Is the MCQ style a better way to assess a barrister’s eligibility to become a lawyer?

The following is a research paper drafted by the author for the sole purpose of class discussion.  He gives full credits to his sources which are listed below (footnotes).

IS THE MCQ STYLE A BETTER WAY TO ASSESS A BARRISTER’S ELIGIBILITY TO BECOME A LAWYER?

 A bar examination is a test intended to determine whether a candidate is qualified to practice law in a given jurisdiction.[1]  Every law student who wishes to become an official member of the Philippine bar must pass it while conforming to the other requirements set forth by the Supreme Court of the Philippines.  It is also arguably one of the most controversial licensure examinations in the Philippines, most likely due to the fact that future lawyers have the highest tendency to become a prominent public figure in the future.  The lapse of time between the start of the examination schedule until the announcement of the results are characterized with both the citizens and the media keeping abreast for updates regarding the topic, and with good reasons.

Many years in the past, the Philippine Bar Examination utilized essay-type questions in order to assess the capabilities of its barristers.  It is in here that they are allowed to show their knowledge of the subject matter in such a way that they can freely express it in any manner that they want.  Truly, it is one of the most useful ways to see how good the barristers can present, argue, and defend their ideas, and because of this, the bar examinations have gained a considerably good yet fearsome reputation that it only selects the “best out of the best” as one of the most difficult licensure examinations in Asia and perhaps, the whole world.  It has been like that for years ever since the first Philippine bar examination was handled.

In 2011 however, the public masses were shocked to hear that a major reform was proposed and passed in the bar examinations.  From the traditional essay-type questions, it will now cater multiple choice questions (MCQs) for the majority of its parts.  Surely, change is constant and permanent, but adopting to such change is something that cannot be easily done.  And in the case of bar examinations, this adjustment can widely affect almost everything:  from the overall difficulty of the examination to the passing rates of the barristers, as well as the public’s perception of the qualities of those who will pass it.   It triggered a lot of debates and arguments as it divided the mass, especially the members of the bar, into two.

Is the MCQ style in the bar examinations really a more effective way to assess the eligibility of a barrister to become a lawyer, as compared to the essay type questions?  Is it really proper for the higher authority to test the waters and bring this out all of a sudden?  Does it have the ability to select more competent lawyers out of the whole group?  Are we ready to accept such changes in a way that it will not affect the good-yet-painful reputation of the lawyers’ selection process?

HISTORY AND REFORMS

The MCQ (multiple choice question) style has been utilized in many of the licensure examinations in the Philippines, and because it is so traditional, it has not at least sparked the greatest or noisiest controversies.  In fact, not many have questioned at all the credibility of such type, and because of this, the public has widely viewed it as functional and effective

As for the other countries outside the Philippines, they also present their bar examinations in MCQ style.[2]  Although the essay-type questions remain standing strong, multiple choice questions are a lot more apparent and are given a greater weight in the scoring system.  Even the United States of America has been using the MCQ style for years.[3]

In the Philippines, the first bar exam was held in 1901, while the ongoing 2012 bar examinations is its 112th.[4]  In the Article VIII, Section 5 of the 1987 Constitution, the Supreme Court of the Philippines was vested the power to “promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged.”[5]  In the previous years, the examinations were held during the four Sundays of September every year, and essay questions were used wholly for over 100 years.[6]  Although many changes and reforms were proposed and made as referenced in the Bar Matters, the essay-type questions remained resilient and existing.  That is, until the most controversial reform of the examination format was released.

In July 2010, Bar Examination Committee chairman Associate Justice Roberto Abad made a proposal to make the first part of the 2011 bar exams a multiple choice on codal provisions, while the second part will remain to be essay.  This proposal came about after consultation with deans from various law schools.[7]  In January 18, 2011, the proposal became official when B.M. 2265 (Re: Reforms in the 2011 Bar Examinations) was approved and passed by Supreme Court En Banc.  Apart from the changes in the schedule and the coverage of the bar examinations, the following were also included in its provisions:

 “The bar examinations shall measure the candidate’s knowledge of the law and its applications through multiple-choice-questions (MCQs).”[8]

