Cayetano v. Monsod 201 SCRA 210
Cayetano v. Monsod 201 SCRA 210
Cayetano v. Monsod 201 SCRA 210
PARAS, J.:
The aforequoted provision is patterned after Section 1(1), Article XII-C of the
1973 Constitution which similarly provides:
‘There shall be an independent Commission on Elections composed of a Chairman
and eight Commissioners who shall be naturalborn citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age and holders of a
college degree. However, a majority thereof, including the Chairman, shall be mem-
bers of the Philippine Bar who have been engaged in the practice of law for at least
ten years.” (Italics supplied)
The practice of law is not limited to the conduct of cases in court (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is
also considered to be in the practice of law when he:
“x x x for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective, before
any court, commissioner, referee, board, body, committee, or commission constituted
by law or authorized to settle controversies and there, in such representative
capacity performs any act or acts for the purpose of obtaining or defending the rights
of their clients under the law. Otherwise stated, one who, in a representative
capacity, engages in the business of advising clients as to their rights under the law,
or while so engaged performs any act or acts either in court or outside of court for
that purpose, is engaged in the practice of law.” (State ex. rel. Mckittrick v, C.S.
Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v. Agrava, (105 Phil.
173, 176–177) stated:
“The practice of law is not limited to the conduct of cases or litigation in court;
itembraces the preparation of pleadings and other papers incident to actions and
special proceedings, the management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveying. In general, all advice to
clients, and all action taken for them in matters connected with the law incorporation
services, assessment and condemnation services contemplating an appearance before
a judicial body, the foreclosure of a mortgage, enforcement of a creditor’s claim in
bankruptcy and insolvency proceedings, and conducting proceedings in attachment,
and in matters of estate and guardianship have been held to constitute law practice,
as do the preparation and drafting of legal instruments, where the work done
involves the determination by the trained legal mind of the legal effect of facts and
conditions.” (5 Am. Jr. p. 262, 263). (Italics supplied)
“Practice of law under modern conditions consists in no small part of work performed
outside of any court and having no immediate relation to proceedings in court. It
embraces conveyancing, the giving of legal advice on a large variety of subjects, and
the preparation and execution of legal instruments covering an extensive field of
business and trust relations and other affairs. Although these transactions may have
no direct connection with court proceedings, they are always subject to become
involved in litigation. They require in many aspects a high degree of legal skill, a
wide experience with men and affairs, and great capacity for adaptation to difficult
and complex situations. These customary functions of an attorney or counselor at
law bear an intimate relation to the administration of justice by the courts. No valid
distinction, so far as concerns the question set forth in the order, can be drawn
between that part of the work of the lawyer which involves appearance in court and
that part which involves advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill, of sound moral
character; and acting at all times under the heavy trust obligations to clients which
rests upon all attorneys.” (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.],
p. 665–666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted
in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139, 144). (Italics
ours)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience. “To
engage in the practice of law is to perfom those acts which are characteristics
of the profession. Generally, to practice law is to give notice or render any
kind of service, which device or service requires the use in any degree of legal
knowledge or skill.” (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has
adopted a liberal interpretation of the term “practice of law.”
“MR. FOZ. Before we suspend the session, may I make a manifestation which I
forgot to do during our review of the provisions on the Commission on Audit. May I
be allowed to make a very brief statement? , -. . ..
“MR. FOZ. This has to do with the qualifications of the members of the Commission
on Audit Among others, the qualifications provided for by Section 1 is that ‘They must
be Members of the Philippine Bar—I am quoting from the provision—'who have been
engaged in the practice of law for at least ten years/”
“To avoid any misunderstanding which would result in excluding members of the
Bar who are now employed in the COA or Commission on Audit, we would like to
make the clarification that this provision on qualifications regarding members of the
Bar does not necessarily refer or involve actual practice of law outside the COA We
have to interpret this to mean that as long as the lawyers who are employed in the
COA are using their legal knowledge or legal talent in their respective work within
COA, then they are qualified to be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.
“MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent
to the requirement of a law practice that is set forth in the Article on the Commission
on Audit?
‘MR. FOZ. We must consider the fact that the work of COA, although it is auditing,
will necessarily involve legal work; it will involve legal work. And, therefore, lawyers
who are employed in COA now would have the necessary qualifications in accordance
with the provision on qualifications under our provisions on the Commission on
Audit. And, therefore. the answer is yes,
“MR. OPLE. Yes. So that the construction given to this is that this is equivalent to
the practice of law.
x x (Italics supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others,
that the Chairman and two Commissioners of the Commission on Audit
(COA) should either be certified public accountants with not less than ten
years of auditing practice, or members of the Philippine Bar who have been
engaged in the practice of law for at least ten years. (italics supplied)
Corollary to this is the term “private practitioner'' and which is in many ways
synonymous with the word “lawyer.” Today, although many lawyers do not
engage in private practice, it is still a fact that the majority of lawyers are
private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM
Career Horizons: Illinois), 1986], p. 15]).
The test that defines law practice by looking to traditional areas of law
practice is essentially tautologous, unhelpful defining the practice of law as
that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West
Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as
“the performance of any acts . .. . in or out of court, commonly understood to
be the practice of law. (State Bar Ass’n v. Connecticut Bank & Trust Co., 145
Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne,128
Conn. 325, 22 A.2d 623,626 [1941]). Because lawyers perform almost every
function known in the commercial and governmental realm, such a definition
would obviously be too global to be workable. (Wolfram, op. cit).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.).Why is this so? Recall that the late Alexander
SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a
business counselor in this wise: “Even today, there are still uninformed
laymen whose concept of an attorney is one who principally tries cases before
the courts. The members of the bench and bar and the informed laymen such
as businessmen, know that in most developed societies today, substantially
more legal work is transacted in law offices than in the courtrooms. General
practitioners of law who do both litigation and non-litigation work also know
that in most cases they find themselves spending more time doing what [is]
loosely describe[d] as business counseling: than in trying cases. The business
lawyer has been described as the planner, the diagnostician and the trial
lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine,
surgery should be avoided where internal medicine can be
effective.” (Business Star,“Corporate Finance Law/' Jan. 11,1989, p. 4).
In the course of a working day the average general practitioner will engage in
a number of legal tasks, each involving different legal doctrines, legal skills,
legal processes, legal institutions, clients, and other interested parties. Even
the increasing numbers of lawyers in specialized practice will usually perform
at least some legal services outside their specialty. And even within a narrow
specialty such as tax practice, a lawyer will shift from one legal task or role
such as advice-giving to an importantly different one such as representing a
client before an administrative agency. (Wolfram, supra, p 687).
By no means will most of this work involve litigation, unless the lawyer is one
of the relatively rare types—a litigator who specializes in this work to the
exclusion of much else. Instead, the work will require the lawyer to have
mastered the full range of traditional lawyer skills of client counselling,
advice-giving, document drafting, and negotiation. And increasingly lawyers
find that the new skills of evaluation and mediation are both effective for
many clients and a source of employment. (Ibid.).
In a complex legal problem the mass of information to be processed, the sorting and
weighing of significant conditional factors, the appraisal of major trends, the
necessity of estimating the consequences of given courses of action, and the need for
fast decision and response in situations of acute danger have prompted the use of
sophisticated concepts of information flow theory, operational analysis, automatic
data processing, and electronic computing equipment. Understandably, an improved
decisional structure must stress the predictive component of the policy-making
process, wherein a “model”, of the decisional context or a segment thereof is
developed to test projected alternative courses of action in terms of futuristic effects
flowing therefrom.
Although members of the legal profession are regularly engaged in predicting and
projecting the trends of the law, the subject of corporate finance law has received
relatively little organized and formalized attention in the philosophy of advancing
corporate legal education. Nonetheless, a cross-disciplinary approach to legal
research has become a vital necessity.
