legal education in malaysia - the certificat

7/27/2019 Legal Education in Malaysia - The Certificat

1/19

1


2/19

2

Malayan Law Journal Articles/1992/Volume 2/LEGAL EDUCATION IN MALAYSIA -- THECERTIFICATE IN LEGAL PRACTICE COURSE

[1992] 2 MLJ clxxxv

Malayan Law Journal Articles

1992

LEGAL EDUCATION IN MALAYSIA -- THE CERTIFICATE INLEGAL PRACTICE COURSE

Shad Saleem Faruqi;

Senior Lecturer In Law, Institut Teknologi MARA

Introduction

Legal education in this country is 24 years old. In 1968 the MARA Institute of Technology ('ITM')commenced full-time formal training for the University of London's LLB external degree. In 1972the Faculty of Law, University of Malaya launched the nation's first honours degree lawprogramme. In a commendable departure from the English legal tradition, the University ofMalaya formulated a course that is both academic and vocational, theoretical as well as practical.

After UM's pioneering law programme, other institutions followed suit. Today ITM, InternationalIslamic University and Universiti Kebangsaan Malaysia have full-fledged professional law degreecourses based entirely on Malaysian laws.

Besides the four Faculties of Law conducting local programmes, the legal education landscape in

Malaysia is dotted with scores of private colleges and institutions which impart instruction forexternal or twinning programmes of foreign, mostly UK, universities and polytechnics. It isestimated that in 1992 there are approximately 3,000 Malaysian students pursuing external ortwinning programmes on a full-time or part-time basis. In addition, a large number are pursuingtheir dreams of a career in law by studying in the UK, Ireland, Australia and New Zealand. As iswell known, most Malaysians pursuing UK law degrees do not obtain the minimum 2-2 which isrequired for securing a place in one of the Inns of Court to complete the professional phase oftheir education. To assist these students in their predicament, the Certificate in Legal Practicecourse ('CLP') was launched in 1984 as a rescue mission for those Malaysians who hadcompleted three-fourths of their educational journey, but whose path to the legal profession wasblocked because of upward revision of the entry requirement into the Inns. The University ofMalaya was given the licence to formulate and conduct the CLP course. The stated aim of thecourse was, and remains till today, to enable overseas graduates who possess an 'academic' law

degree to become 'qualified persons' within the meaning of s 3 of the Legal Profession Act 1976.The stewardship of the programme was entrusted to a respected academician from the Universityand, in what amounts to a rejection of the distinction made in England between academic andprofessional teaching, a large part of the instruction was left in the hands of academicians fromthe University.

2 MLJ clxxxv at clxxxvi

Are the objectives of the CLP worthy of support? Are they too narrowly drawn? Is the CLP'scurriculum adequate to fill the voids left in the education of law graduates from the UK? Howsuccessful has the CLP been in providing training that is both relevant and reliable? Before


3/19

3

answers to these questions are attempted, it is proposed to explore briefly the aims of legaleducation and to comment on some of the shortfalls in the training of many of the students whoapply for admission into the CLP. These comments may be found relevant in the ongoing reviewof the CLP programme that is taking place.

Aims of legal education

The purpose of legal education is not simply to prepare people for legal practice. The aims oflegal education are broad, diverse and majestic. Many of these aims are common to allprogrammes of formal education.1 First and foremost, legal education should stimulate and guidethe student's self-development. The student's mind should be matured, his energy aroused. Heshould be encouraged to develop a questioning mind; to be critical of men and movements; toquestion the basics of everything taught to him. He should study not only what the rules are butwhat the rules are forand what the rules actually do. In grappling with the law he should gobehind it to see its purpose and beyond it to see its consequences.

A second aim of legal education is to impart ideals and values and to train students for service inthe public interest. Legal education should make the legal scholar receptive to the idea of justice

and angry and indignant about injustice, inequality, poverty, exploitation, abuse of power andabuse of liberty. Legal education should train the student not only to comprehend the present butalso to contemplate the future. It should make the student aware that in a significant way lawyersare tomorrow's unacknowledged legislators. It should expose the pupil to new values and newvoices and make him aware of the many conflicts between law and justice. This is the idealisticaim of legal education and is being increasingly recognized in Malaysian law schools byimmersing students in causes beyond their narrow academic goals. Though involvement ofstudents in community service, legal aid, legal advice and legal literacy is at a rather elementarylevel there is clear recognition in Malaysian law schools that legal education has for its object theformation of character and not just uncritical knowledge of rules. Many local law schools offercourses in consumer protection, poverty and the law, law and economics, law and politics and lawand society. These courses open the student's eyes to the fact that law is not always theinstrument of justice that it claims to be and they assist the student to study the law in the contextof societal factors and forces that surround the law and influence its content and consequences.

2 MLJ clxxxv at clxxxvii

A third aim of legal education is to produce legal scholars who are sufficiently acquainted withbasic procedural and substantive aspects of the law in order to perform lawyering roles. This isnot necessarily the most important function of the law school though most students see it as thesummun bonum of the law teachers' endeavour.

A fourth aim is to develop the student's ability to think clearly, precisely, logically and tocommunicate thought effectively.

A fifth aim of legal education is to acquaint students with the diverse aims and functions of law insociety. Law is not just an administrative, regulatory or penal instrument or an instrument ofpower. It can also protect basic freedoms, secure equality of opportunity and exercisesurveillance over persons and power. It is not just a dispute-resolving mechanism. It is also an

instrument for reconciliation and arbitration so that conflicting interests in society do not have tobe fought out in gladiatorial contests in the courts or in the battlefield of politics. It is not only ameans for keeping peace and maintaining stability. It can also bring orderly change, reform andsocial engineering. It recognizes and orders private ownership. Yet at the same time it also helpsto redistribute wealth and opportunity. It is an instrument for ordering governmental conferral ofpublic benefits. It is an instrument for facilitating and effectuating private arrangements. It canpromote human health, family and private life. It can protect the environment and safeguardmorality.


