Showing posts with label San Sebastian. Show all posts
Showing posts with label San Sebastian. Show all posts

Wednesday, March 11, 2009

Portrait of the Street Strategist as Bar Examiner Part 1

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Note: This series was first published in 2004 in my column in BusinessWorld. 
Several of the suggestions in this series have been adopted by the incoming Examiners as early as 2005, the least of which are simple but helpful suggestions such as the use of proper names like Juan, Jose, and Maria, instead of A, B, C; and the use of problem solving rather than memorization and the use of the Discriminating Question. 
Also since then, the two bar topnotchers mentioned in Part 1 have become prominent; one of them is now a presidential hopeful for 2010, and the other, now a Justice of the Supreme Court. 
Who has read this series way back in 2004? The readers of the newspapers and the law students and some professors back then. 
1. The Supreme Court justices were furnished CDROM versions of this series. There is no proof they actually read it. 
2. Many law deans and professors as stated in this letter below sent to me way back in 2004:

Consultant’s consultant 
Before we proceed, I was amused by a letter I received 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.” 

Thank you sir, for your letter. As for common sense and reason you may like to read my article called the Seventh Sense written in 2003. 
And if ever the consultants of the Supreme Court and the Philippine Judicial Academy eventually find the Street Strategist’s Kennen und Wissen (SS-KW) philosophy useful in one way or another, what does that make the Street Strategist – a consultant’s consultant?)
Portrait of the Street Strategist as Bar Examiner

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he bar examinations is the single most important criterion for the Supreme Court to admit law school graduates into the practice of law.
The bar examinations is the single most important reference performance metric to measure the candidate’s total knowledge of the law and jurisprudence.
And this pseudo-treatise is the sum total of the wisdom of the portrait of the Street Strategist as a bar examiner on the subject of how to maximize the effectiveness of the bar examinations as the only reference performance metric of the candidate, and how to minimize its inherent shortcomings.
None of the qualifications
The Street Strategist has never been appointed by the Supreme Court as a bar examiner. But then, this is not a strange omission.
Indeed, appointing him would be a bizarre commission. He is not known. He is not an expert. And, most importantly, he is not qualified.
Yes, I am not known, but, then again, I am the most famous unknown, proof of which is my essay Famous Man.
Yes, I am not an expert, but then, there were a few occasions where my pseudo-treatises were used in corporate brainstormings, assigned as readings in business schools including an American university, and quoted in PhD papers abroad, the latter case, at least in one occasion.
And don’t forget The Accounting Wizard, my deconstruction of the accounting debit and credit, that has been formally adopted by an accountancy school, and later, by a law school, and was subject of a paid full-page criticism by the accountancy organization.
These mental calisthenics were distillations of my curiosity as an amateur always trying to defy the experts.
But then, that’s me.
As much as possible I don’t accept the experts right away, although I use their judgment as my initial reference point. Being experts, they are almost always right; yet in isolated instances, I discover fresh viewpoints; and in all cases, I learn, anyway. It’s a no-loss situation.
Yes, I am not qualified. There’s nothing that the Supreme Court can do about it, even if it wanted to.
Yet, after proving that I have none of the qualifications and all of the disqualifications, why insist on this treatise on the portrait of the Street Strategist as a bar examiner?
All the disqualifications
Yes, the Street Strategist has none of the qualifications and all of the disqualifications of a bar examiner, yet, there is one single reason for you not to throw this treatise outside the window.
This portrait is the definitive sum total of the wisdom of the Street Strategist on the issue of the bar examinations.
So what?
The portrait of the Street Strategist as a bar examiner is valuable by virtue of one single most important raison d’etre: He is the Street Strategist and he can see what everybody else has seen and think what nobody else has thought.
Court of final resort
First, I would like mark out the parameters of this disquisition. I am not questioning the integrity of the Supreme Court; I am not questioning the competence of the Supreme Court; neither am I am questioning the wisdom of the Supreme Court and its appointed bar examiners over the years with respect to the bar examinations.
