude. They did not turn up on time; for the first six months a manager had to check all their emails for spelling and grammar; they did not know how to learn. It was the first time they had ever been asked to learn on their own. Their ability to “engage in business” was “incredibly” disappointing and “at 5.30 on the dot they left the office.”
What has Bar Council done?
Bar Council has wrestled with this vexed question of quality and standards for a number of years. It is accepted that there is no single panacea to the problem. However, the CBC has always been regarded as a step in the right direction. In 2008, Bar Council established a dedicated committee, the Bar Council Ad Hoc Committee on the Common Bar Course, to look into the syllabus, structure and course content of the CBC. The members of the Committee consisted of senior members of the Bar, academics and the then-Head of the Malaysia Qualification Agency.The Committee completed its task in 2009 and its proposal was subsequently adopted by Bar Council.
A brief history of the Bar Council’s CBC proposal
Bar Council has advocated for the CBC since the mid-1980s. In this regard, the Committee had the advantage of considering the following working papers that were considered by Bar Council between 1989 and 2003:
(1) The Morrison Report (1989);
(2) Seeking Quality: Bar Council’s Memorandum on Legal Education Reform and Qualifications for Entry into the Legal Profession (1993);
(3) Report on the aims/objectives of the law programmes in public institutes of higher learning (1999);
(4) Paper on the Common Bar Exams presented by Khutubul Zaman Bukhari at the 12th Malaysian Law Conference, 10 Dec 2002;
(5) Report on the review of the CLP (2002); and
(6) Bar Council Memorandum on Legal Education Reform (2003).
Bar Council has consistently taken the stand that the CBC “… should be the ultimate filter for entry into the profession to ensure quality. This means the check on quality will not be at the undergraduate level i.e. entry into law schools but at the professional entry level i.e. professional qualifications for entry into the Bar. Thus the final check would be at the entry level into the legal profession”.
Bar Council has also in the past emphasised that the CBC should be “vocational” in nature and the programme “… must therefore take on itself the duty of:-
1) teaching certain practical skills in a practical way.
2) teaching or providing the opportunities for acquiring the knowledge necessary for or assumed by these skills, if the legal and factual situations used in the skills acquisition are not restricted to problems raised by the academic stage subjects.
3) teaching any additional legal subjects which are seen as essential for daily practice in the office or in the courts and which have not been taught in the academic stage.”
The former Minister of Law in the Prime Minister’s Department, Datuk Zaid Ibrahim, was quoted as saying that there was a need for a common evaluation system “to avoid disparity among those entering the profession”. “… We want to standardize the point of entry and elevate the standard of the legal profession in the country.” He echoed the statement made by the then-President of the Malaysian Bar, Ambiga Sreenevasan:
The aim of the course is to have a common examination for all law graduates entering the legal profession, irrespective of where they had pursued their undergraduate degrees.
The approach
As a starting point, the Committee considered postgraduate professional training programmes (for advocates and solicitors/barristers and solicitors) in other Commonwealth jurisdictions, namely the United Kingdom, Australia, New Zealand, Hong Kong, Singapore and Canada. Whilst the experiences of these other jurisdictions were useful as guidelines, the Committee did not lose sight of the fact that the profession in Malaysia is fused. Thus, the Bar Council’s CBC proposal is not a wholesale reproduction of any one of these other jurisdictions. The Committee has nevertheless adopted the critical parts of these programmes in the CBC proposal.
The Committee also carefully considered the emphasis of the programmes in these other jurisdictions, ie academic teaching vs practical/vocational training. It is notable that in all these jurisdictions there has been a demonstrable shift in focus to practical training based on experiential learning.
The Committee further took into account the apparent weaknesses in the Certificate of Legal Practice (“CLP”) and the poor quality/standards of law graduates coming into the Bar from both local and foreign universities/law colleges. As regards the CLP, the Committee took the view that it is outdated and does not serve the requirements of the modern day legal profession. On the quality/standards question, the Committee noted some of the shortcomings seen in the Bar Council Ethics and Professional Standards course for pupils, eg abysmal language skills, appalling ethical values and the abject absence of rudimentary legal skills. A failure rate of 60% (at the inception of the course) was alarming and urgent measures were obviously needed to arrest this shocking state of affairs.8 A concerted attempt has been made to deal with these concerns.
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