4/19

4

A satisfactory legal curriculum must be holistic. It must seek to instil awareness of all the aimsand functions of law. It must seek to balance courses in which black letter rules are emphasizedwith those in which gilt-edged values are in the forefront. It must have sufficient number ofcourses which facilitate student participation in the free expression of law's idealistic, moral and

social aims. This will necessitate some departure from a purely vocational approach followed inthe Inns of Court and in fourth year programmes like the CLP. Balancing the vocational with theacademic approach is justified because not all law graduates end up being legal practitioners.Even those who do, benefit from a liberal education because, as Sir Frederick Pollock said, 'thelawyer's is a manifold art'.2One must also remember that in Malaysia and the UK the law degreeis an undergraduate degree. There is also appeal in the argument that while gaps in theorycannot easily be filled in the market-place, some purely technical skills are best learnt in thehumdrum of actual practice. Also, at a time when the profession is believed to be over-subscribed,3 an excessive emphasis on skill-centred vocationalism may hinder many lawgraduates from utilizing wider possibilities for careers in society.

2 MLJ clxxxv at clxxxviii

Prior legal education of applicants to the CLP

Most, if not all, applicants to the CLP come with academic law degrees from the UK. It is,therefore, relevant to ask whether British legal education satisfies the idealistic aims of legaleducation set out above? No simple and all-encompassing answer can be given to this questionbecause the variety of law courses offered in the UK is very large and there is considerableferment both as to content and methodology. The aims of legal education in the UK are undersevere internal scrutiny.4 Especially noteworthy are the ventures into 'clinical legal education' atWarwick and Kent Universities and the Polytechnic of the South Bank.

At one time the University of London and the Inns of Court held centre-stage in Malaysia's legaleducation scene. But in recent years a large number of polytechnics and universities from the UK(and Australia) have sought to profit from the captive Malaysian market. Buckingham University'stwo-year programme has acquired considerable following. Wolverhampton is now offering astudy-home course with a flexible schedule and transfer credit opportunities. A number ofcolleges and polytechnics have entered into twinning programmes with the public and privatesectors. For example ITM has such an arrangement with a Northern Consortium of UKuniversities. Regrettably, the legal education scene is beginning to appear more and more like afree-for-all situation. The suspicion is growing that commercial considerations are at the forefrontof these foreign forays into the expanding Malaysian market.

The UK government is aware of the massive amount of foreign exchange that British education isearning for the country5 and, while it continues to raise fees for foreigners, it is also takingsignificant measures to make its institutions more and more attractive to outsiders. For example,in May 1992, 38 polytechnics were granted the option to adopt university titles. Hitherto, thesepolytechnics were regulated by the CNAA, the Council for

2 MLJ clxxxv at clxxxixNational Academic Awards. Now they will have their own charters and will be autonomous.6 It isarguable that this 'upgrading' was long overdue and was the product of a gradual process of

evolution and consolidation over several decades. It is also arguable that the conferment ofautonomy will spur innovation and experimentation in order to break away from traditionalmoulds. But this development also underlines the need to monitor law institutions in the UK whichfeed students into the CLP. There is some suspicion, ill-founded though it may be, that quality andcommercial zeal may not be easy to reconcile. There is also the fact that the steady flow ofstudents from the UK may turn into an unmanageable flood. These suspicions and fears shouldbe taken note of by the Qualifying Board which should examine the question of recognition ofBritish legal degrees de novo by looking at their entry points, course durations, course contentsand the relevance of the courses to the Malaysian legal system.


5/19

5

Given the importance of British legal education to the training of a vast number of Malaysianlawyers-to-be, it is necessary to examine whether, from the Malaysian perspective, there are anyflaws in the British system of undergraduate education which need to be addressed by revising orre-drafting the CLP programme. For purposes of brevity I propose to limit my evaluation to the

University of London's LLB external programme which is extremely popular with Malaysians. It isreiterated that whatever is stated below is not meant to apply to institutions other than theUniversity of London. Nor are London University's undergraduate and post-graduate programmesof internal study in contemplation in this critique.

1) The LLB (London) programme is an undergraduate programme with an entryqualification that is lower than for most local law courses.7 Even if there were noconstitutionally permissible quotas in Malaysian law faculties, many students whosucceed in obtaining registration with London would not secure a place in Malaysianlaw schools. This is not to suggest, however, that only weak students opt for LLB(London). Many young people with exceptional A-level or STPM results prefer to goabroad than to learn law locally because of the lure of living and learning abroad.Some in this category are fortunate to obtain scholarships and sponsorships to

study in the UK, Australia and New Zealand and, therefore, spurn places offered tothem by local universities.

1) The LLB (London) curriculum is extremely conservative and is composed of 12traditional statutory or common law subjects. The only subject that cuts acrosspedagogical lines is Jurisprudence and Legal Theory. In

2 MLJ clxxxv at cxcrecent years even this subject has undergone a narrowing of focus.8 Other thanJurisprudence there is no attempt at liberal education. There is no input of non-lawor socio-legal disciplines which could make the student aware of law's intimateconnection with other fields. Subjects which could arouse social consciousness andimpart a social perspective are totally absent.

1) Except for jurisprudence, the syllabi of other subjects lean towards a formalexposition of rules of substantive law. The list of topics to be covered, the generalflow of discussion in the textbooks and the pattern of examination questions tend toreflect an anti-philosophical and pro-empiricist approach towards the law. Themoral, historical, economic and social basis of law is hardly explored. 'The drive oflaw teaching is towards protecting the dead practices of the past against theimperative needs of the present.'9 The entire programme seems to be concerned inthe main with the lawyer's limited view of the law. This is partly due to the stiflingeffect of Austinian positivism on British legal thinking. Austinian postivismemphasizes the need to distinguish law from morality and to separate formalanalysis from moral, social, economic and political analyses.

1) The LLB (London) programme is built on the false dichotomy between academicand vocational teaching. In the UK there is an age-old debate on whetherundergraduate legal education should be practice-oriented or academic-oriented.Despite a recommendation by the Ormrod Committee on Legal Education (Cmnd4595 of 1971) that integration between the two was necessary, the academic-vocational dichotomy remains a significant feature of the English legal scene. In linewith this perceived distinction, the LLB (London) programme spurns most 'practiceoriented' subjects.

Professor Twining characterizes law teachers into two categories: those seeking totrain students to become 'Pericles' (ie wise law givers, just adjudicators and


6/19

6

enlightened policy makers) and those who merely aspire to produce 'plumbers' (iethose who are legal technicians armed with certain specialized skills).10 In the UK,except for some polytechnics which have experimented with an integratedapproach, most institutions of higher learning feel that the learning of practice-

oriented legal techniques can be postponed to the pupillage stage.11

Members of theprofession, in turn, find the 'ivory tower' and 'esoteric attitudes' of academiciansquite out of tune with the needs and demands of the profession. A mutual disregardbetween academicians and practitioners seems to exist. Of the four stages of legal

2 MLJ clxxxv at cxcieducation in the UK -- the academic stage; the professional stage; the articleship orpupillage stage; and continuing education or training -- the universities play a role inonly the first. The Council on Legal Education or the Law Society handles thesecond; senior members of the profession manage the third; and decisions on whois to impart continuing education are made on an ad hoc basis with somepolytechnics hired to do the job.

