©The Malaysian Insider (Used by permission)
This is a response to the article published in The Malaysian Insider on 8 October 2015, where the authors, who are senior lecturers from the Faculty of Syariah and Law, Universiti Sains Islam Malaysia (Usim) raised several points about the quality of legal education and the opportunities that arise to join the legal profession in Malaysia.
Equipping law graduates for legal practice
Amongst the variety of matters raised in the article is the statement that “legal education should equip its law graduates with the skills and competency to be not only a competent legal practitioner but also to uphold the integrity of legal fraternity”.
As the authors point out, this issue is not new and not limited to Malaysia. There are however, some basic realities that need to be considered.
The purpose of a law degree is primarily to ensure that a law graduate is equipped with the necessary academic legal knowledge and acumen, as well as the ability to understand legal principles and to apply these effectively to a variety of factual scenarios that are presented to them.
These are knowledge and skills that can be learnt during the course of a legal education at undergraduate degree level.
There is also the expectation of supplementary talents being developed – the ability to moot and debate, strong legal research skills, and drafting and writing skills, amongst others.
The sources of legal graduates who join the legal profession in Malaysia are varied, with many coming from public universities in the country and from foreign universities in the United Kingdom, Australia and elsewhere.
To expect that all these law graduates are equipped with the same set of knowledge and skills is unrealistic, and therefore a common barometer of entry is needed.
The Certificate in Legal Practice (CLP) was designed and launched in 1984 as a stopgap measure to assist Malaysians with international legal qualifications to join the legal profession in Malaysia, so that those who were, for whatever reason, unable to sit for the Bar Vocational Course (as it was then known) or its equivalent abroad, would have an alternative route to become members of the Malaysian Bar.
When the decision was initially made, law graduates from existing local universities were exempted on the basis that these universities already conducted four–year law degree programmes with emphasis on the areas covered by the CLP, and hence there was no need for the duplication of learning.
Currently, law graduates from other with recognised legal qualifications are required to sit for and pass the CLP examination as a pre–requisite for joining the legal profession in Malaysia.
Amongst the local university law graduates who are required to do so are graduates of the Bachelor of Jurisprudence (Hons) / B. Juris (Hons) programme from the University of Malaya, and the Bachelor of Legal Studies (Hons) / BLS (Hons) from Universiti Teknologi Mara.
The CLP structure has remained fundamentally unchanged since its implementation in 1984, even though the laws of Malaysia and legal practice in Malaysia have evolved manifold.
The CLP is regarded as a postgraduate professional qualification that aspiring members of the legal profession must attain, unless they are law graduates from the exempted universities or they have completed the Bar Professional Training Course (as it is now known) or its equivalent.
The purpose of the CLP is to ensure that all individuals joining the legal profession are equipped with local legal knowledge in selected areas, as well as to ensure that there is a grasp of drafting skills and an understanding of Malaysian legal procedure.
But times have changed, and the development and progress of the legal profession must ensure that law graduates joining the legal profession today are better equipped to face the challenges that will confront them.
In consideration of this, the Bar Council mooted and has been working on the development of the Common Bar Course (CBC).
The structure of the CBC will allow for a single, uniform point of entry into the legal profession.
The CBC is being created to emphasise the practical aspects of legal practice, and is benchmarked against international standards and professional legal training such as the Bar Professional Training Course in the United Kingdom, and the College of Law Practical Legal Training Programme from Australia, amongst others.
Students at law, as they will be known, will be trained on the basic practical aspects and will have the choice of whether to focus certain aspects of their training on either litigation or non–litigation areas of the law.
It is anticipated that the CBC will run parallel with pupillage, and will also be used to strengthen the pupillage structure.
In line with this thinking, if we acknowledge that there are concerns with the quality of education in Malaysia, the poor standards of communication in both Bahasa Malaysia and the English language, the lack of fundamental skills such as writing and presentation, then there is certainly a need to raise the bar (pun intended) so that we can ensure that the best, and most qualified individuals join the legal profession, which has, as its key responsibility, the duty to serve the administration of justice and the public interest.
The development of the CBC is no small task, and it is being carefully undertaken with input from a variety of stakeholders including the Legal Profession Qualifying Board (LPQB), the Bar Council, the National Accreditation Board (known today as the Malaysian Qualifications Agency, MQA) and the academic community as well.
