Raising the Bar (Part III)

Tomorrow marks the fourth and last Sunday of the 2009 bar examinations. Out of the 6,080 hopefuls who started, 5,904 are left sitting.

Two columns ago, I had commented that the exams in Political Law and Labor Law were generally perceived as fair and reasonable. I then aired the hope that the subsequent subjects would exhibit similar characteristics. Well, my hopes were dashed as examinees complained about not only the length but also the type of questions asked in Civil Law, Taxation, Commercial Law, and Criminal Law.

Now, every barrister will pray that the examiners will be kind in checking the papers. My plea to the examiners is to assess a barrister’s performance not solely on the correctness of the answer but primarily on the ability to think and reason like a lawyer. After all, in the real world, lawyers practice their profession with their books open.

The subjects in tomorrow’s exam are Remedial Law and Legal Ethics and Practical Exercises. The former has a weight of 20% of the total grade while the latter constitutes 5%.

Remedial Law covers the rules of court or the procedures a lawyer has to observe before, during and after trial. The main topics include civil procedure, criminal procedure, special proceedings and the rules on evidence. You will note that Remedial Law is given the most weight in the bar exams and Legal Ethics the least. This is probably due to the fact that when the bar exams started in the early 1900s, the practice of law was equated to appearing in court. Furthermore, lawyers during that era possessed old fashioned values and were more naturally ethical.

Well such is not the case anymore. A majority of lawyers practice their craft outside rather than inside the courtroom. And because of corruption and delay in our justice system, the legal profession no longer enjoys the same high esteem that it used to. Perhaps we should switch the weight and give more importance to Legal Ethics. My four centavos is for the Supreme Court not only to review the process on how a law student becomes a lawyer but also re-allocate the weight of the subjects covered by the examinations.

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Let me share two interesting reactions to earlier columns. Marlon Carpo of California asks: “Why can’t the Supreme Court keep the passing grade at 75%? Isn’t it unfair to those who took the bar and did not make it because at the time they took it, you needed to have a 75% grade? Why should the Supreme Court be concerned with the number of takers who didn’t make it that it has to lower the bar so that more can pass? You raise a good point Marlon and I promise to pass on your comment to Supreme Court spokesman Midas Marquez.

Marlon adds: “I read the requirements for admission to the California bar which only requires one to pass an entrance test for a Law School, then you can either have formal studies, attend a correspondence or online school, study under a judge or lawyer and presto you can sit for the bar exams. It seems that the Philippine Supreme Court only believes that the only way to study law is to go to school.” Food for thought for the Supreme Court Committee on Legal Education and Bar Matters headed by 2009 Bar Chairman, Justice Ed Nachura.

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Former MAP President Evelyn Singson writes: “My daughter is on her second year at Northwestern University Law School after finishing her undergraduate degree at Stanford University. Can she take the Philippine Bar after completing her US law degree?” As I briefly discussed in an earlier column, the answer is currently in the negative. As to the reason behind the rule, to be honest, I am not sure.

Evelyn further asks: “Is there a chance my daughter can be a lawyer in the Philippines? Do you think that the practice of law in the country will open up to Filipinos who obtained their law education abroad?” I sure hope so because I believe that your daughter together with other similarly educated Filipinos will enrich the practice of law in the country. Bianca Y. Locsin, a Yale JD graduate who worked with an international law firm in New York and Australia, is in the same boat. My suggestion is that your daughter formally write to the Supreme Court and seek the overturning of the rule. I suggest that she write now as the Court will usually consult with other sectors before it will initiate any changes.

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This week’s four centavos go to the International Association of Constitutional Law led by Dean Amado Valdez, for holding a forum on whether a former President can run again for the Presidency. The debate focused on the interpretation of Article VII, Section 4 of the Constitution which states: “The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.”

Arguing for eligibility, Dean Pacifico Agabin pointed to the use of the article “the” before “President”, saying this implied that the phrase refers only to the incumbent president. Moreover, he uses the four-year threshold found in the second sentence as basis to argue that since President Erap served for only three years, then he is not barred from running again.

On the other hand, lawyer Romulo Macalintal argued for ineligibility stating that the operative phrase is “any re-election” which means that any President, sitting or otherwise, is barred from seeking the same position at any time. Aside from citing Constitutional Commission members Joaquin Bernas and Christian Monsod who both believe that former Presidents are no longer qualified to run, Macalintal also pointed out that since Estrada was considered to have resigned his office, he is deemed to have completed full term.

In due time, this column will provide its four centavos on the issue.

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 “20 years from now, you will be more disappointed by the things you didn’t do than by the ones you did do.” — Mark Twain

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