Cayetano v. Monsod

7/27/2015 SUPREMECOURTREPORTSANNOTATEDVOLUME201

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210 SUPREMECOURTREPORTSANNOTATED

Cayetanovs.Monsod

G.R.No.100113.September3,1991.*

RENATOL.CAYETANO,petitioner,vs.CHRISTIANMONSOD,HON. JOVITO R. SALONGA, COMMISSION ONAPPOINTMENTS, and HON. GUILLERMO CARAGUE, in hiscapacityasSecretaryofBudgetandManagement,respondents.

Constitutional Law Qualifications of COMELEC ChairmanPracticeoflawdefined.Practiceoflawmeansanyactivity,inoroutofcourt, which requires the application of law, legal procedure, knowledge,trainingandexperience.Toengageinthepracticeoflawistoperformthoseactswhicharecharacteristicsoftheprofession.Generally,topracticelawistogivenoticeorrenderanykindofservice,whichdeviceorservicerequirestheuseinanydegreeoflegalknowledgeorskill.(111ALR23)Interpretedin the light of the various definitions of the term practice of law,particularly the modern concept of law practice, and taking intoconsideration the liberal construction intended by the framers of theConstitution,Atty.Monsodspastworkexperiencesasalawyereconomist,alawyermanager,alawyerentrepreneurofindustry,alawyernegotiatorofcontracts, and a lawyerlegislator of both the rich and the poorverilymore thansatisfy theconstitutionalrequirementthathehasbeenengagedinthepracticeoflawforatleasttenyears.

SameSameJudicialreviewofjudgmentsrenderedbytheCommissionon Appointments.The Commission on the basis of evidence submittedduringthepublichearingsonMonsodsconfirmation,implicitlydeterminedthat he possessed the necessary qualifications as required by law. Thejudgment rendered by the Commission in the exercise of such anacknowledgedpowerisbeyondjudicialinterferenceexceptonlyuponaclearshowing of a grave abuse of discretion amounting to lack or excess ofjurisdiction. (Art.VIII, Sec. 1Constitution). Thus, onlywhere such graveabuse of discretion is clearly shown shall the Court interfere with theCommissions judgment. In the instant case, there is no occasion for theexerciseof theCourtscorrectivepower,sincenoabuse,muchlessagraveabuseofdiscretion, thatwouldamount to lackorexcessof jurisdictionand



wouldwarranttheissuanceofthewritsprayed,forhasbeenclearlyshown.

________________

*ENBANC.

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PADILLA,J.,Dissenting:

Constitutional Law Qualifications of COMELEC ChairmanDefinition of Practice of Law".What constitutes practice of law? Ascommonly understood, practice refers to the actual performance orapplication of knowledge as distinguished from mere possession ofknowledgeitconnotesanactive,habitual,repeatedorcustomaryaction.Topractice law, or any profession for that matter, means, to exercise orpursue an employment or profession actively, habitually, repeatedly orcustomarily. Therefore, a doctor of medicine who is employed and ishabituallyperformingthetasksofanursingaide,cannotbesaidtobeinthepracticeofmedicine.Acertifiedpublic accountantwhoworksas a clerk,cannotbesaidtopracticehisprofessionasanaccountant.Inthesameway,alawyer who is employed as a business executive or a corporate manager,other than as heador attorneyof aLegalDepartment of a corporationor agovernmentalagency,cannotbesaidtobeinthepracticeoflaw.

GUTIERREZ,JR.,J.,Dissenting:

Constitutional Law Qualifications of COMELEC ChairmanDefinition of Practice of Law".The Constitution uses the phraseengagedinthepracticeoflawforat least tenyears.Thedeliberatechoiceof words shows that the practice envisioned is active and regular, notisolated, occasional, accidental, intermittent, incidental, seasonal, orextemporaneous. To be engaged in an activity for ten years requirescommitted participation in somethingwhich is the result of ones decisivechoice. Itmeans thatone isoccupiedand involved in the enterpriseone isobligedorpledgedtocarryitoutwithintentandattentionduringthetenyearperiod.

PETITIONtoreviewthedecisionoftheCommissiononAppointments.

ThefactsarestatedintheopinionoftheCourt.



RenatoL.Cayetanoforandinhisownbehalf.SabinaE.Acut,Jr.andMyleneGarciaAlbanococounselfor

petitioner.

PARAS,J.:

We are faced herewith a controversy of farreaching proportions.Whileostensiblyonlylegalissuesareinvolved,theCourts

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decisioninthiscasewouldindubitablyhaveaprofoundeffectonthepoliticalaspectofournationalexistence.

The1987ConstitutionprovidesinSection1(1),ArticleIXC:

ThereshallbeaCommissiononElectionscomposedofaChairmanandsixCommissionerswhoshallbenaturalborncitizensofthePhilippinesand,atthe timeof their appointment, at least thirtyfiveyearsof age,holdersof acollegedegree, andmustnothavebeencandidates for anyelectivepositionin the immediately preceding elections. However, a majority thereof,including theChairman, shall bemembers of the PhilippineBarwho havebeenengagedinthepracticeoflawforatleasttenyears.(Italicssupplied)

The aforequoted provision is patterned after Section 1(1), ArticleXIICofthe1973Constitutionwhichsimilarlyprovides:

There shall be an independent Commission on Elections composed of aChairmanandeightCommissionerswhoshallbenaturalborncitizensofthePhilippinesand,atthetimeoftheirappointment,atleastthirtyfiveyearsofageandholdersofacollegedegree.However,amajority thereof, includingthe Chairman, shall be members of the Philippine Bar who have beenengagedinthepracticeoflawforatleasttenyears.(Italicssupplied)

Regrettably,however,thereseemstobenojurisprudenceastowhatconstitutespracticeof lawas a legalqualification to an appointiveoffice.

Blackdefinespracticeoflawas:

The rendition of services requiring the knowledge and the application oflegal principles and technique to serve the interest of another with hisconsent. It isnot limited toappearing incourt,oradvisingandassisting inthe conduct of litigation, but embraces the preparation of pleadings, andother papers incident to actions and special proceedings, conveyancing, the

Jerome Rodolfo Sola



preparation of legal instruments of all kinds, and the giving of all legaladvice to clients. It embraces all advice to clients and all actions taken fortheminmattersconnectedwiththelaw.Anattorneyengagesin thepracticeoflawbymaintaininganofficewhereheisheldouttobeanattorney,usinga letterhead describing himself as an attorney, counseling clients in legalmatters. negotiating with opposing counsel about pending litigation, andfixing and collecting fees for services rendered by his associate. (BlacksLawDictionary,3rded.)

