Raising the bar (Part 1)

Tomorrow marks the first of four Sundays of the bar examinations. This year, 6,080 legal gladiators will troop to DLSU’s Taft campus, the site of the annual ritual since 1995, as they seek to prove to themselves and to the world that they have what it takes to become members of the legal profession. 

For the uninitiated, let me provide a basic backgrounder on the bar. Only a graduate of a four-year Bachelor of Laws or Juris Doctor course can sit for the examinations. Of course, this is on top of the four-year Bachelor of Science or Arts degree that is a prerequisite before one can enter law school.

Pursuant to the Constitutional command to “promulgate rules concerning . . . the admission to the practice of law”, the Supreme Court administers the examination through one of its justices who serves as chairman and the Office of the Bar Confidante. The 2009 chair is Justice Antonio Eduardo Nachura, a political law guru and former law school dean while the current Bar Confidante is Atty. Cristina Layusa. The chair chooses the examiners for the eight bar subjects – Political Law, Labor Law, Civil Law, Taxation Law, Mercantile Law, Criminal Law, Remedial Law and Legal Ethics and Practical Exercises. An innovation introduced for this year’s examinations is to appoint two examiners for each subject. This move should improve the accuracy and speed of checking the booklets. By the way, the identity of the examinees’ booklets as well as the examiners are kept under wraps until the results are released.   

 The exams are held during the first four Sundays of September from 8 a.m. to 12 noon; and 2 to 5 p.m. To pass, a candidate must obtain a general weighted average of at least 75% and with no grade in any subject falling below 50%. Not meeting any of these requirements would mean that the candidate would have to take the entire exam all over again. However, in years when an examination was extra difficult or an examiner was particularly strict, the Supreme Court has lowered the average passing score. For example, the average in last year’s examinations was brought down by the Court to 72.5%. By doing so, the total number who passed rose from around 9% to over 20%.

Before, a candidate could take the bar ad infinitum. The record was held by a candidate who took the examination 25 times. However, in 2004, the Supreme Court promulgated Bar Matter No. 1161 which makes aspiring lawyers ineligible to take the bar exams after they have failed it five times. In connection with this rule, a person who has flunked the bar three times is required to undergo a one year refresher course before being qualified for a fourth attempt and still another refresher in case he wants to mount a 5th and final try. Last August 24, Mr. Feliciano Olivares, a six-time bar hopeful, announced that he would be filing a petition with the Court to overturn the five-failure rule. Saying that it is his childhood dream to become a lawyer, Olivarez argues that he has a constitutional right to become one.

Perhaps, he should read the case of Department of Education vs. San Diego (180 SCRA 533) where a medical student similarly challenged the constitutionality of the National Medical Admission Test’s three-flunk rule (note that bar hopefuls are given more leeway than medical wannabees and baseball players). Distinguishing between a person’s right to aspire to become a doctor and the right to actually become one, the Court reasoned that it is part of the police power of the State and its role as parens patriae to properly regulate professions imbued with the public interest. Unfortunately, this is a situation where hope does not spring eternal.

But Mr. Olivarez raises another point which the Court should seriously reflect upon. He queries whether the bar exam is a fair instrument to gauge a law graduate’s aptitude to practice law. Can it truly separate the chaff from the grain — the legal eagle from the illegal misfit?

My four centavos is for legal education to veer away from emphasizing the formal classroom setting and move towards more clinical legal training. Perhaps we should modify our US style bar exam and focus on the English common law practice of requiring legal clerkship before a student can be admitted to the Bar. For just like other professional disciplines, real learning is achieved by giving students as many opportunities to get their “hands dirty” in the legal workplace. And if I may paraphrase Justice Oliver Wendell Holmes, the life of the law is not in the law books but in the apprenticeship programs. I will tackle other proposals regarding bar reforms in next week’s column.

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Hats off to Mar: For his act of political humility and magnanimity, this week’s four centavos go to Senator Mar Roxas. He displayed humility when he gave up his presidential ambition to give in to the larger cause of party unity. Without a doubt, Senator Mar has the right bio-data — a three-term stint at the House of Representatives and a six-year term at the Senate coupled with handling the Trade and Industry portfolio under two Presidents – the right blend of legislative and executive experience needed for the presidency. Yet, he sensed that the country was looking for something more which perhaps only Senator Noy Aquino can provide at the moment. He showed magnanimity by “doing an Abraham” and offering what he had tirelessly worked for the greater dream of genuine political reform. For unlike others who are merely posturing and testing the waters, real time, effort and money was invested in his campaign. With his move, Senator Mar has raised the bar of expected political behavior. 

While Senator Mar has risen to the occasion it remains to be seen whether Senator Noy will step up to the plate. In his eulogy for Ted Kennedy, Connecticut Senator Chris Dodd said that “Some people born with a famous name live off it. Others add on and enrich them.” This is their birthright that presents both a blessing and a challenge. 

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 “A poem should not Mean, But Be.” — Archibald Macleish

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