The Street Strategist is not questioning the wisdom of the Supreme Court, instead, he is summarizing the definitive total wisdom of his own.
And if in the process, the wisdom of the Supreme Court clashes with the wisdom of the Street Strategist, there can be only one final reigning wisdom – the infallible wisdom of the Supreme Court, the court of final resort.
The Supreme Court’s wisdom is final not because it is infallible; rather, its wisdom is infallible because it is final.
Law of entropy
Now, that we have established that the wisdom of the Supreme Court is final in case of conflict with the wisdom of the Street Strategist, is there still any residual value at all in listening to his portrait as a bar examiner?
Yes, there is. Unlike the quaternions of physics, which are subtractive when contrapuntal, the vectors of wisdom are additive, despite being contrapuntal.
Contrapuntal vectors of wisdom never destroy, obliterate, or annihilate each other. Wisdom is invariably additive, never subtractive. Contrapuntal junctions of wisdom have a natural way of augmenting, adding, clarifying, and refining the original opposing wisdoms.
After listening to the wisdom of one party, the adverse party will either succumb to the opposing vector of wisdom, or assimilate the weakness of such wisdom as a positive reinforcement of his own.
In other words, if the opposing vector of wisdom is intellectually superior, you succumb to it. If it is weak, you can use its weakness to reinforce your own wisdom.
Either way, the accumulated wisdom in the universe is always increasing, never decreasing. This is called the Law of Entropy of Wisdom.
At this juncture, I have to make a confession of judgment.
I have to apologize for having dragged you this far into this treatise. You may abandon this journey, right now.
It is ridiculous for the Street Strategist to possess any wisdom at all that is worth the precious time of those who may have been seduced into thinking that I have some brilliant strategy to offer.
Indeed, at the outset, I may have made false promises. I have promised to redeem the cumulative wisdom of the Supreme Court with respect to the bar examinations.
In so doing, I may have seduced some people into thinking I can offer more than the current fare of wisdom, and these unsuspecting people may include justices of the Supreme Court, the justices of Court of Appeals, members of the bench, members of the bar, and the bar candidates.
Therefore, before I seduce your further with false advertising, I pray that you abandon this journey.
I’m sorry for wasting your valuable time this far. This disquisition is designed as an exercise of thought, mind, logic, wisdom, and more importantly, an act of entertainment.
Nothing more.
Again, I’m sorry. But you didn’t really, seriously, expect that I have wisdom enough to purify the cumulative wisdom of the Supreme Court, did you?
That would have been a ridiculous expectation, right? Now, you can throw this treatise out of the window.
Bye, bye. It was nice meeting you.
By the way, whenever there is an audience, there are always queer ones who want to be part of the seduction.
Yes, you can fool some people all of the time.
With this in mind, just before you decide to abandon our amusing journey, bear in mind that some people do find wisdom in the ideas of the Street Strategist.
Speaking of the bar exams, I can think of at least two people who may try to stick it out with this pseudo-treatise.
Why? Because, previously, they wasted some of their extremely precious time reading my stream-of-consciousness ramblings.
What can I say? I think these two are among those with refined intellectual taste by reading the Street Strategist.
The Justice
The first one who I think will stay with me in this journey, and I hope I’m not mistaken in counting him as one of the residual voyagers, works in the judiciary.
Currently, he is now a Justice of the Court of Appeals. Oh, yes, he does read the Street Strategist whenever he could, I presume.
Now, now, Justices of the Court of Appeals are not a dime a dozen. This person alone is probably the equivalent of 10,000 readers. I don’t need thousands of readers to justify my existence; I need only one Justice of the Court of Appeals.
But you might question the propriety of counting him as one of the serious followers of the Street Strategist. What is my basis for such a claim?
Well, all I can say is, he went as far as ordering the first edition of the first book of the most famous unknown. I think that should count. Fair enough?
And yet, that is not enough. This Court of Appeals justice was a bar topnotcher, Yes, number one in the bar exams.