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Thepractice of law is not limited to the conduct of cases in court(LandTitleAbstractandTrustCo.v.Dworken,129OhioSt.23,193N.E.650)Aperson is alsoconsidered tobe in thepracticeof lawwhenhe:

xxxforvaluableconsiderationengagesinthebusinessofadvisingperson,firms, associations or corporations as to their rights under the law, orappearsinarepresentativecapacityasanadvocateinproceedingspendingorprospective, before any court, commissioner, referee, board, body,committee, or commission constituted by law or authorized to settlecontroversiesand there, in such representativecapacityperformsanyactoracts for the purpose of obtaining or defending the rights of their clientsunder the law. Otherwise stated, one who, in a representative capacity,engagesinthebusinessofadvisingclientsastotheirrightsunderthelaw,orwhilesoengagedperformsanyactoractseitherincourtoroutsideofcourtforthatpurpose,isengagedinthepracticeoflaw.(Stateex.rel.Mckittrickv,C.S.DudleyandCo.,102S.W.2d895,340Mo.852)

ThisCourtinthecaseofPhilippineLawyersAssociationv.Agrava,(105Phil.173,176177)stated:

Thepracticeof law is not limited to the conduct of cases or litigation incourt it embraces thepreparationofpleadingsandotherpapers incident toactions and special proceedings, the management of such actions andproceedings on behalf of clients before judges and courts, and in addition,conveying. Ingeneral,alladvice toclients, andall action taken for them inmatters connected with the law incorporation services, assessment andcondemnation services contemplating an appearance before a judicial body,the foreclosure of a mortgage, enforcement of a creditors claim inbankruptcy and insolvency proceedings, and conducting proceedings inattachment, and in matters of estate and guardianship have been held to



constitute law practice, as do the preparation and drafting of legalinstruments,where theworkdone involves thedeterminationby the trainedlegalmind of the legal effect of facts and conditions. (5 Am. Jr. p. 262,263).(Italicssupplied)

Practice of law under modern conditions consists in no small part ofwork performed outside of any court and having no immediate relation toproceedingsincourt.Itembracesconveyancing,thegivingoflegaladviceona large variety of subjects, and the preparation and execution of legalinstruments covering an extensive field of business and trust relations andotheraffairs.Althoughthesetransactionsmay

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havenodirectconnectionwithcourtproceedings,theyarealwayssubjecttobecomeinvolvedinlitigation.Theyrequireinmanyaspectsahighdegreeoflegal skill, a wide experience withmen and affairs, and great capacity foradaptationtodifficultandcomplexsituations.Thesecustomaryfunctionsofanattorneyorcounseloratlawbearanintimaterelationtotheadministrationofjusticebythecourts.Novaliddistinction,sofarasconcernsthequestionset forth in the order, can be drawn between that part of the work of thelawyer which involves appearance in court and that part which involvesadvice and drafting of instruments in his office. It is of importance to thewelfareof thepublic that thesemanifoldcustomary functionsbeperformedby persons possessed of adequate learning and skill, of sound moralcharacterandactingatall timesunder theheavytrustobligationstoclientswhich restsuponall attorneys. (Moran,Comments on theRules ofCourt,Vol.3[1953ed.],p.665666,citingInreOpinionof theJustices [Mass.],194N.E.313,quotedinRhodeIs.BarAssoc.v.AutomobileServiceAssoc.[R.I.]179A.139,144).(Italicsours)

The University of the Philippines Law Center in conductingorientation briefing for new lawyers (19741975) listed thedimensionsofthepracticeoflawinevenbroadertermsasadvocacy,counsellingandpublicservice.

Onemay be a practicing attorney in following any line of employment intheprofession.Ifwhathedoesexactsknowledgeofthelawandisofakindusualforattorneysengagingintheactivepracticeoftheirprofession,andhefollows some one or more lines of employment such as this he is apracticing attorney at law within the meaning of the statute. (Barr v.Cardell,155NW312)



Practiceoflawmeansanyactivity,inoroutofcourt,whichrequiresthe application of law, legal procedure, knowledge, training andexperience.Toengageinthepracticeoflawistoperfomthoseactswhich are characteristics of the profession. Generally, to practicelawistogivenoticeorrenderanykindofservice,whichdeviceorservicerequirestheuseinanydegreeoflegalknowledgeorskill.(111ALR23)

The following records of the 1986 Constitutional Commissionshowthatithasadoptedaliberalinterpretationofthetermpracticeoflaw.

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MR. FOZ. Before we suspend the session, may I make a manifestationwhichIforgottododuringourreviewoftheprovisionsontheCommissiononAudit.MayIbeallowedtomakeaverybriefstatement?,....

THEPRESIDINGOFFICER(Mr.Jamir).TheCommissionerwillpleaseproceed.MR.FOZ.Thishastodowiththequalificationsofthemembersofthe

Commission on Audit Among others, the qualifications provided for bySection 1 is that They must be Members of the Philippine BarI amquoting from theprovision'whohavebeenengaged in thepracticeof lawforatleasttenyears/

To avoid any misunderstanding which would result in excludingmembersoftheBarwhoarenowemployedintheCOAorCommissiononAudit, we would like to make the clarification that this provision onqualifications regardingmembers of the Bar does not necessarily refer orinvolveactualpracticeoflawoutsidetheCOAWehave to interpret this tomean thatas longas the lawyerswhoareemployed in theCOAareusingtheir legal knowledge or legal talent in their respectiveworkwithinCOA,then they are qualified to be considered for appointment as members orcommissioners,evenchairman,oftheCommissiononAudit.

This has been discussed by the Committee on ConstitutionalCommissions andAgencies andwe deem it important to take it up on thefloor so that this interpretation may be made available whenever thisprovision on the qualifications as regards members of the Philippine Barengaginginthepracticeoflawforatleasttenyearsistakenup.

MR.OPLE.WillCommissionerFozyieldtojustonequestion.MR.FOZ.Yes,Mr.PresidingOfficer.MR.OPLE.Ishe,ineffect,sayingthatserviceintheCOAbyalawyer

is equivalent to the requirement of a law practice that is set forth in theArticleontheCommissiononAudit?



MR.FOZ.WemustconsiderthefactthattheworkofCOA,althoughitis auditing,will necessarily involve legalwork it will involve legalwork.And, therefore, lawyers who are employed in COA now would have thenecessary qualifications in accordancewith the provision on qualificationsunder our provisions on the Commission on Audit. And, therefore. theanswerisyes,

MR. OPLE. Yes. So that the construction given to this is that this isequivalenttothepracticeoflaw.

