English must be brought back for law, the education and profession reformed.
It’s high time that we call a spade a spade on the controversial Certificate in Legal Practice (CLP). If a controversy in the media does not go away in two weeks, according to subject matters, it will never end until there’s closure.
It’s an open secret that the CLP is a discriminatory programme against law graduates from foreign universities. See here . . .
In law, there can be no discrimination unless there are special circumstances, always limited by time, created by the burden of history. Otherwise, Article 8 outlaws discrimination.
There cannot be special circumstances in law education. It’s a critical discipline like, for example, medicine and engineering.
If we take the cue from the CLP’s push for “brilliance in law”, questions arise on the rarity, indeed absence, of novel developments which the court in Malaysia can declare as law. The CLP, based on its own claims, falls apart on “brilliance”.
No CLP graduate has ever been recognised and/or hailed by the court as brilliant.
No Malaysian, who ran the CLP gauntlet, was ever appointed as QC (Queen’s Counsel) by the Queen of England, the head of the Commonwealth of Nations. QCs are highly skilled in specific branches of law. QCs don’t think in terms of winning cases and losing cases.
In fact, the media has been in overdrive on the “corruption”, overt and covert, which used to plague the CLP and perhaps still does. Questions have been raised on the number of lawyers who obtained the CLP through means more foul than fair. These questions have never been answered. The guessing game goes on in the legal fraternity in Malaya on bogus CLP graduates.
The fingers point at the quota system, imposed by law schools as well, and public university law graduates being exempted from the CLP.
In the Borneo Territories, Sabah and Sarawak, law graduates can opt for the English and Australian Bar, and thereby avoid the CLP.
Before we look at reforms which Malaysia should include in law education, there’s a case for looking at the court system.
The court does allow an Applicant, whether lawyer or no lawyer, to Act in Person but only on his or her case. Acting in Person may be discouraged in criminal cases.
If an Applicant can Act in Person, there are all the more reasons that such “skills in court” be permitted to represent other Applicants who Petition the court on the matter. In law, someone in court on a legal matter, cannot be prevented from being represented, whether by lawyer or no lawyer.
Law is a reading subject. That’s why we read law, not learn or study law. In law exams in England, for example, examiners first mark the English language, next they look for evidence of wide reading, and finally mark for law. There are no right or wrong anawers in law exams.
Anyone who has passion for the discipline can read law.
The best way to read law, according to the University of London (UoL) in its law module, starts with reading the Constitution, going through statues, case laws, media reports on court cases, attend court and Parliament, examiner’s reports on law exams, get a Mentor, and write commentary and analysis pieces on law as done by jurists (legal scholars).
Power Of Language
UoL cautions that “it’s not possible for anyone to know law”.
“Law, ultimately, is the power of language.”
It’s about the nature of human relationships viz. between state and a people, between state and individuals, and between individuals.
The LLB (Bachelor in Law), continues the UoL, isn’t about skills needed for the courtroom. “It’s an academic programme and only suitable for teaching.”
The UoL disclosed that it would never agree that only those with LLB and the English Bar be admitted to the High Court, as Advocates and Solicitors, after going through chambering at a law practice.
Law, in fact, does not exist. It only exists because we created it.
The Constitution, for example, isn’t law but being based on the ultimate political documents, setting forth the governing institutions of state, it has force of law and emerges as the supreme law of the land.
The rule of law, another example, isn’t a legal term but political.
In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law. This is where most lawyers in Malaysia fall apart. They can’t fathom the spirit of the law, constitutional law and jurisprudence. They fall back on the letter of the law only, which isn’t law at all, and bulldoze their way through the system by resorting to technicalities and other elements in the “department of dirty tricks”. The hands of the court may be tied if the parties in dispute on issues in conflict are equally “dua kali lima” (hopeless).
Any reforms in law education must begin with bringing back the English language in court in Malaya. English remains the language of the court in the Borneo Territories. The Malaysia Agreement 1963 (MA’63), the basis for the Equal Partnership of Sabah, Sarawak and Malaya in Malaysia, was drafted in the English language.
We know from history, that the 1st language of the Federal Constitution is English which has more than a million words, a billion if extended words are included. The Bahasa version which followed much later was mere translation.
I believe, to the best of my knowledge, that the Bahasa translation isnât the valid version in law.
The High Court of Malaya can declare, with reference to the Federal Court, on a point of law on this matter.
I hope that in the interest of justice, not only being done but being seen done, the honourable court would not degenerate into politics on the Bahasa issue.
Look out for Part 2 . . . If court filing in Malaya should continue to be in Bahasa Kebangsaan, Bahasa Malaysia is not the national language. Bahasa Malaysia and Bahasa Indonesia cannot be passed off as Bahasa Melayu. – New Malaysia Herald
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. Heâs not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.
The points expressed in this article are that of the writerâs, and do not necessarily reflect the stand of the New Malaysia Herald.