(Reproduced with permission of the KL Bar Publications Committee. This article first appeared in Relevan Issue No. 0208)
There has been much discourse lately on whether there should be a common examination for all law graduates before they enter the legal profession. The President of the Malaysian Bar, Dato’ Ambiga Sreenevesan, was quoted by the New Sunday Times (April 6, 2006) as saying that there was a need for “…… a common examination for all law graduates entering the legal profession, irrespective of where they had pursued their undergraduate degrees.”
The former Minister of Law in the Prime Minister’s Department is reported to have said (in the New Straits Times, May 15, 2006) that “…… the government was looking into introducing a Bar Vocational Course and whether such a model, practiced in the United Kingdom, could be implemented locally.” Relevan speaks to Steven Thiru, Chairman of the Professional Standards and Development Committee of the Bar Council and a member of the Bar Council’s Ad Hoc Committee on the Common Bar Course, for his views on these developments :-
Q: Do we need a Common Bar Course (“CBC”) as a single entry point into the legal profession in Malaysia?
A: Yes. It would be an important step in our efforts to improve quality at the Bar. It would enable us to deal with the source of the problem, viz, the general deterioration in legal education. A uniform training scheme, in the form of the CBC, would certainly contribute towards enhancing standards.
Q: Is the Bar Council in favour of the CBC, particularly as a replacement of the Certificate of Legal Practice (CLP) and if so, what steps have the Bar Council taken?
A: The Bar Council has advocated for the CBC since the mid 1980’s. We have consistently taken the stand that the CBC should be the ultimate filter for entry into the legal profession. In May this year the Bar Council set up the Ad-Hoc Committee on the CBC. The Committee consist of experienced practitioners1, a senior academician (and formerly a senior practitioner)2 and the senior manager (standards) of the Malaysian Qualifications Agency3.
Q: Can you tell us about the work of the Bar Council’s Ad-Hoc Committee on the CBC?
A: The Committee’s primary task was to craft the syllabus and course content for the proposed CBC. In this regard, we were required to also consider and implement, where possible, the position taken by the Bar Council in the various working papers on the CBC. These were prepared between 1989 to 2003 and include the Morrison Report (1989), Seeking Quality : Bar Council’s Memorandum on Legal Education Reform And Qualifications For Entry Into The Legal Profession (1993), Report on the Review of the CLP (2002) and Bar Council Memorandum On Legal Education Reform (2003).
Q: Has the Committee completed its work?
A: Yes, we have. We have prepared a draft CBC framework which takes into account the Bar Council’s views over the past two decades. We have also made a number fresh proposals which we believe will revolutionise legal training and put us on par with other modern schemes the world-over. The draft CBC proposal is, however, still work-in-progress as it is pending approval by the Bar Council. It is to be tabled for debate at our next Council meeting on October 11, 2008.
Q: Can you tell us the approach adopted by the Committee?
A: As a starting point, the Committee considered the prevailing post-graduate professional training programmes (ie. for advocates and solicitors/barristers and solicitors) in other commonwealth jurisdictions, namely the United Kingdom, Australia, New Zealand, Hong Kong, Singapore and Canada. The experiences of these other jurisdictions were useful as a guideline. However, the Committee did not lose sight of the fact that the profession in Malaysia is fused. Thus, the draft CBC proposal is not a wholesale reproduction of any one of these other jurisdictions (eg. the Bar Vocational Programme in the United Kingdom). The Committee has nevertheless adopted certain critical aspects of these programmes and inculcated them into the draft CBC proposal.
Q: But, will the CBC be just another CLP with a new label?
A: It would not be. We were conscious of the weaknesses in the CLP. We found it to be outdated and it certainly does not, in our view, serve the requirements of the modern legal profession. Also, a survey of the developments in the other jurisdictions show that there has been a demonstrable shift in focus to practical training based on experiential learning and practical/vocational training. The CLP is, regrettably, still largely mired in the old school academic/black-letter law approach sans practical training.
Q: What is the underlying principle for the proposed CBC?
A: The main principle is that it will serve as a single entry point into the legal profession in Malaysia regardless of where the undergraduate qualification is obtained (locally or from foreign universities/colleges of law). There may of course be a list of recognized universities/colleges of law (local and international) which would be determined by the Legal Qualifying Board. This is consistent with the Bar Council’s stand that “…… the check on quality will not be at the undergraduate level ie. entry into law schools but at the professional entry level ie. professional qualifications for entry into the Bar. Thus the final check would be at the entry level into the legal profession.” (see the Bar Council’s Memorandum On Legal Education Reform of 3.1.2003)
Q: Has the Committee also drawn up the objectives of the proposed CBC?
A: Yes. There are broadly six primary objectives and they are as follows :-
(1) The focus of the CBC should be on skills/practical training (as opposed to testing on legal knowledge) to equip the “student-at-law” for legal practice in Malaysia.
(2) The vocational nature of the training will be complimented with academic (substantive law) elements, only where necessary. Thus, the CBC will not deal with substantive law, which should remain the domain of the universities/law colleges.
(3) The CBC must combine the modern experience of other commonwealth jurisdictions and our peculiar requirements (in a fused profession, with the inherent weaknesses).
(4) The CBC should prepare the “student-at-law” for the first two years of practice.