Truth to tell, many situations involving corporate finance problems would require
the services of an astute attorney because of the complex legal implications that
arise from each and every necessary step in securing and maintaining the business
issue raised. (Business Star,“Corporate Finance Law,” Jan. 11,1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as the
“abogado de campanilla.” He is the “big-time” lawyer, earning big money and with a
clientele composed of the tycoons and magnates of business and industry.
Despite the growing number of corporate lawyers, many people could not explain
what it is that a corporate lawyer does. For one, the number of attorneys employed
by a single corporation will vary with the size and type of the corporation. Many
smaller and some large corporations farm out all their legal problems to private law
firms, Many others have in-house counsel only for certain matters. Other corporation
have a staff large enough to handle most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal
affairs of a corporation. His areas of concern or jurisdiction may include,
inter alia:corporate legal research, tax laws research, acting out as corporate
secretary (in board meetings), appearances in both courts and other adjudicatory
agencies (including the Securities and Exchange Commission). and in other
capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal
affairs of the business of the corporation he is representing. These include such
matters as determining policy and becoming involved in management. (Italics
supplied.)
In a big company, for example, one may have a feeling of being isolated from the
action, or not understanding how one’s work actually fits into the work of the
organization. This can be frustrating to someone who needs to see the results of his
work first hand. In short, a corporate lawyer is sometimes offered this fortune to be
more closely involved in the running of the business.
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To
borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: “A bad
lawyer is one who fails to spot problems, a good lawyer is one who perceives the
difficulties, and the excellent lawyer is one who surmounts them.” (Business
Star, “Corporate Finance Law,” Jan. 11,1989, p. 4).
Today, the study of corporate law practice direly needs a “shot in the arm,” so to
speak. No longer are we talking of the traditional law teaching method of confining
the subject study to the Corporation Code and the Securities Code but an incursion
as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of particular
significance to the corporate counsel; (2) an introduction to usable disciplinary skills
applicable to a corporate counsel’s management responsibilities; and (3) a devotion to
the organization and management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a shared
area linking them. Otherwise known as “intersecting managerial jurisprudence,” it
forms a unifying theme for the corporate counsel’s total learning.
Some current advances in behavior and policy sciences affect the counsel’s role. For
that matter, the corporate lawyer reviews the globalization process, including the
resulting strategic repositioning that the firms he provides counsel for are required
to make, and the need to think about a corporation’s strategy at multiple levels. The
salience of the nation-state is being reduced as firms deal both with global
multinational entities and simultaneously with sub-national governmental units.
Firms increasingly collaborate not only with public entities but with each other—
often with those who are competitors in other arenas.