1) Because of the external and, in most cases, part-time nature of the LLB (London)

programme there is, for understandable reasons, no requirement for writing adissertation, attending practical training or attachment sessions or participating inmoots, legal aid programmes, visits to courts, remand centres, jails and Parliament.These activities are important because all law courses have, or ought to have, a'hidden agenda' -- of exposing students to the social realities outside the classroom.Most local law programmes try to fulfil this agenda. But for understandable reasons,no external programme makes a serious attempt to expose its students to theseexperiences. For this and other reasons, there is a general lack of a local, socialand moral dimension in the education of external degree students. Some thoughtcould be given to filling this void when the CLP curriculum is revised.

1) For obvious reasons LLB (London), the Inns of Court and other external andoverseas programmes lack any Malaysian content. The result is that a large number

of our overseas trained lawyers, for example those from the Inns, obtain a licence topractice in the country without having formally studied Malaysian law for even asingle day! The Legal Profession Act does not require them to pursue and pass afamiliarization or re-training programme to prepare them for a legal career inMalaysia. Perhaps the CLP should broaden its aims to include the re-training of alloverseas law graduates for assimilation into the Malaysian legal system.

Alternatively the Qualifying Board should invite British institutions, whose resolve toassist Malaysian legal education has been strengthened by the millions of ringgitreceived in fees from Malaysian law students, to consider including some Malaysiansubjects in the curriculum of their external and twinning programmes. This shouldnot pose too many difficulties. At one time LLB (London) had in its syllabi subjectslike Roman Law, Islamic Law (which they wrongly called Mohammeden Law) and

African Law. In recent years, some British programmes like the ICSA programme

have moved in this direction. In view of the number of Malaysians seeking Britishlegal education, special options for Malaysian candidates are justified. No doubt thatthere is a shortage of British scholars familiar with Malaysian laws. But suchscholars are not altogether lacking.12 Local experts could be appointed to assist theBritish examiners. This is presuming that Britain wishes to continue its specialrelationship with the Malaysian legal profession and is willing to put things on amore even keel.

2 MLJ clxxxv at cxcii

The Certificate in Legal Practice Course


7/19

7

At its inception the CLP course had a narrow mission -- to provide a refuge for Malaysian lawstudents locked out in the cold because of their failure to obtain a minimum 2-2 in the LLB(London) examination. The CLP course was a surrogate for the Bar-at-Law qualification.

The course was meant to be temporary. But over the last eight years its popularity has grown

immensely. It has stimulated thousands of people to take up the law and has fulfilled the dreamsof many hundreds. It has saved the nation valuable foreign exchange. Above all it has imparted anecessary Malaysian gloss on the British legal education of thousands of our lawyers. If it isterminated, that would be a major disappointment for thousands of students enrolled for foreignlaw degrees. Several private law colleges have invested heavily in the privatization of the course.It may, therefore, be desirable to make the CLP a permanent and important feature of thedeveloping Malaysian legal education scene. But the CLP's aims should be reviewed andbroadened. The body that controls the CLP -- the Qualifying Board -- should be re-named and re-constituted as the Malaysian Council of Legal Education to perform the following functions:

2) The re-training of all future Malaysian lawyers who train abroad, whether in the Innsof Court or universities in Australia and New Zealand, to prepare them for a legalcareer in Malaysia.

2) Providing, as a present, the vocational or professional stage for those who areholders of 'academic' degrees in law from abroad.

2) Formulating a common fourth year curriculum for all Malaysian law faculties and lawschools and conducting a common professional examination for all lawyers-to-befrom local institutions of higher learning.

2) Organizing, supervising or conducting short term courses of further education forlegal educators, practitioners and judges. Existing faculties and institutions could beassigned specific areas in which specialization could be developed.

2) Regulating and licensing all local institutions which conduct instruction for theCertificate of Legal Practice. This is necessary because accountability to the marketmust be supplemented by accountability to the profession's leaders.

2) Negotiating with all foreign institutions, whose law degree programmes are

conducted in Malaysia either on a twinning or external examination basis, with aview to urging them and assisting them to incorporate a Malaysian content in thecurriculum of their law programmes.

In view of the large number of our students subscribing to British legal education, it is notunreasonable for Malaysia to request that on some core subjects the Malaysian student beallowed to choose a Malaysian option. Thus the London syllabus for external students couldinclude Malaysian Company Law as an option to English Company Law and MalaysianConstitution as an option to British Constitutional Law. The setting of the examination paper andthe marking could still be done in London. The degree would remain a London degree but itwould have at least a partial

2 MLJ clxxxv at cxciiiMalaysian perspective and would be more socially relevant than the present London qualification.

If UK and other foreign institutions are not receptive to having a Malaysian legal content in theirlaw curriculums, then serious thought should be given to launching a Malaysian substitute forforeign external degrees to meet the demand for legal education in this country. This new degreecourse should be based entirely on local laws; it should be conducted on a part-time or full-timebasis by private law colleges which are registered with the Ministry of Education and areapproved by the Qualifying Board. The course duration should be three years. The course shouldcater for those Malaysians who are unable to secure admission into one of the four law facultiesbut are desirous of obtaining an education in law. The entry qualification, course components andrules of eligibility for the examination should be prescribed by the Qualifying Board. The yearlyexamination for each stage of the course should be conducted by the Qualifying Board with the


8/19

8

assistance of all existing law faculties. At the end of the course the award should be called LLB(Council of Legal Education) and should qualify the recipient for entry into the CLP course.

