The Constitutionality of PhiLSAT in Question

The Constitutionality of PhiLSAT in Question

Alexander Diamla Dumpa

The Philippine Law School Admission Test (PhiLSAT) is a standardized national qualifying examination administered by the Legal Educational Board (LEB) to measure the academic potential of a student seeking to study the law, and is generally imposed as a condition sine qua non in entering Philippine law schools on top of the entrance examinations administered by their chosen schools. However, in some schools like the University of the Philippines (UP) College of Law, the same can be waived.

First implemented in 1970, PhiLSAT was reintroduced in April 2017 following the creation of the LEB through Republic Act (RA) 7662, otherwise known as the Legal Education Reform Act. For the April 2017 PhiLSAT, a total of 6,575 from the 8,074 examinees passed, representing an 81.43% passing rate. Further, in the same year, law schools, in their discretion, were allowed to accept non-passers, provided that the former submit a justification to the Legal Education Board in accordance with LEB Memorandum No. 7.

In 2018, PhiLSAT became mandatory, which means that no student may be accepted into a law school if they did not pass the same. Further, law schools can still implement their own entrance examinations as a second screening for aspiring law students.

Two groups had filed separate petitions questioning RA 7662 and the LEB issuances imposing PhiLSAT – one group of lawyers, law professors, and students led by retired Makati Regional Trial Court Judge Oscar Pimentel, and another group of students from Visayas who either failed to pass PhiLSAT or failed to take it, before the high court in 2017 and 2018 respectively.

The non-legal grounds concerning practicality submitted by the petitioners and intervenors questioning the constitutionality of PhiLSAT, among others, were the following: (1) PhiLSAT hinders aspiring law students from enrolling in law schools because of the steep exam fee of P1,500 and the limited locations of testing centers; (2) it has low passing rates: the September 2017 PhiLSAT had a passing rate of only 57.76% while the April 2018 and September 2018 exams produced passing rates of 61.39% and 56.78%, respectively; (3) small law schools are also affected by the qualifying exam requirement because with fewer students, schools are either forced to increase tuition or close shop. On the other hand, their legal grounds raised issues, among others, on: (1) the academic freedom of academic institutions; (2) the right to know of the people; and (3) the separation of powers.

According to Justice Marvic Leonen, PhiLSAT might possibly be unconstitutional not because of the administering authority but because of violation of academic freedom, a position taken by amicus curiae (friend of the court) Dean Sedfrey Candelaria. Academic freedom pertains to the independence of an academic institution to determine for itself who may teach, what may be taught, how it shall teach, and who may be admitted to study. The same is provided under Article XIV of the 1987 Constitution:

Section 5. (2). Academic Freedom shall be enjoyed in all institutions of higher learning

Law schools, therefore, should be the one to administer their own qualifying exams as part of their constitutionally-guaranteed academic freedom, which includes the power to determine who may be admitted to study, and not by any other body. The state cannot prevent schools from admitting students on their discretion. Law schools have the right to admit even non-passers of PhiLSAT as they must not be homogenized to the point that all of them become Bar review centers rather than legal academics. Doing otherwise is already dictatorial. Besides, according to petitioners, what is the interest of the state in interfering with what is essentially a contract between a student and a school (in the case of private law schools) by imposing a qualifying exam?

It was even argued that “some want to study, not necessarily to become lawyers,” a sentiment also shared by Senior Associate Justice Antonio Carpio. It was contended that LEB cannot prevent a person from trying to get as much knowledge as he can. The State should not be able to filter out applicants to law schools because it violates people’s right to know, particularly those who just want to study law but do not necessarily want to become lawyers. Hence, PhiLSAT is violative of the right of the people to know as provided under Article XIV of the 1987 Constitution:

Section 5. (3). Every Citizen has a right to select a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements.

For want of scientific study to back up the claim that imposing a qualifying exam will help improve the quality of legal education, it was contended that PhiLSAT is unreasonable and therefore, LEB gravely abused its discretion in promulgating and administering the same. LEB chairperson Emerson Aquende admitted that they did not have any study but relied on the results of the Law School Admission Test (LSAT) in the United States of America.

As to the issue on separation of powers, petitioners argued that PhiLSAT encroaches upon the Supreme Court’s constitutional power to promulgate rules concerning admission to the practice of law because it imposed an additional requirement for the practice of law – a qualifying exam for law schools – and is administered by a body not answerable to the SC. The LEB being attached to the Commission on Higher Education (CHED) only for budgetary and administrative purposes and is independent from the SC. Article VIII of the Constitution states that the SC shall have the power, among others, over:

Section 5. (5). x x x admission to the practice of law, the integrated bar, and legal assistance to the underprivileged x x x

Hence, Admission to legal education is part of the practice of law and should thus solely be under the jurisdiction of the high court. Thus, any entrance examination for law school must be administered by the high tribunal and not by a body created by Congress. Congress cannot tell the SC how it is going to admit people to the Bar. Congress cannot create an administrative office or board that can exercise the power vested in the Supreme Court by the Constitution.

On the other hand, the Solicitor General in the person of Jose Calida, representing the LEB, said that admission to law schools is different from admission to the practice of law. Thus, the same does not violate the rule on separation of powers. Some justices also pointed out that the high tribunal had never regulated law schools in the past and only required that law graduates take up a minimum number of courses to qualify for the Bar Exams.

Civil Law Dean Nilo Divina expressed support for the LEB, saying that the office provided a more efficient admissions examination for aspiring law students. Not all law schools conduct their own admission test so that is the idea itself. It is the nationwide examination to determine who are fit to law schools.

Dean Ranhilio Aquino, on the other hand, believes that if one is to follow the belief that PhiLSAT curtails the people’s right to knowledge, the National Medical Admission Test (NMAT) – requirement for admission to Philippine medical schools, should be declared unconstitutional as well.

The researcher herein conducted an informal random survey, asking students from MSU College of Law regarding this matter. The result showed that 58.33% students were in favor of removing PhiLSAT as a condition sine qua non for admission to law school. According to some of them, the same is not an effective instrument in determining whether a student can survive law school and thus pass the BAR exam; it is not necessary since the exam itself is not actually related to what students should expect in the study of the law; it does not give equal opportunities to aspiring students; it is tedious; and finally, while indeed admission to the practice of law is a privilege, admission to the study of law is a right. On the other hand, 41.67% of the respondents said that PhiLSAT should be maintained. For some of them, it was claimed that PhiLSAT filters students who want to enter law schools; it is necessary to maintain the high standards of the study of law; it helps in raising the passing rates of law schools; and finally, it determines who are fit and it eliminates the unfit.

As of today, April 2019, pursuant to the Temporary Restraining Order issued by the Supreme Court in March 2019, admission requirements are to be determined by respective law schools while case is pending.

(This article has been published in the MSU Law Gazette, Vol. 3, No. 2, A.Y. 2018-2019).