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Prof. Joselito Guianan Chan's The Labor Code of the Philippines, Annotated Labor Standards & Social
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UNITED STATES SUPREME COURT JURISPRUDENCE

PHILIPPINE SUPREME COURT JURISPRUDENCE

September-1991 Jurisprudence

G.R. Nos. 68843-44 September 2, 1991 - MARIQUITA O. SUMAYA, ET AL. v. INTERMEDIATE APPELLATE
COURT, ET AL.

G.R. No. 73123 September 2, 1991 - LAND BANK OF THE PHIL. v. DIONISIO N. CAPISTRANO, ET AL.

G.R. No. 78700 September 3, 1991 - ALL OCEANS MARITIME AGENCY, INC., ET AL. v. NATIONAL LABOR
RELATIONS COMMISSION, ET AL.

G.R. No. 100113 September 3, 1991 - RENATO L. CAYETANO v. CHRISTIAN MONSOD, ET AL.
G.R. No. 100710 September 3, 1991 - BENJAMIN P. ABELLA v. COMMISSION ON ELECTIONS, ET AL.

G.R. No. 89217 September 4, 1991 - JUANITA NITURA v. EMPLOYEES’ COMPENSATION COMMISSION, ET
AL.

G.R. No. 93661 September 4, 1991 - SHARP INTERNATIONAL MARKETING v. COURT OF APPEALS, ET AL.

G.R. No. 95244 September 4, 1991 - ELLEN AMBAS, ET AL. v. BRIGIDA BUENASEDA, ET AL.

G.R. No. 95320 September 4, 1991 - PEOPLE OF THE PHIL. v. BALTAZAR LACAO, SR., ET AL.

G.R. No. 79869 September 5, 1991 - FORTUNATO MERCADO, SR., ET AL. v. NATIONAL LABOR RELATIONS
COMMISSION, ET AL.

G.R. No. 81909 September 5, 1991 - LETICIA C. MENDOZA v. COURT OF APPEALS, ET AL.

G.R. No. 85393 September 5, 1991 - ALBA PATIO DE MAKATI, ET AL. v. NATIONAL LABOR RELATIONS
COMMISSION, ET AL.

G.R. No. 88451 September 5, 1991 - PEOPLE OF THE PHIL. v. RONALD C. ALVAREZ, ET AL.

G.R. No. 95070 September 5, 1991 - PAN MALAYAN INSURANCE CORPORATION v. COURT OF APPEALS, ET
AL.

G.R. No. 85659 September 6, 1991 - F.E. ZUELLIG (M), INC. v. COURT OF APPEALS, ET AL.

G.R. No. 87333 September 6, 199

COLEGIO SAN AGUSTIN v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

G.R. No. 90423 September 6, 1991 - FRANCIS LEE v. COURT OF APPEALS, ET AL.

G.R. No. 96131 September 6, 1991 - CORAZON C. GONZAGA v. SANDIGANBAYAN, ET AL.

G.R. No. 72807 September 9, 1991 - MARILAO WATER CONSUMERS ASSOCIATION, INC. v. INTERMEDIATE
APPELLATE COURT, ET AL.

G.R. No. 75810 September 9, 1991 - KAISAHAN NG MANGGAGAWANG PILIPINO v. CRESENCIANO B.

TRAJANO, ET AL.

G.R. No. 85161 September 9, 1991 - COUNTRY BANKERS INSURANCE CORPORATION, ET AL. v. COURT OF
APPEALS, ET AL.

G.R. No. 89982 September 9, 1991 - BENJAMIN GUIMOC, ET AL. v. CLEMENTE C. ROSALES, ET AL.

G.R. No. 78350 September 11, 1991 - SAN FELIPE NERI SCHOOL OF MANDALUYONG, INC., ET AL. v. NLRC,
ET AL.

G.R. No. 79182 September 11, 1991 - PNOC-ENERGY DEVELOPMENT CORPORATION v. NATIONAL LABOR
RELATIONS COMMISSION, ET AL.

G.R. No. 85685 September 11, 1991 - LAURO CRUZ v. COURT OF APPEALS, ET AL.

G.R. No. 92389 September 11, 1991 - JEJOMAR C. BINAY, ET AL. v. EUFEMIO DOMINGO, ET AL.
G.R. No. 94247 September 11, 1991 - DIONISIO MOJICA, ET AL. v. COURT OF APPEALS, ET AL.