Re-training of all future Malaysian lawyers who study abroad

One of the most serious flaws in the education of legal practitioners in this country is that mostMalaysian lawyers are trained abroad and when they seek entry into the profession here there isno course available to re-train them for the needs and demands of the Malaysian legal system.13

For reasons of colonial history and because of the absence of an indigenous professional lawprogramme until 1972, the first locally trained lawyer entered the Malaysian legal profession onlyin 1977. Prior to that all Malaysian lawyers were trained abroad, mostly in the Inns of Court inEngland. Fifteen years after the first UM graduate crossed the threshold, the majority ofMalaysian practitioners and all superior court judges remain foreign trained and steeped in thethought-processes and jural postulates of the 'English tradition'. When these lawyers apply to becalled to the Malaysian Bar, the Legal Profession Act does not require them to pursue afamiliarization or re-training programme to prepare them for a legal career in Malaysia. Throughtrial and error these foreign-trained lawyers master the differences between substantive and

procedural laws of Malaysia and the laws of the country in which they were imbued with legaleducation. They do not, however, always succeed in purging themselves of the many significantassumptions which were learnt abroad and which serve the host nation well but which are notrelevant to us at all. One of them is the notion that parliament is supreme. Our lawyers and

judges wallow in this notion even though it has no legal basis here. As Professor Tan Sri AhmadIbrahim has observed: 'It was difficult for the judges, brought up in the English tradition in whichthe sovereignty of Parliament is a paramount consideration, to adjust themselves to this newpower (of judicial review) given to

2 MLJ clxxxv at cxcivthem'.14 Unfamiliarity with the Malaysian constitution seems to prevent foreign educated lawyersfrom articulating in courts of law the rules, ideals and assumptions that form the cornerstone of awritten and supreme constitution. In most litigation, where constitutional issues could be fruitfullycanvassed, the constitution is avoided or evaded adroitly. Judicial decisions in turn indulge in acursory and perfunctory examination of constitutional principles and generally shy away fromcomparative constitutional law decisions from countries whose provisions inspired the FederalConstitution. No wonder that a human rights jurisprudence has not evolved in the courts. Judicialreview of legislative and administrative actions on constitutional grounds remains a notional andmarginal aspect of the legal system. A few examples may illustrate the point. In the defamationcase ofLee Kuan Yew v Chin Vui Khen,15 one of the defences raised was that the Defamation Actis unconstitutional because it restricts the defendant's right to free speech and expression underart 10(1)(a) of the Constitution. The learned judge could have rejected the defence by simplyreferring to art 10(2)(a) which expressly mentions defamation as a permissible restriction on freespeech. Instead the learned judge said at p 504: 'The Defamation Act 1957 restricts thedefendants' right to free speech and expression and that the only known defences in any actionfor libel are those stated in the Act which does not include art 10(1)(a) ...'. (Emphasis added.)With all due respect, whether art 10(1)(a) is expressly included or not in a statute relating to freespeech is beside the point. The Constitution being the supreme law of the land, the rules of the

Constitution ought always to be super-imposed on statutes and be used as the litmus test for thevalidity of all pre or post-Merdeka legislation. In another famous case, that ofPersatuan AliranKesadaran Negara v Minister,16 the applicant to the Ministry of Home Affairs for a permit to print amagazine in Malay had complained to the court that the Minister's refusal to grant permissionviolated art 8 (equality before the law), art 10 (free speech) and art 152 (Malay as the nationallanguage). The Supreme Court proceeded as if the case was one of administrative law and notconstitutional law. It quoted extensively from the famous GCHQ case17 of English administrativelaw and dismissed the constitutional law arguments summarily with the words: 'We are of the


9/19

9

view that the Minister of Home Affairs had in no way infringed any provision of the FederalConstitution or the National Language Act 1963/67'.

In one important case involving freedom of assembly, Chai Choon Hon v Ketua Polis Kampar,18the learned judge side-stepped the constitutional law

2 MLJ clxxxv at cxcvissue under art 10 and went on to deliver an erudite judgment relying solely on principles ofadministrative law.

Besides a lack of familiarity with constitutional law, there are other voids in the legal education offoreign-trained lawyers, especially those from the UK, which need to be filled. There is insufficientknowledge of the Malaysian legal system; no grounding whatsoever in Islamic law; insufficientappreciation of the local land law systems; no exposure to non-law and socio-legal subjects; nofamiliarity with alternative dispute resolution techniques; and no experience or very littleexperience in writing reports and dissertations. British trained graduates enter the portals of theMalaysian legal system with a heavy bias towards lawyers' law -- and British law at that. Thevoids in their legal education should be filled by requiring all overseas trained lawyers to attendand pass a six-months familiarization course on Malaysian laws. The curriculum of this courseshould include Malaysian constitutional law, Malaysian legal system and Islamic law ascompulsory subjects and two more optional papers from amongst a wide choice of legal andsocio-legal subjects in which there is wide divergence here and abroad.

This six-months course, to be called 'Certificate in Malaysian Laws', should be a pre-requisite forentry into the CLP.

Providing a vocational stage for academic degree holders

As at present, the CLP course should continue to supply a 'finishing' qualification to those lawgraduates from abroad whose degrees are deemed to be academic and not professional. But thecourse content of the CLP needs to be re-fashioned to fill adequately all the gaps in the educationof the course entrants. In revising the CLP syllabus, context should determine content. Localneeds, not the traditions of the English Inns, should be the guiding light. The present syllabusrests on all fours on the practice-oriented approach of the Bar-at-Law programmes.19 That maysuit the English situation. But when a candidate comes in with serious gaps in his academic,theoretical and substantive knowledge, a Malaysian vocational gloss on a British academiccurriculum is hardly sufficient.

As has been stated above, the proposed Certificate in Malaysian Laws should be the first phaseof the CLP candidate's training. This should be so even if the proposal to require all future foreigneducated lawyers to undergo familiarization and re-training is rejected. The second or CLP phaseshould be reformulated after taking into consideration the following factors. Firstly, there issubstance in the charge that neither in the UK nor here, is there any empirically-based enquiry ofthe actual skills required by practitioners of the law. We are imposing entry requirements, drawingup curriculums, setting learning objectives and trying to produce graduates of a particular mouldaccording to a series of untested assumptions based

2 MLJ clxxxv at cxcvi

pretty much on the preferences of the course leaders at that time.20

What is, therefore, required isa thorough empirical research into what law students do after graduation and why? What is therelationship between their studies and their careers? Of the skills they acquired in the law schooland the subjects they studied, which were useful and which were not? Were litigation skills over-emphasized at the cost of alternative dispute resolution techniques? Did the law school teachthem how to research, how to write opinions and prepare submission? Were oral skills imparted?Should CLP students be required to do a period of 'practical training' or 'attachment' or a stint withlegal aid and advice centres? The answers may spring a few surprises.