It should be easy to identify him if you want. How many number one topnotchers could there be in the Court of Appeals? Several? Okay, granting there are several, but how many of these number-one topnotchers have copies of Strategy Myopia in their bookshelves?
When he purchased my book he was not yet a Justice, and I didn’t know he was number one in the bar. I just read his name in the paper upon his appointment. And even to this day, I have not met him.
Now, guys, are you really going to abandon this journey of ours?
The Congressman
Wait, a minute, I mentioned there are at least two.
I know there are staffers in Congress who follow my misadventures; however, I didn’t realize that this fancy extends to the congressmen themselves. Okay, I admit, at least, one.
There is this congressman who asked his executive assistant to call all the bookstores to obtain a copy of my book to no avail because it is not distributed publicly. Eventually, the wonders of e-mail short-circuited her work.
This young congressman liked some of my ideas that he wrote a letter, which was eventually published in BusinessWorld. Never mind that he is very rich, as that does not necessarily transform him into a certified Street Strategist cult member.
However, there was this one additional information that I gathered from my friends. They said, “You don’t know who he is? Do you know his middle name? And do you know that he was a bar topnotcher?”
Ah, pardon my ignorance, sir, but you were really number one in the bar examinations, I finally found out. That’s something.
So it is easy to identify my readers. How many rich young congressmen out there who placed number one in the bar? Several, again? If so, how many of these have copies of Strategy Myopia in their bookshelves?
Now, guys, are you really going to abandon this journey of ours? If these two bar first placers went out of their way to tell me they enjoy our pseudo-intellectual games and purchased my magnum opus with my golden autograph, who are you to defy their intellectual taste?
By the way, before we leave these topnotchers, whom I have never met, there’s just one minor thing.
I have a theory that the reason the young congressman became a bar topnotcher on that year was due to a very fortunate incident. He was so blessed because the life schedule of the Street Strategist was shattered to random chaos, otherwise, if my earlier plan wasn’t yanked out of me, he and I would have clashed on that particular year, and he wouldn’t have been number one, I tell you.
And for the first time in the bar exams there would have been three persons in the top ten with the same first names and the same middle initials.
Cheer up, guys, just theorizing on the possibilities. So, are you really abandoning me? Come on, you’re in fine company.
Real reason
Seriously, guys, before we delve into my portrait as a bar examiner, the real reason why I feel competent to offer my wisdom is that I have a far greater experience in the area of examinations.
Not so much as the experience of constructing examinations but in the experience of taking them. The problem with those charged with constructing examinations is that they are experts in their fields, therefore narrow-minded.
They have limited experience in how the exams in other fields are being designed, constructed, and conducted.
Besides, since they have been chosen as examiners, there is a conclusive presumption that they are brilliant and intelligent.
Therefore, they are probably out of touch with reality of the mediocre, average candidate. And they are not accustomed to taking the same exams over and over again, or taking many different exams.
These people are the statistical outliers, they are aberrations, and lo and behold, we use their aberrant experiences as the basis of a general examination.
On the other hand, I have probably taken more examinations than 90% of the population. And these examinations were not confined to a particular discipline. Some science, technology, mathematics, some economics, some law, some finance, something of everything, I’ve tasted them inside or outside the classroom.
Furthermore, my experiences were vicious mental struggles. Like many other candidates, in those examinations, I felt that the questions presented were far from the real state of my knowledge. In other words, I could have passed those exams, or performed better, if the questions were representative enough.
During those exams, I always felt that I was being unfairly assessed.
Again, to summarize, my expertise is not in the subject of the exams, but in the examinations themselves, how they could be designed better, and how they could assess an ordinary examinee like me.
The experiences of the topnotchers do not count. They are the statistical aberrations.
I hope that my dismal experience as a struggling examinee will transform me into a brilliant examiner. And that is exactly what the portrait of the Street Strategist as bar examiner is all about.
