Thursday, September 10, 2009

Bar Matter 1116 (Five-Strike Rule) - Discriminatory

Bar Matter 1116, issued in 2004, otherwise known as the “five-strike” rule, limits to five (5) the maximum number of times a law graduate may take the bar examination. It also provides that such candidate, after failing in three (3) examinations may take a fourth and fifth examinations if he successfully completes a one (1) year refresher course for each examination. Said rule provides further that upon its effectivity, those who have already failed in five (5) or more bar examinations shall be allowed to take only one (1) more bar examination after completing a one (1) year refresher course.

The above resolution has been the subject of three petitions in the Supreme Court, and lately was challenged by one Feliciano Olivares. According to Associate Justice Antonio Nachura, the high court has ruled against those petitions. Olivares on the other hand is impugning the same in his desire to take the bar exam the seventh (7th) time. The last time he took it (his sixth time) was in 2006.

I have not read the aforementioned petitions, neither that of Olivares, so I do not know on what grounds the resolution was attacked. I cannot figure out how to question the same on grounds of unconstitutionality, as regards the limiting to five the times the exam may be taken. I, however, wonder whether the State has the power to do the same.

That notwithstanding, I am disturbed by the resolution’s differentiating the law graduates who are yet to take the exam, at the time of its effectivity, from those who have already taken the same. The former is given five chances of passing the exam, while the latter is left with a lesser number of times, the number of which depends on how many times he had taken the same, at the time of the effectivity of the rule.

A candidate, therefore, who has taken the exam at least once, is allowed to take it again for a number of times, depending on the number of instances he had taken the examination. The previous examination shall be deducted from the five time limit, and what remains is the number of times left of him to take the said examination. Hence, at the time of the effectivity of the rule, anyone who has taken the examination three times already, has two more times to take the same, and those who have taken it four times, is allowed only one more time.

A person who has taken the exam five times already is allowed only one more time to take it, but a candidate who is yet to take it for the first time, is allowed five times to do the same.

This does not put on equal footing all graduates of law, as it discriminates against those who have taken the examination prior to the enactment of the law. While those who are yet to take, and those who are fresh graduates are given fresh five (5) times to take the exam, those who have taken the bar examination prior to the rule, are given a lesser number of times to take the same, depending on the number of instances they had taken the said exam. Laws, whether civil or penal in nature, must be prospective in application to be reasonable. This rule is retrospective, and oppressive, as it treats the previous examination as part of the five time limit. It makes a previous act a violation, or a part of a prohibition, when it was innocent at the time of its performance.

Having taken the bar exam in 2006 for the sixth time, I would assume that Olivares had taken the same five times when the rule was released in 2004. Had the five time limit been a law that is prospective in nature, Olivares should have been given a fresh five (5) times then, and by now, must have four chances left of him to hurdle the grueling bar examination.

As previously stated, presently, I do not know how anyone may attack the constitutionality of this rule as regards the limitation on the number of times a person may take the bar exam. In the meantime, however, and if I were similarly situated with Olivares, I will assail the law on the ground that it is discriminatory, and oppressive. I wonder how the high court would rule on that.

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