Friday, March 9, 2012

Santiago's Bar Exam Result, UP Law Education, and the "Top Ten" Fetish


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Recently, Sen. Miriam Defensor-Santiago was target of various attacks on her supposedly arrogance towards Atty. Vitaliano Aguirre of the prosecution team during the Corona impeachment trial. If we have been monitoring news, we may have already heard that Aguirre was cited in contempt after covering his ears during a tirade by Sen. Santiago, which included calling the prosecution team "gago" (stupid) for withdrawing the five of the eight articles of impeachment. While criticized for its perceived non-stellar performance, the "gago" (stupid) comment hurled to the prosecution was deemed by many as uncalled for, which may seemed to have given Aguirre the moral reason to reciprocate. Knowing Filipino's behavior towards perceived arrogance, Santiago must have already expected to be admonished publicly, even if she is simply acting out her extreme intolerance to what she perceives as incompetence.

But what troubled me is the propaganda pic below circulating in Facebook, apparently designed as an offshoot of the release of the 2011 Bar Exam results. It capitalizes on the fact that Aguirre got a higher score than Santiago:

An attack against Sen. Santiago circulating in Facebook. The one above is
circulated by a certain Ma. Stella A. Vizmanos 
The argument of the propaganda pic suffers from many loopholes. For one, difficulty in bar exams varies across the years. Compare, for instance, the 2001 and 2002 bar exams passing rate: 32.89% and 19.68% respectively. But let us leave it at that and focus on the essence: I don't think we should be equating achievement with grades, in law and in any other field. It gives a false impression to lawyers (as well as other students) that getting a high mark in the bar (or in any other exam) makes you a good lawyer (or professional). For all that people rant on her bar grades, Miriam is a recognized international and constitutional law expert. Prior to becoming elected in the International Court of Justice (ICJ), she was in fact a legal officer of the United Nations High Commission on Refugees.

This fetish on Bar Exam results as a barometer for a lawyer puts into light another issue, that no student from the University of the Philippines College of Law was able to make it to top ten in the recent Bar Examinations Result.

No UP in Top Ten?

That UP, the country's premier university, failed to have one of its students reach the top ten in the bar surprised many, including UP itself (compelling them to have a meeting on the matter). This is when passing rate  (31.9% of 5,990 examinees) is the 2nd highest  this millennium (after 2001's 32.89%), supposedly due to reforms initiated by Corona. And this is when UP Law graduates consistently made it to the top ten: 4 in 2010, 2 in 2009 and 2008, 3 in 2007 and 2006. In 2005, UP law graduate Joan A. De Venecia even topped the bar.

UP College of Law Centennial Commemorative Stamp
Ironically, the release of the bar exam results facilitated by Corona himself coincided with UP students releasing a survey saying that Corona was no longer trusted by 74% of UP Diliman students. The survey irked Miriam, while Senate President Juan Ponce Enrile (who placed #11 in the 1953 bar exams and got a perfect score in mercantile law) wasted no time to twit UP students, telling them to spend their time studying, rather than surveying. This "suggestion" flies in the face of the fact that the passing rate of UP students in the in the notoriously difficult exam actually improved from 79% in 2010, to 94%.

UP Law may not have anyone in the top 10, but then again, UP students, from UP Law and elsewhere, are not trained to memorize stuff and ace exams reflecting other people's thinking. UP students are trained to think differently, critique, argue, and invent. UP law students in particular are more trained to be practice-oriented rather than bar-oriented, to be litigators and not just attorneys-at-law, and as such are required to spend time as interns at the UP's Office of Legal Aid (see "From Classroom to Courtroom: OLA bridges gap between theory and practice of law").

In fact, as testament to hands-on and litigation-oriented rather than exam-based training in UP, UP Law's applicant team defeated Ateneo's (which bagged this year's top spot) respondent team in the national rounds of the prestigious Philip C. Jessup International Law Moot Court Competition at the Supreme Court, giving them the opportunity to represent the country in the Washington DC International Rounds from March 25 to 31, 2012.

Proposal to Eliminate Ranking in Bar Exams

Some may ask then, what's the point of exams to begin with? Am I for the abolition of the bar exams? Of course not!

Before one becomes a lawyer, we have to require mastery of some of basic aspects of the law, enough to enable you to make valid legal arguments and to engage in legal reasoning. And this is what is measured by the exam - the mastery of the basic stuff. It does not measure if you will actually be able to make sophisticated (and competitive) legal arguments, or if you have a firm grasp of the political/economic context within which these legal arguments are made (and this requires exposure, experience). In this sense, whether you are a topnotcher or got a barely passing mark - if you have passed the bar, then it only means you learned enough to pass for a lawyer. Your grade doesn't automatically indicate future legal acumen. However, it doesn't stop you from learning more. It is possible for a "class goat" to know more about he law than the topnotcher through continuous study.

