Lifting of the 5-strike rule now official but some questions remainProf. Manuel R. RigueraOn 3 September 2013 the Supreme Courten bancissued 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 ruleThe 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 ResolutionAs 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 Courten bancissued 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, toLIFTthe 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 responseIn 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 RulesAccordingly, 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 CurriculumUnder the Provisional Rules, the refresher review class curriculum is composed of the following subjects with their corresponding units:

SUBJECT UNITS

Constitutional Law Review4

Civil Law Review I 4

Civil Law Review I4

Criminal Law Review4

Remedial Law Review I3

Remedial Law Review II 4

Labor Law Review2

Commercial Law Review4

Taxation Review2

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

SUBJECT UNITS

Constitutional Law Review4

Civil Law Review I 4

Civil Law Review II4

Criminal Law Review4

Remedial Law Review 5

Labor Law Review2

Commercial Law Review4

Taxation Review2

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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.AccreditationThe 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 criteriaOn 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 ResolutionWho are the retakers covered by the 3 September 2013 Resolution? Does it apply to all candidates who will be retaking the bar for the 4thtime or more? Or does it apply only to those taking the bar for the 6thtime or more? The writer believes that the resolution should apply only to the latter. For the 4thor 5th retakers, it is believed that the old 4thyear review class curriculum applies without any additional accreditation requirement. Of course with the abolition of the old 4thyear 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 CurriculumThe 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 4thyear model law curriculum class would be held for the first time only in SY 2015-2016; the present 4thyear review classes would still be under the old curriculum.SuggestionsThe 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 4thyear 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