Reforming the Bar and legal education

Yesterday, May 22, the country gained a few thousand more lawyers, nearly four thousand in fact. They were so many that their oath-taking had to held in the Arena of the Mall of Asia and not the usual venue in the Philippine International Convention Center. It remained of course a solemn occasion, the uttering the lawyer’s oath with the Chief Justice Maria Lourdes Sereno presiding in the special en banc session of the Supreme Court.

A few weeks ago, during the national convention of the Integrated Bar of the Philippines (IBP), the Chief Justice emphasized the importance of what the new lawyers did yesterday: “Taking our Oath seriously is the first step in understanding our role as lawyers in ensuring that the Rule of Law is maintained and impunity prevented. It tells us that, in the face of misinformation and confusion, we have a duty to always be candid and truthful not only to the courts but also to our clients and also to the public. It tells us that, in the face of clear and patent injustices, we have an affirmative duty to not turn a blind eye but to do what we can to help. It tells us that, in the midst of impunity and a rising tide of hopelessness about the rule of law, we are called to bring hope to our people.”

To bring hope to our people, lawyers must however be trained and formed well. They must be equipped with both technical skills and provided with practical ethical frameworks that will guide them to make good moral decisions in the face of complex situations and challenges.

Unfortunately, the bar exams and Philippine legal education (the latter is the outcome of the former) do not prepare future lawyers for the needs of the country. It does not give them tools to navigate the post-millenium era and the dilemmas it brings.

2016 was a good year for bar takers. I unreservedly praise the Bar Committee Chair of the Supreme Court, Justice Presbitero Velasco, for the way he designed and conducted last year’s exams. He coordinated with the Deans of the country’s law schools, listened to their concerns, gave comfort and assurances to the takers (going room to room and extending exam hours), and most important of all guided the examiners he personally chose to be reasonable in the way the latter checked the exams.

Justice Velasco’s stewardship of the bar exams is best practice. It should be emulated.

Unfortunately, there is no guarantee that 2017 and future years will be the same as the 2016 bar exams. As in the past, it will be in the end be up to the Chair of the Bar Committee. 2016 could start a trend or maybe not. It might even be the case that future Chairs would feel that with so many new lawyers admitted yesterday, the country might benefit from low passing rates for the next few years.

This would be unfortunate, even harmful. Aside from being unjust to future bar examinees, it would signal that the class of 2016 did not deserve their success. It would make passing the bar arbitrary, depending on the year you take it and who the Bar Chair is that year.

I recommend that the Supreme Court decide with finality the nature of the exam, determine the level of expertise needed to pass them, and establish some standard of reasonableness that binds future Chairs and the examiners they choose. I suggest that the best way is to do this is to decide what is the right passing percentage for any given year.

For me, it is time to transform the bar exams and make it nothing more than a licensure exam. In similar exams for different fields (engineering, medicine, CPA), the average passing rates every year range from 40 to 60 percent. Most graduates of the good schools pass licensure exams and only the worst performers in those schools or those who graduate from diploma mills fail.

 The bar exams should be limited to the basic subjects all lawyers must know adequately – Political law, Civil Law (that may include some commercial law like the Corporation Code which can substitute such of the more archaic Civil Law subjects), Criminal Law, and Remedial Law (including Legal Ethics and Legal Forms). There is no justification for including Labor Law and Tax Law and most Commercial Law subjects that are highly specialized.

The bar exams should be regionalized, initially in one additional exam venue each in Luzon, Visayas, and Mindanao but eventually aiming for even more regional venues. The current system penalize the provincial takers not just in the high costs of coming over to Manila for a month during the exams but by depriving them of their usual family and other support systems. This year, the best provincial schools did well; if exams are regionalized, they will do even better.

Reforming the bar exams can hopefully lead to the radical transformation of legal education. Currently, law schools and law professors teach according to the demands of the bar exams as currently designed and conducted. Freed from its strictures, law schools can be more innovative in their curriculums, including offering more electives Among others, non-law subjects should be offered and students could be offered specialized tracks. We must also teach more international law subjects as well as expose future lawyers to new technologies and the challenges they bring. In addition, creative teaching methods could be employed to ensure better learning such as extensive use of moot courts and negotiation exercises.

A personal bias for me is for law schools to produce more human rights and alternative lawyers. Society needs such lawyers so much with human rights and social injustice so rampant. I hope such lawyers eventually ascend to positions of power and responsibility in our country. Happily, we do have the examples of Vice-President Leni Robredo, who worked for years in Saligan, and Supreme Court Justice Marvic Leonen, my fellow co-founder of Legal Rights and Natural Resources Center, of alternative law colleagues who have done well and doing good for the country.

Finally, legal education must include moral formation. For this, I quote again from Chief Justice Sereno’s IBP speech when she shared a tool that that has helped her live out the lawyer’s oath: “It is a tool from the words of St. Paul, a refocusing of the mind to look at the horizon of hope, and the posterity that is before us. He says: Finally, brothers and sisters, whatever is true, whatever is honorable, whatever is right, whatever is pure, whatever is lovely, whatever is of good repute, if there is any excellence and if anything worthy of praise, dwell on these things.”

Legal education must refocus the mind – to look at the horizon of hope and posterity. The ordinary bar subjects will not do that. The usual so-called, bastardized way law professors use the Socratic method will result in the opposite outcome. To get there, the exams must be changed and with it the old ways of teaching the law.

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