High time for a new Bar!

COMMENT BY ROGER TAN

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A common evaluation system is needed urgently to check the declining quality and standard of new lawyers in the country. 

IT is a matter of grave concern that with about 1000 law graduates entering the legal profession every year, there is no common evaluation system to ascertain and ensure their levels of competence.

The Bar Council has been advocating a Common Bar Course and Examination (CBE) since the 1980s as a single entry point to the legal profession for both local and foreign law graduates.

It is understood that the delay in implementing the CBE is partly due to objections from local universities.

But it cannot be gainsaid that the quality and standard of lawyers have also declined significantly since the 1980s. There is a common feeling among senior legal practitioners that there is an “abject absence of rudimentary legal skills” among the new entrants.

In 2008, a senior judge lamented on the poor quality of locally trained lawyers, describing their standard as ranging from the “good to the grotesque”. (However, some senior lawyers had also opined that the learned judge’s assessment applied equally to the quality of judges since the 1980s.)

For example, one senior lawyer related this incident to me involving a senior assistant registrar (SAR) and lawyers for both the plaintiff and defendant. The SAR was tasked to read the judge’s order relating to costs. Both lawyers recorded the amount of costs with interest at the rate of 80%!

When the senior lawyer asked his assistant, who was the counsel for the plaintiff, about it, the latter said he did not understand why the SAR had mentioned the interest at 80%. He added that when he checked with the counsel for the defendant; the latter said it was common for the court to grant interest at 80%, which is, of course, erroneous!

Hence, the point is, how could one have walked out of the court without even understanding the court’s order? If the parties were not able to understand the order, then they would also not be able to draft the order later. If what the plaintiff’s counsel had said about the SAR and the other counsel was true, then indeed all the three legally trained officers – SAR and the two lawyers - were indeed half-past-six professionals!

Besides the decline in lawyering quality, there is an abysmal language skill especially the command of the English language among the new entrants for practice at the Bar. I have personally received a letter from a young lawyer asking me to “ensure that (our) clients would be executed the documents!”

It follows that it is not unjustified to require the new entrants to also pass an English Language Qualifying Examination. Whilst we can blame this decline on our education system, we cannot ignore the fact that we are living in an increasingly competitive global environment where international business is transacted primarily in English.

It is also in the national interest for us to build up a pool of competent practitioners in international law so that we can put across our nation’s case in international forums and courts, which is made all the more necessary after the Pulau Batu Puteh case before the International Court of Justice.

In fact, there were 13,350 practising lawyers in Peninsular Malaysia as of Dec 31 last year, with more than half having obtained their basic law degree overseas.

The Legal Profession Act, 1976 (LPA) governs the admission of new entrants from various streams to the legal profession as an advocate and solicitor.

To be admitted to the Malaysian Bar, one has to be a “qualified person” as defined in the LPA; attain the age of 18; be of good character and not been adjudicated bankrupt or convicted of any offence; be a citizen or permanent resident of Malaysia; have served nine months of pupillage under a lawyer of at least seven years’ experience; and have passed, or be exempted from, the Bahasa Malaysia Qualifying Examination.

Three tables containing the relevant information of the legal practitioners and their qualifications have been provided, and let me expound on it a little.

Table 1 deals with the academic qualifications of a ‘qualified person’, and the following should be noted:

> The qualifications, except for graduates of Universiti Malaya, National University of Singapore and barristers of England, are determined from time to time by the Legal Profession Qualifying Board (Qualifying Board) which is chaired by the Attorney-General. Any change to the status of the three aforesaid qualifications can only be made by way of a statutory amendment to the LPA.

> The law degree of the new Singapore Management University has still not been recognised by the Qualifying Board. (Singapore only recognises the law degree of University of Malaya for admission to the Singapore Bar.)

> The two-year exemption from Certificate in Legal Practice (CLP) examination given to law graduates of Universiti Utara Malaysia (UUM) and Multimedia University (MMU) in 2009 will expire on April 15, unless extended indefinitely or for a further period by the Qualifying Board.

Table 2 particularises the qualifications of the 13,350 lawyers as at Dec 31 last year. It is interesting to note that the International Islamic University is the single university which has produced the largest number of lawyers in Malaysia.

Also, as of Jan 28, 2011:

> There were 13,346 lawyers; of whom 6,992 and 6,354 are respectively men and women.

> In terms of ethnicity, there were 5,190 Malays; 5,025 Chinese; 2,517 Indians; 485 Punjabis and 129 Eurasians and others.

> In terms of number of years of practice, there were 1972 lawyers with one to three years of practice; 2,037 (three to seven years); 2,983 (seven to 12 years); 4,244 (12 to 20 years) and 2,110 lawyers have 20 years of practice or more.

