Wednesday, March 04, 2009

Portrait of the Street Strategist as Bar Examiner Part 8

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Headline: Aug 5, 2010: Half of 2011 Bar Exams in multiple choice format - SC Chief Justice Corona

The exam will be divided in two parts with the first part in multiple choice format with examinees choosing the best answer among four to five correct answers while the second part will be essay-type to test reasoning, writing and logic abilities.


For over 100 years, the Philippine bar examinations has not changed in format. There are some minor changes here and there but overall, it has been the same.

However, starting with the 2011 bar examinations, the Supreme Court adopted a two-step process for the bar examinations.

This is the first and the most revolutionary reform in the format of the bar examinations in over a hundred years.   

Why and how did the Supreme Court come up with the idea of a two-step process?

And many have been asking me:  What was my role in that process?

Why are they asking that question? This question about my role stems from the fact that some of my readers over the years remembered that I created this idea of a two-step process many years ago.

I have been getting emails asking me about my proposal  for a two-step process for the bar examinations which I wrote in 2004. Instead of replying to emails individually, here are some points:

1.       I wrote “Portrait of the Street Strategist as Bar Examiner” in BusinessWorld (in my column) from June 3 2004 to August 5 2004 (that was six years ago).

2.       The installment that contained the PBQ (pre-bar qualification) was published in Part 8, on July 22, 2004.

3.       In the said installment, I wrote down the logic of why I came out with the two-step process. Compare the line of reasoning spelt out by the Supreme Court and the line of reasoning I wrote down six years ago.

4.       At the time, the “Portrait” was serialized, one of the SC administrators was a columnist of BusinessWorld.

5.       One of my proposals about eliminating the use of  “A” or “X” to refer to persons in bar problems, and instead use real names such as “Albert” or “David” has been silently implemented starting that year I suggested it. (Compare the bar problems before and after 2004/2005)

6.       Another SC administrator who was a bar review lecturer in that year, admitted reading the series. This anecdote is written about in the series.

7.       My complaints about the poor website design and typo in the official text of the Rules of Court and others, in the website  have been remedied.

8.       When I reported in my column that the bar exam question papers, were available in some stores within an hour after the start of the bar, the following Sunday, SC operatives swooped down on those places outside LaSalle.

9.       After the publication of “Portrait” I sent CDROMs containing the PDF file of the series to each of the sitting Justices of the SC. I also sent one to the head of the Philippine Judicial Academy.

10.   About that time, I received a letter from a senior lawyer of a very powerful law firm. He was a 7th placer in the bar. He wrote:
“I thoroughly enjoyed your series of articles on the bar exams. I was wondering how I could get a complete copy of the series, as I would like my colleagues, some of whom are members of the Philippine Judicial Academy and consultants of the Supreme Court on reforms, to read it. “Sometimes, it takes someone from the outside looking in to remind those inside of plain common sense and reason. “I do intend, with your permission of course, to give a copy of the print out to the following people who I either work with or deal with on a regular basis:
Former Dean Eduardo de los Angeles (Ateneo)
Former Dean Cynthia del Castillo (Ateneo)
Dean Andy Bautista (FEU)
Dean Perry Pe (Palawan State University)
Dean Dante Cadiz (Enverga)
Dean Jud Roy (Pamantasan ng Lungsod ng Maynila)
Dean Cesar Villanueva (Ateneo)
Fr. Joaquin Bernas
I'm not sure if they've read it but I strongly believe they should.”

11.   Although this was written in 2004, the ideas  in the series are still valid. Those lawyers who read this in 2004 and now members of the Supreme Court and or examiners of the bar, I hope you can address the issues raised therein.

12.   Thank you for your interest in this old article of mine. And you might read my ideas for San Miguel Corporation, Meralco, and other companies which I wrote 10 years ago and are now coming true. (Thads Bentulan August 5, 2010)