The practising lawyer of today is with governmental policies toward the promotion
and management of technology. New collaborative arrangements for promoting
specific technologies or competitiveness more generally require approaches from
industry that differ from older, more adversarial relationships and traditional forms
of seeking to influence governmental policies.And there are lessons to be learned from
other countries. In Europe, Esprit, Eureka and Race are examples of collaborative
efforts between governmental and business Japan’s MITI is world famous. (Italics
supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel
comprises a distinct group within the managerial structure of all kinds of
organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-
context interaction such as the groups actively revising their knowledge of the
environment, coordinating work with outsiders. promoting team achievements
within the organization. In general, such external activities are better predictors of
team performance than internal group processes,
“In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-
vis the managerial mettle of corporations are challenged.Current research is seeking
ways both to anticipate effective managerial procedures and to understand
relationships of financial liability and insurance considerations, (Italics supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:
First System Dynamics, The field of systems dynamics has been found an effective
tool for new managerial thinking regarding both planning and pressing immediate
problems. An understanding of the role of feedback loops, inventory levels, and rates
of flow, enable users to simulate all sorts of systematic problems—physical,
economic, managerial, social, and psychological. New programming techniques now
make the systems dynamics principles more accessible to managers—including
corporate counsels. (Italics supplied)
Second Decision Analysis. This enables users to make better decisions involving
complexity and uncertainty. In the context of a law department, it can be used to
appraise the settlement value of litigation, aid in negotiation settlement, and
minimize the cost and risk involved in managing a portfolio of cases, (Italics
supplied)
[Be this as it may,] the organization and management of the legal function, concern
three pointed areas of consideration, thus:
Organization and Functioning of the Corporate Counsel’s Office. The general counsel
has emerged in the last decade as one of the most vibrant subsets of the legal
profession. The corporate counsel hear responsibility for key aspects of the firm’s
strategic issues, including structuring its global operations, managing improved
relationships with an increasingly diversified body of employees, managing
expanded liability exposure, creating new and varied interactions with public
decision-makers, coping internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is not enough
to make one a good general corporate counsel nor to give him a full sense of how the
legal system shapes corporate activities. And even if the corporate lawyer’s aim is
not the understand all of the law’s effects on corporate activities, he must, at the
very least, also gain a working knowledge of the management issues if only to be
able to grasp not only the basic legal “constitution” or makeup of the modern
corporation. “Business Star, “The Corporate Counsel,” April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than a
passing knowledge of financial law affecting each aspect of their work, Yet, many
would admit to ignorance of vast tracts of the financial law territory. What
transpires next is a dilemma of professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star,“Corporate Finance law,” Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C.
Aquino to the position of Chairman of the COMELEC in a letter received by
the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not possess
the required qualification of having been engaged in the practice of law for at
least ten years.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the
bar examinations of 1960 with a grade of 86.55%. He has been a dues paying
member of the Integrated Bar of the Philippines since its inception in 1972–
73. He has also been paying his professional license fees as lawyer for more
than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the
bar, Atty. Monsod worked in the law office of his father. During his stint in the
World Bank Group (1963–1970), Monsod worked as an operations officer for
about two years in Costa Rica and Panama, which involved getting
acquainted with the laws of member-countries, negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning to
the Philippines in 1970, he worked with the Meralco Group, served as chief
executive officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to various companies as a
legal and economic consultant or chief executive officer. As former Secretary-
General (1986) and National Chairman (1987) of NAMFREL. Monsod’s work
involved being knowledgeable In election law. He appeared for NAMFREL in
its accreditation hearings before the Comelec. In the field of advocacy, Monsod,
in his personal capacity and as former Co-Chairman of the Bishops
Businessmen’s Conference for Human Development, has worked with the
under privileged sectors, such as the farmer and urban poor groups, in
initiating, lobbying for and engaging in affirmative action for the agrarian
reform law and lately the urban land reform bill. Monsod also made use of his
legal knowledge as a member of the Davide Commission, a quasijudicial body,
which conducted numerous hearings (1990) and as a member of the
Constitutional Commission (1986–1987), and Chairman of its Committee on
Accountability of Public Officers, for which he was cited by the President of the
Commission, Justice Cecilia Muñoz-Palma for “innumerable amendments to
reconcile government functions with individual freedoms and public
accountability and the party-list system for the House of Representative.” (pp.
