The recent changes in the Certificate in Legal Practice (CLP) rules have once again stirred up the movement for Malaysia to adopt a Common Bar Exam (CBE) with respect to standardising admission into the legal profession.

To put things in perspective, the first time this idea was seriously mooted was back when I was about to begin my law degree, in 2008. At the time, the then-law minister Zaid Ibrahim inspired hope in those of us in reading law in private colleges that there would be some sort of level playing field for qualifying as a lawyer in Malaysia. But, for reasons unknown to us, those recommendations never crystalised.

This piece is written by and is the opinion of an outsider - I read law in an Australian university before undertaking the Tasmanian state legal practice course which allowed me to be admitted to practise in Australia. I then returned to Malaysia and enrolled for the CLP in one of the ‘big two’ local private colleges offering the program.

After about two months of CLP classes, I dropped out (for reasons that I will explain later) and chose instead to qualify as a solicitor in the UK, which would also enable me to be admitted in Malaysia. I have since been admitted to the Malaysian Bar and am in practice as a litigator.

Response to previous opinion pieces

I have read the back-to-back opinions that have been published since the latest CLP ruling hit the news. If nothing else, I am glad that, at the very least, people are once again talking about the pros and cons of the CLP and, in addition, the CBE issue.

Among the points raised so far are, inter alia:

i. The CLP is a waste of time that imparts no real professional skills to its students;

ii. It is unfair that only foreign graduates have to endure the CLP whilst local graduates do not;

iii. The local graduates are of lower quality than the foreign graduates;

iv. The CLP is necessary to ‘Malaysianise’ foreign law qualifications;

v. Local university law graduates read law for 4 years while most foreign law graduates only do so for three years;

vi. There should be a limit on the number of attempts one can have to pass the CLP; and

vii. The latest ruling creating such a limit should not be applied retrospectively.

Of all the conflicting opinions so far, only one issue seems to have garnered agreement across the board - that the new ruling should not be applied retrospectively.

On this point I shall digress and state that it is deplorable that such a drastic change should be allowed to apply retrospectively. What is even more disturbing is the fact that such a major amendment could be made seemingly without any input from interested parties.

I was informed that the local CLP colleges were not consulted on this change (which they say took them by surprise), and that their requests for an appointment before the Legal Profession Qualifying Board (LPQB) have been denied.

As a member of the Bar I am also appalled that not a peep was raised whether in support of or against the ruling by the Malaysian Bar. This is despite the fact that the chairperson of the Malaysian Bar is statutorily conferred a seat on the board. Hence, it can only be deduced that this ruling by the LPQB is made with the acquiescence of the Bar.

I feel that it is fair to conclude as such since the Bar does is not similarly silent on many other issues (whether relating to the legal profession or not) and always seems ready to make the type of noise that only lawyers can make in response to big issues. I am a proud member of the Malaysian Bar, but even I cannot help but feel that the Bar has quite disappointingly dropped the ball on this one.

Additionally, it should also be noted that the wording of the amended ruling states merely that it is to take effect as Dec 8, 2016. There is no express statement that it should take effect retrospectively and any such implementation by LPQB ought to be challenged for breaching the rules of natural justice, if nothing else.

That said, I do agree with the opinion expressed by one of the groups i.e. that there should be some sort of limitation on the number of attempts any student should have to pass a qualifying examination.

As cold and cruel as it may sound, it is a common practice across the world for a a maximum number of attempts to be set in professional exams this is purely seen as a quality control-type limit. However, as noted above, no limit should ever be set retrospectively as this would undoubtedly cause a grave injustice to those who had registered prior to the imposition of the limit.

Qualifying to practice in Malaysia - the problem

As I have mentioned, I am someone who has had a glimpse of three different professional qualification courses - the legal practice courses in Australia, the UK, as well as our CLP. And -my honest opinion is this - the CLP provides nothing of professional value to its graduates. This is why I dropped out after two months of CLP classes - I am not a memoriser and never have been.

To be very honest, the ‘teaching’ that I witnessed in those CLP classes scared the living daylights out of me and quite frankly, I felt that it was an insult to the years of work and effort I put in during my degree and legal practice course in Australia.

In fact, the structure of my degree (like many foreign degrees) was never premised on memorisation and instead involved a variation of coursework, research based assignments, presentations and exams. This created graduates who may not have all of the law stored in our head, but we know where and how to find the law, apply it and communicate it to our clients’ advantage.

The writer of one of the previous opinion pieces in support of the local law students (Let’s call him the leader of the ‘Pro-Local Grads Group’) claimed that law students in Malaysian public universities (and some private ones like the Malaysian Multimedia University (MMU)) completed the same spectrum of subjects in their fourth year as in the CLP. I feel that this may not be entirely true.

For one, I am aware of some local universities whose 4th year ‘practical’ syllabuses have in fact taken inspiration from foreign programs to include advocacy training and other professional skills not featured in the CLP.