MR.FOZ.Yes,Mr.PresidingOfficer.MR.OPLE.Thankyou.xx(Italicssupplied)

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Section 1(1), Article IXD of the 1987 Constitution, provides,among others, that the Chairman and two Commissioners of theCommission on Audit (COA) should either be certified publicaccountants with not less than ten years of auditing practice, ormembers of the Philippine Bar who have been engaged in thepracticeoflawforatleasttenyears.(italicssupplied)

Corollarytothisisthetermprivatepractitioner''andwhichisinmanyways synonymouswith theword lawyer.Today, althoughmanylawyersdonotengageinprivatepractice,itisstillafactthatthe majority of lawyers are private practitioners. (GaryMunneke,Opportunities in Law Careers [VGM Career Horizons: Illinois),1986],p.15]).

Atthispoint, itmightbehelpfultodefineprivatepractice.Theterm, as commonly understood, means an individual ororganization engaged in the business of delivering legal services.(Ibid.). Lawyers who practice alone are often called solepractitioners. Groups of lawyers are called firms. The firm isusually a partnership and members of the firm are the partners,Somefirmsmaybeorganizedasprofessionalcorporationsand thememberscalledshareholders.Ineithercase,themembersofthefirmare the experienced attorneys. Inmost firms, there are younger ormoreinexperiencedsalariedattorneyscalledassociates.(Ibid.).

Thetest thatdefineslawpracticebylookingtotraditionalareasof law practice is essentially tautologous, unhelpful defining thepractice of law as that which lawyers do. (Charles W. Wolfram,Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p.593).Thepracticeoflawisdefinedastheperformanceofanyacts. .. . inoroutofcourt,commonlyunderstood tobe thepracticeof



law.(StateBarAssnv.ConnecticutBank&TrustCo., 145Conn.222,140A.2d863,870[1958][quotingGrievanceComm.v.Payne,128Conn.325,22A.2d623,626[1941]).Becauselawyersperform

almost every functionknown in the commercial andgovernmentalrealm, such a definition would obviously be too global to beworkable.(Wolfram,op.cit).

Theappearanceofalawyerinlitigationinbehalfofaclientisatonce the most publicly familiar role for lawyers as well as anuncommonrolefortheaveragelawyer.Mostlawyersspend

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little time in courtrooms, and a largepercentage spend their entirepracticewithoutlitigatingacase.(Ibid.,p.593).Nonetheless,manylawyersdocontinuetolitigateandthelitigatinglawyersrolecolorsmuch of both the public image and the selfperception of the legalprofession.(Ibid.).

Inthisregardthus,thedominanceoflitigationinthepublicmindreflects history, not reality. (Ibid.).Why is this so?Recall that thelate Alexander SyCip, a corporate lawyer, once articulated on theimportanceofalawyerasabusinesscounselorinthiswise:Eventoday, there are still uninformed laymen whose concept of anattorney is one who principally tries cases before the courts. Themembers of the bench and bar and the informed laymen such asbusinessmen, know that in most developed societies today,substantiallymorelegalworkistransactedinlawofficesthaninthecourtrooms.Generalpractitionersoflawwhodobothlitigationandnonlitigation work also know that in most cases they findthemselvesspendingmore timedoingwhat[is] looselydescribe[d]asbusinesscounseling:thanintryingcases.Thebusinesslawyerhasbeendescribedastheplanner,thediagnosticianandthetriallawyer,thesurgeon.I[t]neednot[be]stress[ed]thatinlaw,asinmedicine,surgery should be avoided where internal medicine can beeffective.(BusinessStar,CorporateFinanceLaw/'Jan.11,1989,p.4).

In the courseof aworkingday the averagegeneralpractitionerwillengageinanumberoflegaltasks,eachinvolvingdifferentlegaldoctrines,legalskills,legalprocesses,legalinstitutions,clients,andother interestedparties.Even the increasingnumbersof lawyers inspecializedpracticewillusuallyperformatleastsomelegalservicesoutside theirspecialty.Andevenwithinanarrowspecialtysuchas



taxpractice,a lawyerwillshiftfromonelegal taskorrolesuchasadvicegivingtoanimportantlydifferentonesuchasrepresentingaclientbeforeanadministrativeagency.(Wolfram,supra,p687).

Bynomeanswillmostofthisworkinvolvelitigation,unlessthelawyerisoneoftherelativelyraretypesalitigatorwhospecializesin thiswork to the exclusion ofmuch else. Instead, theworkwillrequire the lawyer to have mastered the full range of traditionallawyerskillsofclientcounselling,advicegiving,documentdrafting,andnegotiation.Andincreasinglylawyersfindthatthenewskillsofevaluationandmediationareboth

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effectiveformanyclientsandasourceofemployment.(Ibid.).Most lawyers will engage in nonlitigation legal work or in

litigationwork that is constrained in very importantways, at leasttheoretically,soastoremovefromitsomeofthesalientfeaturesofadversarial litigation.Of these special roles, themostprominent isthat of prosecutor. In some lawyers work the constraints areimposedbothbythenatureoftheclientandbythewayinwhichthelawyerisorganizedintoasocialunittoperformthatwork.Themostcommon of these roles are those of corporate practice andgovernmentlegalservice.(Ibid.).

In several issues of the Business Star, a business daily,hereinbelowquotedareemergingtrendsincorporatelawpractice,adeparturefromthetraditionalconceptofpracticeoflaw.

We are experiencing today what truly may be called a revolutionarytransformation in corporate law practice. Lawyers and other professionalgroups, in particular those members participating in various legalpolicydecisionalcontexts,arefindingthatunderstandingthemajoremergingtrendsincorporationlawisindispensabletointelligentdecisionmaking.

Constructiveadjustmenttomajorcorporateproblemsoftodayrequiresanaccurate understanding of the nature and implications of the corporate lawresearch function accompanied by an accelerating rate of informationaccumulation.Therecognitionoftheneedforsuchimprovedcorporatelegalpolicyformulation,particularlymodelmakingandcontingencyplanning,has impressed upon us the inadequacy of traditional procedures in manydecisionalcontexts.

Inacomplexlegalproblemthemassofinformationtobeprocessed,thesorting and weighing of significant conditional factors, the appraisal ofmajor trends, thenecessityofestimating theconsequencesofgivencourses



ofaction,and theneed for fastdecisionand response in situationsofacutedangerhavepromptedtheuseofsophisticatedconceptsofinformationflowtheory, operational analysis, automatic data processing, and electroniccomputing equipment. Understandably, an improved decisional structuremuststressthepredictivecomponentofthepolicymakingprocess,whereinamodel,ofthedecisionalcontextorasegmentthereofisdevelopedtotestprojectedalternative coursesof action in termsof futuristic effects flowingtherefrom.