Portrait of the Street Strategist as Bar Examiner - 8 -
his is the continuing pseudo-treatise on the portrait of the Street Strategist as a bar examiner on how to maximize the effectiveness of the bar examinations as the only reference performance metric (RPM) of the candidate, and how to minimize its inherent shortcomings.
In Part 1, we discussed the oblique ratio decidendi establishing the reason why a person who is not even qualified as an examiner should possess the wisdom to conjure up this treatise. In Part 2, we discussed the basic operations of the bar examinations. In Part 3, we discussed the species of bar examiners, their positives and negatives. In Part 4, we discussed the ego of the bar examiners and reviewed a few idiosyncratic bar questions. In Part 5, we discussed more questionable aspects of test construction as practiced by the examiners over the years. In Part 6, we discussed the benefits of converting an enumeration question into a problem-type question. In Part 7, we discussed the bar reforms promulgated by the Supreme Court coincidentally just after we started this series.
In this part, we shall discuss the computerization of the bar.
Weird coincidence
Before we move on, let me recount this incident. One of the highest-ranking administrators of the Supreme Court flew into a galaxy far, far away on a weekend to give a lecture to a large audience about the Family Code. Since it’s not everyday that an authority on the subject wanders into that little patch of the universe, many attended the lecture.
After the usual introductions as to the qualifications of the lecturer, the lecture proceeded rather quite smoothly. Among the introductory topics discussed was the concept of civil personality.
The introductory concepts went quite well, really. But, suddenly, the face of the lecturer lit up to a smile, and she threw this question at the audience: “Is a cadaver a property or a thing? And who owns the cadaver?”
The lecture hall was alive with small buzz; there were laughs of amusement. But there was one member of the audience who was catapulted to energized attention from his somnolent lethargy. A what? A cadaver? And why has that example, which is not ordinarily used as illustration, gained currency these days? Is the cadaver of former President Ferdinand Marcos a property or a thing?
The lecturer went on to narrate that when she was still a trial judge there was a case where the concubine would not release the cadaver of the man to the legal wife. The legal wife wanted to file a case of habeas corpus, which of course, was improper. The legal wife merely wanted to borrow the remains for two nights of wake but the concubine would not release it for fear that the legal wife will not return the cadaver to her.
The case was settled by compromise; the legal world was deprived of jurisprudence on remedial law.
Do you think the audience member let go of that cadaver thing? No, way. The discussion of the cadaver as property or thing was not directly related to her lecture on civil personality. But why did she launch into that side story? Why did the cadaver issue gain currency in her mind?
During a break in the lecture, he approached the lecturer: “Madam, do you read BusinessWorld?
She smiled with acknowledgement. “Why,” she said?
“Because lately there was an article there about…”
“Who owns the cadaver?” she preempted him. Unfortunately, they were interrupted by others who also wanted to talk to her; then she was heading outside the hall.
The participant in question was amused at the fact that the reason the cadaver was top-of-mind in the lecturer was due to Part 6 of this series. Now, at least, this was interesting. Two complete strangers meeting for the first time, but bound by common bond. You know, it’s always nice to know that you share something in common with a person absolutely a stranger to you. But that was not conclusive enough. He needed a black-letter confirmation.
When she came back, he approached her with a few questions but delivered the confirmation query as the last question: “Really, Madam, did you read that column in BusinessWorld about the cadaver?”
“Yes,” she said categorically.
For a second or two, the participant was in a state of suspended animation. In his mind, zooming past like a Halley’s comet were questions like, should I start a little talk with her about a thing we share in common? Should I ask her if she enjoyed the series? Should if I ask her if she is a regular reader of the column?
At the last second, he aborted the attempt. It was good enough that he participated in the earlier discussions by correcting the citation of one of the leading cases she mentioned. It was no big deal, even other authors made the same mistake, although nobody knows why they keep using the wrong name of the respondent in this case.
Anyway, I was saying that the participant, at the last instant, avoided any further attempt to discuss the cadaver or the fact that they shared something in common with lecturer: the Street Strategist column.
He felt it was too inconsequential for the lecturer to discuss with him about a column and columnist that was not really about serious commentaries on politics or economics. He also feared doing so would reveal the childishness in him.
After all, she is one of the highest administrators of the Supreme Court. Apparently, her position is high enough that she is officially entitled to use the title “Justice” before her name. He didn’t think an official of that rank could be dragged into a conversation about the “most famous unknown,” although, he really wanted to discuss it. I mean, it’s not easy to find somebody who reads an obscure column like you do, right?