A.M. No. MTJ-87-79 September 13, 1991 - LEONILA A. VISTAN v. RUBEN T. NICOLAS

G.R. No. 60269 September 13, 1991 - ENGRACIA VINZONS-MAGANA v. CONRADO ESTRELLA, ET AL.

G.R. No. 74073 September 13, 1991 - HONESTO ONG, ET AL. v. INTERMEDIATE APPELLATE COURT, ET AL.

G.R. No. 86727 September 13, 1991 - PEOPLE OF THE PHIL. v. ERNESTO VERAS, JR., ET AL.

G.R. No. 88014 September 13, 1991 - GONZALO N. ALVAREZ v. SANDIGANBAYAN, ET AL.

G.R. No. 90035 September 13, 1991 - PEOPLE OF THE PHIL. v. AMADEO HANGDAAN, ET AL.

G.R. No. 93454 September 13, 1991 - HECTOR S. RUIZ v. COURT OF APPEALS, ET AL.

G.R. No. 94045 September 13, 1991 - CENTRAL NEGROS ELECTRIC COOPERATIVE, INC. v. SEC. DOLE, ET
AL.

G.R. Nos. 95237-38 September 13, 1991 - DAVAO CITY WATER DISTRICT, ET AL. v. CIVIL SERVICE
COMMISSION, ET AL.

G.R. No. 95664 September 13, 1991 - NINA M. QUISMUNDO v. COURT OF APPEALS, ET AL.

G.R. No. 99258 September 13, 1991 - PEOPLE OF THE PHIL. v. FRANCISCO ARROYO, ET AL.
G.R. No. 38204 September 24, 1991 - MUNICIPALITY OF SOGOD v. AVELINO S. ROSAL, ET AL.

G.R. No. 46296 September 24, 1991 - EPITACIO DELIMA, ET AL. v. COURT OF APPEALS, ET AL.

G.R. No. 71832 September 24, 1991 - LEON BERNARDEZ, ET AL. v. ARSENIO REYES

G.R. No. 85086 September 24, 1991 - ARSENIO P. BUENAVENTURA ENTERPRISES v. NATIONAL LABOR
RELATIONS COMMISSION, ET AL.

G.R. No. 86083 September 24, 1991 - GOVERNMENT SERVICE INSURANCE SYSTEM v. COURT OF
APPEALS, ET AL.

G.R. No. 86302 September 24, 1991 - CASIMIRO MENDOZA v. COURT OF APPEALS, ET AL.

G.R. No. 87698 September 24, 1991 - PHILIPPINE AIRLINES, INC. v. NATIONAL LABOR RELATIONS
COMMISSION, ET AL.

G.R. No. 89621 September 24, 1991 - PEPSI COLA DISTRIBUTORS OF THE PHIL., INC., ET AL. v. LOLITA O.
GAL-LANG, ET AL.

G.R. No. 90294 September 24, 1991 - PEOPLE OF THE PHIL. v. RICARDO RIO

G.R. No. 94143 September 24, 1991 - EDGAR SADIO v. REGIONAL TRIAL COURT OF ANTIQUE, BRANCH
10, ET AL.

G.R. No. 94654 September 24, 1991 - HEIRS OF AMANDO DALISAY v. COURT OF APPEALS, ET AL.
G.R. No. 96169 September 24, 1991 - EMPLOYEES CONFEDERATION OF THE PHIL. v. NATIONAL WAGES
AND PRODUCTIVITY COMMISSION, ET AL.

G.R. No. 99434 September 24, 1991 - JOHNSON & JOHNSON (PHILS.) INC. v. COURT OF APPEALS, ET AL.

G.R. Nos. 87012-13 September 25, 1991 - REYES & LIM COMPANY, INC. v. NATIONAL LABOR RELATIONS
COMMISSION, ET AL.

G.R. No. 94476 September 26, 1991 - MICAELA C. ANDRES, ET AL. v. COMMISSION ON AUDIT

G.R. No. 97710 September 26, 1991 - EMIGDIO A. BONDOC v. MARCIANO M. PINEDA, ET AL.

G.R. No. 64807 September 27, 1991 - BACOLOD-MURCIA MILLING CO., INC., ET AL. v. VICENTE R.
LEOGARDO, JR.

