Reforming the Judiciary Includes Reforming the Legal Profession
By Loong Caesar
The reform of the judiciary is not an exercise limited to judges or those appointing them. It has to do with the overall reform of legal services and the legal profession itself. Because the unhappiness over the current state of the judiciary has focused on what the Bar feels, it is largely the work of elements which are distinct from itself, namely bad politicians and bad judges, it has not allowed the Bar to take a long hard look at its own failings and where the profession stands in the remedial equation. The Bar's role in this should not merely be to stand by and criticise, but to reform itself as part of the process.
Whilst the Bar's stand on judicial competence and independence is laudable and necessary, it is also time for the Bar to ask awkward questions about the quality of its lawyers and its own ability as a profession to deliver essential services to the public in a consistent and reliable manner.
All judges start off as lawyers whether they are government lawyers or lawyers in private practice. So it would seem obvious that good judges ultimately come from amongst good lawyers. Any future Judicial Appointments Commission, no matter how independent it may be, can only appoint good judges if they have good lawyers from which judges may be chosen. In this regard, the Bar should be asking itself, "How is the profession to maintain a vibrant pool of the best legal talents in years to come, when the trend already shows an inexorable decline in the quality of entrants and standards of entry into the profession are unimpressive?" The legal talents today will not be around forever.
Much of the debate about the appointment of judges also fixes on personalities, and may have as much to do with the likes and dislikes of some lawyers as it has to do with the independence and incorruptibility of judges. Nonetheless because of this, it tends to be about the here and now. Concerns about the judiciary should however go beyond this and we should look at where future judicial appointments are likely to come from and how we can ensure a sustainable supply of high calibre candidates. Not next year or the year after, but in many more years to come. Is the Bar doing enough to address the quality of its own entrants and practitioners in such a way that would ensure only the very best and brightest graduates are permitted to enter the profession, if in fact it is to remain a learned and honourable one.
It is of course much easier to be critical when the rhetoric is intended to be acted upon by some else - not so easy when a commitment to reform falls at one's own doorstep. It will be disingenuous to say the least, if the Bar only demanded that the very best and the brightest be selected for appointment to the bench when we do not demand the same for those seeking to practice. To do so would suggest that the Bar sees judicial reform as a ball in someone else's court and show a reluctance to be part of the solution. Put another way, the demise of a competent and independent judiciary will likely be in tandem with the demise of a competent and intellectually robust profession.
The connection between having good judges and good lawyers goes beyond just this. The quality of judgments is often a function of the quality of the arguments and the law put before the courts. It may be too simplistic to simply blame a bad decision on the failings of an incompetent or crooked judge. The Bar must be prepared to accept that the decline in the quality of judicial pronouncements and judicial outcomes are closely linked to the overall decline of legal talents practising at the Bar.
In our desire for greater democratic expression and liberal governance, the political and constitutional role of lawyers has been elevated to a point where we may be forgetting that other fundamental (if not more fundamental) role of the lawyer which is simply to practise the law by delivering a good and competent service. A lawyer is an advocate of the law, but to be one, he must firstly, know the law and have a good command of language. A lawyer may be an outstanding advocate of constitutional reform, but he is not a competent lawyer if his client's contracts fail because he has not adequately articulated his client's intentions or failed to protect his client against a potential liability that was inherent in the contract of which he was not aware. Yet each year, we seem to admit dozens of new lawyers into the profession whose legal knowledge and skills are questionable.
Without intending to belittle the important work of the Bar in its constitutional role as the watchdog of our civil liberties, it must be said that this work is relatively easy to execute compared to the other work that the Bar must undertake to ensure a competent and highly skilled profession. On a balance it is not difficult to take and articulate a stand when the cause is a popular one and widely shared, or when the ineptitude of the opponent makes popular any position that is even remotely reasonable.
On the other hand, institution building, developing high standards of competency amongst lawyers, identifying the future course of the profession (which often includes taking a practical and well researched decision about future trends), enabling Malaysian lawyers to compete with foreign firms on a myriad of new practice areas, or indeed, developing a realistic and relevant training and qualification system, is much, much harder to do in a practical sense. Yet, these are things that the Bar does not appear to be addressing or not addressing enough with sufficient urgency.
Whether or not the Bar feels it is already addressing these issues is beside the point. For those who have to hire competent lawyers, 15 years ago, would have been routine work that any qualified young lawyer would have been able to handle, the reality is far from satisfactory. Most young graduates arrive with a tenuous grasp of fundamental legal concepts (or have forgotten them) despite having passed what is touted to be a stringent qualifying exam. So what is missing? Why do young lawyers seem to lack intellectual curiosity and are unable to reason and discover for themselves answers in the way that most lawyers of 20 years ago could?
Putting aside the intrigues surrounding test procedures and manipulations of results of the CLP course, one aspect of the young lawyer's training at the Bar may also be telling. The Qualifying Board runs an ethics course which is a pre-requisite to admission as an advocate and solicitor. However, most pupils who take the course will tell you that the content of the course is uninspiring. The course comprises some hand outs and one day of lectures where a set of rules and preset conclusions about the nature and purpose of legal practice is dished out to young minds. Quite apart from this, you may ask, how does one teach ethics when discourse is not encouraged? Ethics should be a discussion and not a lesson. And yet this is what this important course seems to be all about - a talk down session. (One pupil recently described it as supercilious preaching based on shoddy and partially plagiarised material). From most accounts pupils feel they are simply asked to remember rules and say what the handouts tell them is the Bar's stand on, for instance, "The Role of the Lawyers". These are issues that in a liberal democracy should be discussed and debated. Is the Bar coming dangerously close to its own political indoctrination of young minds?
Perhaps with this sort of approach it is not surprising then that the majority of young lawyers don't seem to care too much about discussing real legal issues or what's really important to them and society? Maybe, what we are saying to them is that legal practice is all about just accepting the norm and that contrarian views would only result in failing the CLP exams. Is this how we cultivate a dynamic young bar? Whether it is or not, one fact remains - a significant number of these "qualified" young lawyers today will become the judges of tomorrow deciding on fine points of law ranging from breaches of securities contracts, to conflicts of laws to the true meaning of section 153 of the Federal Constitution.
A good judge must not only be independent and fair, he must also be competent. Whilst many may disagree on where we should draw the line between a lawyer's constitutional role and his everyday role, the question here is, are we developing the kind of lawyers that will become the kind of judges we would like to see in the future?
Loong Caesar was educated at Raffles Institution Singapore, The London School of Economics and Gonville and Caius College, Cambridge. He was admitted to the English Bar in 1982, the High Court of Malaya in 1985 and the Supreme Court of Singapore in 1994. He is a founding partner of Raslan Loong and primarily involved in mergers and acquisitions, corporate and commercial, finance and securities work.