Lifting of the 5-strike rule now official but some questions remain

Prof. Manuel R. Riguera

On 3 September 2013 the Supreme Court en banc issued a resolution adopting the recommendation of the
Committee on Continuing Legal Education and Bar Matters to lift the 5-strike rule. The resolution provides that
the Legal Education Board (LEB) shall prepare a refresher review class curriculum and accredit law schools
which would be authorized to give refresher classes. Just this January 13, the LEB issued an order ratifying its
provisional rules on refresher review curriculum and accreditation.

History of the 5-strike rule

The 5-strike rule was laid down by the Supreme Court in Bar Matter No. 1161 issued on 8 June 2004. Under
the 5-strike rule, a bar candidate shall be disqualified after failing thrice; provided that the candidate may take a
fourth or fifth examination if he successfully completes a one-year refresher course for each examination. The
5-strike rule was first implemented in the 2005 bar examinations, although those who have reached or exceeded
5 takes as of 2004 would be allowed to take the bar one more time upon completion of a one-year refresher
course. Prior to 5-strike rule, there was no limit to the number of times a candidate could take the bar.

3 September 2013 Resolution

As early as 2011, there were unofficial reports that the 5-strike rule would be suspended or even lifted outright.
These reports gave hope to those who had struck out five times, with some even enrolling in refresher classes in
anticipation of the rules abandonment. On 3 September 2013 the Supreme Court en banc issued its much
awaited resolution lifting the 5-strike rule. The resolution reads as follows:

B.M. No. 1161 (Re: Proposed Reforms in the Bar Examinations). - - The Court resolved, upon the
recommendation of the Committee on Continuing Legal Education and Bar Matters, to LIFT the five-strike rule
on bar repeaters, provided that the candidates have enrolled in and passed in regular fourth year review classes
as well as attended a pre-bar review course every time they take the Bar Examinations after failing for the third
time, under a curriculum prepared by the Legal Education Board (LEB), and in law schools accredited by it for
that purpose. This rule shall take effect beginning with the 2014 Bar Examinations.

The resolution provides that the refresher candidates shall attend fourth year review classes under a curriculum
prepared by the LEB and in law schools accredited by the LEB for the purpose. Hence the passage by the LEB
of the appropriate rules was required for the implementation of the resolution.

8 October 2013 letter of LEB Chairman and SCs response

In reaction to the SC resolution, LEB Chairman Hilarion L. Aquino wrote the SC a letter informing it that the
LEB could not yet officially act on the matter regarding the curriculum and accreditation for lack of quorum,
since of the 7 LEB members, only two were incumbent: the chairman himself and the CHED chairperson as ex
officio member.

Responding to Chairman Aquinos letter, the SC Committee on Continuing Legal Education and Bar Matters
expressed its view that the LEB Chairman may, in order not to adversely prejudice those individuals who are
qualified to take the bar, prepare the required curriculum and the rules for the accreditation of law schools that
may accept refresher course enrollees, subject to confirmation of the LEB as soon as it can constitute a
quorum.

Provisional Rules

Accordingly, Chairman Aquino and board member Justin D.J. Sucgang (law student representative) issued the
Provisional Rules Re: Curriculum of the Refresher Review Class and the Law Schools Accredited to Offer it
dated 4 December 2013.

Refresher Review Class Curriculum

Under the Provisional Rules, the refresher review class curriculum is composed of the following subjects with
their corresponding units:

SUBJECT
UNITS

Constitutional Law Review 4

Civil Law Review I 4
Civil Law Review I 4
Criminal Law Review 4
Remedial Law Review I 3
Remedial Law Review II 4
Labor Law Review 2
Commercial Law Review 4
Taxation Review 2

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The fourth year review based on the old curriculum was as follows:

SUBJECT
UNITS

Constitutional Law Review 4

Civil Law Review I 4
Civil Law Review II 4
Criminal Law Review 4
Remedial Law Review 5
Labor Law Review 2
Commercial Law Review 4
Taxation Review 2
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Under the old curriculum, Remedial Law Review was a single 5-unit review subject while under the new
refresher review curriculum, Remedial Law Review was divided into two subjects, with Remedial Law Review
I a 3-unit subject and Remedial Law Review II a 4-unit subject.

