With the growth of the number of aspiring lawyers, the examination for qualifying as an Advocate in Bangladesh has become less frequent, lengthier, and time-consuming. Gone are the days when the examination only consisted of a written examination and viva-voce and took place biennially. The severe underpayment of young lawyers accompanied by the snail's pace of enrolment examination process may mean that many talented young law graduates would either have to abandon the quest for pursuing the career of an Advocate or will have to be a continued burden on their family or have to struggle financially. Indeed, in this regard, the Appellate Division (AD) in Bangladesh Bar Council and Ors v A.K.M. Fazlul Kamir and Ors (2017) 14 ADC 271, has lamented that '[i]t is seen that the Bar Council cannot perform its responsibilities properly. It cannot conduct the enrolment process of advocates properly…It is reported that the Bar Council cannot complete enrolment process once every year.' (para 99) The AD has also directed that '[t]he Bar Council shall complete the enrolment process of the applicants to be enrolled as advocates in the district courts each calendar year.' (para 101)
The bottleneck apart, a major concern with the examination process is the standard of the questions used in the preliminary test. In the recent examinations, the questions have too heavily concentrated on testing the memory. Educational theorists do not entirely disregard memorisation as an assessment of learning. However, the wisdom of a memory-centric examination in a professional examination like this is questionable and the role of memory as a tool for practising as an Advocate would be even more so. Hence, it is sad that one of the prime tools of assessment in the multiple choice questions (MCQ) used in the preliminary examination has been whether or not the aspiring lawyers can memorise the contents of a section or worse, in some cases, the respective section numbers. And at times, some of those sections have been sections which are used very rarely, if at all. This rather startling trend has become so much a practice that one may be mistaken to believe that the persons setting the questions were in a rush. The rush was so much that they could not but opt for questions the setting of which did not demand much of a thought about what the intended knowledge or skill that they were going to assess.
In practice, as most lawyers would tell you, the memorisation of a section number would be meaningless. And while the memorisation of the content of a section would be helpful, it is the application of the contents and the underlying rationale for them that would be what is really needed. Many experienced Advocates would, of course, be able to recall section numbers of frequently used legal provisions instinctively, but there is a probability that the ability to recall the section number has had nothing to do with their survival, let alone success as a lawyer. More importantly, it is quite possible that few of them could recall those section numbers at the beginning of their journeys as young lawyers or have ever made a conscious effort to memorise section numbers or their contents. Most lawyers would remember many section numbers and their contents not by any constant, conscious effort, but by dint of applying them again and again in practice.
In questioning the current practice, the enormity of the enrolment committee's challenge is not being overlooked. The committee consists of professionals who are already encumbered by their professional responsibility. Hence, is some ways, in an examination like the one in the enrolment process, the administrators will have to follow a process of culling among the examinees, and the MCQ examination is a good tool for achieving this. However, a more thoughtful and challenging pattern of MCQ questions, with little emphasis on memorisation and more on the appreciation and application of the legal provisions would be desired. Such an examination would be able to distinguish between those applicants who solely rely on memory and those who can apply their memory to factual situations by applying their analytical skill.
In any event, the hectic schedule of the administration entrusted with the responsibility of administering this enrolment examination cannot mean that the process would lose its rigour. One would think that the Bar Council has modified its examination process to make it more meaningful and rigorous. However, the patterns as the ones followed in the recent MCQ-based examinations would hardly make any contribution to that goal. How to tackle this perennial challenge cannot be addressed in this write-up. However, the first step to that direction may be a recognition by the BAR council that what it is doing now is not only dismayingly slow for aspiring lawyers, but also that it is not doing a great job in assessing the competence of young professionals.
On the issue of more frequent and timely completion of the examination process, the BAR Council should bear in mind that the delay runs the risk of making this profession which is often perceived as an elitist one, even more so. It is up to the BAR Council to determine how many applicants will be allowed to enter the profession. But there should be more frequent and meaningful examinations which would cull many who have not been able to achieve the desired standard. But those with the quality should not have to be in the queue for too long simply because the gatekeepers are too busy. And after the verdict in the case, it is also a legal responsibility of the BAR Council to complete the enrolment examination process on an annual basis.
The Writer is Associate Professor of Law, North South University.