Do you know how he would have started the conversation if he didn’t abort it? I know. And I’m going to share it with you.
If only he did not fear being ridiculed for liking things that are irrelevant, immaterial, and inconsequential. The ensuing might have been a good conversation after the opening line. In his mind was this classic opening line: “Madam, I am the Street Strategist, and yes, I wrote that.”
Well, there’s one more addition to the weird collisions with the Street Strategist, all of which tend to reinforce the belief that I am the most famous unknown.
Should a candidate cite case titles and article or section numbers as basis of his answers? The examiners and bar reviewers come with a resounding, “No.”
In fact, many examiners said that they think a candidate is pretentious and may be subject to a strict, instead of a generous, grading regime. This is good news to the candidate.
What if you think you are better than the examiner? Now, I got your attention. Let me tone down the proposition. What if you remember a specific instance, that is not famous enough, that may have escaped the attention of the examiner?
Anyway, let’s move on. There was once a time when a certain expert on Civil Law and a former bar examiner mentioned that only the spouse can impugn the validity (absolute nullity) of the marriage.
I raised the issue that the heirs can impugn a void marriage. But the expert said that the heirs can only impugn a void marriage in an estate proceeding after the death of the parents.
I raised this point twice in the discussion but every time I did it, the expert would maintain that only the spouse when living can impugn, and heirs can only impugn the marriage in an estate proceeding.
But we were talking of different things. What the expert is really saying is that the only time the heirs can attack the validity of a void (not voidable) marriage is by way of collateral attack (not direct) in an estate proceeding.
On the other hand, what I mean is that the heirs, after the death of their parents, can attack the validity of a void marriage in a direct attack, not a collateral attack. These are two different animals. The first is an action, while the second is via a special proceeding.
So every time I raised the issue, the expert would shoot me down. Of course, the shooting down was subtle. The expert is effectively saying, you are right that heirs can impugn the validity but you are wrong in the remedy to be used.
On the other hand, I was saying to the expert that my remedy of direct attack is correct and that his remedy of collateral attack is at the same time correct.
What is the bone of contention? Under the rule on nullity of marriages, Section 2(a). Who may file.–A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife.
Guys, isn’t that clear enough? Only the spouse can question the validity of a void marriage. Not even the Solicitor General can initiate it. So now, do you have a clear idea why every time I raise the issue of heirs directly attacking the void marriage, the expert would kindly guide me to a estate proceeding and a collateral attack?
As I said, I’m the unqualified, they are the experts. By the way, just to give you a reference point. The expert in question was a member of the committee of the Supreme Court, which drafted the above rule.
By the way, the Rule itself, consisting of many sections, is controversial. I have heard of a Justice dissenting in a case at bar, but this is the first time I heard that a Supreme Court Justice issued a dissenting opinion to a Rule.
It was very embarrassing, really, because obviously, all the people around me thought I was an obstinate ignorant. Well, in my embarrassment, I always rationalize, I’m not a legal genius. I am entitled to my share of embarrassment.
But you know me, I don’t believe in experts. Do you know how many books misspell res ipsa loquitur as res ipsa loquitor? Funny, I asked several candidates and 100% of them chose the “tor”. I don’t know why. Maybe I’m the one who’s wrong.
Gentle reminder
Anyway, after that embarrassing insistence that the heirs can directly attack, I can only tell you that in my mind, the battle was something else. Actually, when I raised that point, I was gently reminding the expert that although the rule is absolutely clear, there is in fact an exception worth looking at.
In the case of Engrace Niñal vs. Norma Bayadog (G.R. No. 133778. March 14, 2000) decided by the First Division, with Justice Ynares-Santiago as ponente, the Supreme Court squarely faced the issue: May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death?
After this revelation, should I be embarrassed on my constant repetition? Again, if you go by the rules, I am wrong. But if I go by Niñal vs. Bayadog, I am right.
Actually, I was surprised in a small way because the expert even mentioned Niñal vs. Bayadog earlier in the discussions, so when I raised my issue on the locus standi of the heirs in a direct (not collateral) attack, I thought the expert would bring on this case too.
Why the lapse on the part of the expert? One, Niñal vs. Bayadog is famous for one doctrine – that the during the entire five-year cohabitation of a man and woman without the benefit of marriage, they have must have no legal impediments, then they can marry without a marriage license. And precisely, the expert cited this case.