Accreditation

The Provisional Rules also adopted the following criteria in the accreditation of law schools authorized to
conduct refresher review classes.

8.1 The law school must have participated in the 2010, 2011, and 2012 Bar Examinations with not less than 10
bar reviewees in every bar examination.

8.2 At no time in the past bar examinations has a law school gotten a zero score.

8.3 The law school was never given a Warning to improve the quality of its law instruction nor imposed a
sanction by the LEB.

The above standards were quite strict such that the LEB in the Provisional Rules could come up with a list of
only 60 law schools that were accredited and granted authority to conduct refresher review classes.

Ratification of the Provisional Rules with modification on accreditation criteria

On 13 January 2014, three members of the LEB (Chairman Aquino, Sucgang, and Carmelita P. Yadao-Sison for
the CHED Chairperson), constituting a quorum, issued an order ratifying the Provisional Rules subject to the
amendment of Paragraph 8 on accreditation by deleting subparagraphs 8.2 and 8.3 and replacing them with a
new paragraph 8.2. Thus the amended Paragraph 8 on accreditation now reads as follows:

8.1 The law school must have participated in the 2010, 2011, and 2012 Bar Examinations with not less than 10
bar reviewees in every bar examination.

8.2 The law school has never been administratively sanctioned by the LEB.

With the ratification by the LEB of its Provisional Rules, the SC Resolution of 3 September 2013 became fully
effective.

Coverage of 3 September 2013 Resolution

Who are the retakers covered by the 3 September 2013 Resolution? Does it apply to all candidates who will be
retaking the bar for the 4th time or more? Or does it apply only to those taking the bar for the 6th time or
more? The writer believes that the resolution should apply only to the latter. For the 4th or 5th retakers, it is
believed that the old 4th year review class curriculum applies without any additional accreditation requirement.
Of course with the abolition of the old 4th year review curriculum in SY 2015-2016, there would no longer be
any need to distinguish between the two groups of retakers.

The Refresher Review Class Curriculum

The refresher review class curriculum is evidently based on the LEB Model Law Curriculum. There appears to
be two matters however which the LEB may have overlooked when it drafted the Provisional Rules. First, the
LEB had amended the model law curriculum by deleting one unit each from Civil Law Review II and Remedial
Law Review II. Hence under the amended Model Law Curriculum, both Civil Law Review II and Remedial
Law Review II are only 3-unit and not 4-unit subjects.

Second. The LEB Model Law Curriculum was first implemented in school year 2012-2013. Thus the 4th
year model law curriculum class would be held for the first time only in SY 2015-2016; the present 4th year
review classes would still be under the old curriculum.

Suggestions

The Supreme Court should be lauded for lifting the 5-strike rule. Considering the great difficulty of the bar
exams, the fluctuations in the pass rate, and the continual reforms and changes in the exam format, it would be
fairer to the candidates if no cap was imposed. The writer however respectfully makes a few suggestions in
order to better effectuate the liberal and compassionate purpose behind the lifting of the 5-strike rule.

Firstly, it is suggested that the new refresher curriculum be applied beginning only with the 2016 bar
exams. This is because the 4th year LEB model law curriculum will kick in only in SY 2015-2016.

It is also recommended that Civil Law Review II and Remedial Law Review II in the new refresher curriculum
be reduced to 3 units. This would synchronize the new refresher curriculum with the LEB Model Law
Curriculum.

Lastly, it is suggested also that the accreditation of law schools authorized to give refresher law classes be
deferred to the 2015 bar. This would avoid prejudice to those who had enrolled for SY 2013-2014 in
anticipation of the lifting of the 5-strike rule for the 2014 bar, only to discover that their law school would not
be accredited under the subsequent LEB rules to give refresher courses.

-oOo-

All rights reserved January 2014