G.R. No. 90786 September 27, 1991 - ESPERO SANTOS SALAW v. NATIONAL LABOR RELATIONS
COMMISSION, ET AL.

G.R. No. 90983 September 27, 1991 - RAYMUNDO A. ARMOVIT v. COURT OF APPEALS, ET AL.

G.R. No. 91016 September 27, 1991 - PEOPLE OF THE PHIL. v. FERNANDO M. MISCALA, JR.

G.R. No. MTJ-88-189 September 30, 1991 - SIMEON G. MACUSE v. GERVACIO A. LOPENA

G.R. No. 71461 September 30, 1991 - PEOPLE OF THE PHIL. v. ANASTACIO CARICUNGAN, ET AL.
G.R. No. 73462 September 30, 1991 - PEOPLE OF THE PHIL. v. MAURICIO PLAGA

G.R. No. 73905 September 30, 1991 - MICHAEL T. DAVA v. PEOPLE OF THE PHIL., ET AL.

G.R. No. 74630 September 30, 1991 - PEOPLE OF THE PHIL. v. MAIDA TOMIO, ET AL.

G.R. No. 75579 September 30, 1991 - TOMAS TRINIDAD v. COURT OF APPEALS

G.R. Nos. 76101-02 September 30, 1991 - TIO KHE CHIO v. COURT OF APPEALS, ET AL.

G.R. No. 76281 September 30, 1991 - COMMISSIONER OF INTERNAL REVENUE v. WYETH SUACO
LABORATORIES, INC., ET AL.

G.R. Nos. 83583-84 September 30, 1991 - COMMISSIONER OF INTERNAL REVENUE v. RIO TUBA NICKEL
MINING CORPORATION, ET AL.

G.R. No. 90364 September 30, 1991 - VIRGILIO C. ARRIOLA, ET AL. v. COMMISSION ON AUDIT, ET AL.

G.R. No. 91539 September 30, 1991 - PEOPLE OF THE PHIL. v. RAMON SAMPAGA

G.R. No. 91849 September 30, 1991 - PEOPLE OF THE PHIL. v. DIORICO BUGHO

G.R. No. 92019 September 30, 1991 - PEOPLE OF THE PHIL. v. LIBRADO L. ARCEO, ET AL.

G.R. No. 92631 September 30, 1991 - PEOPLE OF THE PHIL. v. WILLIAM O. PULOC, ET AL.
G.R. No. 93396 September 30, 1991 - PHILIPPINE AMUSEMENT AND GAMING CORPORATION v. COURT
OF APPEALS, ET AL.

G.R. No. 94313 September 30, 1991 - PEOPLE OF THE PHIL. v. REYNALDO V. COMO

G.R. No. 95197 September 30, 1991 - FIRST PHILIPPINE HOLDINGS CORPORATION v. SANDIGANBAYAN

Philippine Supreme Court Jurisprudence > Year 1991 > September 1991 Decisions > G.R. No. 100113
September 3, 1991 - RENATO L. CAYETANO v. CHRISTIAN MONSOD, ET AL.:

G.R. No. 100113 September 3, 1991 - RENATO L. CAYETANO v. CHRISTIAN MONSOD, ET AL.

PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. No. 100113. September 3, 1991.]

RENATO L. CAYETANO, Petitioner, v. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENTS, and HON. GUILLERMO CARAGUE in his capacity as Secretary of Budget and
Management, Respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

DECISION

PARAS, J.:

We are faced here with a controversy of far-reaching proportions While ostensibly only legal issues are
involved, the Court’s decision in this case would indubitably have a profound effect on the political
aspect of our national existence.