128–129 Rollo) (Italics supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used
to be a member,
In a loan agreement, for instance, a negotiating panel acts as a team, and which is
adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations officer
(such as an official involved in negotiating the contracts) who comprise the members
of the team. (Guillermo V. Soliven, “Loan Negotiating Strategies for Developing
Country Borrowers,” Staff Paper No. 2, Central Bank of the Philippines, Manila,
1982, p. 11). (Italics supplied)
After a fashion, the loan agreement is like a country’s Constitution; it lays down the
law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1) business
terms; (2) borrower’s representation; (3) conditions of closing; (4) covenants; and (5)
events of default. (Ibid., p. 13),
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and legal
advising, they score national development policies as key factors in maintaining
their countries’ sovereignty. (Condensed from the work paper, entitled “Wanted;
Development Lawyers for Developing Nations,” submitted by L. Michael Hager,
regional legal adviser of the United States Agency for International Development,
during the Session on Law for the Development of Nations at the Abidjan World
Conference in Ivory Coast, sponsored by the World Peace Through Law Center on
August 26–31 , 1973).1973). (Italics supplied)
Loan concessions and compromises, perhaps even more so than purely renegotiation
policies, demand expertise in the law of contracts, in legislation and agreement
drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an
international business specialist or an economist in the formulation of a model loan
agreement. Debt restructuring contract agreements contain such a mixture of
technical language that they should be carefully drafted and signed only with the
advise of competent counsel in conjunction with the guidance of adequate technical
support personnel. (See International Law Aspects of the Philippine External
Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321).
(Italics supplied)
Interpreted in the light of the various definitions of the term “practice of law”,
particularly the modern concept of law practice, and taking into consideration
the liberal construction intended by the framers of the Constitution, Atty.
Monsod’s past work experiences as a lawyer-economist, a lawyer-
manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts,
and a Iawyer-legislator of both the rich and the poor—verily more than satisfy
the constitutional requirement—that he has been engaged in the practice of
law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA
327, the Court said:
“Appointment is an essentially discretionary power and must be performed by the
officer in which it is vested according to his best lights, the only condition being that
the appointee should possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified
who should have been preferred. This is a political question involving considerations
of wisdom which only the appointing authority can decide."(emphasis supplied)
No less emphatic was the Court in the case of Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
“It is well-settled that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no alternative but to
attest to the appointment in accordance with the Civil Service Law. The Commission
has no authority to revoke an appointment on the ground that another person is
more qualified for a particular position. It also has no authority to direct the
appointment of a substitute of its choice. To do so would be an encroachment on the
discretion vested upon the appointing authority. An appointment is essentially within
the discretionary power of whomsoever it is vested, subject to the only condition that
the appointee should possess the qualifications required by law.”(Italics supplied)
Anent Justice Teodoro Padilla’s separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of
law, which modern connotation is exactly what was intended by the eminent
framers of the 1987 Constitution. Moreover, Justice Padilla’s definition would
require generally a habitual law practice, perhaps practised two or three
times a week and would outlaw say, law practice once or twice a year for ten
consecutive years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that
in my written opinion, I made use of a definition of law practice which really
means nothing because the definition says that law practice " ... is what
people ordinar-ily mean by the practice of law.” True I cited the definition but
only by way of sarcasm as evident from my statement that the definition of
law practice by “traditional areas of law practice is essentially tautologous”
or defining a phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others
on what the law means, are actually practicing law. In that sense, perhaps,
but we should not lose sight of the fact that Mr. Monsod is a lawyer, a
member of the Philippine Bar, who has been practising law for over ten years.
This is different from the acts of persons practising law, without first
becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected
President of the Philippines, say, on the ground that he lacks one or more
qualifications. This matter, I greatly doubt. For one thing, how can an action
or petition be brought against the President? And even assuming that he is
indeed disqualified, how can the action be entertained since he is the
incumbent President?
We now proceed:
(2)In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.
(3)If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reversethe U.S. Senate.
Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson’s beloved) for help in capturing
Samson. Delilah agreed on condition that—
“No blade shall touch his skin;
When Samson (his long hair cut by Delilah) was captured, the procurator
placed an iron rod burning white-hot two or three inches away from in front
of Samson’s eyes. This blinded the man. Upon hearing of what had happened
to her beloved, Delilah was beside herself with anger, and fuming with
righteous fury, accused the procurator of reneging on his word. The
procurator calmly replied: “Did any blade touch his skin? Did any blood flow
from his veins?” The procurator was clearly relying on the letter, not the
spirit of the agreement.
