To Tinker Or Not To Tinker

Senator Miriam Defensor-Santiago’s latest public soliloquy is just about timely, but not encouraging to many of her fellow lawyerly tribesmen and tribeswomen.

The ever vocal lady of the Senate may have on Saturday morning awaken to the blaring news that the bar examination results were finally out and the usual cacophony of noises and ruminations about it (like the who’s who in the top spot, and if what school lords over the rest) may have perhaps earned her now-famous ire that she decided to banish this thing called “bar examinations.”

You heard it right, the lady wants the bar examinations abolished because according to her, “passing the bar is just a matter of chance and luck” and that it is only “one of the index of legal competence”. It felt a little bizarre to hear those highly undermining comments from one who topped the bar herself. But since she is such a famous legal mind, maybe there is more to her nitpicking than meets the eye.

The call for the abolition of the annual bar examination is not already new to us and is in fact a recurrent issue for many years now. For one, there was this one infamous legal case known as “The Bar Flunkers’ Suit” where a group of unsuccessful bar examinees petitioned the Supreme Court to entirely set aside the bar and declare every law graduate fit to practice law, reasoning out among others that in other countries like Indonesia, the law graduate need not pass any further examination in order to be called a lawyer. Of course, the suit did not prosper otherwise we would not be talking of these things at this time.

In her disembowelment of the bar, Senator Santiago cited a study made by the former dean of the U.P. College of Law Merlin Magallona and lawyer Manuel Flores Bonifacio where it was put forward that many in the legal profession feel that the bar examinations is never the true test of one’s competency to practice law primarily because “it is merely a test of memory” and not of the reasoning prowess of the aspirants and that “it does not guarantee a successful legal practice”. I can perhaps agree that at a certain point, the bar examinations given by the Supreme Court every September of the year merely test the law students’ ability to memorize and enumerate hundreds of legal provisions but it would seem to be a little silly to expect the bar to be a guarantee for a successful legal practice because it will never be. Just like there is no guarantee that a guy with a great singing voice will be successful one day in a showbiz career. There’s no finality to any success---and as in a cliché, there is no shortcut to it. You may be a virtuoso violinist but with a very bad attitude, you won’t even get near to watching an orchestra play, much less to be playing in it. We all know that a good legal practice is dependent on some other factors like an amiable personality, a great conversational skill and good contacts in the community among others. Yet, a lawyer may still be competent as a lawyer although he may not be successful in practice. Just like when a doctor may still be a good doctor although he may have ended miserably poor for not having had a profitable clinic, where he merely poured all his time and effort in a small rural hospital.

Now, despite my disagreement to the idea that the bar examinations should always be a “guarantee” to a successful legal practice, it is not easy to debunked this recent call for the abolishment of the bar especially when Senator Santiago clearly made real sense when she propositioned that another test similar to the National Medical Admission Test (NMAT) that is given to medical students in our country, would be applied instead along with an internship program that could hone the legal competence of law students in the “real world” even while they are still in law school. Clearly, these particular suggestions may just improve our legal profession and I say, this issue should be given the proper attention by our Congress.

In the end, to tinker with the bar examination is to tinker with a long-held tradition (which may not be necessarily good for us) that would not go away as easily and not without grave repercussions. The problem with scrapping the bar examinations is that it would greatly undermine the quality of lawyers in our midst and the whole legal profession for that matter. If they think that the bar examinations is not the right litmus test to determine who should or should not become lawyers, then they should think of another one in a jiffy; and in fact, one that should test the discipline of the law student all the more where aside from the written examinations, oral examinations should also be instituted to test the conversational skill of the aspirants as well as their reasoning prowess along with actual field trainings and seminars. That may seem to have just complicated the situation all the more but hey, we really have no choice here. Let us remember that lawyers are particularly involved in the defense of very salient things, like the protection of rights and properties of a person, as well as the threatened liberties of an accused in a criminal case, and may at some extent be protecting the very life of an individual---just like doctors do. Surely you wouldn’t want to put any man’s life in the hands of one who is of doubtful competence. Not to any half-baked lawyer or to any half-baked doctor.

What I see best in the this situation is a sort of compromise where the Rules of Court set by the Supreme Court may be amended a little to allow underbar law graduates (upon the onset of certain conditions like the gaining of sufficient training through seminars and workshops that are strictly administered by the Supreme Court) to serve our courts in some legal concerns like prosecution as fiscal assistants and if possible as judicial assistants in matters of case dispositions. This way, the problem on the humongous case backlog of the courts may be hastened. The slow and turtle pace processing of cases by our courts is mainly blamed to the lack of lawyers willing to serve in low-paying court positions. If we could in some way allow underbar law graduates to serve in our courts, this particular problem may be given the right solution without undermining the quality and credibility of our legal practitioners.

Flooding our society with lawyers---by allowing just about every underbar law graduate to practice law in general---would do us more harm than good and it may even kill the practice of law in our country. We may have access to cheaper lawyers, but justice on our shores will be all the more be flawed and unreliable if the legal profession would be mostly left unregulated. For certain, Senator Santiago hasn’t been contemplating this kind of situation to happen but it helps to point out the dire consequences if we are to tinker with tradition without the proper weighing of the benefits as against the harm.

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