Lawyering in RP

Passion For Reason : Bar exam reforms: Finding meaning in ritual

Raul Pangalangan
Inquirer News Service

FOREIGN scholars and diplomats have asked me recently: How come Filipinos love to talk like lawyers? It is bad enough that legalese is itself bad English, but they wonder why ordinary citizens, entitled to the "sovereign prerogative of choice," prefer to be shackled in the technical language of the law even when they ponder fundamental moral or political questions.

There is actually a universal explanation: the "layman's fascination with technicality," and it's not limited to law. You visit your doctor, and what used to be a simple "puwing" [dust particle] in your eye is suddenly a "corneal abrasion"; a fraternity neophyte's "paso" [skin burn], suddenly "hematoma"; you get an A-OK in your annual medical, and you say the test results were "unremarkable."

There is a vintage Three Stooges scene. Their jalopy conks out in the middle of the desert, and Larry turns to Moe and says: "I thought you said you could fix this car?" Moe replies: "Sure, I'm an expert. If the distributor doesn't distribute and the differential is different, this car will not run!"

But there is also a uniquely Filipino explanation: the traditional hegemony of lawyers in our public life. Just list the former presidents: Manuel Quezon, Sergio Osmeña, Jose Laurel, Manuel Roxas, Eldipio Quirino, Carlos Garcia, Ferdinand Marcos. The nation has turned to law as a "secular religion" because, bereft of a national consensus on much else, for us the law embodies the only provable agreement on how and when government can step into our lives, what Holmes called the "incidence of the public force."

The high priests of that creed are the lawyers, and we select the guardians of the faith through the annual ritual known as the bar examinations. On each of the four Sundays in September, we reenact this rite of passage. This Sunday, 5,758 candidates are expected to take the bar examinations at the De La Salle University's Taft campus, and of these only 20 to 30 percent are expected to pass.

The Constitution gives the Supreme Court the sole power to admit lawyers into the profession. Each year, the Court designates one of its justices to chair the bar exam committee, and he then appoints a bar examiner for each of the eight subjects in the exam. The examiners submit their draft questions to him, and tradition has it that he makes the final call on which questions will be asked. This year, Justice Romeo J. Callejo Sr. chairs the committee of examiners.

The exam is the sole device for quality control for aspiring lawyers. The Court effectively tells the law schools what courses to offer, what laws to teach, what skills to develop among their students.

For example, when the Court's Study Group on Bar Examination Reform proposed to drop Taxation as a bar subject, it was feared that law schools would no longer teach the subject. When I served as a bar examiner in Political Law many years back, I was given strict instructions: Do not ask questions requiring rote-memory. Do not ask for enumerations and definitions. Do not ask objective-type questions; ask essay-type, problem-based questions. Do not look only at the conclusion but give credit to analysis and reasoning. In shaping the bar exams, the Court also shapes the way the law schools will teach their students.

Yet the Study Group has found that the bar exams have also retarded legal education. "[P]aradoxically, the very existence of the examination has stymied in a significant manner legal education. Many if not most law schools have made of passing the Bar Examinations the principal, or even sole objective of legal education. This has without doubt impoverished legal education...."

Instead of training students to practice law and serve clients, schools train them in what American law schools deride as "bar law"-"short answer questions" based on a simplistic set of facts vastly out of touch with real-life problems that are rarely so neat and tidy.

I have elsewhere discussed the most radical reforms adopted by the Court in July 2004, based on a program drafted by Justice Vicente Mendoza, and to be implemented in the coming years. For the first time, the reforms focus on the sociology of the exams. Because of the historical fixation on the bar exams, the entire system is geared toward plugging all exam leakages and insulating the examiner from undue pressures. The examiner is solitary and ad hoc, his identity shrouded in secrecy until he grades all 5,000 exam booklets over five months. The Mendoza reforms will allow panels of examiners and checkers who can learn from one another, and will safeguard the integrity of the exams through the integrity of these people and scientific ways of grading.

Still, the Court has no choice but to tighten the exams because of laxity and grade inflation in our schools. It performs the winnowing-out function that many law schools have abdicated in exchange for higher enrollment or, characteristically Filipino, for the goodwill and misplaced thanks of undeserving students. They merely shift to the Court and its bar confidant the role of being the bad guy.

Historically, the 30-percent passing rate in the Philippine bar exams is not too low -- Korea's is 2 percent and Japan's 3-5 percent. But there are fundamental differences. Abroad, there are law-related jobs for those who don't make it, and they are not stigmatized. In the Philippines, even the 30 percent who pass may end up underemployed. Moreover, both Korea and Japan have begun reforming their bar examinations: Japan in particular now aims for a 25-percent passing rate and has created new law schools.

As I told our gladiators at the Taft Avenue collosseo, they who aspire to be "wise in their calling," remember the call: "Strength and honor. At the signal, unleash hell. What we do in life echoes in eternity."