- Ali Sabry calls for introduction of schemes of continuous professional development
Sri Lanka should look at and understand the present status quo of focus areas concerning the regulation of entry into professional legal education; the regulation, supervision, and improving of the standard of legal education provided at the Sri Lanka Law College (SLLC) based on standardised models of legal education, and qualification and training-related requirements for attorneys; and the introduction of schemes of continuous professional development (CPD), former Minister of Justice and incumbent Foreign Affairs Minister, President's Counsel (PC) M.U.M. Ali Sabry noted.
This was observed by Sabry in an article on “Legal education and the legal profession in Sri Lanka: Present and future” which was published in the Kotelawala Defence University Law Journal's first volume's first issue in 2021.
“The practice of the law is not a business open to all who wish to engage in it; it is a personal right, or privilege limited to selected persons of good character with special qualifications duly ascertained and certified; it is in the nature of a franchise from the State conferred only for merit and may be revoked whenever misconduct renders the person holding the licence unfit to be entrusted with the powers and duties of his/her office,” Justice Ashutosh Mookerjee emphasies in Emperor vs. Babus Rajani Kanta Bose and Others.
Legal education is a complex study with emphasis on legal analysis, training for practice and the development of a professional identity. As asserted in late Supreme Court (SC) Justice and Vice-President of the International Court of Justice Prof. Christopher Gregory Weeramantry’s An Invitation to the Law, the dynamics of the administration of justice have changed in that, while in the common-law world, the administration of the law was seen as a function of a partnership between practicing lawyers and judges, the legal profession is, however, no longer seen as a two-way exchange but a three-way partnership in which the academic branches of the profession are by no means less important.
Historical background
The earliest part of entry to the legal profession was established under the British colonial system and facilitated under Section 17 of the 1833 Charter of Justice, which empowered the SC of Ceylon to “admit and enrol as advocates and proctors, persons of good repute and of competent knowledge and ability upon examination by one or more of the judges of the SC”.
It had a less formal structure which required that a person endeavouring to enter the legal profession serve a period of apprenticeship with a practicing lawyer and take examinations conducted by the SC in order to satisfy the judges of the SC that the apprentice had obtained the required skills and sufficient legal knowledge to enter the legal profession. The Charter introduced two groups of practitioners: advocates who equated to the role of barristers in England and proctors who equated to the role of solicitors in England. Their roles of advocacy and litigation were distinctively defined, and while advocates were usually members of the Bar Council, proctors were members of the Incorporated Law Society of Sri Lanka.
Since 1973, changes were made to the legal structure and legal profession in Sri Lanka. With the coming into operation of the Administration of Justice Law, No. 44 of 1973 of the National State Assembly, the two branches of the profession were fused and one group of practitioners was formed as attorneys-at-law (AALs). Formal legal education in Sri Lanka came into being with the establishment of the Council of Legal Education (CLE) in the year 1873. The SLLC was established under the CLE, in order to impart formal legal education to those who wished to become AALs in Sri Lanka.
A regulative bargain
Legal education plays an important role in sculpting the legal profession. It is the foundation for a career as an AAL. Thus, there is a close relationship between legal education and the legal profession. The idea of a “regulative bargain” (D. Cooper, A. Lowe, A. Puxty, K. Robson, and H. Willmott’s “Regulating the United Kingdom [UK] accountancy profession: Episodes in the relation between the profession and the State”) was emphasised by retired SC Justice Saleem Marsoof PC in the foreword of the Chairman of the committee in the final report of the committee appointed by the CLE to consider the curricula and syllabi of the SLLC 2012 as follows: “At the heart of the relationship between the legal practitioner and the State lies the notion of a 'regulative bargain' whereby the State protects professionals from unfettered competition but trusts them to put public interest before their own. In exchange, 'the profession promises to select and train carefully its members so that they can provide a competent and ethical service' (E. Freidson's Professionalism reborn: Theory, Prophecy, and Policy)”.
The optimal functioning of the legal profession is vital in upholding the rule of law in a prosperous and effective democracy. The First Vice-President of the International Criminal Court, Judge Sanji Monageng in a speech delivered at the World Forum Conference Centre, The Hague, the Netherlands, on 20 November 2012, stated that, “the rule of law and the proper administration of justice, of which an independent judiciary and legal profession are prerequisites, play a central role in the promotion and protection of human rights”.
It is stated in a letter to American businessman and philanthropist Julius Rosenwald dated 13 May 1927, by the Harvard Law School Professor and Associate Justice of the United States SC, Felix Frankfurter that: “The law is what the lawyers are. And the law and the lawyers are what the law schools make them.” This demonstrates that a scheme of legal education which imparts standardised knowledge, skills and practical training is key to guaranteeing quality and competent legal professionals.