Bar none
Should the bar be abolished? No. Despite all its shortcomings, the bar exams serves as a reference performance metric against which all law graduates must be measured. Given the sacred nature of the bar exams, it should not be trifled with, especially by the bar examiners themselves. Now, that’s a hint.
As a performance metric, the bar exams has two major phases that are beneficial to the bar candidates.
The first phase is the comprehensive review called the pre-bar review. It is judicial notice that after the pre-bar review, the average candidate has more knowledge on hand at their command than someone with a decade of experience as a Regional Trial Court judge.
Unfortunately, I feel that the Supreme Court and the bar examiners ignore the value of this phase. Or even if they do, they have no ostensible procedure by which this is measured. There are 20,000 possible questions on Political Law alone, yet, only 20 are asked in the bar exams, or 40 questions, if we include the follow-up sub-questions.
This is an unfortunate situation because such 20 questions are a narrow-band measurement.
The truth is, the greater the number of questions bombarded at the candidate, the greater the probability that the bar exams is going to capture a broader spectrum of his knowledge of the law and jurisprudence.
Just as in a market survey, the greater the sample, the more accurate the representation, subject to the law of diminishing returns on accuracy given the same confidence level and error of margin.
By the way, for the uninitiated, the entire fourth year in law school is actually dedicated to review.
Thus, some of the subjects are Civil Law Review, Criminal Law Review, or Mercantile Law Review.
In other words, the six-month pre-bar review is a review on top of the fourth-year law school review.
The second phase of the bar exams as a performance metric, is the actual examinations itself. Despite its shortcomings such as being limited to only 20 questions per bar subject, inter alia, the candidate has no recourse but to capitulate to the process.
By the way, do not forget that this pseudo-treatise is a reflection of the sum total of the wisdom of the portrait of the Street Strategist as a bar examiner about how to maximize the effectiveness of the bar exams as the reference performance metric of the candidate and how to minimize its inherent shortcomings.
Oral bar
In other jurisdictions, the bar consists of a written phase and an oral argumentation phase but then, these countries do not have 5,000 candidates annually. As such, oral exams is impractical.
The trial practice of law does not mean practice for trials. It does not mean trial and error exercise of the profession. Yet this happens because there are many candidates who later become lawyers without ever observing any case being tried. Some lawyers haven’t even seen nor set foot in any trial court at all. It’s true.
Thus, the written bar exams has an additional mandate: It should rise up the challenge of being an equitable proxy to an oral bar examination. Pursuant to such mandate, the written bar must ask questions that approximate the candidate’s thinking analysis rather his photographic memory.
Thus, the written bar should approximate the ability of the candidate to think on his feet as would have been obtained in an oral bar.
To be continued
(see the other parts of this series already posted in the blog)
(Thads Bentulan, June 3, 2004)
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Saturday, March 07, 2009

Portrait of the Street Strategist as Bar Examiner Part 4

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Portrait of the Street Strategist as Bar Examiner - 4 -
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 this part, we shall discuss the ego of the bar examiners, and review a few idiosyncratic bar questions.
With other professional board examinations, the examiners are appointed to a term of office and their identities are public. And if you want to corrupt them, you know who they are.
There were many instances in the past when all you needed was money to pass the board; a higher amount if you wanted to place in the top ten. In our university, there was one case where a Summa Cum Laude graduate flunked the board. She was so distraught but the school did not lift a finger to defend her. She fought the board of examiners and sought her answer booklets. It turned out somebody else had usurped her booklet. It was a case of booklet-switching perpetrated by the examiners. She was eventually proclaimed 4th placer.
With the other board exams, the attempt to corrupt the board examiners by the examinee is individual and personal in nature, and any amount involved is similarly individually limited.
On the other hand, the bar examinations has more power and money at stake. Bar candidates have more resources that can be harnessed to corrupt the examiners compared with the board examinees fresh out of college.
Any attempt to corrupt the bar is not individual but institutional. For long, it has been an open secret that fraternities exert their power, influence, and money to obtain leakages.