> In terms of age, 2,384 lawyers were under 30; 4847 (31-40); 3,537 (41-50); 1,648 (51-60) and 930 lawyers were aged 60 and above.

As regards Table 3 which shows the number of lawyers admitted in 2009 and 2010, it is obvious that women have been busy becoming lawyers in the last two years!

It follows that as Malaysian lawyers are coming from so many diverse educational streams, there is an urgent need for uniformity by undertaking a critical review of the entire legal education especially when we are producing a surfeit of lawyers annually.

Need to be professional

It is for this reason that there have been constant calls for many decades now for the CBE to be implemented as the ultimate sieve in the admission of new practitioners in order to ensure lawyering quality and competency.

Further, the CLP course has to be replaced by the CBE because it is too examination oriented, and not practical skills oriented. This is understandable as the CLP was originally designed in 1984 only as a temporary stop-gap measure to assist those Malaysians who were not able to sit for the English Bar Finals Examinations because they failed to obtain at least a Second Class (Lower Division) Honours in their British university law degree.

To my mind, law schools should just concentrate on the academic aspect of legal education, and leave the professional training in the form of CBE to the Qualifying Board, Bar Council and the Judicial and Legal Services. Passing the CBE should not just be the pre-requisite for new entrants to the legal profession, but also for new recruits for the Judicial and Legal Services.

Pending the implementation of the CBE, the Qualifying Board should also periodically review the teaching and training of law graduates from our local universities. If the standard is not maintained, then the exemption from the CLP examination currently granted to their law graduates should be removed.

As regards foreign law graduates, the Qualifying Board has already reduced the number of approved British universities from 66 to just 30, and Australian and New Zealand law graduates are now required to sit and pass the CLP examination even if they have been admitted as barristers or solicitors in New Zealand or any state of Australia.

In this regard, the Qualifying Board should be commended for setting up in 2008 an evaluation team headed by the Chief Registrar of the Federal Court which comprised judges, officers from the Attorney General’s Chambers and senior members of the Malaysian Bar to determine if UUM and MMU law graduates should be exempted from the CLP examination. As a result, law graduates from the two universities are now required to undergo a training course on practical skills before they can become “qualified persons” under the LPA even though they are exempted from the CLP exam. This exemption will expire on April 15, and the team would return soon to the universities to undertake a review.

In fact, so much has already been said and written in the last 20 years about the urgent need of reforming our decrepit legal education, and we are already sorely lagging behind many Commonwealth countries in this respect. But regrettably, there appears to be a total lack of a sense of urgency on the part of the various stakeholders to come to grips with this unsatisfactory state of affairs which is certainly not in the public interest.

The writer is the head of the Bar Council’s evaluation team appointed by the Qualifying Board to assess the Bachelor of Law degree of UUM and MMU to determine if their graduates should be exempted from the CLP examination. You can follow him on Twitter at www.twitter.com/rogertankm.

Goodbye to “Globalization”

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Comment by HAROLD JAMES & MATTEO ALBANESE

The term “globalization” first swept the world in the 1990’s and reached its highpoint of popularity in 2000 and 2001. In 2001, for instance, Le Monde contained more than 3,500 references to mondialisation. But then the figure steadily fell – more than 80% by 2006. Since the outbreak of the financial crisis in 2007, the word’s usage in major newspapers such as the New York Times and the Financial Times has fallen still further. Globalization is on its way out.

A brief history of the concept, and a comparison with another term that also became discredited by overuse, helps to explain what happened.

The twentieth century’s two most important conceptual innovations, “totalitarianism” and “globalization,” were originally Italian. The first term defined the tumultuous middle of the twentieth century, the latter its benign ending. “Totalitarianism” finally disintegrated in 1989, and globalization prevailed.

Both terms originated as criticisms that were supposed to undermine and subvert the political tendencies they described. But both ended up being just as frequently and enthusiastically used by the respective tendencies’ proponents.

“Totalitarianism” began its conceptual life in 1923 as a criticism or parody by the liberal writer Giovanni Amendola of the megalomaniacal pretensions of Benito Mussolini’s new regime. In the course of a few years, it had become the proud self-definition of Italian fascism, endorsed by Mussolini’s education minister, Giovanni Gentile, who became the official philosopher of fascism, and then incorporated in a ghost-written article by Mussolini himself in the Encyclopedia of Fascism.

In both the hostile and the celebratory use of the word, totalitarianism was intended to describe a movement that embraced all aspects of life in what purported to be a coherent philosophy of politics, economics, and society. Fascists liked to think of themselves as imbued with total knowledge and total power.

