CLP: Time For a New Beginning?
The Certificate in Legal Practice, or CLP, is an intense, taxing and often feared examination facing many local graduates who wish to become a practising lawyer. Envisaged as a Malaysian equivalent to the English Bar examination, this once novel endeavour has stagnated, now standing as a pillar of years yonder. Criticized as being outdated, and with fledgling passing rates, what is the root cause?
In 2020, out of the 1,656 candidates that sat the CLP examination, 399 passed. The passing candidates account for 25% overall. None of the 25% received a First Class with only 18 receiving a Second Class (Lower). This is supposedly meant to highlight the board’s ‘emphasis on quality’. Additionally, 299 candidates secured conditional passes which means they needed to re-sit the one subject they failed in order to acquire the CLP. However, a large sum of 57% failed the examination completely. It is important to note that there was only a 5% increment of passing candidates from the previous year in which 20% of the candidates passed.
In England and Wales, there are two possible pathways a graduate can take, one for barristers known as the Bar Professional Training Course (BPTC), and for solicitors, that being the Legal Practice Course (LPC). The common element between both is the high pass rate in comparison to the CLP. According to a report carried out by the Bar Standards Board, among the 1591 full-time students who enrolled to complete the BPTC in 2018/19, 70% passed. That is an astounding 45% higher pass rate than the CLP. Additionally, regarding the LPC examination in 2020, 56% of all enrolled candidates passed; 31% higher than the CLP. In actuality, the LPC in 2020 saw a fall in pass rates from the previous year by 10%. In 2019 there had been a pass rate of 66%. Upon comparing the pass rates of 2019 of the LPC and CLP respectively, LPC had a drastically higher pass rate of 46%.
What makes CLP so difficult?
At this juncture, it is important to stress that, like most things in life, whether CLP’s difficulty is warranted is a matter of frequent debate. Yet, and rather uniquely within the present matrix, one thing is commonly agreed upon. The CLP examination is bloody hard. Of course, it should be a given that, when considering the work a lawyer is expected to do, the examination should be a challenge. Even so, with reference back to the statistics underlying this entire article, the CLP exam does, at the very least, appear to be exceedingly challenging.
From a personal perusal of friends and acquaintances who have taken the CLP, their recollection of the event is rather similar. Indeed, as one former student commented, the single most challenging aspect is:
“the sheer bulk of the content all students sitting for the exam are required to memorize and reproduce. In this respect, it is not sufficient to understand the syllabus. There are roughly seven questions in each paper, save the General Paper which has two, and each student must answer four. Students are advised and told to study the entire content for each subject because most questions have several sub-questions that may include other topics and areas.”
In short, therefore, the CLP exam requires memorisation of a staggering number of materials, all within a short time span. The examination comprises 5 different papers; civil procedure, general paper, criminal procedure, professional practice, and evidence, all challenging within their own regard, and worsened by the fact that in exams, case lists and statutes are usually unavailable. Instead, and perhaps unfortunately, one taking the exam would need to memorise everything. All of that does not even account for the harsh marking standards of the examiners who expect everything to be memorised perfectly, and to be written to a high degree of standards, all whilst within the exceedingly short time span of the physical exam.
Still, change has been made to rectify these demands. During the 2019 examination, more statute books were allowed to be admitted than in prior years exams, allowing the entry of the Insolvency Act. However, the question which related to insolvency “was solely on 'winding-up companies'. This rendered the Act and Rules useless in answering the question”.
Despite these concerns, a more important question is, is the difficulty warranted? According to Roger Tan, and many others, the answer appears to be a resounding no. Indeed, there are many who scream out in anguish against the “declining quality and standard of new lawyers in the country”, with even a senior judge commenting that the quality of locally trained lawyers ranged from “good to the grotesque”. Furthermore, if the exams were truly difficult in order to weed out the good from the bad, it is then surprising that local lawyers possess “abysmal language skill especially the command of the English”.
If such is the case, then what skills does the CLP actually impart? Well, as recalled by Fahri Azzat, the answer appears to be very little:
“[the exam]… imparts almost no skills except perpetuating the Malaysian tendency to study by spotting and rote, use as little thinking as possible and be almost completely useless upon completion of the exam… one of the most fundamental skills a lawyer requires, drafting, is virtually non-existent. On top of this, there is no real understanding between the tutors and lecturers on the one hand, and the markers (which tends to be subcontracted to lawyers, lecturers, etc.) in terms of how they expect the question to be answered”.
This opinion is not unique amongst those well acquainted with the CLP examination. As explained by the former Dean of Universiti Teknologi Mara, Professor Mohd Darbi Hashim:
"In the present context, the CLP has outlived its relevance. Its curriculum is outdated. While professional legal education in most countries today has adopted more innovative, practical, experiential, and hands–on approaches in the training of lawyers, the CLP continues to adopt the three–hour written examination mode where students can prepare themselves either by attending formal or informal private tuition or simply self–study.”
Further, Darbi said the large number of failures in CLP examinations was not because the testing level was extraordinarily high compared with other Bar examinations. The root cause was the poor training candidates received in the early part of their legal studies in their universities or colleges.
What the future holds:
Perhaps there is a solution to the arguable shortcomings of the CLP. The solution comes in the form of the Common Bar Course (CBC). The CBC intends “to standardise the point of entry” while still requiring entrants to “satisfy the standards set by [the] board.” CBS as a result will “be the ultimate filter for entry into the profession”, claims Dato' Ambiga Sreenevasan. Its goal is to rectify the CLP by teaching its candidates “practical skills that need to be developed during the period of pupillage” according to George Varughese. This would be similar to the BPTC which puts extensive emphasis “on learning through practical work, with many exercises based on briefs similar to those that barristers receive in the early stages of their career”. Additionally, with the introduction of the SQE this September, which is the new route to qualify as a solicitor, a candidate needs at least two years of qualifying work experience to qualify, putting a greater importance on practical experience.
The possible introduction of the CBC promises a more robust and rounded curriculum filled with training and critical understanding of the law rather than just regurgitation. However, the CBC has been in the works for over two decades and is yet to come to fruition. Professor Mohd Darbi Hashim said the many attempts at culminating a course have ended in failure. This may seem rather dubious as surely there must be ways to remodel a more practical course on the basis that many already exist like the BPTC and SQE. That is not to say that the mentioned courses come without criticism, in fact, many “past students are often highly-critical of the BPTC”. However, at the very least they provide frameworks that can be adapted and built upon.
Although the attempts in creating the CBC have been ineffectual, they still provide hope of an updated future pathway for graduates and its implementation will mean that the secrets behind the workings of the CLP will no longer be of concern.