10/19

10

Secondly, after the survey is done and the facts are analyzed, it will not do to accept uncriticallyall that the majority wishes. In legal education, as in life, people should not always get everythingthey desire. Some matters have to be left to objective value judgments. Thus if the surveyindicates that a large number find discussion of professional ethics irrelevant or unnecessary,21

that will not be sufficient ground to drop the topic from the syllabus. Irrespective of what somemay say, legal education's idealistic aims have to be promoted. Some core values cannot be thesubject of bartering in the market place. But consultation about the method of imparting them canonly do good. The universities and ITM should join in financing and conducting this studybecause its lessons may be relevant for their fourth year curriculums.

Thirdly, given the CLP candidates' lack of knowledge of Malaysia's substantive laws, the courseshould not seek to be entirely vocationally oriented. While purely technical skills can be acquiredin the market place, gaps in theory cannot be easily filled in the humdrum of actual practice. Also,not all CLP graduates may end up in practice. At a time when the profession is being over-subscribed, an exclusive emphasis on skill-centred vocationalism may hinder many CLPgraduates from utilizing wider possibilities for law-related careers in society.

Formulating a common fourth year programme

Institutions of higher learning desire and deserve a fair amount of autonomy in choosing theircontent and methodology. Perhaps they should be allowed flexibility in choosing entry points forstudents. But exit points should be strictly scrutinized and supervised. Also, in order to ensuresome common professional standards; to keep faculty members from becoming complacent; andto protect the standing in the profession of those graduates who could not secure admission intothe faculty of their choice, there is a

2 MLJ clxxxv at cxcviineed for some standardization in the curriculum content, though not in the training methodology,of all existing fourth year law programmes in the faculties of law and ITM.

At the moment there are wide disparities in faculty recruitment policies and minimum entry scoresrequired for student admissions. Understandably, course content, subject load, number of contacthours per subject per week and the academic calender vary considerably. The way Professional

Practice is handled and the number of hours per week allocated to it show wide contrasts.Forensic skills are taught at ITM but not elsewhere. Moots are given varying degrees of attention.The overall course duration in the various universities and at ITM is not uniform. At ITM it is fourand a half years after STPM/A level. At UIA it is four years after an accelerated pre-Universityprogramme in lieu of STPM/A level. This gives the UIA student a little bit of a head-start in termsof time. Such differences cannot and should not be sought to be stamped out. But the open talkof wide disparity of academic standards within existing law programmes necessitates somecommon control at exit points. Hence the need for a uniform fourth year programme. Theteaching for this common programme should remain in the hands of the existing institutions. Butthe proposed Council of Legal Education should handle all aspects of the fourth yearexamination.

Balancing the vocational with the academic

Unlike in England, in Malaysia from the very outset, it was realized that a satisfactory programmeof legal education must straddle the divide between theory and practice. The programmes in allour law schools contain a combination of substantive and procedural law and legal theory andlegal technique subjects. The Bar, the Bench and the academia enjoy a close relationship. Manyskill-centred subjects are taught by full-time academicians and some substantive law papers arehandled by part-time lecturers from the profession.

The integration between theory and practice has, however, not been attempted for the CLP. Thecurriculum content of the CLP is entirely practice-oriented, modelled as it is on courses at theEnglish Inns. The underlying assumption of the CLP is that the entrant to the course possesses a


11/19

11

sufficient 'basic knowledge of the Malaysian legal system' and therefore the CLP can concentrateon training 'the student to see a legal problem from the view of the practitioner as opposed to thepurely academic approach of the law school he has attended'.22 On what basis the assumptionhas been made that on day one the CLP student is armed with the said 'basic knowledge' is

unknown. The assumption is open to serious questioning. Unlike the student in the Inns of Courtwho comes in armed with two or three years of English theory which he then applies to theEnglish practice, the CLP student comes to the course steeped in English rules and Englishtraditions but he is supposed to apply them to the Malaysian

2 MLJ clxxxv at cxcviiisituation. He is supposed to fill the gaps in his knowledge of Malaysian theory and to appreciatethe differences between the laws of Malaysia and of England as he goes along. The magnitude ofthe problem becomes alarming when we realize that some candidates for the CLP examinationmay not have attended formal lectures at all and may have attempted self-study.

It seems clear, therefore, that the need to give to the CLP student a better grounding in Malaysiantheory needs to be looked into. Perhaps some may argue that theory is not important becausebetween theory and reality there is always a wide gap and 'the law is what happens'. To this Iwish to reply that theory without reality is indeed pointless. But equally, reality without theory is

mindless. The importance of theory can never be discounted because it provides the perimeterswithin which practice must be conducted and it supplies the yardstick for legal and moralchallenge to what is happening.

Entry qualifications for the CLP

All courses recognized for entry into the Inns are recognized by our Qualifying Board for purposesof entry into the CLP except that the Inns insist on a minimum 2-2 and the CLP does not. Not allcandidates who apply to the CLP are, however, below a 2-2. Many entrants into the CLP areeminently qualified for entry into the Inns but, understandably, prefer the CLP because of its localcontent, its reputation for high standards and its reasonable cost.

The Handbook for the CLP allows for another category of entrants though none may have appliedor been successful under this category as yet. The Handbook states that 'law graduates of

universities outside England, Wales and Northern Ireland may be considered if their degrees arerecognized by the Qualifying Board. Recognition of degrees is a matter of discretion for theQualifying Board'.

Permitting non-English graduates to seek entry into the CLP is just and wise. An over-dependence on the British paradigm is not desirable. Close association with British legaleducation has, in the past, ensured high standards and has enriched the common law tradition inthis country. But it has also prevented the growth of a Malaysian jurisprudence by flooding themarket with graduates afflicted with the narrow English perspective of legal positivism. Positivismemphasizes law as it is and not as it ought to be. It is reluctant to investigate aims and purposesof law and is anti-philosophical and pro-empiricists. Why should Austinian positivism be relevantin an Asian society where religion, system of ethics, customs, the family and other socialinstitutions interact to preserve order and give direction to society?23 It has also been pointed outabove that the LLB (London) External programme is too traditional, too much based on black

letter rules, too little supportive of the interaction between law and other fields, and lacks a socialcontext and a social perspective.

