Legalprofessions
both domestic and foreign, and also the executive is necessary. The direction across Asia is to move towards an efficacious and independent judicial sysÂtem with numerous reforms in selection or appointment, providing security of tenure, improved salaries and mechanisms to limit executive and other external influences.
The impetus for such reform has come from internal domestic facÂtors, including higher living and education standards and in some cases from democratisation but also from external forces, either through demands from international organisations such as the World Trade Organization and the IMF, or from investors demanding security and legal certainty for their commercial ventures and investment. In the common law countries, judges are â€?called to the bench' (appointed to a court) by the executive (the President in Singapore, Prime Minister in Malaysia, Sultan in Brunei, and Chief Executive in Hong Kong, on advice of an independent commission) on the basis of their standing and skill in the practice of law. Experience and integrity are key components, and years of experience in appellate courts maybe a pre-condition to appointment. Tenure is secured by a retiring age, or a fixed appointment, with removal from office made difficult.In contrast, judges in civil law countries take a career path to the judiciary at a much early time in their professional life and their career advancement is based on performance once in the role. Once the basic legal qualifications are attained they are eligible to complete a judicial training course or sit a judicial examination and thereby become judges at a much younger age than in the common law. In Taiwan, judges can be as young as 24, which has been seen as having a negative impact on respect for and public confidence in the judiciary. It has led to a review of the judicial training and selection process, with a possible reform being that newly appointed judges will adjudicate only as part of a panel with more senior judges or that judges will have to be appointed only from practising lawyers, akin to the common law model.
Korea too is dealing with a judiciary with plenty of young people at the bottom tier of courts, and few at the higher levels. In a culture where elderly people are accorded particular respect, this raises concerns about confidence in the judicial process which Korea is also trying to address. Ensuring confidence and integrity of the judicial process can take some interesting forms. While most nations have mandatory citizenship requirements, there are provisions for judges in both the Hong Kong Court of Final Appeal and in the Brunei Court of Appeal to have non-citizens appointed to their highest appellate court. These are non-permanent judges who have experience as senior appellate court judges in other common law jurisdictions, such as England and Australia.A recurring trend has been the increasing �professionalisation' of not only the judges, but for each legal specialist group. Strengthening the skills and the independence of their lawyers, attorneys, prosecutors and other personnel has been high on reform priorities. All nations now require (or it happens in practice) their legal professionals to have a university degree in law with an additional requirement of supervised practical experience, articles or an equivalent course in the common law systems, or in civil law countries the passing of a government- standardised Bar exam and specialisedjudicial, attorney or prosecutorial training at a designated institute. Professionalisation also extends to religious courts, as is seen in Brunei's recent requirements for its Syariah lawyers, prosecutors and judges in the Syariah Courts. Their education, training and appointment criteria have departed from the traditional Syariah requirements to now mirror more closely those required in the secular common law courts. Related to this has been China's reforms allowing its lawyers to serve the society, to safeguard social fairness and justice and the lawful rights of their clients, rather than merely advancing state interests, which has also led to the privatisation of the legal profession and the growth of private law firms.
A further trend has been the role of comparative analysis leading to selective borrowing from other jurisdictions, which is based on a belief that approaches or methods employed in other jurisdictions can be transferred to address a perÂceived problem or weakness. In order to address elitism and access to justice issues in the Japanese and Korean legal systems, a model to broaden the memÂbership of the legal professional ranks was sought and both countries turned to the American model of a broad first degree followed by targeted professional postgraduate school training in law. In line with this, the number of candidates allowed to pass Bar or admission examinations was increased, thus opening the legal profession to a greater number of people than ever before. Also, to address concerns in the administration of criminal justice, evidenced by very high conÂviction rates, Japan and Korea were led by comparative research to consider the common law institution of the jury. Subsequently, both have introduced juries (in nationally modified ways). It is interesting because this is counter to what has occurred in other Asian common law countries where juries are no longer used, for example in Brunei, Malaysia and Singapore. Only Hong Kong still has juries in its criminal courts. Other nations, including Vietnam, have a role for lay participants, assessors, who in Vietnam are elected by the local People's Council for terms of five years.
While there has been an importing of some features from other jurisdictions, there has also been a strengthening of local or national identity in the legal professions, especially in the common law countries. At the same time, globÂalisation and internationalisation of law have seen an increasing impact and influence from foreign lawyers and overseas law firms wishing to gain entry into the domestic legal service market. How a nation recognises foreign qualifications and the legal services that can be offered by foreign practitioners varies across the region.
Several authors explore the social standing or prestige of members of their legal profession as a concern because it mitigates against public confidence and trust, as in the Philippines, and in some respects in Korea. Legal education is seen in some countries, including the Philippines and Vietnam, as reliant on outdated teaching modes lacking in critical thinking and thus failing to prepare graduates for realities of practice, rapidly changing law and an increasingly globalised world.
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