SO ORDERED.
Davide, Jr., J., No part, I was among those who issued a testimonial in
favor of Christian Monsod which was submitted by him to CA.
CONCURRENCE
NERVASA, J.:
I concur with the decision of the majority written by Mr. Justice Paras, albeit
only in the result; it does not appear to me that there has been an adequate
showing that the challenged determination by the Commission on
Appointments -that the appointment of respondent Monsod as Chairman of
the Commission on Elections should, on the basis of his stated qualifications
and after due assessment thereof, be confirmed—was attended by error so
gross as to amount to grave abuse of discretion and consequently merits
nullification by this Court in accordance with the second paragraph of Section
1, Article VIII of the Constitution. I therefore vote to DENY the petition.
DISSENTING OPINION
PADILLA, J.:
The records of this case will show that when the Court first deliberated on the
Petition at bar, I voted not only to require the respondents to comment on the
Petition, but I was the sole vote for the issuance of a temporary restraining
order to enjoin respondent Monsod from assuming the position of COMELEC
Chairman, while the Court deliberated on his constitutional qualification for
the office. My purpose in voting for a TRO was to prevent the inconvenience
and even embarrassment to all parties concerned were the Court to finally
decide for respondent Monsod’s disqualification. Moreover. a reading of the
Petition then in relation to established jurisprudence already showed prima
facie that respondent Monsod did not possess the needed qualification, that
is, he had not engaged in the practice of law for at least ten (10) years prior to
his appointment as COMELEC Chairman.
The Constitution has imposed clear and specific standards for a COMELEC
Chairman. Among these are that he must have been “engaged in the practice
of law for at least ten (10) years.” It is the bounden duty of this Court to
ensure that such standard is met and complied with.
2.Compensation. Practice of law implies that one must have presented himself to be
in the active and continued practice of the legal profession and that his professional
services are available to the public for compensation, as a service of his livelihood or
in consideration of his said services. (People v. Villanueva, supra). Hence, charging
for services such as preparation of documents involving the use of legal knowledge
and skill is within the term ‘practice of law’ (Ernani Paño, Bar Reviewer in Legal
and Judicial Ethics, 1988 ed., p. 8 citing People v. People’s Stockyards State Bank,
176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p.
806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If
compensation is expected, ‘all advice to clients and all action taken for them in
matters connected with the law; are practicing law. (Elwood Fitchette et al., v.
Arthur C. Taylor, 94 A-L.R. 356–359)
3.Application of law, legal principle, practice, or procedure which calls for legal
knowledge, training and experience is within the term ‘practice of law’. (Martin
supra)
1.Did respondent Monsod perform any of the tasks which are peculiar to the
practice of law?
While it may be granted that he performed tasks and activities which could
be latitudinarianly considered activities peculiar to the practice of law, like
the drafting of legal documents and the rendering of legal opinion or advice,
such were isolated transactions or activities which do not qualify his past
endeavors as “practice of law;” To become engaged in the practice of law,
there must be a continuity, or a succession of acts. As observed by the Solicitor
General in People vs. Villanueva: 4
“Essentially, the word private practice of law implies that one must have presented
himself to be in the active and continued practice of the legal professionand that his
professional services are available to the public for a compensation, as a source of his
livelihood or in consideration of his said services.”
In Luego, which is cited in the ponencia, what was involved was the discretion
of the appointing authority to choose between two claimants to the same office
who both possessed the required qualifications. It was that kind of discretion
that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this
Court for lack of the required qualifications, I see no reason why we cannot
disqualify an appointee simply because he has passed the Commission on
Appointments.
Even the President of the Philippines may be declared ineligible by this Court
in an appropriate proceeding notwithstanding that he has been found
acceptable by no less than the enfranchised citizenry. The reason is that what
we would be examining is not the wisdom of his election but whether or not
he was qualified to be elected in the first place.