Although members of the legal profession are regularly engaged inpredicting and projecting the trends of the law, the subject of corporatefinancelawhasreceivedrelativelylittleorganizedand

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formalized attention in the philosophy of advancing corporate legaleducation. Nonetheless, a crossdisciplinary approach to legal research hasbecomeavitalnecessity.

Certainly, the general orientation for productive contributions by thosetrainedprimarilyinthelawcanbeimprovedthroughanearlyintroductiontomultivariable decisional contexts and the various approaches for handlingsuch problems. Lawyers, particularly with either a masters or doctoratedegree in business administration or management, functioning at the legalpolicylevelofdecisionmakingnowhavesomeappreciationfortheconceptsandanalyticaltechniquesofotherprofessionswhicharecurrentlyengagedinsimilartypesofcomplexdecisionmaking.

Truthtotell,manysituationsinvolvingcorporatefinanceproblemswouldrequire the services of an astute attorney because of the complex legalimplications that arise from each and every necessary step in securing andmaintaining the business issue raised. (Business Star, Corporate FinanceLaw,Jan.11,1989,p.4).

Inourlitigationpronecountry,acorporatelawyerisassiduouslyreferredtoas theabogadodecampanilla.He is thebigtime lawyer,earningbigmoney and with a clientele composed of the tycoons and magnates ofbusinessandindustry.

Despitethegrowingnumberofcorporatelawyers,manypeoplecouldnotexplain what it is that a corporate lawyer does. For one, the number ofattorneysemployedbyasinglecorporationwillvarywith thesizeand typeof the corporation.Many smaller and some large corporations farmout alltheirlegalproblemstoprivatelawfirms,Manyothershaveinhousecounselonly for certain matters. Other corporation have a staff large enough tohandlemostlegalproblemsinhouse.

Acorporatelawyer,forallintentsandpurposes,isalawyerwhohandles



the legal affairs of a corporation.His areas of concern or jurisdictionmayinclude, interalia:corporate legal research, tax lawsresearch,actingoutascorporatesecretary(inboardmeetings),appearancesinbothcourtsandotheradjudicatoryagencies (including theSecuritiesandExchangeCommission).andinothercapacitieswhichrequireanabilitytodealwiththelaw.

Atanyrate,acorporatelawyermayassumeresponsibilitiesotherthanthelegal affairs of the business of the corporation he is representing. Theseinclude such matters as determining policy and becoming involved inmanagement.(Italicssupplied.)

Inabigcompany,forexample,onemayhaveafeelingofbeingisolatedfrom theaction,ornotunderstandinghowonesworkactually fits into theworkof theorganization.This canbe frustrating to someonewhoneeds toseetheresultsofhisworkfirsthand.Inshort,

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a corporate lawyer is sometimes offered this fortune to be more closelyinvolvedintherunningofthebusiness.

Moreover,acorporatelawyersservicesmaysometimesbeengagedbyamultinationalcorporation(MNC).SomelargeMNCsprovideoneofthefewopportunities available to corporate lawyers to enter the international lawfield.Afterall,internationallawispracticedinarelativelysmallnumberofcompaniesandlawfirms.Becauseworkinginaforeigncountryisperceivedbymanyasglamorous,thisisanareacovetedbycorporatelawyers.Inmostcases, however, the overseas jobs go to experienced attorneys while theyoungerattorneysdotheirinternationalpracticeinlawlibraries.(BusinessStar,CorporateLawPractice,May25,1990,p.4).

Thisbringsustotheinevitable,i.e.,theroleofthelawyerintherealmoffinance.ToborrowthelinesofHarvardeducatedlawyerBruceWassertein,towit: Abad lawyer is onewho fails to spot problems, a good lawyer isone who perceives the difficulties, and the excellent lawyer is one whosurmounts them. (BusinessStar, Corporate Finance Law, Jan. 11,1989,p.4).

Today, the study of corporate law practice direly needs a shot in thearm, so to speak.No longer arewe talking of the traditional law teachingmethod of confining the subject study to the Corporation Code and theSecurities Code but an incursion as well into the intertwining modernmanagementissues.

Such corporate legal management issues deal primarily with three (3)typesoflearning:(1)acquisitionofinsightsintocurrentadvanceswhichareof particular significance to the corporate counsel (2) an introduction tousable disciplinary skills applicable to a corporate counsels management



responsibilities and (3) a devotion to the organization andmanagement ofthelegalfunctionitself.

Thesethreesubjectareasmaybethoughtofasintersectingcircles,withashared area linking them. Otherwise known as intersecting managerialjurisprudence, it forms a unifying theme for the corporate counsels totallearning.

Some current advances in behavior and policy sciences affect thecounsels role. For that matter, the corporate lawyer reviews theglobalizationprocess, including the resultingstrategic repositioning that thefirms he provides counsel for are required tomake, and the need to thinkaboutacorporationsstrategyatmultiple levels.Thesalienceof thenationstate is being reduced as firms deal bothwith globalmultinational entitiesandsimultaneouslywithsubnationalgovernmentalunits.Firmsincreasinglycollaborate not only with public entities but with each otheroften withthosewhoarecompetitorsinotherarenas.

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Also, thenatureof thelawyersparticipationindecisionmakingwithinthecorporation is rapidly changing. Themodern corporate lawyer has gainedanewroleasastakeholderinsomecasesparticipatingintheorganizationand operations of governance through participation on boards and otherdecisionmakingroles.Often these newpatterns develop alongside existinglegal institutions and laws are perceived as barriers. These trends arecomplicatedascorporationsorganizeforglobaloperations.(Italicssupplied)

Thepractisinglawyerof todayiswithgovernmentalpolicies towardthepromotionandmanagementof technology.Newcollaborativearrangementsfor promoting specific technologies or competitiveness more generallyrequire approaches from industry that differ from older,more adversarialrelationships and traditional forms of seeking to influence governmentalpolicies.Andtherearelessonstobelearnedfromothercountries.InEurope,Esprit, Eureka and Race are examples of collaborative efforts betweengovernmentalandbusinessJapansMITIisworldfamous.(Italicssupplied)

Followingtheconceptofboundaryspanning, theofficeof theCorporateCounsel comprises a distinct group within the managerial structure of allkinds of organizations. Effectiveness of both longterm and temporarygroups within organizations has been found to be related to indentifiablefactors in thegroupcontext interactionsuchas thegroupsactively revisingtheir knowledge of the environment, coordinating work with outsiders.promoting team achievements within the organization. In general, suchexternal activities are better predictors of team performance than internalgroupprocesses,



Inacrisissituation, the legalmanagerialcapabilitiesof thecorporatelawyer visavis the managerial mettle of corporations are challenged.Current research is seeking ways both to anticipate effective managerialprocedures and to understand relationships of financial liability andinsuranceconsiderations,(Italicssupplied)

