Why MDS wanted to abolish the Bar exam

Senator Miriam Defensor Santiago (MDS) was a Filipino academic, lawyer, judge, author, and statesman, who served in all three branches of the Philippine government: judicial, executive, and legislative. She left her mortal body on 29 September 2016 at the age of 71, leaving millions of Filipinos in great pain and regret for the loss of such a brilliant scholar and lawmaker.

In 2005, the late MDS urged the Supreme Court (SC) to abolish the Bar examinations as a requisite prior to practice of law in the Philippines because, she said, "passing the Bar examinations is a matter of chance and luck" and "is just one index of legal competence."

Under Article VIII of the 1987 Constitution, the SC conducts the Bar examinations every year. The Constitution grants it the power to promulgate rules governing admission to the practice of law.

Instead, MDS proposed the taking of a National Law School Aptitude Test (NLSAT) and a one-year legal internship as prerequisites for admission in the study and practice of law. It was her belief that the NLSAT will better evaluate the verbal, analytical and reading comprehension skills of prospective law students. The NLSAT will be similar to the National Medical Admission Test (NMAT) for aspiring medicine students.

She claimed that the Bar exams is not the best gauge of one’s aptitude to practice law because it fails to test the skills needed in the legal profession and that it does not focus on the full spectrum of legal knowledge.

It will be recalled that, in 2014, MDS admitted she did not top the 1969 Bar exams and, in fact, almost flunked it. A report on the University of the Philippines Vanguards website said Santiago got a 78% average grade in the Bar.

"Sasagutin ko ang tanong mo - I almost flunked the Bar? That's right because I fell in love. I never denied it. I never passed myself off as topping the Bar. What I am saying is I passed the Bar," she said.

She cited a study entitled "Survey of the Legal Profession" by former UP College of Law Dean Merlin Magallona and lawyer Manuel Flores Bonifacio which showed that a sizable number of lawyers think the Bar examination is not a good index of legal competence for the following reasons:

[1] Passing the Bar is not an absolute guarantee of successful practice of law.
[2] The Bar examinations is a test of memory and not of competence.
[3] Examinees are expected to know everything at one time.
[4] Passing the Bar is a matter of chance and luck.
[5] The Bar examination is just one index of legal competence, and other factors should be considered.
[6] Actual practice of law is the best index of legal competence.

Also in 2005, US Prof. D. J. Solove wrote (www.concurringopinions.com) that the US Bar Exam (USBE) should be abolished because it "prevented mobility among lawyers, making it cumbersome and time consuming to move to different states". He added that it did not test the actual law used in legal practice, but esoteric legal rules, many of which were obsolete, and most of which were of absolutely no value to a practicing attorney. In short, he claimed that the USBE was an "unproductive waste of time".According to Prof. Solove, the USBE is as a way for states to restrain competition among lawyers.

He suggested that in lieu of the Bar Exam, states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain number of supervised pro bono hours. All the time spent studying for testing could be used for pro bono work, which would provide a benefit to the community and practical training for future lawyers, he said.

He added the following arguments against the USBE:

[1] It doesn't test on the kinds of skills a good lawyer should have.
[2] It often tests on obsolete legal rules.
[3] The USBE is largely a memory test, and memorizing legal rules is not something that most lawyers really need to do.
[4] The BarUSBE often serves to inhibit practicing lawyers from moving readily from state to state. The investment in time to retake the USBE can be too much for many if they are going to a state without reciprocity.

[5] The Bar often weeds out people who don't have the money to take an expensive legal education.
[6] There is no need for lawyers to know much about a lot of USBE subjects. Does a criminal lawyer need to know the rule against perpetuities?
[7] The USBE consumes hours upon hours of time. This time could be used much more productively in ways that help out the community. Right now, time studying for the Bar is time that could be spent helping others or doing something more productive. The time taken to study for the Bar is wasted time, with little value to the person studying or to society.
[8] Nobody really uses the rules as formulated on the USBE.
[9] As far as barriers to entry, the USBE is not really necessary. Law school is a significant barrier to entry. It requires three long years of time, study, and money. In the end, it’s much easier to make it past one USBE than through three years of law school.”

SOURCES: Abolish the Bar Exams. Uploaded by Alice Anatan. https://www.scribd.com/document/58598124/Abolish-the-Bar-Exams. Also cited re-blogged at http://attylaserna.blogspot.com/2008/05/abolish-bar-exams.html.

Miriam admits: I almost flunked the Bar. ABS-CBN News. Posted at Jan 17 2013 10:14 AM | Updated as of Jan 17 2013 06:14 PM. https://news.abs-cbn.com/nation/01/17/13/miriam-admits-i-almost-flunked-bar