One bar examiner in the past had been offered a key to a Mercedes Benz. He turned it down. How did the group find out about his identity? Well, that’s how institutionalized the attempt it is.
Would you refuse your fraternity as an institution? Probably, you can refuse an individual. Probably, you can refuse a college frat. But can you refuse your law school frat where most of the members walk the halls of the Presidential Palace?
For this reason, the identities of the bar examiners are shrouded in mystery, and rightly so, especially considering that disadvantaged candidates in the provinces take the bar ten times in their desire to have the title of lawyer inscribed on their tombstones.
It is very unfair to the provincial candidates who spend about P100,000 for the bar in terms of books, materials, review center fees, air and boat fares, and board and lodging in the capital city, not including loss of income during the six-month review.
Weakest link
The Great Wall of China is the only man-made landmark that can be seen from the moon. It was built as a super highway and as a fortress to keep away the barbarians and the enemies of the emperor. It was designed to be impregnable by the state of weaponry at the time. You couldn’t burn it, you couldn’t climb it, you couldn’t ram through it. The Great Wall provided the security and passageway that the empire needed.
How was it penetrated? Quite, simply, really. The enemies of the empire asked the gate guards how much they earned in one year. The corruptors paid them the equivalent of one hundred years and ordered them to vacate their posts and disappear forever.
That’s the power of institutional corruption. A single corrupted agent of the state can be an instrument of the ultimate downfall of an entire empire.
If there’s one single corrupt policeman, that is one too many. If there’s one single corrupt taxman, that is one too many. If there’s one single corrupt judge, that is one too many.
If there’s one single corrupt agent of the state, that is one too many.
The Supreme Court spends so much money and effort in instituting a system of secrecy in the conduct of the bar examinations. This includes the extraordinary diligence in shrouding in absolute secrecy the identities of the bar examiners.
What is the weakest link? The ego of the bar examiners themselves. If an examiner reveals his identity to one colleague of his, you can be sure that it will become an open secret to five hundred people in a matter of one hour.
Even telling his brother or father about it, is already an uncontrollable source of leakage as to the examiner’s identity.
Do you know that office secretaries, maids, drivers, and messengers are being offered P100,000 per bar question leaked?
In the case of the celebrated bar leakage recently, how on earth did his colleague know that he was the bar examiner?
How on earth is it possible that in almost all bar exams, in the morning of the exams, there are always a few leaked bar questions being shared and feasted upon by the candidates? Yes, it is common knowledge that some of the bar questions are circulated an hour or so before the exams.
Probably, one student gets a leakage and shares all or a few of the questions with his frat brother or his bosom friend or a cousin, and the leakage gets circulated around as a gesture of being a good Samaritan. You have an hour to obtain your answer from a book but the person who had the original leakage has been memorizing the answers for one week already.
You are grateful to scavenge morsels of leakage thrown in the streets that benefits you for a few minutes while they had feasted in the banquet of unfair advantage for weeks.
But this common incident is not reported. After all, if you are able to get hold of one question and immediately browse your book, being a beneficiary, would you report this to the bar committee?
Surprisingly, one actually did report it. Thus, the mercantile law exams was scrapped last year. But I tell you, based on the accounts of the candidates, this happens every year but nobody dares to report it.
Repeat: A single corrupted agent of the state can be an instrument of the ultimate downfall of an entire empire. Whether or not, it was done for money or for giving an unfair advantage to a friend.
The bar examiners are required to submit 50 questions. According to a couple of former examiners I have talked to, by the time you reach 20 questions you will have run out of questions to ask. And this probably tempts them to ask outlandish questions.
However, I consider this shortage as a mistake in not allowing the possibility of asking similar questions on the core topics. They make only one question under Aleatory Contracts, and only one question under Reformation of Instruments and only one under the Statute of Frauds.
Thus, they run out of questions. I think this is a mistake.