However, aside from the civil law fame of this case, this case has a not-so-famous doctrine in locus standi under remedial law. And this is the aspect I was referring to which the expert did not realize.
So now, going back to the issue of the bar: Do you need to cite case titles? The examiners say. “No.”
But then, as I have recounted above, the expert, who was once an examiner in remedial law, did not realize the doctrine of Niñal vs. Bayadog and insisted on the Sec. 2a of the Rule that was created by the committee of which the expert was a member.
By the way, I have a poor memory, buy why did I remember this case? Because the lower court judge was a certain Ferdinand Marcos. How could you forget a name like that? And he dismissed the case precisely on lack of locus standi of the heirs and case was raised directly to the Supreme Court on pure questions of law. This was a sad case. The husband, while living with his mistress, killed his wife. He got married to the mistress without the benefit of a marriage license based on an affidavit of cohabitation that they have lived together for five years but in the earlier part of this five-year period, the wife was still alive. Husband dies in an accident. Children sues mistress for nullity of second marriage.
Does the bar candidate need to cite case titles? Probably, if you think you are better than the examiner.
But then the case was decided in 2000 while the Rule was approved on 2003, which should prevail, the absolute rule or the doctrine of the case? Come on, join the fray.
Now, don’t you think talking to the Street Strategist in person would have been fun?
Alternative answers
Another issue with the bar is the “alternative answers.” What does this mean? The UP Law Center invites experts to formulate answers to the bar questions. And you know what? Some questions have two conflicting answers, and some even have three alternative answers.
Why is that? Is the bar question that hard, or is it improperly constructed that’s why it is subject to misinterpretations? In 2002, in Civil Law, at least 8 out of 17 main questions had alternative answers.
And the big problem is this, the bar examiner is not required to make public his own answer. Thus, the UP Law Center merely provides information for the bar examiner which the latter may actually exclude in correcting papers.
By the way, one or two reviewers have mentioned that during these discussions, when the examiner is around, they could tell by the posturing that the examiner himself had the wrong answer in mind. Can you imagine that guys?
Zero objective
I don’t agree with the new Supreme Court leanings towards the objective type of test, and I have discussed my philosophy and have given illustrations in the previous installments.
Currently in place are objective questions such as definitions, or distinctions or enumerations.
I still maintain that they test memory but not analytical skills given that only 20 to 40 questions are possible in the bar, and that they favor those who have leakage.
Should the objective part be reduced to say only 5% of the questions?
My philosophy is zero objective questions. I know you don’t agree but hear out my logic first.
Even if you say that only 5% is objective that is still a very harassing proposition. Why? Because even if you give me only 5% or 10% or whatever percent of enumerations, I would still have to memorize all those distinctions and enumerations. Who are legitimate children? What are the grounds for disinheritance?
We had this discussion before. The tyranny of the enumeration kills valuable review time for the candidate who should be tested on his lawyering skills. Don’t ask for the enumeration of the recovery actions for property rather ask how to recover a cadaver from a hospital.
There should be zero objective questions and any of those enumerations or distinctions should be converted into a problem-type.
For example, instead of defining what is accion in rem verso, why not create a problem where the facts of the case would make the candidate think: Is this a case of accion in rem verso or solutio indebiti?
Funny, I asked several candidates some time ago, and 100% of them didn’t know what is an accion in rem verso.
The concept of multiple choice, true-false, enumeration, distinction and other objective equations are found in the U.S. bar exams such as California. But to adopt them in our jurisdiction will be a mistake.
In the US, passing law school is very hard, therefore, for them the bar is not really much of an RPM. The objective questions in California are not matter of life and death because the bench knows that the candidates are prepared having passed through the rigors of a California law school.
But in this country, many law schools are diploma mills. In some schools, the students pray that the professors will be absent. In some schools, the students pray that the professors will be present. That’s how sub-standard some law schools are. Even the professors don’t take their duties seriously.
This is the reason that instead of wasting bar questions to test their memory, the questions should challenge the minds of the candidates. Hence, zero objective questions.
Computerized test
The Supreme Court wants objective questions but the Street Strategist wants zero. Yet, we can meet halfway.
The Supreme Court has envisioned the computerization of procedures or checking but these are meant to shield the bar examiner from hard work obviating the fact that the bar is a lifetime decision for the candidate. If the examiner is not willing to work hard, he should decline.
