The Legal Profession In Malaysia
The legal profession has always been a highly regulated profession with rules, regulations and codes of conduct binding on members of the profession[1]. This comes as no surprise due to the nature of the legal profession being very interconnected with the mechanisms of the working of law itself. The general duties among other things include a duty to assist the courts in the administration of justice and this duty overrides the duty towards clients.Despite the profession being highly regulated, there are circumstances that would warrant or attract a foreign practitioner[2] to practise law in countries such as Malaysia[3]. Therefore, this article is narrowed down to concentrate on identifying the possibility for a foreign practitioner to practise law or to provide in-house legal advice in Malaysia.
The admission of legal practitioners in Malaysia is governed by section 11[4] of the Legal Profession Act 1976 (hereinafter referred to as the Act). The requirements under this section amongst other things require a qualified person[5] not to have been convicted in Malaysia or elsewhere of a criminal offence that would render him unfit to be a member of his profession or done any other act which, if being a barrister or solicitor in England, would render him liable to be disbarred, disqualified or suspended from practice. These requirements, one way or another, are common due to the standard expected of potential legal practitioners.
In addition, he must either be a citizen of Malaysia or a resident of Malaysia and has satisfactorily completed the prescribed period of pupillage[6]. If a qualified person were to petition to the High Court to be admitted as an advocate and solicitor, there is a requirement that he has passed or is exempted[7] from the Bahasa Malaysia[8] Qualifying Examination[9]. This is the main route for admission amongst private legal practitioners in Malaysia[10].
The difficulty that most foreign practitioners would face is the requirement under section 11(c), requiring them to be either a citizen or a resident of Malaysia and the Bahasa Malaysia Qualifying Examination requirement under section 11(2). In addition, a foreign practitioner would have to undergo a minimum prescribed period of pupillage of 3 months[11]. There are limited exceptions[12] to this and if the requirements are not satisfied, a foreign practitioner will not be able to gain right of audience in the Malaysian courts[13]. An established foreign practitioner with many years of experience may find the requirements for pupillage discouraging. However, despite their experience, this requirement is meant to expose them to the Malaysian legal procedures[14].
However, the exception that is normally applicable to a foreign practitioner being instructed to appear for a particular case is the admission in special cases under section 18 of the Act. This section enables a foreign practitioner to practise as an advocate and solicitor in Malaysia for a particular case[15]. However, the court must be of the opinion that for the purpose of the particular case, the foreign practitioner has special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia and has been instructed by an advocate and solicitor in Malaysia[16].
Cherie Booth QC, attempted to rely on section 18(1) for an ad hoc admission into the Malaysian Bar after being instructed to appear for a particular case. However, the application was refused by the High Court Kuala Lumpur and it was subsequently appealed to the Federal Court[17]. The judgment of the court considered the requirement of ‘special qualifications or experience’ by referring to established judicial precedents in Malaysia[18]. The court subsequently concluded, “special qualifications and experience under section 18(1)(a) of the LPA refers to the particular field of the law which that particular case is related and not in respect of each and every issue that arises in that case[19]”.
Therefore, if a foreign practitioner is in possession of the requisite qualifications or experience in a particular field of law that is relevant to the particular case that he intends to appear, then he would have satisfied the first requirement under section 18(1)(a) of the Act. However, the second requirement under same section must be satisfied in addition to the first. The special qualifications and experience must not be available amongst advocates and solicitors in Malaysia.
The Federal Court[20] subscribed to the observation on the words ‘not available’ by Sharma J in Re S.K. Lee[21]. The special qualifications or experience that is required under section 18(1)(a) must be of a high degree of quality and type which cannot be found in local lawyers. Therefore, a foreign practitioner will have to persuade the Court[22] that his special qualifications and experience satisfies both requirements.
An alternative to practising as an advocate and solicitor in Malaysia is to provide in-house legal advice[23]. This is a viable alternative for foreign practitioners because the procedures[24] are not as stringent comparatively with the former if an arrangement for employment has been secured[25]. The limitation that most foreign practitioners would have is the knowledge and experience with regard to relevant local laws. However, foreign practitioners with multi-national legal experience may find their legal knowledge and experience useful in assisting companies in their international transactions or investments.
In summary, there are 3 main methods for a foreign practitioner to enter the legal profession in Malaysia. The first method is to gain admission as an advocate and solicitor in Malaysia via the normal route that local practitioners use. However, the difficulty faced under this method may either be due to the language requirement or the residency requirement. The second method is to obtain special admission in particular cases. However, the difficulty that a foreign practitioner will face is to satisfy the requirements under s.18(1) of the Act. Additionally, admission under this route will only be permitted for that particular case. It is therefore not a viable long-term consideration. The third method would be to gain employment to provide in-house legal advice. Although a foreign practitioner may not practise law locally under this route, he may nonetheless enter the legal profession in Malaysia without the difficulties faced by the previous methods.