Standards and quality
As stated by late SC Justice Dr. Anthony Ranjit Bevis Amerasinghe in Professional Ethics and Responsibilities of Lawyers, a professional is: identifiable by reference to some register or record; recognised as having a special skill and learning in some field of activity in which the public needs protection against incompetence, the standards of skill-learning being prescribed by the profession itself; holding themselves out as being willing to serve the public; voluntarily submitting themselves to standards of ethical conduct beyond those required from the ordinary citizen by law; and undertaking to accept personal responsibility to those whom they serve for their actions and to their profession for maintaining public confidence. Thus, competency (knowledge and skills), honesty and integrity, accountability, self-regulation and ethical boundaries set out the very traits of a legal professional.
Institutions such as the SC, the Incorporated CLE (ICLE), the Bar Association of Sri Lanka (BASL), and the SLLC which are responsible for producing AALs are also robed with the duty to ensure and guarantee the standards and quality of the legal professionals who enter the field of law.
This can be achieved firstly through a process of providing well-rounded legal education which encompasses knowledge and skills development, official credentials, training and ethical standards, and, secondly, through standardising legal education to ensure that the legal profession would be accessed by, and limited to, those with the minimum requirements and qualifications.
Growth and enrichment in legal education leads to knowledgeable, skilful, ethical, and capable individuals entering the legal profession, thereby enhancing the standards of the legal profession. Thus, the continued progression of the profession of law is concomitant to the continued assessment and development of legal education. The legal profession is primarily and predominantly dependent upon upholding the standards of the legal education provided.
In this context, the significant question is whether Sri Lanka is on the right path and whether there is a need for reform.
Jurisdictions which are celebrated for developed legal education schemes such as the UK, Singapore, and Malaysia seem to have various regulatory measures in place to ensure that the most capable, knowledgeable, skilled members enter the noble profession.
Minimum entry qualification
In the UK, a student intending to embark on a law degree requires a high grade as the minimum requirement. The Complete University Guide 2017, which is an accredited ranking league table for UK universities, outlines that the top 50 universities in the UK require a “minimum entry criteria” of three B’s for the Advanced Level and/or its equivalent which has resulted in an automatic imposition of a minimum entry qualification for the profession of law.
A similar system has been adopted in Singapore by setting up a list of approved universities under the Legal Profession Act of 1966 (Chapter 161 of the Revised edition of 2009) read together with the Legal Profession (Admission) Rules of 2011 which only recognise degrees from top-ranked universities in the world.
A qualifying degree to gain entry
The Bar Standards Board and the Solicitors’ Regulation Authority (SRA), being the regulatory bodies governing the access of graduates to the legal profession in England and Wales, prescribe graduates to have obtained a minimum of a second class lower qualifying law degree and/or a non-qualifying law degree coupled with the graduate diploma in law from an approved academic institution.
Furthermore, qualifying law degree-awarding university programmes or institutions are required to provide specified courses (i.e. public law – including constitutional law, administrative law, and human rights, the law of the European Union, criminal law, property law and equity and the law of trusts, and legal research). Hence, the said requirement of a qualifying law degree would ensure that a graduate has the requisite standard of knowledge and skills to proceed to the vocational stage of training for the Bar of England and Wales.
This requirement of a qualifying law degree for the recognition of a foreign degree is a practice adopted in many jurisdictions such as Singapore, which requires that a course of study leading to a law degree be a qualifying law degree ("Qualified person: Approved universities – UK").
The requirement of a course structure
In Singapore for example, a course or programme leading to a law degree cannot be an accelerated course which is completed within a period of less than three years and instead, the degree must be read as a full-time, internal candidate (as opposed to an external degree).
In the Malaysian and Indian jurisdictions, specific criteria for the recognition of foreign degrees have also been set up. Thus, Malaysia requires that a degree shall be a minimum of three academic years and for full-time study at a university, and is required to be completed within a period of six years from the date of initial registration.
The recognition of a foreign degree also requires that a degree holder complete a minimum of 12 substantive subjects inclusive of six core subjects (e.g. the law of contract, the law of torts, constitutional law, criminal law, land law, and equity and trust).
The aforesaid schemes and regulatory measures, amongst others, have been placed to ensure that a limited number of persons with standardised legal education are allowed access to the profession.
