Common Bar Exam

(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.

Freelance Web Developer

7 Responses to “Common Bar Exam”

  1. Arthur Lee says:

    An interesting proposal that does not address the following issues for”out station” Advocates to be.
    1)the Federation of Malaysia consist of 3 member components, the Federation of Malaya, The Colony of Sarawak and the Colony of North Borneo(as it was then called),there are effectively 3 differing sets of localized practice not withstanding they refer to the same rules of the High and Subordinate courts,and a myriad of differing state laws and courts(Yes, ever heard of the Court of Survey,the Native Courts etc in Sabah and Sarawak?)Do all potentials study the whole lot?
    2)the Advocates Ordinance of Sabah and Sarawak(yup,there are 2 different ones) are constitutionally protected under the Federal Constitution and may not,without the consent of the 2 state governments of Sabah and Sarawak,be amended, and the Legal Profession Act whilst professed to be Malaysian,is truly Malayan in Origin and distrusted by the East Malaysian Advocates.this being the case what template is to be used?
    3)Potentials in Sabah and Sarawak if they have to stay in KL to undergo the proposed Common Exams, will spend more when at present they need not.The previous amendments to our local Advocates Ordinances,at least the Sarawak one, took away our constitutional right to decide for ourselves,who should be admitted to the local bar as the provisions on the CLP was rammed down our local Bar’s throats without debate as to what was our wishes with the effect that our locals are forced to stay in KL to qualify as a Sarawak Advocate when in the past there was none.I was admitted under the pre amendment Ordinance,my current fellow Advocates called of recent are not so lucky.Perhaps the proposed institution that is to offer the course should be set up in Sarawak?(or Sabah?)That will be good for the so often calls for ‘ national integration” by our Federal Leaders ?Nothing like being in a “foreign Land to pick up the local expectations and grouses to feel for oneself the local sentiments.
    4)do the proponents of this course know there are differing views of how prospective Advocates ought to be trained?As a active pupil master in a small firm, my views of what is important for a chambie to learn about be a “good” Advocate will invariably vary with our very learned brothers (and sisters) at Law at the bench and members of academia ,who will place a greater emphasis on formality, not the commercial aspects of legal practice,in fact it will be more accurate to say they have no practical up to date experience!The reality is if the potential cannot generate sufficient income to sustain a firm, the temptation not to follow the rules is greater.
    5)my experience shows that we Sabahans and Sarawakians will be left to fill the numbers on any committee set up to formulate the guidelines.
    THE SOLUTION?
    Each to his own ,let the respective Bars decide what is best for themselves.After all, the Bar in England and Wales is different and distinct from the Northern Ireland Bar(despite using the same or similar Laws and rules) and Scottish Bar,why they are even called differently(guess why we have only Advocates in Sarawak(whose first AG hired by the white Rajah was reportedly a Scotsman).

  2. Raymond Chu says:

    13.5.2009

    Foremost, I am a legal practitioner qualified with CLP being the established locally recognised legal qualification
    in legal practice today.
    I read law to practice. Whether it be for knowledge or skill, my experience speaks of self confidence being
    the total sum of becoming a lawyer.

    I believe many students who wish to become lawyers in time to come may decide to embark on a similiar
    qualification to enable them to practice.
    This is part of the local culture of legal training which have been cultivated and rightfully so.

    Personally, seminars and paper work examinations are ‘accessory’ to the entire experience of what a lawyer
    should practice.

    In the connection to become a recognised practitioner, only time is the essence of becoming one.

    The contents and culture of reading a law degree should not be limited to merely a title which stop
    at the end of the description of its recognition.
    There must be a working recognition apart from mere educational qualification for one to be successful.

    This, I believe is the aspiration drawn on every law student and practitioner alike for we are after all
    the future generations of this country worthy in making Malaysia an internationally recognised country that is proud
    of having professionals in becoming friends of the world.

    From,

    Raymond Chu

  3. localstudent says:

    strongly agree with the mechanisms but they’re forgetting that by implementing CBC, they need to change the program structure for law degree in local institutions. We cant be having 4 years of reading law (the final year studying procedures) and then spend another 5 semesters learning what has been thought in the final year of degree studies.

  4. Gopal Raj Kumar says:

    What is required to check deteriorating standards is not a template from anywhere else as a panacea to the problems that can and must first be identified a being responsible for the deterioration of standards in the legal profession in Malaysia.

