Still, the bar

The general consensus among law professors and students seems to be that the First Sunday bar exams in Political and International Law, and Labor Law and Social Legislation, were fair but long. As a teacher of Constitutional law, I can only meaningfully comment in respect of the first exam. To my mind, the multiple choice questions (MCQs) were “too fair” to the point that a substantial number were give-aways. The essay portion was more challenging but mirrored many of the topics taken up in the MCQ part. For the barristers who encountered difficulties or did not finish the exams, take comfort in the fact that you are not alone and that alternative answers will be suggested by the legal experts on the subject.

Moving forward, may I add my unsolicited four centavos to this continuing legal saga. Carefully crafted MCQs are supposed to measure three competencies: a) knowledge and recall (which are the most basic); b) understanding; and c) analysis and solution. In his column yesterday, Dean Raul Pangalangan points out that 93 out of the 100 MCQs were of the first type. Indeed, for this system to work, the pre-testing of questions is essential as this will enable the examiner to 1) approximate the reasonable time needed by a candidate to finish the exam; 2) edit or remove ambiguous/extremely easy or difficult questions and see to it that there will be a more equal distribution among light, moderate and difficult MCQs; and 3) ensure there is no undue concentration on any topic so that more areas of the pertinent subject can be covered.

Again being debated is the breakdown as to the types of questions. Currently, there is a proposal to change the current 60% MCQs, 40% Essay to 20% MCQs, 80% Essay. While, the various stakeholders are still being consulted on this proposed change, I am of the view that the move to return to a predominantly essay-based exam is a step in the wrong direction. I argue on the basis of the following reasons: a) MCQs are the preferred testing format by most, if not all, professional disciplines and have achieved worldwide acceptance and acclaim; b) when administered properly, MCQs provide a reliable and efficient gauge of a candidate’s competence and aptitude; and c) stability is one of the cornerstones of a functioning legal examination or admissions system and it is not healthy if we keep on charging the exam format.  

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Another bar matter: Reacting to last week’s column, regular reader Remberto Maclang eloquently queried:

“I’ve often wondered why the professional admission test for would-be lawyers is called the Bar exams while the one for the rest of the professions is referred to as the Board exams. Could it be that it was an exercise of hubris or self-service on the part of the lawmakers, since most of them are lawyers, and they wanted to satisfy their monumental ego by being unique? Or it was so named because after passing it, most successful barristers took it to mean “closing the bar” by becoming too inebriated that they soon forgot the ethical reason of their calling as expressed in their lawyers’ oath. Or they simply associated it with “crossing the bar”, which accounts for the proliferation of dead-wood attorneys. These two types of lawyers, that unfortunately dominate the law profession in our country today, have their evolution thus: from law student to law graduate to barrister to lawyer and then to, heaven knows what, inglorious bastards!”

Intrigued by his query, particularly the difference in nomenclature, I conducted a quick internet research and found that the term “bar” originated from England in the days when there used to be an actual bar that separated the legal practitioners from the rest of the assembled crowd. Anyone appearing was called to the bar for recognition to pass and address the court, thus the term barrister. While a solicitor is authorized to do research and prepare pleadings, they cannot argue cases in court. The “bar” exam is a throwback to that tradition in that “passing the bar” means that one has proven himself skilled and worthy enough to begin the practice of law and, consequently, to “pass the bar” into the company of the other legal practitioners.

A desire to break from British class rigidity and a shortage of qualified representation prevented the development of this distinction between solicitor and barrister in the United States. This thinking was then imported into our shores when the Americans displaced the Spaniards as our colonizers.

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Bail matter: Whenever I hear or read a news report about a crime that is “non-bailable” (e.g., plunder), I cringe. My reaction stems from the legal reality that there is no such thing as a “non-bailable” offense.

The first sentence of Article III, sec 13 of the 1987 Constitution provides that:

“All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.”

This in essence means that persons accused of any crime are in most instances entitled to bail as a matter of right. This principle not only honors an individual’s presumption of innocence but protects the right not to be punished unless guilt is proven and determined by a competent court. Thus, for a person to be denied bail, two requisites must concur: a) that a person is being charged with a crime being punishable by reclusion perpetua or life imprisonment; and b) the evidence of guilt is strong.

Hence, just because a person is charged with a heinous crime such as plunder does not automatically mean that such person cannot be admitted to bail. It simply means that for such person, bail is not a matter of right. So whenever you hear or read that a person has been charged with a “non-bailable” crime, gently correct them and say that bail can still be granted provided it can be preliminarily shown that the evidence of guilt is not strong.

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“Don’t let what you can’t do interfere with what you can do.” — John Wooden

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