From Hope for the Flowers. Caterpillars pointlessly climb the "caterpillar pillar" which
emerged from the act of climbing itself.
Ultimately, being a good lawyer is a different thing. In fact, more than passing the bar, having the legal intuition is more important - and this is a function of IQ, wit, and experience. More so, law in itself is an evolving document which interpretation is subject to the prevailing political economic context. Not only are laws repealed or amended or appended all the time, even its interpretation is fluid. Just look at how Estrada's "constructive resignation" came out of nowhere - pushing lawyers such as Alan Paguia to openly disagree (the reason why he was not able to practice law for almost a decade). What lawyers might have answered in their bar exams might be incompatible to future interpretations. This legal realist view is espoused by former UP Law Dean Marvic Leonen himself, advancing the view that the even the constitution is a legal metanarrative that can have no permanent reading.

So what do we do? What we can do is to stop ranking bar exam passers. SC will still maintain its highly competitive passing rates, but should no longer announce the top 10 bar examinees. The examinees will receive letters in private containing their scores in each of the subjects and suggestions on how to improve. Together with reforms pushed by UP Law Dean Danilo Concepcion (specialized courses should no longer be included, the focus should be on the basic and litigation skill), other reforms that will engender new  methods of pedagogy, and an increasing emphasis on legal philosophy, the nature of the exams should gradually move from being competitive and doctrinal to collegial, collaborative, open, and scientific.

Eliminating ranking in the bar exams may contribute to producing more creative lawyers: lawyers who have not memorized and overstudied the current logic and letter of the law in order to pass an exam, but rather aimed to have a grasp of its essence in order to creatively interpret it according to her own principles. Lawyers will be licensed on the basis of their skill on argumentation and comprehension of the norms of society. 

On Ranking and Education

Ranking has a certain effect on one's psyche - not only does it impose hierarchy and imposes differences in relative confidence (people who are at the lower ranks may be persuaded that they will always perform less, and thus they do), it stifles paradigm-changing ideas from surfacing. For instance, the less legal education focus on bar exams which focuses on mainstream law, the more room we give to say, alternative law or development law.

The elimination of ranking in legal education goes against tradition and practice, but it is the way to the future - the 21st century post-enlightenment, post-factory-based education system.Our current system, designed to address to needs of mechanized industrialization, replicates all the elements of a factory system: testing and rejection criterion, ranking (through grades) and batching (year of graduation) for quality control, compartmentalizing for efficiency (dividing education in fields and disciplines), mass production (through huge tertiary schools), etc. In our post-industrial society that dismantles divisions between disciplines and recognizes the innate capacity of humans to learn and intuit, our method of legal education are slowly becoming obsolete.


Eliminating ranking in the education system may be too avant-garde for some, but more and more schools are doing so. Besides, more likely than not, it is the colleges and universities and not the students themselves which obsess over rankings, externalizing their obsessions to students through academic pressure and conforming their lessons to maximize passing rate.

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In this sense, Miriam, judged by some as obnoxious, arrogant, and incredible, is still a brilliant lawyer, in terms of her grasp of the law and the norms and behavior of the Filipino society (maybe including how to navigate and survive while going against it). Whether she is a moral or patriotic or pro-people lawyer is another thing, and let that be a subject of a different debate.

Let us attack her politics, her attitude, her temperament. But let us not discount her intelligence and her ability by a mere score in an exam. It will be an insult to the concept of intelligence itself to do so. It will be an insult to those who did poorly in formal exams but excellently in life. It will also serve to calcify old and obsolete notions of learning, intelligence, and ability.

Another attack pic circulated by a certain Reyna Elena
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6 comments:

James Matthew Miraflor said...

Wow! It is good to know that someone had exactly the same idea three years ago. A quote from Atty. Florin Hilbay's book):

"My task in this essay is to present a normative arguments favoring an institutional arrangement for law schools that focuses on two specific proposals for reforming the bar examinations in this country: first, the abolition of the bar topnotcher tradition, and, second, the substantial reduction of the number of bar examination subjects."

It turned out that Hilbay is a bar topnotcher himself, 1999 bar exams.

Marc said...

