Barring dreams

On Wednesday, April 24, the 949 survivors of the 2012 Bar examinations will be taking their oath of office before the Supreme Court of the Philippines. These soon-to-be lawyers, their relatives, and loved ones will be happy campers. Meanwhile, the unfortunate 4,394 who did not pass will be slaving away and reviewing again for the next few months in the hope that 2013’s Bar examination committee will be “kinder and gentler” in marking their test booklets.

This leads me to the four centavos I wish to make in this week’s column: While the Supreme Court possesses the constitutional prerogative to determine how the Bar exams are conducted, what kind of questions will be asked, and how many examinees will eventually be entered into the roll of attorneys, such prerogative should not be exercised in a “capricious, whimsical or arbitrary” manner. Otherwise stated, the conduct, content and checking of the Bar exams should be fair and reasonable, and must coincide with the tenets of due process.

The Bar exam is administered by the Supreme Court through the Bar Examination Committee composed of a sitting Justice as chairman and examiners for the eight bar subjects. The Committee determines the level of difficulty of the Bar exam both in terms of questions asked and the manner of checking. Compare the passing rate of the 2012 Bar exam (17.76% although the original figure was supposedly a single digit) to that of the previous year (31.95%). 2012 produced 949 lawyers while the year before, more than double that number (1,913) passed. So what accounts for the difference since both 2011 and 2012 employed the same 60% MCQ – 40% essay format? Was 2011’s high success rate — the highest since 2001 — the result of a new system being test-run for the first time? Were the 2012 questions exponentially more difficult than those in 2011, or were the latter just better calibrated? Was batch 2011 smarter or better prepared than their 2012 counterparts, or did the disparity simply result from strictness or leniency of checking?

Consider the figures below:

A few inferences may be drawn from this table: first, average passing percentages range between 20-25%; second, that — for the most part — whenever there is a significant dip or spike there is usually a correction one or two years down the road (one year after a spike, two years after a dip). 1999 corrected 1998’s spike, 2001 corrected 1999’s dip, 2002 corrected 2001’s spike, and 2004 corrected 2002’s dip. Finally, 2012’s dip came only a year after 2011’s spike. If this pattern holds true, this should be welcome news to those preparing for the 2013 exams.

These seesaw figures have been compared to stock market numbers, though examinees liken it more to a nightmarish roller coaster ride. This does not bode well for a profession that prides itself for protecting against arbitrary practices and pursuing the principles of fair play. Indeed, if the Committee is equipped with wide discretion as to the types and difficulty of questions asked or in the manner of checking, query if its potential abuse does not raise due process issues as examinees become less the masters of their fate and more the lackeys of Lady Luck?

Furthermore, law schools and students thought that the High Court had finally made up its mind when it issued Bar Matter No. 2265 in 2011 which directed the integration of MCQs into the Bar exam. This document states, among others, that, “because of the enormous growth of laws and doctrines, it has been noted that such [essay-type] examinations are unable to hit a significant cross-section of the subject matter. Further, the huge number of candidates taking the examinations annually and the limited time available for correcting the answers make fair correction of purely essay-type examinations difficult to attain. Besides, the use of multiple choice questions, properly and carefully constructed, is a method of choice for qualifying professionals all over the world because of its proven reliability and facility of correction.” However, despite this clear pronouncement, the Court is changing course again since the 2013 Bar exams will consist of 80% essay and only 20% MCQs. Given the flip-flops and mixed signals, it’s no wonder law schools and students are on edge. 

In the formulation of the Bar exam, one should not lose sight of the purpose of such an exam to begin with. A professional licensure exam is designed to test the skills and knowledge expected of a first year lawyer. It shouldn’t presuppose great expertise — those come with years of practice — but rather it should aim to test if one is prepared to handle the tasks expected of a fledgling in the craft. Exam questions should be scrutinized under this light.

In my opinion, the Bar should be difficult but not unfair. Questions should not be asked on matters a student is not expected to know. A better result may be achieved by making questions which are “easier” or at least commensurate to what is expected of a first year lawyer and then setting the passing average higher. Another alternative is to set a predetermined number (e.g. top 20%) of those who take should pass. Another option is to maintain an MCQ pool, so that every exam could be standardized with a set number of easy, intermediate, and hard questions.

In any case, when one fails an exam not through lack of preparation or any similar fault, but through the arbitrariness of the questioning or checking, it is the exam that fails, and not the student. Indeed, what we need is an exam that enables, rather than bars dreams.

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Greetings: Birth anniversary greetings to 2009 MBA-JD gold medalist and exceptional Romulo Law associate Antoinette Quiogue.

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“No person has the right to rain on your dreams.”

                                            -Martin Luther King Jr.

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