But I think the kind of computerization envisioned by the Supreme Court is not comprehensive enough in strategy. Allow me to fully integrate a philosophy into the computerization
I propose a PBQ (pre-bar qualification) exam that is 100% computerized and 100% objective. That is, multiple choice, matching, and true-false (MCMTF).
1. Before taking the bar, which will be 100% problem analysis, all candidates must first obtain a PBQ certificate. No PBQ, no bar. Result? Only those who have enough knowledge will be given the privilege to take the bar. Thus, the examiners will no longer be saddled with candidates who do not know the period for perfecting an appeal of a habeas corpus case.
2. A PBQ certificate is obtained by passing a 100% computerized, 100% MCMTF test. This is not part of the bar. But only those with PBQ can take the bar.
3. A candidate will sit in front of a computer take the PBQ test and only those who obtain 90% or more can take the bar. If he fails, then he takes another PBQ test after 30 days. Why 90%? Why not? The answers are guided because they are MCMTF. The computer gives results in seconds. Only the knowledgeable ones should burden the bar examiner.
4. The Supreme Court will of course administer the PBQ centers, in five sites in Luzon, and five spread out VisMin. The integrity of the PBQ will depend on the integrity of the Supreme Court employees watching the computers. Probably a hundred computers in each site.
5. The candidate can take the PBQ only every 30 days, therefore, he reviews again all the concepts. By the way, this PBQ will spawn many flow on businesses. The Street Strategist, for example, will create CDROMs for sale containing a million MCMTF questions. The candidate can test his knowledge at home before he actually takes the PBQ.
6. This PBQ concept is not strange. If you take a driver’s license test in the U.S. it is completely computerized. Therefore, it is the computer that screens the candidates. And you wouldn’t realize this but the PBQ will greatly improve the quality of candidates with respect to their knowledge (not lawyering skills yet).
7. The PBQ is similar to the pilot and flight attendants test on emergency landing procedures worldwide. In some airlines, even a 50-year old pilot will be dismissed if he fails to get 95% in ELP tests. After all, will you fly in a jet where the knowledge of the pilot on ELP is only 70%? In some airlines, the passing is 100% but you are given infinite attempts. In some airlines, you are only given three attempts to get 95% rating. After the third, you will be dismissed even if you have been an employee for 10 years.
8. The PBQ advantages will outweigh any possible disadvantages. Computerized pre-screening; zero work for the bar examiners; forced comprehensive learning on the part of the candidates; quality assurance regarding the knowledge of the candidates who take the bar; only a few candidates will actually take the bar; the wagering aspect of the bar is removed and transferred to the computer test, and the Supreme Court makes money out of the PBQ testing fee, and many others.
9. Being computerized it is easy to include new rules and jurisprudence. Yes, even jurisprudence can be a part of the PBQ.
For example: Which of the following cases declared that an oil pipeline is a common carrier? A) Macariola vs. Asuncion; B) Calalang vs. Williams; C) Co Kim Cham vs. Valdez Tan Keh; D) None of the above.
10. These PBQ centers can be used by the Philippine Judicial Academy for the prejudicature, the mandatory continuous learning (MCLE), for the bench and for the bar.
I am against objective questions in the bar itself due to the limited questions possible but I have proposed above an integrating philosophy that solves many problems associated with the bar, by computerizing it but in a twist that it introduced the concept of pre-screening that is painless to the examiner. Can imagine a bar candidate that gets 90% in the PBQ and only those will take the bar? The papers would be a joy to correct.
Actually, this can be done in less than two years. We can start assigning a team to create a million MCMTF questions starting today, and let the computer geniuses of the country buy the software utilized by the US nursing review centers in creating reviewer CDROMs. Again, the integrity depends on the employees but since the questions will be at random, what does it matter if a candidate had a copy of the same CDROM?
The Supreme Court can even sell copies of the CDROM itself. Study at home, and then take the same exam randomized at the PBQ center. If you can answer then you have the knowledge, you have pre-qualified for the bar. It’s not really different from selling textbooks and asking the candidates questions taken from the textbook. Happy all.
Just think of the multiple flow-on benefits of this proposal, and how easy it is to implement. It’s really different when we adopt our philosophy, right? Seeing what everybody else has seen and thinking what nobody else has thought.
I have to say goodbye for the moment, and by the way, Madam Justice, I am the Street Strategist and thank you for entertaining my questions and for reading my column. As for the rest of you guys, don’t forget you learned of the PBQ first from the Street Strategist. Now go and strategize your own professions, companies, operations and your love lives.
(Thads Bentulan, July 22, 2004)
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