They should have made at least two questions under each core topic, so that they will not be tempted to construct a question about astronauts. Oh, yes, they did ask about astronauts more than once.
Still on the subject of ego, a bar examiner tends to construct questions that are meant to impress the candidates with his supposed expertise rather than test the latter’s knowledge of the law.
Some questions have questionable logic or questionable validity as a metric of the candidate’s knowledge. However, since discretion is given to the examiner, it is almost impossible to assail the appropriateness of such a bar question. The examiner can always offer a justification for such, and there is nothing you can do about it.
For example, in 1991: “What is a Constitutional writ of Amparo and what is the basis for such a remedy under the Constitution?”
What is the value of knowing the answer of this question as a test of the basic knowledge of the law? Even practicing judges don’t know what this is. The bar is supposed to test the bar candidate, not to test an international law expert.
Apparently, according to the law professors, this Amparo doctrine was not even a part of our jurisprudence and law at the time. It is of mere theoretical interest being a doctrine in use in Mexico but never in our country.
But the examiner can always argue otherwise. However, that question, in the light of the importance of the bar as the RPM of the candidate, has minimal validity.
By the way, the examiner who supposedly constructed this question is now an Associate Justice of the Supreme Court. There goes a possible contempt of court case against me.
In 2003: “What are the so-called Mandates and Trust Territories?”
Okay, let’s admit the question. Now, the big problem is this: there are no longer Trust Territories in current geopolitics. What then is the value of this question as part of the RPM of the candidate?
Again in 2003: “What is outer-space? Who or which can exercise jurisdiction over astronauts while in outer space?”
You know, I can be a very good advocate. I could justify the validity of this question in any public forum, and I will tear down any argument against the question.
However, when I sleep in early dawn, I could not bear to convince myself, personally, the importance of such a question. The bar, after all, destroys the careers of the candidates and obliterates their financial resources. I am only given 20 questions to ask out of a possible 20,000 and I destroy a person’s years of struggle in law school with such a question?
In 1994: “What is the difference, if any, between the scope of judicial power under the 1987 constitution on one hand, and the 1935 and the 1973 Constitutions on the other?”
Great question. If you can answer this in the five minutes allotted, you do not only possess the general knowledge required of a new lawyer, as is the purpose of the bar, but also the knowledge of Herodotus. You can start writing your bestselling history book on the Monday after the exams.
Aside from what I consider as whimsical questions, there are also capricious ones. While going over the exhibits below, try to analyze if the bar examiners abused their discretion or failed to carry out in good faith the heavy responsibility of destroying future legal careers.
In 1977: “Who are compulsory heirs? Give five instances which shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate.”
The answer is actually straightforward. Note that you have to answer this in five minutes or so because there are about 40 sub-questions.
There are five compulsory heirs, however, you must also specify which of the heirs will receive if one class of heirs are missing (no children, for example.)
Just to give you a flavor, one of the class of compulsory heirs are: “In default of legitimate children, the legitimate parents and ascendants with respect to their legitimate children and descendants.”
Of course, the examiner assumes that you have memorized the other class of heirs, including the illegitimate children and parents.
Notice that there are actually two sub-questions. That’s how tricky the counting is. In the second part of the question, there are eight instances. Sure you must have memorized them.
Again, to give a flavor, one of the instances are: “When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment of six years or more if the accusation has been found groundless.”
You should have memorized the seven others.
Isn’t this a great question? One more point: Assuming you have memorized the above, and was able to write down all of them in five minutes, has the question tested your ability to think and analyze a situation?
In 1996, one question had four sub-questions, therefore you have to allot about two minutes each. Here it is: “1. What are the rights of the stockholder? 2. When may a corporate director, trustee, or officer be held personally liable with the corporation? 3. When may a corporation invest its funds in another corporation or business or for any other purpose?”
The answer to part 1 alone has eight instances. For part 2, five instances, for part 3, you have to know the percentage of votes required. For part 4, the answer is broad and does not specify what is meant by joint venture as a term.