 “5. Part of the bar examinations shall be of the essay-type, dedicated to measuring the candidate’s skills in writing in English, sorting out the relevant facts in a legal dispute, identifying the issue or issues involved, organizing his thoughts, constructing his arguments, and persuading his readers to his point of view. The essays will not be bar subject specific.”[9]

 “8. The results of the a) MCQ and b) essay-type examinations shall be given weights of 60% and 40%, respectively, in the computation of the candidate’s final grade.”[10]

For the first time in over 100 years, the Philippine bar examinations will use the multiple choice format in presenting its questions, and this is still effective in the ongoing 2012 Bar Examinations.[11]

PROVISIONS AND SIGNIFICANCE

It must be taken into consideration that when the Bar Examination Committee chairman proposed for the change, deans from various law schools were consulted first.  While those law schools or deans were not specifically named nor announced, a mere statement saying that they were asked for opinions regarding the matter must still be given a great weight.  It is in these law schools that the barristers are trained, and there is no person or entity who can suggest a better way to rate the knowledge that they acquired other than the administrators of those schools themselves, the deans being one of them.  If the deans gave their opinions regarding the change in the examination format, then these reforms must be made in such a way that the opinions coming from those deans were considered and given great value.

Moving forward, in the Preliminary Statement mentioned in B.M. No. 2265 about the reforms in the 2011 Bar Examination regarding the reasons behind the proposals, it was mentioned that:

 “A second recommendation addresses the predominantly essay-type of bar examinations that the Court conducts. Because of the enormous growth of laws, doctrines, principles, and precedents, it has been noted that such examinations are unable to hit a significant cross-section of the subject matter. Further, the huge number of candidates taking the examinations annually and the limited time available for correcting the answers make fair correction of purely essay-type examinations difficult to attain.”

Note that the Bar Examination Committee even said that, “the use of multiple choice questions, properly and carefully constructed, is a method of choice for qualifying professionals all over the world because of its proven reliability and facility of correction,” implying that they, too, believe in the effectiveness of the MCQ style considering the wide use of it all over the world.

A third recommendation opts for maintaining the essay-type examinations but dedicating these to the assessment of the requisite communication skills, creativity, and fine intellect that bar candidates need for the practice of law.”[12]

 When the court approved the principles above, they further stated that:

 “2. The bar examinations shall measure the candidate’s knowledge of the law and its applications through multiple-choice-questions (MCQs) that are to be so constructed as to specifically:

 2.1. Measure the candidate’s knowledge of and ability to recall the laws, doctrines, and principles that every new lawyer needs in his practice;

 2.2. Assess the candidate’s understanding of the meaning and significance of those same laws, doctrines, and principles as they apply to specific situations; and

 2.3. Measure his ability to analyze legal problems, apply the correct law or principle to such problems, and provide solutions to them.”[13]

In the preceding provision, it is very clear that the court, like the Bar Examination Committee, believes that MCQ style is very effective in assessing the barrister’s knowledge of the law provisions and all its components (e.g. meaning, importance, rationale, and the likes).

The MCQ exams, as the high court said, should be able to assess three main skills of the examinees: knowledge and recall; comprehension or understanding; and analysis and application.  Furthermore, the MCQ exams will have the following advantages: objective correction of the papers since every question has one definite answer; encouragement of the mastery of subject because of the difficulty of distinguishing between a correct and a nearly correct answer; and the employment of a wider scope of topics since the examiner can ask as many as 100 questions in an hour and a half exam, among others.[14]

As for the examiners, the time spent in preparing the MCQs will be more than compensated by the time saved in correcting the examination papers.

 “5. Part of the bar examinations shall be of the essay-type, dedicated to measuring the candidate’s skills in writing in English, sorting out the relevant facts in a legal dispute, identifying the issue or issues involved, organizing his thoughts, constructing his arguments, and persuading his readers to his point of view. The essays will not be bar subject specific.

 5.1. One such essay examination shall require the candidate to prepare a trial memorandum or a decision based on a documented legal dispute. (60% of essays)

 5.2 Another essay shall require him to prepare a written opinion sought by a client concerning a potential legal dispute facing him. (40% of essays)

 6. The essays shall not be graded for technically right or wrong answers, but for the quality of the candidate’s legal advocacy. The passing standard for correction shall be work expected of a beginning practitioner, not a seasoned lawyer.”[15]

On the otherhand, the provisions above clearly imply that the court, even after considering the use of MCQ style in the majority of its examination, still values the traditional essay type:  not in assessing the barrister’s knowledge of the law, but rather in rating his level of logic and his ability to organize his thoughts and/or compose his arguments.