It seems like you are trying to defend Madam Santiago. If not then dont mind it. However, Madam Santiago is actually a liar. I remember in the heat of the Estradas Impeachment trail, She once said that if Erap can be kick out of the MalacaƱang Palace she will jump on a building but Estrada was evicted but Madam Santiago didn't kept her words. She already lost her mind when she was defeated in the 1992 Presidential Election.

claudiopoi said...

From what I gather, it seems like you seek to discard ineffective standards/barometers for measuring law-oriented intelligence (by arguing that bar exams should not be the gauge for measuring law school knowledge), and yet you wish to subscribe to this year's JESSUP competition as an appropriate standard.

2 things: (but I concede that I have nitpicked, so be forewarned :])

1. Ateneo has always won JESSUP. It's only in rare instances where another team gets to represent the Philppines in DC (Ergo, perhaps, Ateneo may be litigation-oriented also, per your premises?).

2. But more importantly, you wish to discard the conventional perceptions about law adeptness and yet, you wish to provide a substitute that does not thoroughly approximate a law school's potential for greatness or lack of it. Because the premises are just not there for me, my friend.

Anyway, nice write-up you have here. First time visitor, but definitely not the last. :)

James Matthew Miraflor said...

Hi Marc!

Thanks for reading! :-)

I am defending Santiago vis-a-vis attacks on her intelligence and lawyering skills on the basis of her bar exams. It wouldn't have mattered to me had it been said in private - and I couldn't care less how such will impact Santiago's feelings.

But I reacted because it imposes a certain kind of thinking among people regarding capacity and exams - a thinking that is dangerous and obsolete. And this is why I wrote this post.

As for her ethics and attitude, at times I do find it despicable, but that is a subject for a another day.:-)

James

James Matthew Miraflor said...

Hi claudiopoi!

Thanks for reading this post. I consider it a great honor.:-)

I used UP's recent victory in the JESSUP competition to demonstrate that not being among the top ten in the bar exams doesn't do much to discredit an institution's capacity for litigation. It is not to serve as a judgement on the capacity (and teaching philosophy) of Ateneo or other law schools.

But if Ateneo has always won JESSUP prior to UP's victory, then all I can say is that Ateneo is indeed producing good lawyers - and I haven't based this assertion on the recent or any bar results, but rather on its performance in a moot court setting. And of course, this is keeping in line with the whole point of my post: that actual practice, not exams, determines good lawyering potential.

As to what I meant by "actual practice determining lawyering potential", I did not wish to substitute the bar exam with some competition like the JESSUP as a gauge; in fact, I affirmed bar exams potential as an effective barometer provided some reforms are set. In the post, I even go further and describe how changing the presentation of bar exam results determine society's attitude towards lawyers, so indeed I consider bar exams important enough to worth looking into.

On this question, I have no comprehensive answers. But there are steps. We can seek to review bar examinations and compare it to actual laywer's performance. On a statistics perspective, what we can do is to generate panel data on bar exam passers - what is their performance in law school, and how well they are doing in the outside world: number of cases resolved (and not necessarily won), society's perception on whether justice was reached or not on the cases the lawyer handled (this may be difficult to gather, save for some more popular lawyers), contribution to the science, art and philosophy of law (on which the number of academic papers can proxy), etc. From there we can isolate the variables that make a good (or societally demanded) lawyers and use the conclusions to further evolve our legal education system.

We can also impose periodic instead of one-time examinations (once we have removed the stigma for failure of course), with expiry dates for licenses to ensure that lawyers do not lose their edge. But since reviewing is both stressful and time-consuming, this reform should be accompanied by trimming of the bar exams to bare minimum (a position shared by Dean Concepcion and Prof. Hilbay). After all, it is continuous practice that would embed these basic facts on lawyers heads.

For more specialized legal disciplines, separate licenses can be issued. It is a natural evolution for a society to have increasing complexity and diversity in its disciplines, with bodies of knowledge and practices branching out. One can think of practice of "engineering" branching out to various subdisciplines of mechanical, electronic, computer, etc.

In the end, the most important thing is view any profession as something connected to the rest of society: laywers serve a purpose, so do engineers, scientists, poets, visual artists, and musicians. As such, people should be evaluated according to how much they contribute to the fulfillment of the purpose - how well they are in performing their social roles. For a lawyer, the ability to argue, creatively interpret, and assess political-economic and sociologica contexts, is something that bar exams in its current state are not able to gauge. But the solution is not to discard the exams but to reform it.

Btw, I have seen your blog and I enjoyed reading it. I like your prose. I'll be a frequent visitor too.:-)

James

Anonymous said...

Today is good poorly, isn't it?