Now, I am challenging even sitting judges, could you have answered those correctly in the time allotted? And if so, has your analytical process been tested by such questions?
An examiner has a certain duty and responsibility. Even the examiner himself cannot answer those in the time allotted, even if he knew the answer perfectly. Writing alone takes time.
Double injustice
Now I would like to raise a certain perspective. There are examiners who feel the need to help their fraternity brothers, friends or relatives by leaking some or all of the questions to them. This by itself is an unfair advantage over those provincial candidates who spend much money and time going to the capital to take the bar, and who religiously burn their midnight candles.
The problem is that the examiner himself, in helping his friends, intentionally or unintentionally by leakage by a colleague, does not feel the injustice he has done to the other five thousand candidates who had to take the bar four or ten times religiously.
And there’s another injustice. Whenever the examiner, in a bout of megalomania, ego, whim and caprice constructs questions that are outlandish, whimsical, and capricious, only those who have the leakage are benefited.
A leakage is perfect information. The candidate can memorize all the 50 questions and sub-questions and that’s all he has to study.
While the serious candidate has to read all those mountains of books, and hopefully memorize as much as he can.
What I’m saying is that outlandish, whimsical, and capricious questions favor those who have leakage. And leakage is common knowledge every year. It disfavors provincial candidates with no connections.
Mockery of justice
In fact, it is my thesis that outlandish, whimsical, and capricious questions make a mockery of justice when in the first place, the Supreme Court is the first and last bastion of justice.
The more bizarre the questions, the more the injustice done. Double injustice, in fact.
I have to raise this issue because the ego of the examiners and the negligence of the bar chairman gives rise to double injustice and the worst part is that they may not realize the injustice they may have inadvertently done.
Giving unfair advantage to friends is not merely courtesy. It is not even mere injustice. It is actually a double injustice.
To summarize my thesis: If the bar examiners stick to basic general questions that measure the knowledge of the candidate, not as experts, but the knowledge required of a new lawyer, then the candidates with no leakage stand a fair chance. Egregious, whimsical, and capricious questions cause double injustice.
Topic distribution
One of the greatest injustices in the bar as the RPM of the candidate is the distribution of the questions.
For example, in one bar where the examiner in mercantile law was a high-ranking officer of the Securities and Exchange Commission, too many questions revolved around the Corporation Code which is just a minor topic in the vast area of mercantile law. Since the candidates are required to study many laws, the examiner should be judicious in the selection or distribution of topics. This is the reason why former academics are better in this aspect.
In the recent examinations, there was an inordinate number of questions on flimsy areas in international, about 20%, although it is a miniscule area in the subject of political law.
According to a professor, the bar committee justified it by saying that since we are in the area of globalization these questions need to be asked.
I don’t agree. We should ask questions focused on the basic knowledge required of a new lawyer. Discuss the theoretical globalization and astronaut stuff in the classroom.
Again, unfair distribution, whimsical and capricious. Do they have the discretion? Are they abusing their discretion? I think so. But remember, the law usually requires grave abuse, not simple abuse, to be actionable.
Who is to blame for unfair distribution, whimsical and capricious bar questions? The responsibility resides in the Justice of the Supreme Court that is designated as the Chairman of the Bar Committee.
He has the power change all the questions.
In one bar exams, in the wee hours of a Sunday morning where the bar committee staff was mimeographing the questions, the Chairman of the Bar Committee asked his staff who were lawyers: “If you were to take these exams right now, will you pass it?” They said, “No.”
Instantly, hours before the exam, the Chairman changed the questions. His previous stint as a former professor of law guided his instinct.
Anyway, at this stage, the Street Strategist has discussed the probable sources of injustices in the conduct of the bar examinations which can easily be corrected by reminding the Bar Committee of the possible implications of their actions, on the assumption that they may not have the opportunity to reflect on them.
Well, the Street Strategist, in his infinite wisdom as the eternal examinations struggler, did the reflecting for you.
(Thads Bentulan, June 24, 2004)
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