The 1987 Constitution provides in Section 1(1), Article IX-C:jgc:chanrobles.com.ph

"There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be
natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of
age, holders of a college degree, and must not have been candidates for any elective position in the
immediately preceding elections. However, a majority thereof, including the Chairman, shall be members
of the Philippine Bar who have been engaged in the practice of law for at least ten years." (Emphasis
supplied)
The aforequoted provision is patterned after Section 1(1), Article XII-C of the 1973 Constitution which
similarly provides:jgc:chanrobles.com.ph

"There shall be an independent Commission on Elections composed of a Chairman and eight

Commissioners who shall be natural-born 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 members of the Philippine Bar who have been engaged in the
practice of law for al least ten years." (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a

legal qualification to an appointive office.chanrobles virtual lawlibrary

Black defines "practice of law" as:jgc:chanrobles.com.ph

"The rendition of services requiring the knowledge and the application of legal principles and technique
to serve the interest of another with his consent. It is not limited to appearing in court, or advising and
assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers
incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all
kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for
them in matters connected with the law. An attorney engages in the practice of law by maintaining an
office where he is held out to be an attorney, using a letterhead describing himself as an attorney,
counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing
and collecting fees for services rendered by his associate." (Black’s Law Dictionary, 3rd ed.).

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:jgc:chanrobles.com.ph

". . . 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:jgc:chanrobles.com.ph

"The practice of law is not limited to the conduct of cases or litigation in court; it embraces 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). (Emphasis 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). (Emphasis ours).
The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-
1975) listed the dimensions of the practice of law in even broader terms as advocacy, counseling and
public service.

"One may be a practicing attorney in following any line of employment in the profession. If what he does
exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their
profession, and he follows some one or more lines of employment such as this he is a practicing attorney
at law within the meaning of the statute." (Barr D. Cardell, 155 NW 312).

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 perform 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." chanrobles virtual lawlibrary

"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?

"THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

"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.

"This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it
important to take it up on the floor so that this interpretation may be made available whenever this
provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law
for at least ten years is taken up.

"MR. OPLE. Will Commissioner Foz yield to just one question.

"MR. FOZ. Yes, Mr. Presiding Officer.

"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.

"MR. FOZ. Yes, Mr. Presiding Officer.

"MR. OPLE. Thank you."cralaw virtua1aw library

. . . (Emphasis 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. (Emphasis 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]).

At this point, it might be helpful to define private practice. The term, as commonly understood, means
"an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who
practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is
usually a partnership and members of the firm are the partners. Some firms may be organized as
professional corporations and the members called shareholders. In either case, the members of the firm
are the experienced attorneys. In most firms, there are younger or more inexperienced salaried
attorneys called "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologies,
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.)

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for
lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in
courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593).
Nonetheless, many lawyers do continue to litigate and the litigating lawyer’s role colors much of both
the public image and the self-perception of the legal profession. (Ibid.).chanrobles.com:cralaw:red
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.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very
important ways, at least theoretically, so as to remove from it some of the salient features of adversarial
litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers’ work the
constraints are imposed both by the nature of the client and by the way in which the lawyer is organized
into a social unit to perform that work. The most common of these roles are those of corporate practice
and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in
corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in corporate law
practice. Lawyers and other professional groups, in particular those members participating in various
legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation
law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of

the nature and implications of the corporate law research function accompanied by an accelerating rate
of information accumulation. The recognition of the need for such improved corporate legal policy
formulation, particularly "model-making" and contingency planning," has impressed upon us the
inadequacy of traditional procedures in many decisional contexts.

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.

Certainly, the general orientation for productive contributions by those trained primarily in the law can
be improved through an early introduction to multi-variable decisional contexts and the various
approaches for handling such problems. Lawyers, particularly with either a master’s or doctorate degree
in business administration or management, functioning at the legal policy level of decision-making now
have some appreciation for the concepts and analytical techniques of other professions which are
currently engaged in similar types of complex decision-making.
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.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

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. (Emphasis 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.

Moreover, a corporate lawyer’s services may sometimes be engaged by a multinational corporation

(MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter
the international law field. After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived by many as glamorous, this
is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced
attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star,
"Corporate Law Practice," May 25, 1990, p. 4).

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.

Also, the nature of the lawyer’s participation in decision-making within the corporation is rapidly
changing. The modern corporate lawyer has gained a new role as a stockholder — in some cases
participating in the organization and operations of governance through participation on boards and
other decision-making roles. Often these new patterns develop alongside existing legal institutions and
laws are perceived as barriers. These trends are complicated as corporations organize for global
operations. (Emphasis supplied).