Despite the difficulties faced by foreign practitioners to gain admission into the Malaysian Bar, the legal profession in general whether as a practitioner or an in-house legal advisor has always been a challenging career. This is due to the continuing need to be updated with regard to changes in the law. The law is not stagnant and is ever changing with times, circumstances and society. Therefore, if a foreign practitioner truly does have the passion to practise law in Malaysia, then the methods considered above are worth a consideration.
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[1] Barristers-at-law are being regulated by the Bar Council (Today, a separate and independent regulatory body known as the Bar Standards Board regulates barristers-at-law in England and Wales) and solicitors being regulated by the Law Society. In a country with a fused profession, the regulatory body may either be the Bar Council such as Malaysia or the Law Society such as Singapore.
[2] A foreign practitioner for purposes of this article is defined as a practitioner in possession of legal qualifications and right of audience outside Malaysia.
[3] The legal profession in Malaysia is a fused profession and is governed by the Bar Council. A legal practitioner in Malaysia is known as an Advocate and Solicitor.
[4] s.1(1) Legal Profession Act 1976 is subject to s.14.
[5] s.3 of the Act states that “a ‘qualified person’ means any person who (a) has passed the final examination leading to the degree of Bachelor of Laws of the University of Malaya, the University of Malaya in Singapore, the University of Singapore or the National University of Singapore; (b) is a barrister-at-law of England; or (c) is in possession of such other qualification as may by notification in the Gazette be declared by the Board to be sufficient to make a person a qualified person for the purposes of this Act.” The Legal Profession Qualifying Board may require foreign practitioners with certain qualifications to sit for the Certificate in Legal Practice before satisfying paragraph c above. There are requirements that must be satisfied to sit for the Certificate in Legal Practice. Visit http://www.malaysianbar.org.my/admission_requirements.html to determine the entry requirements.
[6] See s.12 of the Act on the period of pupilage. However, s.13(3) provides exemption for a qualified person from any period up to six months subject to the Bar Council’s sole discretion upon satisfactory evidence that the applicant has amongst other things, engaged in active practice as a legal practitioner by whatever name called in any part of the Commonwealth for a period of not less than six months.
[7] A qualified person may be exempted by the Legal Profession Qualifying Board by virtue of s.5(f) and 11(2) of the Act if he has obtained at least a credit in Bahasa Malaysia for his Sijil Pelajaran Malaysia.
[8] Translated in English to mean Malaysian language.
[9] s.11(2) of the Act.
[10] Whether being admitted by virtue of being a qualified person due to a recognised degree in law from a local public institute of higher learning, a barrister-at-law in England, or being in possession of any other qualifications that is recognised by the Qualifying Board such as a Certificate in Legal Practice or a Solicitor of the Supreme Court of Judicature, England.
[11] The period of 3 months is based on the maximum exemption possible under section 13 of the Act.
[12] The only exceptions are the admission in special cases under s.18 of the Act and special admission certificates issued by the Attorney General under s.28B of the Act.
[13] This includes the High Courts and Subordinate Courts.
[14] There is also a similar requirement on pupillage amongst other things to admit qualified foreign practitioners into the Bar of England and Wales under Regulation 36 of the Consolidated Regulations of The Inns of Court and The General Council of The Bar (November 2008). However, the Transferring Qualified Lawyers Panel of the Qualifications Committee may exempt the applicant from all or part of the requirements for pupillage.
[15] s.18(1), Notwithstanding anything contained in this Act, the Court may, for the purpose of any one case and subject to the following subsections, admit to practise as an advocate and solicitor any person who, if he was a citizen of, or a permanent resident in, Malaysia, would be eligible to be admitted as an advocate and solicitor of the High Court…
[16] s.18(1)(a) and (b) of the Act.
[17] Cherie Booth QC v. Attorney General, Malaysia & 5 others, [2006] 4 CLJ 224.
[18] Para. 13 – 15, Ibid.
[19] Para. 17, Ibid.
[20] Para. 19, Ibid.
[21] (1971) 2 MLJ 40
[22] The court will consider the relevant issue in the particular case in light of the applicant’s special qualifications and experience.
[23] However, a foreign practitioner providing in-house legal advice who has not been admitted as an advocate and solicitor in Malaysia will not be able to represent himself as being a qualified practitioner to practise law locally. The limitations on foreign practitioners are limited to providing in-house legal advice and not perform any act that would contravene s.37 of the Act.
[24] For the procedures, visit http://www.imi.gov.my/eng/perkhidmatan/im_PegawaiDagang.asp
[25] An arrangement for employment with a Malaysian law firm may be applicable if the requirements by the Immigration Department of Malaysia are satisfied. However, the limitations under s.37 of the Act will still apply because an employment with a Malaysian law firm does not necessarily enable a foreign practitioner to represent himself as being a qualified practitioner to practise law locally.