Regarding the skills to applyby the corporate counsel, three factors areapropos:

FirstSystemDynamics,Thefieldofsystemsdynamicshasbeenfoundaneffective tool for new managerial thinking regarding both planning andpressing immediate problems. An understanding of the role of feedbackloops, inventory levels,andratesof flow,enableusers tosimulateallsortsof systematic problemsphysical, economic, managerial, social, andpsychological. New programming techniques now make the systemsdynamics principles more accessible to managersincluding corporatecounsels.(Italicssupplied)

Second Decision Analysis. This enables users to make better decisionsinvolvingcomplexityanduncertainty. In thecontextofa lawdepartment, itcanbeusedtoappraisethesettlementvalueoflitigation,

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aid in negotiation settlement, and minimize the cost and risk involved inmanagingaportfolioofcases,(Italicssupplied)

Third Modeling for Negotiation Management Computerbased modelscanbeuseddirectlybypartiesandmediatorsinallkindsofnegotiations.Allintegrated set of such tools provide coherent and effective negotiationsupport,includinghandsononinstructioninthesetechniques.Asimulationcaseofaninternationaljointventuremaybeusedtoillustratethepoint.

[Be this as it may,] the organization and management of the legalfunction,concernthreepointedareasofconsideration,thus:

Preventive Lawyering. Planning by lawyers requires special skills thatcomprise amajorpartof thegeneral counsels responsibilities.Theydifferfrom those of remedial law. Preventive lawyering is concerned withminimizing the risks of legal trouble andmaximizing legal rights for suchlegal entities at that time when transactional or similar facts are beingconsideredandmade.

Managerial Jurisprudence. This is the framework within which areundertakenthoseactivitiesofthefirmtowhichlegalconsequencesattach.Itneeds to be directly supportive of this nations evolving economic andorganizational fabric as firms change to stay competitive in a global,interdependentenvironment.Thepracticeandtheoryoflawisnotadequatetoday to facilitate the relationships needed in trying to make a global



economywork.Organization and Functioning of the Corporate Counsels Office. The

general counsel has emerged in the last decade as one of themost vibrantsubsetsofthelegalprofession.Thecorporatecounselhearresponsibilityforkey aspects of the firms strategic issues, including structuring its globaloperations,managingimprovedrelationshipswithanincreasinglydiversifiedbodyofemployees,managingexpandedliabilityexposure,creatingnewandvariedinteractionswithpublicdecisionmakers,copinginternallywithmorecomplexmakeorbydecisions.

Thiswholeexercisedriveshomethethesisthatknowingcorporatelawisnotenoughtomakeoneagoodgeneralcorporatecounselnor togivehimafull sense of how the legal system shapes corporate activities.And even ifthe corporate lawyers aim isnot theunderstandall of the laws effectsoncorporate activities, he must, at the very least, also gain a workingknowledgeofthemanagementissuesifonlytobeabletograspnotonlythebasic legal constitution ormakeup of themodern corporation.BusinessStar,TheCorporateCounsel,April10,1991,p.4).

Thechallengeforlawyers(bothofthebarandthebench)istohavemorethanapassingknowledgeoffinanciallawaffectingeach

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aspect of theirwork,Yet,manywould admit to ignoranceof vast tracts ofthefinanciallawterritory.Whattranspiresnextisadilemmaofprofessionalsecurity:Will the lawyer admit ignorance and riskopprobrium?orwill hefeignunderstandingand riskexposure? (BusinessStar, Corporate Financelaw,Jan.11,1989,p.4).

RespondentChristianMonsodwasnominatedbyPresidentCorazonC.AquinotothepositionofChairmanoftheCOMELECinaletterreceivedbytheSecretariatoftheCommissiononAppointmentsonApril25,1991.PetitioneropposedthenominationbecauseallegedlyMonsoddoesnotpossess therequiredqualificationofhavingbeenengagedinthepracticeoflawforatleasttenyears.

On June5, 1901,' theCommissiononAppointments confirmedthenominationofMonsodasChairmanoftheCOMELEC.OnJune18,1991, he tookhis oathof office.On the sameday, he assumedofficeasChairmanoftheCOMELEC.

ChallengingthevalidityoftheconfirmationbytheCommissionon Appointments of Monsods nomination, petitioner as a citizenandtaxpayer,filedtheinstantpetitionforCertiorariandProhibitionpraying that said confirmation and the consequent appointment of



Monsod asChairmanof theCommissiononElectionsbedeclarednullandvoid.

Atty. Christian Monsod is a member of the Philippine Bar,havingpassedthebarexaminationsof1960withagradeof86.55%.He has been a dues paying member of the Integrated Bar of thePhilippinessinceitsinceptionin197273.Hehasalsobeenpayinghisprofessional license feesas lawyer formore than tenyears. (p.124,Rollo)

After graduating from the College of Law (U.P.) and havinghurdledthebar,Atty.Monsodworkedinthelawofficeofhisfather.During his stint in the World Bank Group (19631970),Monsodworkedasanoperationsofficer forabout twoyears inCostaRicaand Panama, which involved getting acquainted with the laws ofmembercountries, negotiating loans and coordinating legal,economic, and project work of the Bank. Upon returning to thePhilippines in1970,heworkedwith theMeralcoGroup,servedaschiefexecutiveofficerofaninvestmentbankandsubsequentlyofabusiness conglomerate, and since 1986, has rendered services tovariouscompaniesasalegaland

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economicconsultantorchiefexecutiveofficer.AsformerSecretaryGeneral (1986) and National Chairman (1987) of NAMFREL.Monsodswork involved being knowledgeable In election law.Heappeared for NAMFREL in its accreditation hearings before theComelec.Inthefieldofadvocacy,Monsod,inhispersonalcapacityand as former CoChairman of the Bishops BusinessmensConference for Human Development, has worked with the underprivileged sectors, such as the farmer and urban poor groups, ininitiating, lobbying for and engaging in affirmative action for theagrarianreformlawandlatelytheurbanlandreformbill.Monsodalsomade use of his legal knowledge as amember of theDavideCommission, a quasijudicial body, which conducted numeroushearings(1990)andasamemberoftheConstitutionalCommission(19861987),andChairmanof itsCommitteeonAccountabilityofPublic Officers, for which he was cited by the President of theCommission, Justice Cecilia MuozPalma for innumerableamendments to reconcile government functions with individualfreedomsandpublicaccountabilityandthepartylistsystemfortheHouseofRepresentative.(pp.128129Rollo)(Italicssupplied)

JustawordabouttheworkofanegotiatingteamofwhichAtty.