2 MLJ clxxxv at cxcix

A number of recent educational decisions in the UK underline the need for our Qualifying Board tomonitor British education closely and to cease giving automatic recognition to all programmesacceptable to the (English) Council on Legal Education. Foremost among them are theintroduction of a two-year degree programme at Buckingham, a home-study and flexible scheduleprogramme at Wolverhampton; and a large number of twinning programmes between UKinstitutions and the private sector.


12/19

12

Many private institutions in Malaysia are conducting their own Certificate and Diploma in Lawcourse which are accepted by some UK institutions as equivalent to A-level and STPMqualifications. Legal education has become big business and while the positive role of the privatesector in promoting access to education needs to be applauded, the efficacy of internal controls

needs to be watched closely. The Ministry of Education should consult with the Qualifying Boardbefore granting permission for Internal Certificates and Diplomas in Law.

Another development that needs to be examined with interest is the recent mass conversion ofmany polytechnics into universities. This means that the CNAA will no longer be required tovalidate awards by these polytechnics. Many polytechnics are very dynamic and innovative intheir programmes while at the same time maintaining high academic standards. But there is alsosome evidence that in the past, despite supervision by the CNAA, graduates of CNAA-validatedprogrammes trailed behind university graduates significantly in terms of performance for Honours

Awards.24 The data quoted in this study can be interpreted in a number of conflicting ways. Onecould argue that the polytechnics are high on integrity, exacting on standards and sparing ingiving high awards. In contrast it could be argued that there is, at the higher levels, aconsiderable gap in the educational attainments of university and polytechnic students.

In view of the very large number of applicants to the CLP and the commercialism that is seizingthe legal education scene, the Malaysian Qualifying Board should now assume independentcontrol over the question of who is or is not eligible for the CLP. To begin with, a scoring systemshould be devised to evaluate applicants to the CLP. If this is not possible because the numberand type of courses feeding candidates to the CLP is very large, then an entrance test carryingan appropriately high weightage ought to be devised and administered to assist with theadmission process. The entrance test ought to have an aptitude or psychological component todetermine the compatibility of a candidate with the ethical demands of the legal profession. Flexi-schedule degrees, two-year degrees and awards by polytechnics or former polytechnics shouldbe given a close scrutiny. If these institutions wish for Malaysian recognition, they must satisfyrequirements on entrance qualification, course content and course duration set by the QualifyingBoard. It was the case up to now that English universities set the syllabi and the standards whichwe tried to emulate. But now Malaysian

2 MLJ clxxxv at cc

legal education has come of age. We have our own ideas about what legal education ought to be.We have our own demands and needs to fill. The Qualifying Board should let UK institutions knowthat if they wish to service our market, they are expected to meet our requirements.

The Qualifying Board should give anxious consideration to the question whether British-runhome-study and distance-learning programmes should be recognized for CLP purposes. Anumber of considerations are worthy of note:

3) Home-study or distance-learning programmes are undoubtedly of great importancein improving access to education. But access to legal education is not a problem inMalaysia anymore. Local as well as foreign, internal as well as external, part-timeas well as full-time courses are available on demand. Given their accessibility andtheir arguable superiority over home-study courses, are the latter really necessary?

3) As an intellectual discipline, law may not be very suitable or amenable to adistance-learning programme. This is because unlike natural sciences which areexact, the social science of law is full of open-ended rules whose interpretation is anart, not a science. Law is difficult to master through self-study because legallanguage is highly artificial and technical. As Shakespeare said in King John, II:'Zounds! I was never so bethump'd with words'. Without proper assistance, thebeginner may find legal rules difficult to understand because legal words rarelymean what they say! A rule is never comprehensible if seen in isolation. It must be


13/19

13

understood in the context of other sections of the same statute; relevant provisionsof other statutes; judicial decisions on point; interpretation clauses; principles ofstatutory construction; the social, moral and historical context of the rule; and awealth of 'non-rule standards', presumptions and principles which swirl around a

rule and influence its meaning and applicability. A self-study student of a distance-learning programme may fail to appreciate the 'open texture' of legal language andmay get a very simplistic and literal view of the law.

3) Law is reasoned argument. This aspect of law is mastered only through interactionwith one's colleagues and lecturers and through such activities as debates, mootsand face to face discussion of actual or hypothetical problems.

3) Legal education has many idealistic aims. Law studies are not only about thetraining of the intellect through a formal study and analysis of 'black-letter' rules.Legal education is also about arousing a social conscience and imparting a socialperspective. Plumbers and technicians could, conceivably, acquire good trainingthrough study manuals. But when the aim is to train students for service in the

public interest, to make them aware of the place and function of law in society, toopen their eyes to poverty, injustice and exploitation, to bring home the socialrealities surrounding the law, to acquaint them with the wide hiatus between the lawin the book and the law in action, then a book-oriented, socially isolated and rulecentred view of the law must give way to a dynamic programme of social interactionin which the law school should reach out to society. The

2 MLJ clxxxv at ccistudent should be required to get involved in community service, legal aid and legalliteracy, clinical legal education, visits to courts, prisons and ghettos so that he getsa glimpse of not only what the law is but also what it ought to be; not only law's formbut also its functioning; not only law's content but also its consequences; and notonly law's promise but also its performance. These objects cannot be achievedthrough Law Made Easy manuals of a distance-learning programme.

3) A distance-learning programme, if it is to be truly helpful, must be conducted from apermanent campus. It must be backed by library facilities and a network of year-round study centres manned by tutors and counsellors. It must organize studygroups, seminars and correspondence courses. A home-study course that is notstrong on the above scores needs to be treated with caution.

1 Another matter relating to the CLP that needs reconsideration is the eligibility ofhome-study candidates to sit for the CLP examination. Ever since the partialprivatization of the CLP course, the UM does not have the exclusive right to conductthe course. However, there does not seem to be anything in the rules that requiresall candidates to enrol for a regular course of studies in a private college. It may,therefore, be possible for a home-study candidate to prepare for the CLP

Examination. If the rules allow this, the rules should be changed. The CLP shouldbe a full-time and formal course of instruction incorporating lectures, tutorials,written work, moots and such socially beneficent activities as legal aid and advice.

Conclusion

At its inception the CLP course was meant as a temporary rescue mission for the hundreds ofMalaysians stranded with a British 'academic' degree and no recourse to a professional legalqualification either here or abroad. But its popularity over the last eight years has proved that itmeets a genuine need and satisfies the legitimate expectations of thousands who seek


14/19

14

professional legal training locally. The course has stimulated thousands of people to take up thelaw and has fulfilled the dreams of many hundreds. It has saved the nation valuable foreignexchange. Above all it has imparted a necessary Malaysian gloss on the purely British legaleducation of thousands of our lawyers-to-be.