Therein lies the first of the major issues - even within the local universities there is no common syllabus. The practical certification for any profession should never be so varied and uncontrolled. The result of that is exactly what you see in practice today - a range of practitioners from truly impressive to those who should, quite frankly, never have been allowed to graduate from secondary school.

Yet here we all are, a mixed-up band of ‘qualified professionals’, practicing in the cowboy town that is the Malaysian legal profession. There is no base line of competency when the spectrum of qualifications is so varied and disjointed.

The CLP - an unnecessary burden

I agree with the Pro-Local Grads group that foreign graduates should be made to ‘Malaysianise’ their legal knowledge before being allowed take up practice in Malaysia. But let’s look at the CLP for what it truly is, it is an anvil that is dropped onto foreign graduates wherein which a significant portion of the syllabus is utterly and entirely pointless.

The CLP covers subjects as such contracts, torts, land law, probate, bankruptcy, evidence, ethics, civil and criminal procedure. Of the nine subjects, seven are in fact, substantive law subjects. These are subjects that everyone covers as part of their law degree and are separate to the practice of law (IWith the caveat that the law of evidence is not a core subject in some universities).

This means that these seven subjects, the substantive law, would have been covered by the local law graduates in the first three years of their degree. It is not released onto them all at the same time in their fourth year nor are they expected to master it all in the span of a year. They learn these legal principles at the same pace as those studying in local public universities.

Additionally and more importantly, why are the CLP students being made to re-learn substantive law at this stage? If the argument in favour of some sort of ‘crash course’ in Malaysian substantive law is necessary in the CLP, what then is the justification for allowing those who have qualified as those who are barristers and solicitors in England and Wales (and Australia in the past) to be exempt from taking the CLP examination?

Those of us who got around the CLP never had to memorise the particular facts of Boonsom Boonyanit; we use our English equivalents until we stumble onto it only upon commencing practice. We are also the same ones who experience the pupillage teething problems of having to familiarise ourselves with Malaysian civil and criminal procedure, which perhaps we should have been required to learn (in a Common Bar Course, perhaps?) if we want to practice in Malaysia.

There is absolutely no justification for the CLP to include so much substantive law, which is merely a repeat of the laws that foreign graduates have already studied during their degree (we are after all, a common law nation). The only real difference is that in Malaysia our cases are named Ali vs Ah Chong instead of John vs Smith.

Of course I do recognise that certain specialist subjects like constitutional law may differ greatly between different common law countries, but these areas are really the exception rather than the norm.

This weighing down of the CLP syllabus with the Malaysian version of fairly uniform substantive law subjects is very likely the main reason why the exam is so notoriously difficult to pass - it is simply too bulky to be attempted in such a short space of time.

In this regard, if there is any concern on differing laws, then the substantive area of law in question should be imposed only on graduates from those countries which have radically different laws in that particular area.

For example, English land law is substantively different from Malaysian land law. In order to make sure that English law graduates learn substantive Malaysian land law before qualifying to practise in Malaysia, land law should be a component subject for all English graduates. Australian graduates, who study a version of land law markedly similar to our own, can be granted an exemption from taking this subject in the CLP.

The solution

If the CLP is to be retained, then this unnecessary bulk in its syllabus must be trimmed; there is no question about it. I would also suggest that more practical and advocacy-type components be added to the course so as to render it actually helpful to an aspiring lawyer, but this is a point that countless people before me have raised to no avail.

Additionally, the fourth year practical syllabus of local universities must also be unified under an external moderator so that there is some equality even amongst the local graduates.

I note that the Pro-Local Grads group argued that there is no basis for the belief that internal university examinations are free from tampering. I wholeheartedly disagree. All colleges/universities, whether public or private are capable of ‘messing’ with the passing grades and standards of their students in order to uphold whatever reputation (justified or otherwise) the institution may have.

In fact, I have personally witnessed local private colleges doing just that and having their twinning agreements with foreign universities revokedas a penalty. Like it or not, academic pride is not something that is upheld in Malaysia - we are a quick solution-type nation. In fact I distinctly recall being told by my Form 5 additional mathematics tuition teacher (who was one of the SPM markers) that the passing mark for the paper was nine.

And let’s not forget the many who score A1s in English but can barely string a sentence together “in real life”.

The best solution would be to standardise the entire system, which would of necessity be some variant of a common bar exam. This CBE should be identical to what is being done in the local universities during their fourth year and everyone who wishes to practice law in Malaysia should have to undergo it.

It has been previously pointed out, and rightfully so, that even a graduate of Oxford University is not exempt from sitting for the English Bar Professional Training Course to be admitted as an English Barrister - so why do we have such a distorted system where three distinct groups of graduates are being treated so differently?

And let’s not even start on the fact that admission to practice law differs significantly between East and West Malaysia despite the fact that we are one federation and our laws are by and large the same. That is a can of worms to be opened on another day.