The practising lawyer of today is familiar as well 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. (Emphasis
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. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:chanrob1es virtual 1aw
library

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. (Emphasis 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. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by parties
and mediators in all kinds of negotiations. All integrated set of such tools provide coherent and effective
negotiation support, including hands-on on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas
of consideration, thus:chanrob1es virtual 1aw library

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the
general counsel’s responsibilities. They differ from those of remedial law. Preventive lawyering is
concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at
that time when transactional or similar facts are being considered and made.chanrobles lawlibrary :
rednad

Managerial Jurisprudence. This is the framework within which are undertaken those activities of
the firm to which legal consequences attach. It needs to be directly supportive of this nation’s evolving
economic and organizational fabric as firms change to stay competitive in a global, interdependent
environment. The practice and theory of "law" is not adequate today to facilitate the relationships
needed in trying to make a global economy work.

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 make-up 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," Jar. 11, 1989, p. 4).chanrobles law library : red

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.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman
of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as
Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod’s

nomination, petitioner as a citizen and taxpayer, filed the instant petition for Certiorari and Prohibition
praying that said confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.

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 quasi-judicial 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) (Emphasis 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). (Emphasis 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). (Emphasis supplied).

Loan concessions and compromises, perhaps even more so than purely re negotiation policies, demand
expertise in the law of contracts, in legislation and agreement drafting and in re negotiation. 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). (Emphasis supplied).

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions
which determines the contractual remedies for a failure to perform one or more elements of the
contract. A good agreement must not only define the responsibilities of both parties, but must also state
the recourse open to either party when the other fails to discharge an obligation. For a complete debt
restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for
foreign loan agreements — an adherence to the rule of law in domestic and international affairs of
whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: ‘They carry no banners,
they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet
genius and serene mastery.’ (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments,"
Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

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 lawyer-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:chanrobles.com : virtual law library

"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:jgc:chanrobles.com.ph

"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." (Emphasis supplied).

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1)
nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the
President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond,
etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as
Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the
Constitution which provides:jgc:chanrobles.com.ph

"The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without re appointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
Members for three years, without re appointment. Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity."cralaw virtua1aw library
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 practiced 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 ordinarily 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 practicing law for over ten years. This is different from the acts of persons
practicing 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:chanrob1es virtual 1aw library

The Commission on the basis of evidence submitted during the public hearings on Monsod’s
confirmation, implicitly determined that he possessed the necessary qualifications as required by law.
The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond
judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or
excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is
clearly shown shall the Court interfere with the Commission’s judgment. In the instant case, there is no
occasion for the exercise of the Court’s corrective power, since no abuse, much less a grave abuse of
discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the
writs prayed, for has been clearly shown.chanrobles lawlibrary : rednad

Additionally, consider the following:chanrob1es virtual 1aw library

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court
reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the
negative.

(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 reverse
the U.S. Senate.

Finally, one significant legal maxim is:jgc:chanrobles.com.ph

"We must interpret not by the letter that killeth, but by the spirit that giveth life."cralaw virtua1aw
library

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;

No blood shall flow from his veins."cralaw virtua1aw library

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.

In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED.

Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.).

Sarmiento, J., is on leave.

Regalado and Davide, Jr., JJ., took no part.

Separate Opinions

NARVASA, J., concurring:chanrob1es virtual 1aw library

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.

PADILLA, J., dissenting:chanrob1es virtual 1aw library

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.

After considering carefully respondent Monsod’s comment, I am even more convinced that the
constitutional requirement of" practice of low for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the
core issue to be resolved in this petition is the proper construal of the constitutional provision requiring
a majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in
the practice of law for at least ten (10) years." (Art IX(C), Section 1(1), 1987 Constitution). Questions
involving the construction of constitutional provisions are best left to judicial resolution. As declared in
Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining constitutional boundaries."cralaw
virtua1aw library

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 bounded
duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance
or application of knowledge as distinguished from mere possession of knowledge; it connotes an active,
habitual, repeated or customary action. 1 To "practice" law, or any profession for that matter, means, to
exercise or pursue an employment or profession actively, habitually, repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing
aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a
clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is
employed as a business executive or a corporate manager, other than as head or attorney of a Legal
Department of a corporation or a governmental agency, cannot be said to be in the practice of law.