From the point of view of educational philosophy it could be said that the existence of the CLPperpetuates the 'English tradition' in Malaysian legal education. Whether this is a bequest to becherished or whether new directions in legal education should be blazed to meet new demandsand new expectations, is a matter of philosophical perspective.

On the commercial side, the existence of the CLP opens up a vast, lucrative market for local andBritish institutions to tap.

The Malaysian legal profession has always enjoyed -- and many will say been enriched by -- asteady flow of foreign graduates into the fold. Most legal educationists are in favour of leaving thischannel open. To them a steady in-flow is acceptable. But not a deluge. And a deluge from theUK seems to be on the way. Flood-control measures are, therefore, necessary before the cloudsburst.

2 MLJ clxxxv at ccii

Recommendations

4) The body that controls the CLP -- the Qualifying Board -- should be re-named andre-constituted as the Malaysian Council of Legal Education to perform the followingfunctions:

1i) The re-training of all future Malaysian lawyers who train abroad, whether in the Innsof Court or universities in Australia and New Zealand, in order to prepare them for alegal career in Malaysia. The gaps in the legal education of overseas trainedlawyers should be filled by requiring them to attend and pass a six-monthfamiliarization course on Malaysian laws.25

1ii) Providing, as at present, the vocational or professional stage for those who areholders of 'academic' degrees in law from abroad.26

1iii) Formulating a common fourth year curriculum for all Malaysian law faculties and lawschools and conducting a common professional examination for all lawyers-to-befrom local institutions of higher learning.27

1iv) Organizing, supervising or conducting short term courses of further education forlegal educators, practitioners and judges. Existing faculties and institutions could beassigned specific areas in which specialization could be developed.

1v) Regulating and licensing all local institutions which conduct instruction for theCertificate in Legal Practice. This is necessary because accountability to the marketmust be supplemented by accountability to the profession's leaders.

1vi) Negotiating with all foreign institutions, whose law degree programmes areconducted in Malaysia either on a twinning or external examination basis, with aview to urging them and assisting them to incorporate a Malaysian content in thecurriculum of their law programme.28

If institutions from the UK and other foreign countries are not receptive to having a Malaysianlegal content in their law curriculums, then serious thought should be given to launching aMalaysian substitute for foreign external degrees to meet the demands for legal education in thiscountry. This new course based entirely on local laws, could be conducted by private law collegesand regulated in all respects, including its examination and award of degrees, by the QualifyingBoard.29


15/19

15

4) The curriculum of the CLP course should be reviewed and CLP's aims broadened toenable it to fill adequately all the gaps left in the education of law graduates from theUK. What the gaps are is ultimately a matter of educational philosophy and of what

the Qualifying Board envisages to be the aims and functions of legal education inMalaysian

2 MLJ clxxxv at cciiisociety today and beyond. It is humbly submitted that the revised CLP curriculumshould inter alia, take cognizance of the following:

2i) Holders of academic degrees in law from the UK have no grounding in thesubstantive laws of Malaysia. Specifically, there is no familiarity with the FederalConstitution, rules of the Malaysian legal system, Islamic law and land law.30

2ii) The dichotomy between academic and vocational training, which is the hallmark ofBritish legal education, is unsuitable for the CLP. When a candidate comes in withserious gaps in his knowledge of the substantive laws of Malaysia, a purelyvocational training is not sufficient to train him for the legal profession.31

2iii) The LLB (London) curriculum has no socio-legal content. The emphasis is on rule-based subjects. For obvious reasons external degree students are not required towrite long essays and attend practical training or attachment sessions. They do notparticipate in legal aid or legal literacy programmes. There is a distinct lack of local,social and moral dimension in their education. Perhaps some of this could berectified by requiring CLP students, after they have taken their CLP examination, todo a three-month period of attachment with organizations involved in socio-legalwork. This way foreign educated lawyers will be required to develop skills andundergo experiences which are expected of local graduates.32

2iv) Before reviewing the curriculum, a broad-based empirical investigation ought to beconducted to find out what skills the profession views as important for the legalpractitioner.33

4) In view of many significant developments in British legal education -- among themincreasing variations in entry requirements, the shortening of course durations,distance-learning and flexi-schedule degrees and the conversion of manypolytechnics into universities -- the question of the recognition of foreign lawdegrees should be examined de novo by the Qualifying Board. All external, partly-external-partly-internal, twinning, home-study and foreign programmes seekingrecognition for purposes of the CLP must submit their programmes to the Board forvalidation. The automatic recognition granted up to now to all courses acceptable tothe Inns of Court should cease. In its evaluation, the Qualifying Board should use aMalaysian and not a British yardstick. It should exercise independent control overthe question of the reliability and relevance of foreign degree course.34

4) Local colleges conducting Certificate in Law and Diploma in Law courses should berequired to submit their programmes to the Qualifying Board for validation.35

2 MLJ clxxxv at cciv

4) The entry requirements into the CLP needs to be reviewed.36

3i) Automatic recognition of programmes acceptable to the British Inns should cease.The Qualifying Board should exercise independent control over whether flexi-schedule degrees, distance-learning programmes, two-year degrees and awards bypolytechnics and former polytechnics should be eligible for Malaysian recognition.37


16/19

16

3ii) An entrance test carrying an appropriately high weightage ought to be devised andadministered to all seeking admission into the CLP. The entrance test ought to havean aptitude or psychological component to determine the compatibility of acandidate with the ethical demands of the legal profession.38

3iii) The six-months course, to be called 'Certificate in Malaysian Laws' which has beendiscussed on pp ix-xi above, should be a pre-requisite for entry into the CLP. Thepurpose of the Certificate would be to give the CLP students a sound foundation insome core Malaysian substantive law subjects.

3) Candidates for the CLP examination should not be allowed to sit for the examinationunless they have pursued a full-time, formal programme of instruction for the CLPcourse.39

1) Including substantive law subjects and such socially beneficent activities as legalaid and legal literacy into the CLP curriculum will require a lengthening of itsduration. This can be done in two ways. Firstly, by requiring all CLP candidates to

join overseas trained lawyers in pursuing the six-months familiarization course -- theCertificate in Malaysian Laws -- as a pre-requisite to the CLP. Secondly, if theproposal to require overseas trained lawyers to undergo the above familiarizationcourse is rejected, then the CLP should be converted into a two stage programme --the first stage to deal with shortfalls in Malaysian substantive law subjects and thesecond stage to correspond with the present vocational curriculum.