While the court did an excellent work in formulating the reform and passing it thereafter, the same question still lingers in the air:  the question on whether or not this hybrid MCQ-Essay format will actually serve a better function in assessing the barristers as compared to the essay format alone.  Will this really select the “best out of the best” and produce better lawyers in general?

RATIONALE

Everyone will agree with the fact that any barrister or lawyer must be good on these two aspects:  (1) the knowledge of the law itself, its components, scope, reason, importance, and application; and (2) his logic or his ability to visualize, vocalize, and defend his arguments.

Considering the first aspect herein mentioned, a barrister’s knowledge of the laws and statutes can be judged from either the extent of what was memorized in the codal provisions, or what was understood after reading it.  While possessing those two is great, the abundance of many laws makes it impossible for a single person to memorize and understand everything.  Sooner or later, he will have to choose between the two.

This is exactly where prioritization comes in and becomes useful.  If a barrister understands the whole law but fails to state it verbatim as seen from the code, his statement, even though correctly stated, is considered less credible in general when compared to another barrister who knows the law word-per-word.  More often than not, the latter does not even need to explain his understanding of the law as saying it verbatim leaves the listener to figure out its meaning by himself.  To sum it all up, memorization before comprehension has a greater weight in proving the extent of your knowledge about the law.

Applying the statement above to the whole topic, strict MCQ style is definitely a more effective way in determining the barrister’s knowledge of the law as this style usually leans on the provisions as seen from the code (verbatim, in short) as opposed to essay style wherein the barrister can just explain the answer in his own words.  In fact, if an examinee knows it verbatim, chances are, he will be able to answer multiple-choice questions correctly with greater accuracy, as opposed to the essay questions wherein he can explain it freely by heart without the need of memorizing the provisions. 

However, that statement above lies on the knowledge of the codal provisions alone.  As for the second aspect herein mentioned, the essay type is still the greatest way to measure the candidate’s communication skills (written), his level of logic, and his capability to sort through facts and organize his answers.  Giving the barrister a piece of paper for him to write down his thoughts on liberally gives him the chance to present and defend his arguments freely, and allows him to persuade his readers to his point of view.  Certainly, that is something that cannot be done thru MCQ style.

CONCLUSION

In light of the foregoing rationales:

MCQ style is just as effective as the Essay type in assessing a barrister’s eligibility to become a lawyer.  They both have their own pros and cons, but having only one of the two is certainly not enough to efficiently rate if a barrister possesses the two qualities that a lawyer must have.

However, a mixture of both is generally a better way to assess a barrister’s eligibility to become a lawyer:  wherein the MCQ style is used to test his knowledge of the laws, and essay-type questions are used to rate his logic and ability to present or defend his argument.

Of course there will always be loopholes for all types of questionnaires (like the fact that the MCQ answers can be guessed), but that is totally inevitable and possible to be tolerated.  What should apply here is the basic human approach that “we make do with what we have”; that the involvement of the two varying styles and their significance in achieving the whole purpose of the examination should still prevail, just like in the case of Floresca v. Philex Mining Corporation wherein it was stated that “the mind of the legislator, like all human beings, is finite and therefore cannot envisage all possible cases to which the law may apply.  Nor has the human mind the infinite capacity to anticipate all situations.”[16]

Needless to say, the bar examination merely rates the eligibility of a barrister to become a lawyer.  It must not be used to measure the competency of him as a lawyer.  Considering the fact that the 2011 hybrid MCQ-Essay bar examination went peacefully and has produced a considerable number of passers, having the same format in the future years certainly will not harm the clean process of selecting the servants of justice for the country.


[5] CONSTITUTION, (1987), Art. VIII, Sec. 5, par. (5).

[8] Bar Matters No. 2265 (January 18, 2011).

[9] Id.

[10] Id.

[12] Bar Matters No. 2265 (January 18, 2011).

[13] Id.

[15] Bar Matters No. 2265 (January 18, 2011).

[16] Floresca vs. Philex Mining Corporation, 136 SCRA 141 (1985).

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