The Bar exams and bar ops

by Fr. Ranhilio Callangan Aquino

I never sat for the Philippine Bar. My doctorate degree in jurisprudence was not meant to allow
me membership in the Philippine Bar. I am a member of the International Criminal Bar, but that
is quite a different thing. I have had very close encounters, however, with the Bar Examinations
in the country. I have taught law for close to fifteen years now and have been part of the frenzied
and frenetic preparation of law students for the moment of their livesthe four grueling
Sundays of the Bar Examinations. When the Supreme Court assigned Justice Ameurfina
Melencio Herrera to chair a committee that would look into reforms in the examinations, she took
me in as a consultant. Earlier, the UP Law Center constituted a committee that included the
esteemed Prof. Merlyn Magallona, Prof. Myrna Feliciano, Prof. Marvic Leonen, present Dean of
its College of Law, Dr. Mona Valisno and me, representing the Philippine Judicial Academy. Both
bodies endorsed to the High Court voluminous proposals.

The nature of the Bar Examination is itself already a problem. Is it meant to test what the student
learned in law school? Is it designed to determine her preparedness for the practice of law? Or,
what might very well be possible, is it calculated to limit the number of those admitted to the Bar?
The supposed difficulty of the examination arises from ambivalence already on this score. Some
examiners flaunt their expertise by asking for answers Supreme Court justices themselves might
not agree on. Others think that the examinee must be able to recite provisions of the codeslike
many priests recite the canon of the Massthoughtlessly and from rote. Still others think they
should keep to the basics. Obviously if all were in agreement about what the examinations are
for, there would be singularity of purpose and coherence in the formulation of questions. What
reason is there for many law studentsencouraged by their law schoolsto take up quarters in
expensive hotels before the examinations? The most frequent excuse one gets is that they are
on the look out for tips. No, these are not leaks (although there have been leaks in the past!).
They are conjectures about what questions might be asked, off-the-cuff remarks made by a
rumored examiner passed from one anxious student to the other, each contributing his own
embellishment. For me the whole exercise is just pathetictotally bereft of the qualities of
scholarship that should mark a profession with such a glorious heritage. The scholarly Justice
Vic Mendoza did a remarkably thorough study and produced some revolutionary suggestions.
Most have remained suggestions.

I maintain a very simple proposition: the Bar Examinations should be a test of scholarship in the
law. If that position is accepted, then the present trend that puts a premium on how-to
questionsHow do you determine who of the five creditors enjoys priority?, How do you
distribute property dividends in a corporation? How do you deal with a claim of limited liability of
the part of the ship-owner when he delegated the selection of crew and ship-captain to
another?would give way to more scholarly questions. From the stark contrast between the
treatises written by European jurists and the usual textbooks a law student lugs to school each
day, one does not fail to miss the point. In comparison to legal education in Europe, ours in the
Philippines is closer to trade-school education. (Not that there is anything demeaning about
trade-schools, only that lawyers are not supposed to be graduates to trade-schools!)

One Spanish commentator, Luis Diez-Picazo, deals with obligations and contracts in two
volumes. The first volume is given to a thorough analysis of the theory of contracts and is in fact
a philosophical treatise. Is it the human will that accounts for the binding character of contracts,
or is it perhaps morality? The typical reaction of the average Filipino law professor will be a
dismissive Too theoretical! because we have convinced ourselves that worthwhile legal
education is the skills-training of the craftsman. And the law student is afflicted by a similar
intellectual lethargy: the distaste for truly philosophical analysis and the passion for the minutiae
of codal and statutory provisions. In several respects that is because of the notion that the
fulfillment of the lawyer is appearing in court in representation of clients. It is this emaciated
concept of the lawyers profession that has led to the qualitative impoverishment of the Bar
Examination. Obviously, if the whole point is to test the examinees preparedness for the
courtroom, then the test you must give must be nothing short of casuistry, that decadent form of
instruction and examination that produced tomes in moral theology that read more like
pornographyin their detailed examination of the varied forms of sexual offensesthan
thoughtful and systematic treatises. We do not need too many lawyers going to court. In fact, the
less all of us go to court, the better. That is what the earnest efforts at mediation and at
strengthening barangay conciliation suggest. We school lawyers to write wise and just laws, to
run profitable but socially responsible and ethical business, to lead the community in the varied
ways that wise leadership is called for, to educate not only future lawyers but responsible
citizens. Unfortunately many who teach in law school have made their fortune from lawyering in
actions for collection of sums of money, prosecuting B.P. 22 cases, participating in the benefits
of partition that they have ingrained in their students the truly disturbing notion of the fulfillment
of legal practiceby which they mean appearing in court for the day-to-day fare of run-of-the-
mill cases!

All law rests on a concept of order because law is a fundamental form of nomizingthe act or
acts by which human persons order their lives and their world. What has gone awry with legal
education in the Philippines is consigning to oblivion the concept of order presupposed by law
and the lawsand making a lot of fuss of the fact-constellations that make applying the
provisions of law akin to solving a jigsaw puzzle. What concept of things, in relation to persons,
for example underlies the provisions of the civil code on property, and what has happened to this
concept in the light of our recognition of the rights of indigenous peoples and cultural
communities, as well as the demands of social justice somehow reflected in such social
legislation as agrarian reform? Should inquiries of this sort not merit as much, if not more
attention, than all the time spent on mastering the procedure as well as the complications that
may arise out of ejectment or reinvindicatory actions?

And why this whole carnival atmosphere at the beginning of the Bar Examination? The whole
thing is childish. There are no brass bands, cheer-leaders and pom-pom dancers when a
graduate student enters the chamber where he is to defend his doctoral dissertation. The
exercise is thoroughly academic (at least in those graduate schools that have sufficient respect
for themselves). Why cannot the Bar Examinations be a little more dignified? My parents took
the Bar Examinationsor so they have told mewithout bar-ops, those noisy, expensive and
competitive affairs that pampering the examinees have becomeand they turned out to be good,
Godly and scholarly lawyers. One big favor the Supreme Court could do us all is outlawing Bar
Ops and restoring dignityand sanityto the conduct of the Bar Examinations.