As aptly held by this Court in the case of People v. Villanueva: 2

"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 (State v. Bryan, 4 S.E. 522, 98 N.C. 644, 647.) . . ." (Emphasis supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it

prepared, enumerated several factors determinative of whether a particular activity constitutes "practice
of law." It states:jgc:chanrobles.com.ph

"1. Habituality. The term ‘practice of law’ implies customarily or habitually holding one’s self out
to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644)
such as when one sends a circular announcing the establishment of a law office for the general practice
of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary
public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all
courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession
of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing
State v. Cotner, 127, p. 1, 87 Kan, 864).
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, 94A-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).

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of

lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of
law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he
cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed.,
p. 30)." 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at
the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:chanrob1es virtual 1aw library

1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST
TEN (10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not do
so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.

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 v. 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 profession and 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."cralaw virtua1aw library

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for
the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10)
years prior to his appointment to such position.

CRUZ, J., dissenting:chanrob1es virtual 1aw library

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same.
There are certain points on which I must differ with him while of course respecting his viewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply
because his nomination has been confirmed by the Commission on Appointments. In my view, this is not
a political question that we are barred from resolving. Determination of the appointee’s credentials is
made on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of
that discretion would still be subject to our review.chanrobles virtual lawlibrary
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.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too
sweeping in its definition of the phrase "practice of law" as to render the qualification practically
toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable
feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his
activities involve the application of some law, however peripherally. The stock broker and the insurance
adjuster and the realtor could come under the definition as they deal with or give advice on matters that
are likely "to become involved in litigation."cralaw virtua1aw library

The lawyer is considered engaged in the practice of law even if his main occupation is another business
and he interprets and applies some law only as an incident of such business. That covers every company
organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not affected by some law or
government regulation the businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to be considered a practitioner.
He can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts
involve his knowledge and application of the laws regulating such transactions. If he operates a public
utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law
because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory
Board.

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."cralaw virtua1aw library

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.

The respondent’s credentials are impressive, to be sure, but they do not persuade me that he has been
engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has
been engaged in business and finance, in which areas he has distinguished himself, but as an executive
and economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions
listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-
law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer
when he lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the
Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of
the Davide Commission, he has not proved that his activities in these capacities extended over the
prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many
other positions worthy of his abundant talents but not as Chairman of the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully
vote to grant the petition.

GUTIERREZ, JR., J., dissenting:chanrob1es virtual 1aw library

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.chanrobles law library

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.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in
the practice of law for even one year. He is a member of the bar but to say that he has practiced law is
stretching the term beyond rational limits.

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.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if
there main occupation is selling real estate, managing a business corporation, serving in fact-finding
committee, working in media, or operating a farm with no active involvement in the law, whether in
Government or private practice, except that in one joyful moment in the distant past, they happened to
pass the bar examinations?

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.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least ten
years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year period
after passing the bar examinations when he worked in his father’s law firm. Even then his law practice
must have been extremely limited because he was also working for M.A. and Ph. D. degrees in
Economics at the University of Pennsylvania during that period. How could he practice law in the United
States while not a member of the Bar there?

The professional life of the respondent follows:jgc:chanrobles.com.ph

"1.15.1 Respondent Monsod’s activities since his passing the Bar examinations in 1961 consist of the
following:chanrob1es virtual 1aw library

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group — Economist, Industry Department; Operations, Latin American
Department; Division Chief, South Asia and Middle East, International Finance Corporation

3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation,
Philippine Petroleum Corporation, Philippine Electric Corporation

4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and affiliated

companies

5. 1976-1978: Finaciera Manila — Chief Executive Officer

6. 1978-1986: Guevent Group of Companies Chief Executive Officer

7. 1986-1987: Philippine Constitutional Commission — Member

8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member

9. Presently: Chairman of the Board and Chief Executive Officer of the following
companies:chanrob1es virtual 1aw library

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUN systems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:chanrob1es virtual 1aw library

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation"

(Rollo, pp. 21-22)

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.

The deliberations before the Commission on Appointments show an effort to equate "engaged in the
practice of law" with the use of legal knowledge in various fields of endeavor such as commerce,
industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.chanrobles lawlibrary : rednad

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.."