Monsodusedtobeamember,

In a loan agreement, for instance, a negotiating panel acts as a team, andwhich is adequately constituted tomeet thevarious contingencies that ariseduringanegotiation.Besidestopofficialsof theBorrowerconcerned, therearethelegalofficer(suchasthelegalcounsel),thefinancemanager,andanoperationsofficer(suchasanofficial involvedinnegotiatingthecontracts)who comprise the members of the team. (Guillermo V. Soliven, LoanNegotiatingStrategiesforDevelopingCountryBorrowers,StaffPaperNo.2,CentralBankofthePhilippines,Manila,1982,p.11).(Italicssupplied)

After a fashion, the loan agreement is like a countrys Constitution itlaysdownthelawasfarastheloantransactionisconcerned.Thus,themeatofanyLoanAgreementcanbecompartmentalizedintofive(5)fundamentalparts: (1) business terms (2) borrowers representation (3) conditions ofclosing(4)covenantsand(5)eventsofdefault.(Ibid.,p.13),

In the same vein, lawyers play an important role in any debtrestructuring program. For aside from performing the tasks of legislativedraftingandlegaladvising,theyscorenationaldevelopment

225


Cayetanovs.Monsod

policies as key factors in maintaining their countries sovereignty.(Condensed from thework paper, entitled WantedDevelopment Lawyersfor Developing Nations, submitted by L. Michael Hager, regional legaladviser of theUnited StatesAgency for InternationalDevelopment, duringthe Session onLaw for theDevelopment ofNations at theAbidjanWorldConference in Ivory Coast, sponsored by the World Peace Through LawCenteronAugust2631,1973).1973).(Italicssupplied)

Loan concessions and compromises, perhaps evenmore so than purelyrenegotiation policies, demand expertise in the law of contracts, inlegislation and agreement drafting and in renegotiation. Necessarily, asovereign lawyer may work with an international business specialist or aneconomist in theformulationofamodel loanagreement.Debtrestructuringcontract agreements contain such amixture of technical language that theyshould be carefully drafted and signed only with the advise of competentcounsel in conjunction with the guidance of adequate technical supportpersonnel.(SeeInternationalLawAspectsofthePhilippineExternalDebts,anunpublisheddissertation,U.S.T.GraduateSchoolofLaw,1987,p.321).(Italicssupplied)

A critical aspect of sovereign debt restructuring/contract construction isthe set of terms and conditions which determines the contractual remediesfor a failure to perform one or more elements of the contract. A good



agreementmustnotonlydefinetheresponsibilitiesofbothparties,butmustalsostatetherecourseopentoeitherpartywhentheotherfails todischargeanobligation.Foracompleatdebtrestructuringrepresentsadevotiontothatprinciple which in the ultimate analysis is sine qua non for foreign loanagreementsan adherence to the rule of law in domestic and internationalaffairsofwhosekindU.S.SupremeCourt JusticeOliverWendellHolmes,Jr. once said: They carry no banners, they beat no drums butwhere theyare, men learn that bustle and bush are not the equal of quiet genius andserenemastery.(SeeRicardoJ.Romulo,TheRoleofLawyersinForeignInvestments,IntegratedBarof thePhilippineJournal,Vol.15,Nos.3and4,Third

Interpreted in the light of the various definitions of the termpracticeoflaw,particularlythemodernconceptoflawpractice,and taking into consideration the liberal construction intended bythe framers of the Constitution, Atty. Monsods past workexperiences as a lawyereconomist, a lawyermanager, a lawyerentrepreneur of industry, a lawyernegotiator of contracts, and aIawyerlegislator of both the rich and the poorverilymore thansatisfytheconstitutionalrequirementthathe

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Cayetanovs.Monsod

hasbeenengagedinthepracticeoflawforatleasttenyears.Besides in the leading case of Luego v. Civil Service

Commission,143SCRA327,theCourtsaid:

Appointment isanessentiallydiscretionarypower andmustbeperformedby the officer in which it is vested according to his best lights, the onlyconditionbeingthattheappointeeshouldpossessthequalificationsrequiredbylaw.Ifhedoes,thentheappointmentcannotbefaultedonthegroundthatthere are others better qualifiedwho should have been preferred.This is apolitical question involving considerations of wisdom which only theappointingauthoritycandecide."(emphasissupplied)

NolessemphaticwastheCourtinthecaseofCentralBankv.CivilServiceCommission,171SCRA744)whereitstated:

Itiswellsettledthatwhentheappointeeisqualified,asinthiscase,andalltheotherlegalrequirementsaresatisfied,theCommissionhasnoalternativebut to attest to the appointment in accordancewith the Civil Service Law.TheCommission has no authority to revoke an appointment on the groundthatanotherpersonismorequalifiedforaparticularposition.Italsohasno



authority to direct the appointment of a substitute of its choice. To do sowould be an encroachment on the discretion vested upon the appointingauthority. An appointment is essentially within the discretionary power ofwhomsoever it is vested, subject to the only condition that the appointeeshouldpossessthequalificationsrequiredbylaw.(Italicssupplied)

The appointing process in a regular appointment as in the case atbar,consistsoffour(4)stages:(1)nomination(2)confirmationbytheCommissiononAppointments(3)issuanceofacommission(inthe Philippines, upon submission by the Commission onAppointmentsofitscertificateofconfirmation,thePresidentissuesthe permanent appointment and (4) acceptance e.g., oathtaking,postingofbond,etc. . . .(Lacsonv.Romero,No.L3081,October14,1949Gonzales,LawonPublicOfficers,p.200)

The power of the Commission on Appointments to give itsconsent to the nomination of Monsod as Chairman of theCommissiononElections ismandatedbySection1(2)SubArticleC,ArticleIXoftheConstitutionwhichprovides:

227


Cayetanovs.Monsod

TheChairmanand theCommissioners shallbeappointedby thePresidentwith the consent of theCommission onAppointments for a term of sevenyearswithout reappointment.Of those first appointed, threeMembers shallhold office for seven years, two Members for five years, and the lastMembers for three years, without reappointment, Appointment to anyvacancyshallbeonly for theunexpired termof thepredecessor. Innocaseshall any Member be appointed or designated in a temporary or actingcapacity.

Anent Justice Teodoro Padillas separate opinion, suffice it to saythat his definition of the practice of law is the traditional orstereotypednotionoflawpractice,asdistinguishedfromthemodernconceptofthepracticeoflaw,whichmodernconnotationisexactlywhatwasintendedbytheeminentframersofthe1987Constitution.Moreover, Justice Padillas definition would require generally ahabitual lawpractice, perhapspractised twoor three times aweekandwould outlaw say, law practice once or twice a year for tenconsecutiveyears.Clearly,thisisfarfromtheconstitutionalintent.