Change and revision
“In Sri Lanka, the major concerns that have been raised in recent years relate to the standard of legal education of those who enter the legal profession through these pathways and the alarming rate of the number of persons entering the profession. It is alarming that within a few years, the number of students entering the profession has doubled,” Ali Sabry claimed.
The SLLC is “the only gateway to the legal profession in Sri Lanka” and the only institution in Sri Lanka that is vested with the responsibility of educating and preparing those who aspire to enter the profession. It is tasked with the duty to provide legal education with advanced skills and knowledge.
Throughout the years, many recommendations have been made to advance an upliftment of the professional education provided. These recommendations include reforms to the curriculum, the development of proficiency in the English language of students, revamping and developing the infrastructure of the SLLC and reforms to the administrative and financing structure, developments in information technology facilities, etc.
Justice Marsoof PC describes the need to change and revise legal education as follows: “Central to these debates about the contents of legal education are questions about the need for revised curricula and syllabi that reflect the increasingly diverse careers of law graduates and the international dimensions that are emerging more often in their work. This, by itself, is a continuous issue raising questions about whether the mere conferment of credentials by an institution such as the SLLC would sufficiently prepare an individual to undertake the challenges faced by the modern legal practice. A combination of legal education that seeks to develop academic abilities (critical thinking, normative values, and the consciousness of professional ethics and responsibility), while providing practice relevant training and skills development seems to be the need of the day.”
Continuous professional development
The development of legal education can be through CPD. Many developed jurisdictions in the world have understood that legal education is a continuous process which requires consistent and continuous updating. CPD refers to activities that enhance the skills and knowledge of a professional throughout the legal profession.
In the UK, CPD is recognised by the Law Society as an important element of being a member of the legal profession and is the key to demonstrating continuing competence as a solicitor within the SRA's regulatory framework. The UK’s CPD programme has been redesigned to include a continuing competence scheme, and it is imperative that legal professionals comply with the said scheme which, inter alia, includes participation in courses working towards professional qualifications, coaching and/or mentoring sessions, writing on law or practice, and the research and development of specialist areas of law.
In New South Wales, CPD is a statutory condition imposed on the Australian practising certificate (Section 52 of the Legal Profession Uniform Law). It requires the certificate holder to comply with applicable requirements of the Legal Profession Uniform Continuing Professional Development (Solicitors) Rules of 2015. Compliance with CPD is administered in terms of these rules. Accordingly, legal professionals are required to complete CPD units each year in the four fields of ethics and professional responsibility, practice management and business skills, professional skills, and substantive law.
Infinite possibilities
Legal education obtained through a university or institute provides an academic qualification which opens doors for so many career paths in business, public interest, the banking and financial sector, research-based careers, the political sciences, law firms, law teaching, human resources, Governmental institutions, corporate work, and international institutions such as the United Nations, etc.
However, there is a recurring question as to whether all legal academics in Sri Lanka should become practicing lawyers or whether the available career paths and job opportunities available for legal academics should be followed.
In looking at the experience of the UK and Malaysia, most students engage in legal education as an academic qualification which paves the way into the fields of accountancy, banking and finance, public service, and administration. A recent assessment demonstrates that over a quarter of law graduates working in the UK are law associate professionals, and thus, they work as law associates to firms, corporations, banks, auditing companies, etc. The assessment further demonstrates that 47% of law graduates are employed, while others pursue further education in law and other fields of study.
At a time when legal education all over the world is changing to address the current needs for advanced knowledge and skills in commerce, economics, technology, and social changes, Sri Lanka must also step to the future through implementation of regulatory measures to address the present issues faced and demolish barriers which have slowed our progress.
In an address to the Harvard Law School community, former Dean Martha Louise Minow offered a survey of “The past, present, and future of legal education”. She called the present “a time of innovation and a time of renewal” in legal education. She predicted that lawyers will have opportunities to play new and important roles in response to dramatic economic, technological, and social changes presented by new communications technologies, new biological and biotechnology research, and globalisation. They will deal with integrating economies, legal and professional services, biological and computer viruses, cultural trends fostered through worldwide networks of exchange, resource scarcity and global climate change, and the mass migrations of people due to economic, political, and environmental changes.
Accordingly, it is clear that the possibilities for legal professionals are infinite. In the backdrop of globalisation, and advancement in technology and innovation, law as a part of society keeps expanding and the opportunities are expanding. In such times, it is important for the future of legal education to provide advanced knowledge and skills in order to access these opportunities. Hence, it is time that legal education in Sri Lanka is uplifted to face the new era of professional standards, knowledge, and skills of this noble and ever-developing profession, Sabry concluded.