OCTOBER 3 — The 2022 Certificate of Legal Practice (CLP) Examination begins today (Monday). To assist the candidates in preparing for the examination, a briefing was held on September 24 at the University of Malaya (UM).
According to a Free Malaysia Today report, the candidates were advised not to produce memorised answers.
Why such advice?
A quick look at the education and training requirements for becoming a barrister in England and Wales is useful.
In these two jurisdictions, the Bar Standards Board (BSB) is the regulatory body which takes charge of setting the requirements. The continuing education and training requirements to ensure that barristers’ skills are maintained throughout their career are also the responsibility of the BSB. They are all part of the BSB’s responsibilities as the regulatory body over barristers and specialised legal services businesses in England and Wales.
While primarily governed by the Legal Services Act 2007, the BSB’s approach to the regulation of education and training is also informed by the Higher Education and Research Act 2017.
Towards fulfilling its regulatory responsibility of educating and training prospective barristers, the BSB publishes the “Bar Training: Curriculum and Assessment Strategy.”
This document sets out the requirements for all three components of training for the Bar: academic, vocational and pupillage/work-based.
One of the purposes of the requirements is to ensure prospective barristers are able to demonstrate the competences outlined in the “Professional Statement for Barristers incorporating the Threshold Standard and Competences.”
The Professional Statement, which is also published by the BSB, describes the knowledge, skills and attributes that all barristers will have on “day one” of practice.
For the first of the three components of the training — that is, the academic component — prospective barristers will have to demonstrate the knowledge and understanding of the key concepts and principles of public and private law, and will have to be able to apply the knowledge and understanding as necessary.
Prospective barristers, therefore, will have to be able to comprehend and accurately apply to factual situations the principles of law and rules of procedure and practice.
They will have to demonstrate originality in the application of knowledge, and a practical understanding of how law and practice is used in the solution of legal problems.
In academic programmes at institutions of higher learning, these are referred to as learning outcomes (LOs). Students who are able to demonstrate not only knowledge and understanding but the application of the relevant law and legal practice will have successfully completed the course or programme. (Emphasis added) In other words, they will have achieved the learning outcomes.
One can see that to achieve the LOs, the memorisation of the law and principles alone will not do. The law and principles must be applied to the factual situations. And it must be the relevant law and rules of procedure and practice that are to be applied.
That is why it boggles the mind that some candidates of the CLP Examination are still “confused” and “bewildered” after being told at the pre-examination briefing that many candidates had failed because they produced memorised answers.
A memorised answer may accurately state the relevant law and rules of procedure and practice. But no two factual situations are the same. The candidates will have to be able to apply to the factual situations in the examinations, the law and the rules.
The members of the panel at the briefing were right to advise the candidates to refrain from producing memorised answers if they wanted to pass. The briefing was not the first to be held with the CLP candidates.
In 2019, three different sessions were held at the same venue (UM). It would have been continued if not for the movement control order following the Covid-19 pandemic.
And the advice to the candidates is consistent with the comments and observations made by the CLP examiners way back in 2017. These are available on the official website of the Legal Profession Qualifying Board (LPQB).
The comments and observations were agreed to by the LPQB to be made public with the view of assisting candidates to better understand where they had gone wrong in the examination.
According to the examiners, candidates tended to “regurgitate their knowledge of a particular area of law rather than to apply that knowledge to the particular fact of the case provided in the question.” It also appeared that candidates seemed to have memorised a standard set of answers for a particular area of law.
Like the Bar examinations in England and Wales, the CLP Examination is a practical examination as opposed to a purely academic one. Therefore, the ability to apply the law correctly is essential. The examiners do not accept rote memorisation and regurgitation of knowledge without the application of the law to the factual situations.
As in the academic component of the training for prospective barristers in England and Wales, the CLP candidates will have to “demonstrate originality in the application of knowledge, and a practical understanding of how law and practice is used in the solution of legal problems.”
Only then will they have demonstrated the competences — that is, the knowledge, skills and attributes that all advocates and solicitors will have on “day one” of practice.
Best wishes to the candidates.
* This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.