    What is perhaps required is a deeper fundamental understanding first then analysis of what the problems are that contribute towards the detriorating standards in the profession. Identifying each of these in turn as being a contributor to the detriorating standards of the profession then putting in place appropriate remedial action or taking those steps neecessary to correct the problems that are identyfiable.

    Committees are a waste of time unless they suit a practical purpose. The high barriers to entry into the profession in Australia eventually produced Guilds of elitists that produced no improvement in standards other than to create a newer set of stock phrases and language for barristeers and solicitors to the exclusion of those they considered lesser people than themselves.

    Today Australian lawyers are faced with the challenge of outsourcing of legal services they once considered their monopoly. Conveyancing has gone to conveyancers who are people without law degrees. Corporate law is dished out by accountants whilst tax law is defacto the privilege of tax accountants and nothing can be done about it.

    In the end unless Malaysia opens up its legal sector to international competition, no amount of academic testing or training will change what is a fundamental problem and that is the closed shop which bars quality foreign lawyers from practising in Malaysia. There is no substitute for interraction and experience from learning first hand from others.

    After all many a Malaysian lawyer has obtained an undergraduate degree from the Universities of London, Oxford or Cambridge. But thats the academic side of law, put into practice very few of them are able to demonstrate the worth of having gone to these celebrated institutions apart from showing the parchment they received for rote learning but achieving little else from them. All of this due to the very insular and stagnant character of the profession in Malaysia.

  5. Raymond Chu says:

    There is a forgotten aspect of CLP and that is, the CLP is not a mere examination to qualify to enter the profession for foreign universities/external students but a recognition at par to qualify to practice law as an advocate & solicitor.

    The common bar exam is a examination for one to qualify as a local law graduate with a degree but the CLP is a postgraduate recognition for law graduates who have already obtained their first degree LL.B in law.

    There is no other recognition once the LL.B degree is obtained to qualify to sit for the CLP. Therefore, the CLP cannnot be replaced by a common bar examination since a law graduate with an LL.B cannot ‘trade in’ their LL.B for a common bar exam recognition higher than the LL.B earned in 3-4 years of legal studies in a university, be it, a foreign or external university.

    In this aspect, the LL.B offered in universities recognised under the law and accepted to sit for the CLP is established as a precedence set and created under the Legal Profession Act 1976.

    This is not a calling for disputes but a collaboration among our local universities to accept CLP as a postgraduate qualification that is already known to be a streamline enrolment into the legal profession, whether in the past, present and in the future.

    The upgrading of the standard is not with the CLP qualification but the requirement to seek better and more qualified lecturers for the CLP syllabus to incorporate real legal practice into the academic syllabus.

    In this way, law students will benefit from the CLP course and not forgetting, the course fees are not a compromising sum for an ordinary family with a sole breadwinner.

    If the bars of the CLP exam entrance is raised, likewise, the results of overall achievements will also be raised. Will this not add more burden on an ordinary family who have to put in so much time and hopes to educate a child to become a lawyer and finally, realised that the passing rate is so unbelievable low that even a reasonable person will know that for 3 -4 years of law studies to obtain the LL.B degree, yet, is still not sufficient to pass the CLP.

    This is the greatest paradox of the CLP, not because of the syllabus but in omitting to take into the holistic approach that law is a system of product not based entirely on academic performances but an understanding of how the law works today and in the future that will not be different from the past.

    Otherwise, this is just a study of temporary events and will not be much different from doing a subject on journalism.

    However, everyone knows, no matter how one interprets, the law will never be a word sufficently profound to be expounded by case studies and statutes.

    Legal practice and studies must go together. In reality, people creating opportunities to make the best decision at the most undesirable times, to work in the most unexpected circumstances for the betterment of the future is taken a back seat, if not delayed, until the next comes along.

    If CLP is the ground work, then, the LL.B is the foundation where this ground work begins. Will the common bar exam break new ground to lay a better foundation and better workmanship to craft a new design of the next batch of students churned out to excel in all aspects of performances, is yet to be seen.

    10 years ago, if someone will tell me the reality today, perhaps, I will not even want to sit for the CLP. However, without the CLP, we are like ships without a port of destination. Where will we go for here, your guess is as good as mine for a first degree holder.

  6. vingi says:

    Dear learned friends,

    How about the limitations for UOL external students which is very unfair and will it be removed so all the law grad gets the chance for cbc and then they are judgef

Leave a Reply