(5) The CBC should also enable the “student-at-law” to choose (if they so desire) to become either an advocate (litigation) or a solicitor (non-litigation). This is achieved by giving the student-at-law the option to fashion their training to cater for their choice.
(6) The CBC must deal with some of the shortcomings in pupillage and enhance the training during pupillage.
Q: What would be the course structure for the CBC?
A: We have proposed that the CBC be conducted in five semesters over a period of twenty months (inclusive of pupillage). In this regard, the first three semesters will entail full time study whilst the remaining two semesters will be conducted part-time together with pupillage. Further, Semester 1, 2 and 3 will consists of compulsory subjects. In semesters 4 and 5 (where the “students-at-law” would be undergoing pupillage), there would be a mixture of compulsory subjects and electives. As noted earlier, by their choice of the electives, the “student-at-law” (now pupil) can start tailoring their training to suit their preferred choice of practice (litigation or non litigation).
Q: Will the CBC be the death knell for pupillage?
A: The Committee is of the view that pupillage should be retained albeit with a reduction in its duration. In this regard, the Committee has proposed that CBC should run partly parallel with pupillage. As stated above, the student-at-law will undertake the CBC on a full-time basis in the first three semesters. They will then begin their pupillage and continue with semesters four and five of the CBC on a part-time basis. The incorporation of pupillage into the CBC will hopefully deal with some of the shortcomings in the training of our pupils. It will allow pupils to easily compare the level of training that they are receiving from their masters with their peers. Moreover, if there are weaknesses, the dual effect of “peer-learning” and participation in the part-time CBC programme would provide a safety net.
Q: How would the CBC deal with the crescendo of complaints that we hear about the legal profession today?
A: It is a matter that we considered carefully. Thus, the first three semesters essentially deal with aptitude, ethical values, basic legal skills and core areas of practice. These are the bedrock of legal practice in Malaysia and are intended to ensure that those coming into the Bar have the requisite qualities. In this regard, it is envisaged that there should be a stringent assessment system that would sieve out those who do not possess these fundamental requirements. In other words, it is not a given that all “students-at-law” would make the grade and complete the CBC.
Q: What are subjects that the CBC will cover?
A: We have put together an array of subjects that we feel will meet the objectives that I spoke of earlier. In this regard, some of the main subjects that we have proposed are : Practical Aspects of Malaysian Law, Legal Interpretation Skills (Constitution, Statutes and Case Law) and Practice Management Skills (in Semester 1), Legal Language (English and Bahasa Malaysia for law) and Communication Skills (including IT skills), Lawyering Skills (eg. Techniques of analysis) and Practical Legal Research, Legal Ethics and Professionalism, Business and Solicitors Accounts, Interviewing and Client Counselling Skills, Opinion Writing (in Semester 2) and core subjects such as Civil Procedure, Criminal Procedure, Drafting Skills, Evidence, Real Property Practice, Commercial and Corporate Practice, Introduction to Advocacy, Negotiation Skills, Alternative Dispute Resolution-Mediation and Arbitration (in Semesters 3 and 4)4. Finally, in Semester 5 we have proposed Remedies and Enforcement/Execution Proceedings as well as a host of other electives5.
Q: How do you expect the CBC to be delivered?
A: The Committee has also considered the mode of delivery and the assessment system. We have discovered that most jurisdictions have moved away from the traditional lecture-seminar/tutorial as the mode/s of delivery of the CBC. Thus, the modern approach (as part of experiential learning) is to have a mixture of lecture-seminar/tutorials, on-line learning, DVD’s, practical and industrial training. This should result in cost savings and it would also impact on the logistical requirements for the CBC.
Q: What about the teaching staff and infrastructure to support the CBC?
A: It is envisaged that the teaching staff will consist of qualified members of the Bar, judges (sitting and retired) and qualified academics from the various law faculties/private colleges. There should also be provision for foreign teaching staff, whether on an ad-hoc or permanent basis. Further, in connection with finances, the Bar Council has decided that the CBC should be run on a non-profit basis. Thus, public funding from the government would be required to set up the necessary infrastructure and to cover administration costs.
Q: When do you expect the CBC come into place?
A: We anticipate it will take between 4 to 6 years for the CBC to be implemented. This is because, inter-alia, there is a requirement for dedicated course materials, which are presently unavailable. We must also develop a training programme for those who are to be engaged to teach the CBC. As for logistics, in the interim we would need to use the available facilities in the law faculties in our public universities in the Klang Valley. However, we must look at a purpose built college (eg. the College of Law, Sydney) to cater for the CBC in the future.
1 Hendon Mohamed, Prasad Abraham, Sheila De Costa, G.K. Ganesan, Ken St. James, Mariette Peters, Murad Ali, Roger Tan, Dato’ Muhammad Shafee Abdullah, Nahendran Navaratnam and S.S. Muker
2 Adjunct Professor R. Rajeswaran of UiTM
3 Dr. Rozlini Mary Fernandez Chung
4 Some of the other proposed electives in Semester 4 are Advanced Evidence, Advanced Civil Procedure, Advanced Criminal Procedure, Advanced Real Property Practice, Advanced Corporate and Commercial Practice, Wills and Probate Practice, Insolvency Practice and Family Law Practice.
5 Some of the proposed electives in Semester 5 are Administrative Law Practice, Advocacy in Criminal Law, Industrial Law Practice, Intellectual Property Law Practice, Human Rights Litigation and Introduction to Islamic Banking and Finance.