Contributed by Appasamy Chettiar, Kuala Lumpur, Malaysia (via email)
It is of great grief and distress to read about the fact that
there actually is a quota for the CLP exam.
Is the 9 months of hard work by CLP students going to go to waste?
What is more upsetting is that the Attorney General around October last year
claimed that there is no quota for the CLP exam. He claimed that CLP students
are not up to mark, thus contributing to the low passing rate.
In light of this, the AG should offer a reasonable explanation for these
discrepancies and if he is unable to give one, he should resign or, failing
which, be dismissed from office by the government. Speaking untruths is a
detestable enough act, but an untruth coming from the person who holds an
office, of which honour, transparency and honesty is of utmost importance is,
unarguably, a serious act of misconduct.
I think the Legal Profession Qualifying Board (LPQB) should be estopped from
enforcing this quota on the basis above.
In writing this, I must stress that I am in no way questioning the right for the
bumis to be accorded affirmative or preferential treatment under the Federal
Constitution. By all means, pass all the bumi CLP students regardless of their
merit, if that is what the bumis want. But please do not restrict the number of
non–bumi passes merely because you wish to help the bumis. If the LPQB wishes to
control the number of non–bumis entering the legal profession, it should make it
clear in plain and express terms. For example:
"Dear prospective candidate, enclosed is an offer to sit for the CLP exam.
However, please take note that it is the government's policy to encourage more
bumis to join the legal profession and thus, consequently, the number of non–bumis
will inevitably have to be controlled. As such, please be aware that if you are
not a bumi, your chances of passing this exam is low. By signing up for the CLP
exam, you express your awareness of the existence of such a policy and your
chances of passing thereof."
As simple as that. But no such disclaimer or warning was given. If it was given,
at least prospective candidates could have thought about it carefully and either
looked for an alternative (e.g. the English Bar) or another profession
(politics, journalism, etc).
And in that case, why stop at the legal profession and single out lawyers? Why
not set up the Medical Profession Qualifying Board, Accounting Profession
Qualifying Board, Engineering Profession Qualifying Board, etc and require all
foreign degree holders to sit for an exam and enforce quotas to boost the number
of bumi professionals and clamp down on the number of non–bumi professionals?
I also have one simple question for those who are in support of the bumi quota
for the CLP exam: Do you have conclusive empirical evidence which proves that,
given that the passing rate has fallen from 74% in 1984 to around 20–25% in
2006, the earnings of bumi lawyers have correspondingly increased by 50%
(ignoring inflation) over the past 23 years?
Alternatively, even if the AG is able to offer a reasonable explanation between
the discrepancies, that there is no quota and manages to establish that the CLP
students don't come up to mark, I have the following questions to raise:
1. Classes for the CLP were originally conducted by the University of Malaya law
faculty. The exam papers were also set and marked by them. However, some years
back the classes were terminated. UM's role has now been primarily supplanted by
2–3 private colleges in Kuala Lumpur.
When UM was conducting classes, the very same people who taught the CLP also set
and marked the papers. In fact, recent CLP students will be familiar with this
anecdote: One CLP lecturer used to relate his experience when he was doing his
CLP at UM. There were instances when he would ask his lecturer for help on a
particular topic and the lecturer would tell him "Why are you wasting your time
on this area?", suggesting that that topic will not be appearing in the exam.
The recent batch of CLP students have no such advantage.
CLP students are not to be blamed. They are willing to pay decent money to
attend lectures, tutorials, etc provided they get their money's worth – that is
to equip ourselves with the necessary skills for legal practice and be able to
actually pass the exam, provided they put in sufficient effort.
2. The LPQB does not give students any examiner's reports nor suggested answers.
All is given is a subject guide that merely sets out a list of cases. However,
apparently some cases have been overruled. Also, amazingly enough, past CLP
exams have contained questions set from outside the syllabus.
The AG has claimed that no professional examination body releases examiner's
reports. Assuming without accepting that the AG is right, I disagree with the
comparison between the CLP and other professional exams.