The ponencia quotes an American decision defining the practice of law as the
“performance of any acts, . , in or out of court, commonly understood to be the
practice of law,” which tells us absolutely nothing. The decision goes on to say
that “because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously be too
global to be workable.”
The effect of the definition given in the ponencia is to consider virtually every
lawyer to be engaged in the practice of law even if he does not earn his living,
or at least part of it, as a lawyer. It is enough that his activities are
incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived from
teaching ballroom dancing or escorting wrinkled ladies with pubescent
pretensions.
I have much admiration for respondent Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant the petition;
DISSENTING OPINION
When this petition was filed, there was hope that engaging in the practice of
law as a qualification for public office would be settled one way or another in
fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian
Monsod engaged in the practice of law (with one of these 5 leaving his vote
behind while on official leave but not expressing his clear stand on the
matter); 4 categorically stating that he did not practice law; 2 voting in the
result because there was no error so gross as to amount to grave abuse of
discretion; one of official leave with no instructions left behind on how he
viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing
the work of a constitutional Commission on Appointments whose duty is
precisely to look into the qualifications of persons appointed to high office.
Even if the Commission errs, we have no power to set aside error. We can
look only into grave abuse of discretion or whimsically and arbitrariness.
Second is our belief that Mr. Monsod possesses superior qualifications in
terms of executive ability, proficiency in management, educational
background, experience in international banking and finance, and instant
recognition by the public. His integrity and competence are not questioned by
the petitioner. What is before us is compliance with a specific requirement
written into the Constitution.
A person may have passed the bar examinations. But if he has not dedicated
his life to the law, if he has not engaged in an activity where membership in
the bar is a requirement I fail to see how he can claim to have been engaged in
the practice of law.
The Constitution uses the phrase “engaged in the practice of law for at least
ten years.” The deliberate choice of words shows that the practice envisioned
is active and regular, not isolated, occasional, accidental, intermittent,
incidental, seasonal, or extemporaneous. To be “engaged” in an activity for
ten years requires committed participation in something which is the result of
one’s decisive choice. It means that one is occupied and involved in the
enterprise: one is obliged or pledged to carry it out with intent and attention
during the ten-year period.
9.Presently: Chairman of the Board and Chief Executive Officer of the following
companies:
b.Dataprep, Philippines
e.Graphic Atelier
There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the law enough attention or a certain degree of
commitment and participation as would support in all sincerity and candor
the claim of having engaged in its practice for at least ten years. Instead of
working as a lawyer, he has lawyers working for him. Instead of giving legal
advice of legal services, he was the one receiving that advice and those
services as an executive but not as a lawyer.
I regret that I cannot join in playing fast and loose with a term, which even
an ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of
discernment has to know, follow, or apply the law at various times in his life.
Legal knowledge is useful if not necessary for the business executive,
legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman,
market vendor, and student to name only a few. And yet, can these people
honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been “engaged in the practice of law for at
least ten years.” It is not satisfied with having been “a member of the
Philippine bar for at least ten years.”
For one’s actions to come within the purview of practice of law they should
not only be activities peculiar to the work of a lawyer, they should also be
performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a lawful
right to do any legal work in connection with real-estate transactions, especially in
drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no
doubt but that he has engaged in these practices over the years and has charged for
his services in that connection. x x x.” (People v. Schafer, 87 N.E. 2d 773)
In this jurisdiction, we have ruled that the practice of law denotes frequency
or a succession of acts. Thus, we stated in the case of People v. Villanueva (14
SCRA 109[1965]):
“x x x Practice is more than an isolated appearance, for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S.
768). Practice of law to fall within the prohibition of statute has been interpreted as
customarily or habitually holding one’s self out to the public, as a lawyer and
demanding payment for such services. x x ." (at p. 1 12)
Petition dismissed.
Note.—View that the court should not impose its view on areas within the
competence of policy makers. (Garcia vs. Board of lnvestments, 191 SCRA
288.)