"It is an imperative not just for academic freedom but access to justice as well."
Aside from Associate Justice Marvic Leonen, whose opinion was joined by former Chief Justice Lucas Bersamin, other members of the Supreme Court concurred and/or dissented from the majority opinion in Pimentel vs. Legal Education Board which declared as unconstitutional the LEB memorandum requiring applicants to pass the PhilSAT, the law admission exam administered by the LEB. It should be recalled that the majority in that case, through an opinion written by Justice Jose Reyes, declared such memorandum as ultra vires or for being issued by the LEB outside its powers. Justices Estella Perlas-Bernabe and Benjamin Caguioa concurred with the decision, Justices Amy Lazaro-Javier and Francis Jardeleza concurred and dissented, diverging from the majority to support the LEB in its imposition of the PhilSat.
I am more supportive of the approach of Justice Leonen, to which I devoted the last column. In this context, I think that Justice Alexander Gesmundo also makes better sense for me. In his separate concurring and dissenting opinion, Gesmundo partly granted the consolidated petitions. To him, the LEB Memorandum Orders and circulars unreasonably restrict academic freedom as PhilSat is exclusionary and those that do not pass the test shall not be admitted to law school.
Gesmundo concurs with the majority that requiring PhilSat as mandatory and exclusionary is unconstitutional. He anchors his finding on the following arguments: First, by making PhilSat mandatory, it unreasonably restricts the freedom of law schools to determine who shall be admitted to law schools. Second, the LEB does not give justification for the required passing score of 55 percent and the format of examinations. Third, law schools are given no option other than to follow the LEB memorandum orders and circular.
For Justice Gesmundo, the PhilSat cannot be compared to NMAT because there are lots of difference, and one such difference is that there is no passing or failing grade in NMAT other than the examinees are given a percentile grade which is unlike the PhilSat where the examinee is given a passing or failing grade. He is of the opinion that the PhilSat should be set aside and instead law schools through the Philippine Association of Law Schools and under the mere supervision of the LEB, should establish a unified, standardized and acceptable law admission examination which is unrestrictive of academic freedom, cost-efficient, accessible and effective in assessing incoming law students.
However, Gesmundo dissents from the ruling by the majority that the LEB who shall control, lead, and regulate the unified admission exams. Instead, it must be initiated by the law schools themselves, pursuant to academic freedom.
On my part, as a longtime professor of law teaching in more than a dozen law schools in different parts of the country, I also would uphold academic freedom as a fundamental constitutional imperative that is good for society. Thus, I agree with the decision, and specially the dissents of Leonen and Gesmundo, in placing sacred regard to academic freedom of law schools. And in that context, the PhilSat is unconstitutional as it infringes academic freedom of law schools as to who may be admitted. As Justice Leonen rightly puts it, “academic freedom is anchored on the recognition that academic institutions perform a social function and its business is conducted for the common good; that is, it is necessary tool for critical inquiry of truth and its free expression. The guarantee of academic freedom is complementary to freedom of expression and of the mind.”
Government entities like the Legal Education Board and the Commission on Higher Education do have a role. This role should be not mainly regulatory but more developmental. For whatever it's worth, the LEB may be utilized as an important cog in promoting and improving legal education in the country. The more reasonable road to take is to divest LEB with regulatory powers, that is, the authority to close down or to accredit law schools, and limit its authority merely to initiating programs designed to support, develop and give law schools, specially the poor performing ones, the ability to produce better products. Some programs include advanced training of qualified faculty members, assistance in procurement of facilities and equipment using latest technologies, pooling of resources for library development and research cooperation, joint development of curriculum, and promotion of clinical education.
What was not discussed extensively in the Pimentel case is the connection between legal education and access to justice. A regulatory approach to legal education can justify closing many provincial law schools but doing that can lead to a lack of lawyers in rural areas. That is not an acceptable consequence. The better approach would be to assist those schools, through the programs described earlier, to improve their performance. Indeed, a developmental approach to legal education is an imperative not just for academic freedom but access to justice as well.
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