Some American courts have defined the practice of law, as follows:jgc:chanrobles.com.ph

"The practice of law involves not only appearance in court in connection with litigation but also services
rendered out of court, and it includes the giving of advice or the rendering of any services requiring the
use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of
which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago Bar
Ass’n v. Tinkoff, 399 III. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass’n v. People’s Stock Yards
State Bank, 344 Ill. 462, 176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice
of law.’Practicing law’ has been defined as ‘Practicing as an attorney or counselor at law according to the
laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person,
firm or corporation when the giving of such advice or rendition of such service requires the use of any
degree of legal knowledge or skill.’ Without adopting that definition, we referred to it as being
substantially correct in People ex rel . Illinois State Bar Ass’n v. People’s Stock Yards State Bank, 344 III.
462, 176 N.E. 901." (People v. Schafer, 87 N.E. 2d 773, 776).

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:chanrob1es virtual 1aw library
x x x

"Respondent’s answers to questions propounded to him were rather evasive. He was asked whether or
not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring
agent. He answered: ‘Very seldom.’ In answer to the question as to how many times he had prepared
contracts for the parties during the twenty-mine years of his business, he said: ‘I have no idea.’ When
asked if it would be more than half a dozen times his answer was I suppose.’ Asked if he did not recall
making the statement to several parties that he had prepared contracts in a large number of instances,
he answered: ‘I don’t recall exactly what was said.’ When asked if he did not remember saying that he
had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties
therefor in instances where he was not the broker in the deal, he answered: Well, I don’t believe so, that
is not a practice.’ Pressed further for an answer as to his practice in preparing contracts and deeds for
parties where he was not the broker, he finally answered: ‘I have done about everything that is on the
books as far as real estate is concerned.’

x x x

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

x x x

". . . An attorney, in the most general sense, is a person designated or employed by another to act in his
stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or
defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and non-
professional agents are properly styled ‘attorneys in fact;’ but the single word is much used as meaning
an attorney at law. A person may be an attorney in facto for another, without being an attorney at law.’
Abb. Law Dict.’Attorney.’ ‘A public attorney, or attorney at law, says Webster, ‘is an officer of a court of
law, legally qualified to prosecute and defend actions in such court on the retainer of clients.’The
principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the business
of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business;
(4) to keep his secrets confided to him as such. . . . His rights are to be justly compensated for his
services.’ Bouv. Law Dict. tit.’Attorney.’ The transitive verb ‘practice,’ as defined by Webster, means ‘to do
or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice
gaining; . . . to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise, as a
profession, trade, art. etc.; as, to practice law or medicine,’ etc. . . ." (State v. Bryan, S.E. 522, 523;
Emphasis supplied)

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]):chanroblesvirtualawlibrary

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. . . ." (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required

component of the meaning of practice of law in a Memorandum prepared and issued by it, to
wit:jgc:chanrobles.com.ph

"1. Habituality. The term ‘practice of law’ implies customarily or habitually holding one’s self out
to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644)
such as when one sends a circular announcing the establishment of a law office for the general practice
of law (U S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary
public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all
courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14
SCRA log citing State v. Cotner, 127, p. 1, 87 Kan, 864)." (Rollo, p. 115).

x x x

While the career as a businessman of respondent Monsod may have profited from his legal knowledge,
the use of such legal knowledge is incidental and consists of isolated activities which do not fall under
the denomination of practice of law. Admission to the practice of law was not required for membership
in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any
specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to
isolated transactions of foreign corporations in the Philippines which do not categorize the foreign
corporations as doing business in the Philippines. As in the practice of law, doing business also should be
active and continuous. Isolated business transactions or occasional, incidental and casual transactions
are not within the context of doing business. This was our ruling in the case of Antam Consolidated, Inc.
v. Court of Appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission
may possess the background, competence, integrity, and dedication, to qualify for such high offices as
President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the
specific qualification of having engaged in the practice of law for at least ten (10) years for the position of
COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges
the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in
confirming the nomination of respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissents.

Endnotes:

PADILLA, J., dissenting:chanrob1es virtual 1aw library

1. Webster’s 3rd New International Dictionary.

2. 14 SCRA 109.

3. Commission on Appointments’ Memorandum dated 25 June 1991 RE: WHAT CONSTITUTES

PRACTICE OF LAW, pp. 6-7.

4. 14 SCRA 109.

G.R. No. 100113 September 3, 1991 - RENATO L. CAYETANO v. CHRISTIAN MONSOD, ET AL.

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