1) The large number of students entering the CLP course raises frightening visions ofa deluge. If this number continues, it is a matter of time before there are calls toabolish the course. To avoid or postpone that day of reckoning, the number ofentrants must be restricted by imposing higher entry requirements on candidatesand restricting the tributaries that feed into the CLP main.

1 This portion of the essay is adapted from the author's article 'Legal Education -- A Critique' in (1991) 4 The LawMajallah, pp 110-119. See also Mohd Darbi bin Hashim, 'Perspectives in the Arguments on the Relevance ofTheoretical Dimension in Legal Education' [1991] 1 CLJ iii.

2 Oxford Lectures, 1890, p 2.

3 Malaysia has 4,106 lawyers or 23 per 100,000 of the population. The comparative figures for some othercountries per 100,000 of the population are: US 324, West Germany 190, UK 172, Canada 169, Australia 146,New Zealand 145, Singapore 79, Hong Kong 60, Switzerland 51, France 49, Japan 12, Taiwan 11 and SouthKorea 7. Source: Sunday Star, 1 November 1992, p 16.

4 See Max Weaver, 'Clinical Legal Education -- Competing Perspectives' (1983) 17 The Law Teacher1: AlanHunt, 'The Case For Critical Legal Education' (1986) 20 The Law Teacher10; Allan Blake, 'Legal Education inCrisis: A Strategy For Legal Education Into The 1990s' (1987) 21 The Law Teacher3; P Leighton & L Sheinman,'Central Questions in Legal Education' (1986) 20 The Law Teacher3; Ella Rule, 'Legal Education: A Major

Problem For The Marre Committee' (1987) 21 The Law Teacher 249; William Twining, 'Legal Skills and LegalEducation' (1988) 22 The Law Teacher4; Andrew Boone, Michael Jeeves and Julie Macfarlane, 'ClinicalAnatomy: Towards a Working Definition of Clinical Legal Education' (1987) 21 The Law Teacher 61.

5 According to the New Straits Times, 27 October 1992, p 5 there are about 6,000 government-sponsoredundergraduates and post-graduates in British universities and polytechnics. At the rate of British pound 365 aweek remitted to each one of them, the annual cost to the Malaysian government comes to about M$473.04m. Ifthe money spent by non-government scholars in Britain and by external students of British courses is added on tothe sum mentioned above, the Malaysian investment in British education may well top the one billion ringgit peryear mark.


17/19

17

6 CKG Pillay, 'Monitor Legal Institution Standards', New Straits Times, 25 June 1992, p 12.

7 London's basic entry requirements is two principals at A-level plus three credits at O-level. 'Mature students'aged over 21 are given special dispensations. The University of Wolverhampton requires two STPMs and threeSPMs or equivalent. For mature students aged over 21 all that is needed is 'ambition, drive and commitment to

their studies': See Holborn College advertisement in the New Straits Times, 25 October 1992, p 29.

8 A few years ago the topic of Natural Law was dropped from the syllabus. That change reflected an incrediblenarrow-mindedness and was, fortunately reversed the next year. In the 1991/992 syllabus the topics of historical,anthropological, sociological and realist jurisprudence have been excluded to the detriment of the overall value ofthe subject.

9 GL Williams (ed), The Reform of the Law(1951), p 215.

10 W Twinning, 'Pericles and the Plumber' (1967) 83 LQR 396.

11 See Alan Hunt, 'Conservatism and Vocationalism in Legal Education: A Case Study' (1987) 21 The LawTeacher72.

12 The names of Prof Sheridan and Mr Andrew Harding come to mind. A number of scholars at the School ofOriental and African Studies are in touch with the Malaysian scene.

13 Refer to the author's article, 'Legal Education -- A Critique' (1991) 4 The Law Majallah pp 117-118.

14 Datuk Ahmad Ibrahim, 'Interpreting The Constitution: Some General Principles' in The Constitution ofMalaysia: Further Perspectives and Developments, Trindade and Lee (ed) (1986) p 20.

15 [1991] 3 MLJ 494.

16 [1988] 1 MLJ 442.

17 [1984] 3 WLR 1174.

18 [1986] 2 MLJ 203.

19 The course is made up of five subjects namely: (1) The General Paper which contains two parts: Negligenceand Remedies for Breach of Contract; (2) Civil Procedure; (3) Criminal Procedure; (4) Evidence; and (5)Professional Practice (including Professional Etiquette and Rules).

20 EG Gee and DW Jackson, 'Current Studies of Legal Education: Findings and Recommendations' (1982) 32Journal of Legal Education 471; R Stevens, 'Law Schools and Law Students' (1973) 59 Val L Rev 551; L Baird, 'ASurvey of the Relevance of Legal Training to Law School Graduates' (1978) 29 Journal of Legal Education 264.

21 Many CLP graduates interviewed by the author stated that the component on professional ethics was a wasteof time, given other priorities.

22 Special Course and Examination For The Certificate In Legal Practice Handbook, 1988, p 4.

23 Shad S Faruqi, 'Role of the Judiciary: The Courts And The Constitution' in Reflections on the MalaysianConstitution, Aliran 1987, p 111.

24 A Reynolds and M Hameed, 'Varying Degrees of Success: The Performance of CNAA And University LawGraduates', (1987) 21 The Law Teacherpp 48-60.

25 Supra at pp cxciii-cxcv.

26 Supra at pp cxcv-cxcvii.


18/19

18

27 Supra at pp cxcvi-cxcvii.

28 Supra at p cxci.

29 Supra at p cxciv.

30 Supra at pp cxcii-cxcv; cxcvii-cxcviii.

31 Supra at pp clxxxvii; cxc-cxci; cxcv-cxci.

32 Supra at pp cxc-cxci.

33 Supra at pp cxcv-cxcvi.

34 Supra at pp clxxxviii; cxcviii-cci.

35 Supra at p cxcix.

36 Supra at pp cxcviii-cc.

37 Supra at pp clxxxvii; cxcviii-cci.

38 Supra at p cxcix.

39 Supra at p cci.


19/19

legal education in malaysia - the certificat

Documents