Today, few know where the term “globalization” originated. The Oxford English Dictionary gives as the earliest reference to its current usage an academic article from 1972. The word had been used earlier, but in a rather different sense. It was a diplomatic term conveying the linkage between disparate policy areas (for example, in negotiating simultaneously on financial and security matters).

The OED etymology ignores the non-English origins of the term, which can be found in the inventive linguistic terminology of continental European student radicalism.

In 1970, the radical left-wing Italian underground periodical Sinistra Proletaria carried an article entitled “The Process of Globalization of Capitalist Society,” which was a description of IBM, an “organization which presents itself as a totality and controls all its activities towards the goal of profit and ‘globalizes’ all activity in the productive process.” Because IBM, according to the article, produced in 14 countries and sold in 109, it “contains in itself the globalization (mondializzazione) of capitalist imperialism.”

This obscure left-wing publication is the first known reference to globalization in its contemporary sense.
Since then, the term has had ups and downs. It became increasingly faddish in the 1990’s, but mostly as a term of abuse. In the late 1990’s and early 2000’s, anti-globalization demonstrations targeted the World Trade Organization, the International Monetary Fund, the World Economic Forum, and McDonald’s. Globalization was seen at this time – as in the vision of the 1960’s Italian leftists – as the exploitation of the world’s poor by a plutocratic and technocratic elite.

But in the 2000’s, the meaning of globalization shifted and began to take on a semi-positive note, in large part because it increasingly looked as if the major winners of globalization included many rapidly growing emerging markets. Indeed, countries that had previously been described as “under-developed” or “Third World” were becoming incipient global hegemons. Moreover, many former critics began to recognize global connectedness as a way of solving global problems such as climate change, economic crisis, and poverty.

Historians have started to project globalization backwards. It is no longer seen only as a story of the capital-market-driven integration of the last two decades of the twentieth century, or even of an “early wave of globalization” in the nineteenth century, when the gold standard and the Atlantic telegram seemed to unite the world. Instead, the wider and deeper historical vision is of a globalization that encompasses the Roman empire and the China's Song dynasty, and goes back to the globalization of the human species from a common African origin.

The terms that we use to describe complex political and social phenomena and processes have odd ambiguities. Some concepts that are designed as criticisms are quickly inverted to become celebratory.
By 2011, anti-globalization rhetoric had largely faded, and globalization is thought of as not something to be neither fought nor cheered, but as a fundamental characteristic of the human story, in which disparate geographies and diverse themes are inextricably intertwined. In short, globalization has lost its polemical bite, and with that loss, its attractions as a concept have faded.

Harold James is Professor of History and International Affairs at Princeton University. Matteo Albanese is a researcher in history at the European University Institute.

China did not manipulate currency in 2010: U.S. report

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Major trading partners of the United States, including China, did not manipulate their currencies to gain an unfair advantage in international trade in 2010, according to a report released by the U.S Treasury Department on Friday.

"Based on the resumption of exchange rate flexibility last June and the acceleration of the pace of real bilateral appreciation over the past few months," China's behavior did not qualify under the official definition of manipulation, the Treasury said in its long-delayed semiannual report to the Congress on International Economic and Exchange Rate Policies.

With respect to exchange rate policies, ten economies were reviewed in this report, accounting for nearly three-fourths of U. S. trade. Many of the economies have fully flexible exchange rates. A few have more tightly managed exchanges rates, with varying degrees of management.

"No major trading partners of the United States" met the standards identified by the Congress as currency manipulator, concluded the report.

Since the June 19, 2010 announcement by China's central bank of greater exchange rate flexibility, its currency, also known as renminbi (RMB) has appreciated 3.7 percent against the dollar, or about 6 percent annualized. The renminbi has appreciated 26 percent in total against the dollar since 2005.

The Treasury said that because inflation in China is significantly higher than it is in the U.S., the RMB has been appreciating more rapidly against the dollar on a real, inflation- adjusted basis, at a rate which if sustained would amount to more than 10 percent per year.

The U.S. accuses Beijing of keeping its currency undervalued, flooding the country with cheap exports and costing U.S. jobs. But many economists believe that the appreciation of RMB will help little to the U.S. employment.

"Treasury today again made the right call on China's currency policy in its latest exchange rate report," John Frisbie, President of the U.S.-China Business Council (USCBC) said in a statement after the U.S. Treasury Department'report.

"While USCBC believes that China should allow its exchange rate to better reflect market forces, designating China as a ' manipulator' would achieve nothing. USCBC continues to support the Obama administration's approach of combined multilateral and bilateral engagement with China as the most effective way to make progress on the exchange rate issue."

Source: Xinhua
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