Upontheotherhand,theseparateopinionofJusticeIsaganiCruzstatesthatinmywrittenopinion,Imadeuseofadefinitionoflawpracticewhichreallymeansnothingbecausethedefinitionsaysthat



(1)

lawpractice"... iswhatpeopleordinarilymeanbythepracticeoflaw. True I cited the definition but only by way of sarcasm asevident from my statement that the definition of law practice bytraditional areas of law practice is essentially tautologous ordefiningaphrasebymeansofthephraseitselfthatisbeingdefined.

JusticeCruzgoesontosayinsubstancethatsincethelawcoversalmostallsituations,mostindividuals,inmakinguseofthelaw,orin advising others on what the lawmeans, are actually practicinglaw.Inthatsense,perhaps,butweshouldnotlosesightofthefactthatMr.Monsodisalawyer,amemberofthePhilippineBar,whohasbeenpractisinglawforovertenyears.Thisisdifferentfromtheactsofpersonspractisinglaw,withoutfirstbecominglawyers.

Justice Cruz also says that the Supreme Court can evendisqualifyanelectedPresidentofthePhilippines,say,onthegroundthathelacksoneormorequalifications.Thismatter,Igreatlydoubt.Foronething,howcananactionorpetitionbebroughtagainstthePresident?Andevenassumingthatheis

228


Cayetanovs.Monsod

indeeddisqualified,howcantheactionbeentertainedsinceheistheincumbentPresident?

Wenowproceed:TheCommissionon thebasisof evidence submittedduring the

public hearings on Monsods confirmation, implicitly determinedthat he possessed the necessary qualifications as required by law.The judgment renderedby theCommission in theexerciseof suchanacknowledgedpowerisbeyondjudicialinterferenceexceptonlyupon a clear showing of a grave abuse of discretion amounting tolackorexcessofjurisdiction.(Art.VIII,Sec.1Constitution).Thus,onlywheresuchgraveabuseofdiscretionisclearlyshownshalltheCourtinterferewiththeCommissionsjudgment.Intheinstantcase,thereisnooccasionfortheexerciseoftheCourtscorrectivepower,since no abuse,much less a grave abuse of discretion, thatwouldamount to lack or excess of jurisdiction and would warrant theissuanceofthewritsprayed,forhasbeenclearlyshown.

Additionally,considerthefollowing

If theCommissiononAppointmentsrejects a nomineebythe President, may the Supreme Court reverse theCommission, and thus in effect confirm the appointment?Clearly,theanswerisinthenegative.

Jerome Rodolfo Sola



(2)

(3)

Inthesamevein,maytheCourtrejectthenominee,whomthe Commission has confirmed? The answer is likewiseclear.

IftheUnitedStatesSenate(whichistheconfirmingbodyinthe U.S. Congress) decides to confirm a Presidentialnominee, it would be incredible that the U.S. SupremeCourtwouldstillreversetheU.S.Senate.

Finally,onesignificantlegalmaximis:

Wemustinterpretnotbytheletterthatkilleth,butbythespiritthatgivethlife/'

Take this hypothetical case of Samson and Delilah. Once, theprocuratorofJudeaaskedDelilah(whowasSamsonsbeloved)forhelpincapturingSamson.Delilahagreedonconditionthat

229


Cayetanovs.Monsod

NobladeshalltouchhisskinNobloodshallflowfromhisveins.

When Samson (his long hair cut by Delilah) was captured, theprocuratorplacedanironrodburningwhitehottwoorthreeinchesawayfromin frontofSamsonseyes.Thisblinded theman.Uponhearing ofwhat had happened to her beloved,Delilahwas besideherself with anger, and fuming with righteous fury, accused theprocuratorof renegingonhisword.Theprocuratorcalmlyreplied:Didanybladetouchhisskin?Didanybloodflowfromhisveins?Theprocuratorwasclearlyrelyingontheletter,notthespiritoftheagreement.

Inviewoftheforegoing,thispetitionisherebyDISMISSED.SOORDERED.

Fernan(C.J.),GrioAquinoandMedialdea,JJ.,concur.Narvasa,J.,Seebriefconcurrence. MelencioHerrera,J., In the result,011 the samebasisas

JusticeNarvasa.Gutierrez,Jr.,CruzandPadilla,JJ.,seedissents.Feliciano,J.,Icertifythathevotedtodismissthepetition.

(Fernan,C.J.)Bidin,J.,IjoininthedissentofJusticeGutierrez.



Sarmiento,J.,Onleave.Regalado,J.,Nopartdueto intendedpersonalassociation

withrespondentMonsod. Davide,Jr., J.,Nopart, Iwas among thosewho issueda

testimonial in favor ofChristianMonsodwhichwas submitted byhimtoCA.

CONCURRENCE

NERVASA,J.:

I concur with the decision of the majority written byMr. JusticeParas,albeitonlyintheresultitdoesnotappeartomethattherehasbeenanadequateshowingthatthechallengeddeterminationbytheCommissiononAppointments that the appointment of respondentMonsodasChairmanoftheCommissiononElectionsshould,onthebasisofhisstatedqualificationsandafterdueassessmentthereof,beconfirmedwas

230


Cayetanovs.Monsod

attendedbyerrorsogrossastoamounttograveabuseofdiscretionand consequently merits nullification by this Court in accordancewith the second paragraph of Section 1, Article VIII of theConstitution.IthereforevotetoDENYthepetition.

DISSENTINGOPINION

PADILLA,J.:

The records of this case will show that when the Court firstdeliberated on the Petition at bar, I voted not only to require therespondentstocommentonthePetition,butIwasthesolevoteforthe issuance of a temporary restraining order to enjoin respondentMonsodfromassumingthepositionofCOMELECChairman,whilethe Court deliberated on his constitutional qualification for theoffice. My purpose in voting for a TRO was to prevent theinconvenience and even embarrassment to all parties concernedwere the Court to finally decide for respondent Monsods



disqualification.Moreover.areadingofthePetitiontheninrelationto established jurisprudence already showed prima facie thatrespondentMonsoddidnotpossesstheneededqualification,thatis,hehadnotengagedinthepracticeoflawforatleastten(10)yearspriortohisappointmentasCOMELECChairman.

AfterconsideringcarefullyrespondentMonsodscomment,Iameven more convinced that the constitutional requirement ofpracticeoflawforatleastten(10)yearshasnotbeenmet.