May I ask why is it that only this particular exam raises so much controversy?
Rhetorically it must be asked: Is it because law students are paranoid and have
nothing better to do than to cook up imaginary complaints?
I invite anyone to bring to my attention which other exam, in the world or at
least in Malaysia, has raised that much controversy and grouses. For example,
the chartered accountant's exam is reputedly very tough but you don't hear of
complaints being written to the newspapers, etc.
3. Recently, there have been several news reports on judges sitting on a backlog
of unwritten judgments.
May I ask: if there are judges, probably having some 20–30 years of practical
experience in this profession, who can fail to come up to mark, isn't it
understandable and unsurprising if law students with a mere 4–5 years of
theoretical experience in law school have shortcomings?
Another poser: Time and time again, we see cases being overruled or in appeal
cases, we see a split bench. If judges themselves can have diverging opinions or
err on a point of law, what more can be said of fresh law graduates?
While I agree that standards must be upheld and it is in no one's interest to
have incompetent lawyers roaming around, surely no one can seriously suggest
that fresh law graduates be expected to have impeccable capabilities and
knowledge of the law. If that were the case, then shouldn't fresh lawyers be
drawing the same salary as experienced lawyers? Shouldn't they be able to argue
before the Federal Court immediately after being called to the Bar?
Put another way: Is there anyone born walking or any toddler who is able to
start running and play soccer like the Brazilians the moment he can start
walking? The answer to this question is so obvious but I'll answer it anyway for
avoidance of doubt. No, of course not. Likewise for lawyers.
Experience, or more specifically practical experience is very important. A lot
of concepts and matters taught in the CLP are abstract – at least for those who
have not actually worked with or even seen the various documents and procedures
involved in various legal mechanisms.
To merely assess the students against what they have written in a space of 3
hours and conclude that they don't come up to mark is highly unreasonable,
superficial and unfair.
4. Apparently, the CLP exam answer scripts are not marked thoroughly. The
examiners are given a "marking scheme" which simply comprises 2–3 lines per
answer and merely contains the name of a case or statutory provision expected to
be cited. If the examiner doesn't see the case, no marks are given. This is even
if the student manages to argue or cite the principle correctly.
Moreover, CLP candidates are assigned a candidate number which clearly indicates
the number of times the candidate has sat for the exam. (E.g. XX–1–2007–XXXX).
May I ask the LPQB: why is this necessary? Is it so that the examiners will be
aware of the number of times that particular candidate has sat for the exam and
thus be more stricter with fresh candidates? In that case, wont the marking
standards be lopsided, uneven and not uniform?
In conclusion, I think:
1. The quota for the CLP exam, assuming that there indeed is one, should not be
enforced beginning with the 2007 exams. This is because no warning was given and
the AG claimed there is no quota.
2. If there is in fact no quota, the CLP exam should be marked on a fair, just,
reasonable and through basis and not in a superficial way. The LPQB must ensure
that the examiners read every single answer fully and award marks based on
merit. Irrelevant factors such as the number of times the candidate has sat for
the exam must be disregarded.
3. The CLP exam has outlived its usefulness and should be scrapped. It is beyond
the purpose of this article to discuss its reasons – however please see "CLP
exam should be scrapped" – for some good
arguments on this matter.
Last but not the least, I appeal to every member of the Malaysian Bar to voice
their support for the CLP exam to be marked in a fair, just, reasonable and
equitable manner. I know there are some 13,000 lawyers in Malaysia and the
profession is very "crowded" and competitive. However, please don't view
prospective lawyers as mere competitors.
Please look upon us as comrades in the quest of upholding justice and the rule of law, without fear or favour. I know there have been complaints about fresh lawyers being unenthusiastic about their work but please don't draw generalisations. There are a lot of law students who have a deep passion for the law and legal matters. It is not an exaggeration to say that their motto is "Sleep law. Eat law. Drink law." They will be an asset to any law firm that hires them.