Recognition of law degrees for the purpose of legal practice in Malaysia
The determination of which law degrees are recognised for legal practice in Malaysia has given rise to much discussion in the last two decades. It is important first, to establish that this decision is made by the LPQB.
Established under the Legal Profession Act 1976, one of the functions of the LPQB is to decide on the qualifications that entitle a person to become a “qualified person” within the meaning of section 3 of the Act, for the purpose of admission as an Advocate and Solicitor in Malaysia. Section 7 of the Act stipulates that this Board (LPQB) consists of the Attorney General (who is the chairman), two Judges who are nominated by the Chief Justice, the Chairman of the Bar Council, and a full–time member of the academic staff of a Faculty of Law nominated by the Education Ministry.
The Chief Registrar acts as the Secretary to the LPQB.
It must be emphasised that the question of recognition of law degrees for the purpose of legal practice is an entirely separate consideration from the question of which universities in Malaysia can conduct law degree programmes and award law degrees.
In the Malaysian context, if a university seeks to offer a law degree programme, this qualification must be vetted and approved by the MQA and the Education Ministry.
Although such approval is received, and the university can now offer the law degree programme, this does not automatically mean that the qualification can be recognised for the purpose of legal practice in Malaysia.
The authors stated that “LPQB recognition could only be made after the law faculty was formed”.
While this may be the case, it is interesting that regardless that such qualification may lead to law graduates seeking to join the legal profession, which is clearly something that is envisaged by those offering such programmes, there appears to be no consultation between the different bodies.
It is therefore possible for a local university to obtain approval from the MQA and Education Ministry to create and run a law degree programme and award a legal qualification to its students, without any input being provided by the LPQB, which is the body that recognises whether and when the qualification will allow graduates to become legal practitioners in Malaysia.
This of course gives rise to the conundrum with regard to local universities whose law degrees are not recognised for the purposes of their graduates reading for the CLP currently, and such graduates becoming advocates and solicitor in Malaysia.
A parallel issue that arises is the expectation of local universities that since they conduct a four–year law degree programme, their graduates should, as of right or automatically, be exempted from sitting for the CLP, and thus be entitled to become Members of the Malaysian Bar, without more.
The basis upon which such an assumption is made remains unclear.
This poses a dilemma for individuals who read for law degrees from local universities that are currently not recognised. The question that should be asked then is – who is responsible for this?
A useful consideration at this juncture is whether such a university had initiated any discussions with the LPQB or even the Bar Council prior to offering such a degree; or whether the university had relied on the assumption that once approval from the Education Ministry and the MQA was obtained, that recognition of the qualification for the purpose of legal practice in Malaysia would inevitably be forthcoming. Again, the basis upon which such an assumption is made remains unclear.
The Bar Council has, in the past, expressed concern that there are instances where some public universities have failed to inform their students that the qualifications offered are not recognised for the purpose of legal practice in Malaysia, or have even implied that the qualifications would suffice for such purpose.
The Bar Council has taken action, including issuing press releases to alert prospective students to conduct due diligence when selecting a law programme to undertake.
The impact of such conduct has resulted in unsuspecting law graduates being left in a quandary about how to move forward, and they often have to resort to looking for employment outside the legal profession.
Should the blame for this be laid on the shoulders of either the Bar Council Malaysia or the LPQB, or elsewhere?
The authors highlight that “the fate of hundreds of law graduates of Unisza and Usim will be at stake and their plights should not be ignored” which is absolutely correct.
However, does this, of itself, compel the LPQB to provide recognition?
The future of the law graduate
The LPQB and Bar Council continue to work on the development of the CBC.
Also, according to the authors of the article of October 8, “It seems that the Malaysian legal profession expects law graduates to know every single aspect of legal practice from day one i.e. the day the graduates begin their pupillage. In fact, some experienced practitioners require universities to produce students that are “practice–ready”.
It may be useful to emphasise here that the CBC will be about more than local legal knowledge and procedure.
There are key elements of the CBC that are geared toward ensuring not only that those coming into the legal profession in Malaysia are well–equipped to serve their clients and the community, but also that such individuals will be able to compete on an international platform, armed with the skills and talents, commitment and sense of duty that are identifiable with the best of the Malaysian legal community.
This may, in the longer term, allow for the fulfillment of aspirations from the existing legal profession that our lawyers are indeed ready for legal practice, regardless of their origins. – November 27, 2015.
* Santhi Latha is the director of continuing professional development, Bar Council Malaysia.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.