Theproceduralbarriers interposedbyrespondentsdeservescantconsideration because, ultimately, the core issue to be resolved inthis petition is the proper construal of the constitutional provisionrequiringamajorityofthemembershipofCOMELEC,includingtheChairmanthereoftohavebeenengagedinthepracticeoflawforatleast ten(10)years.(Art.IX(C),Section1(1),1987Constitution).Questionsinvolvingtheconstructionofconstitutionalprovisionsarebest left to judicial resolution.As declared in Angara v, ElectoralCommission,(63Phil.139)uponthejudicialdepartmentisthrownthe solemn and inescapable obligation of interpreting theConstitutionanddefiningconstitutionalboundaries.

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Cayetanovs.Monsod

The Constitution has imposed clear and specific standards for aCOMELEC Chairman. Among these are that he must have beenengagedinthepracticeoflawforatleastten(10)years.Itistheboundendutyof thisCourt toensure thatsuchstandardismetandcompliedwith.

What constitutes practice of law? As commonly understood,practice refers to the actual performance or application ofknowledgeasdistinguished frommerepossessionofknowledge: itconnotes an active, habitual, repeated or customary action.

1

Topracticelaw,oranyprofessionforthatmatter,means,toexerciseor pursue an employment or profession actively, habitually,repeatedlyorcustomarily.

Therefore, a doctor of medicine who is employed and ishabituallyperformingthetasksofanursingaide,cannotbesaidtobeinthepracticeofmedicine.Acertifiedpublicaccountantwhoworks as a clerk, cannot be said to practice his profession as anaccountant. In the same way, a lawyer who is employed as abusiness executive or a corporate manager, other than as head orattorneyofaLegalDepartmentofacorporationoragovernmentalagency,cannotbesaidtobeinthepracticeoflaw.



1.

2.

AsaptlyheldbythisCourtinthecaseofPeoplevs.Villanueva.2

PracticePractice ismore thanan isolatedappearance for it consists infrequent or customary actions, a succession of acts of the same kind. Inotherwords, it isfrequenthabitualexercise(Statevs.Cotner,127,p.1,87Kan.864,42LRA,M.S.768).Practiceoflawtofallwithintheprohibitionofstatutehasbeeninterpretedascustomarilyorhabituallyholdingonesselfouttothepublicasalawyeranddemandingpaymentforsuchservices(Statevs.Bryan,4S.E.522,98N.C.644,647.)xxx(italicssupplied).

It is worth mentioning that the respondent Commission onAppointments in a Memorandum it prepared, enumerated severalfactors determinative of whether a particular activity constitutespracticeoflaw.Itstates:

________________

1Websters3rdNewInternationalDictionary.

214SCRA109.

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Cayetanovs.Monsod

Habituality. The term practice of law implies customarily orhabitually holding ones self out to the public as a lawyer (Peoplevs.Villanueva,14SCRA109citingStatev.Boyen,4S.E.522,98N.C. 644) such as when one sends a circular announcing theestablishmentofalawofficeforthegeneralpracticeoflaw(U.S.v.NeyBosque,8Phil.146),orwhenonetakestheoathofofficeas,alawyer before a notary public, and files a manifestation with theSupremeCourt informing it of his intention to practice law in allcourtsinthecountry(Peoplev.DeLuna,102Phil.968).

Practice is more than an isolated appearance for it consists in frequent orcustomaryaction,asuccessionofactsofthesamekind.Inotherwords,itisa habitual exercise (People v, Villanueva, 14 SCRA 109 citing State v.Cotner,127,p1,87Kan,864).

Compensation.Practiceoflawimpliesthatonemusthavepresentedhimself to be in the active and continued practice of the legalprofession and that his professional services are available to thepublic for compensation, as a service of his livelihood or inconsideration of his said services. (People v. Villanueva, supra).



3.

4.

1.

2.

3.

Hence, charging for services such as preparation of documentsinvolving the use of legal knowledge and skill is within the termpracticeoflaw(ErnaniPao,BarReviewerinLegalandJudicialEthics, 1988 ed., p. 8 citing People v. Peoples Stockyards State

Bank, 176 N.B. 901) and, one who renders an opinion as to theproper interpretationofa statute, and receivespay for it, is to that

extent, practicing law (Martin, supra, p. 806 citingMendelaun v.Gilbert andBarketMfg.Co., 290N.Y.S. 462) If compensation isexpected, all advice to clients and all action taken for them inmatters connected with the law are practicing law. (ElwoodFitchetteetal.,v.ArthurC.Taylor,94AL.R.356359)

Application of law, legal principle, practice, or procedure whichcallsforlegalknowledge,trainingandexperienceiswithinthetermpracticeoflaw.(Martinsupra)

Attorneyclient relationship. Engaging in the practice of lawpresupposes the existence of lawyerclient relationship. Hence,wherealawyerundertakesanactivitywhichrequiresknowledgeoflaw but involves no attorneyclient relationship, such as teachinglaw or writing law books or articles, he cannot be said to beengagedinthepracticeofhisprofessionoralawyer(Agpalo,LegalEthics,1989ed.,p.30).

3

________________

3Commission onAppointmentsMemorandum dated 25 June 1991RE:WHAT

CONSTITUTESPRACTICEOFLAW,pp.67.

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Cayetanovs.Monsod

The aboveenumerated factors would, I believe, be useful aids indetermining whether or not respondent Monsod meets theconstitutional qualification of practice of law for at least ten (10)yearsatthetimeofhisappointmentasCOMELECChairman.

Thefollowingrelevantquestionsmaybeasked:

DidrespondentMonsodperformanyofthetaskswhicharepeculiartothepracticeoflaw?

Did respondent perform such tasks customarily orhabitually?

Assuming that he performed any of such tasks habitually,did he do soHABITUALLYFORATLEASTTEN (10)

Jerome Rodolfo Sola



YEARSpriortohisappointmentasCOMELECChairman?

Given the employment or job history of respondent Monsod asappearsfromtherecords,Iampersuadedthatifeverhedidperformanyofthetaskswhichconstitutethepracticeoflaw,hedidnotdosoHABITUALLYforatleastten(10)yearspriortohisappointmentasCOMELECChairman.

While itmay be granted that he performed tasks and activitieswhichcouldbelatitudinarianlyconsideredactivitiespeculiartothepractice of law, like the drafting of legal documents and therenderingoflegalopinionoradvice,suchwereisolatedtransactionsoractivitieswhichdonotqualifyhispastendeavorsaspracticeoflaw To become engaged in the practice of law, theremust be acontinuity, or a succession of acts. As observed by the SolicitorGeneralinPeoplevs.Villanueva:

4

Essentially, the word private practice of law implies that one must havepresented himself to be in the active and continued practice of the legalprofessionandthathisprofessionalservicesareavailabletothepublicforacompensation, as a source of his livelihood or in consideration of his saidservices.

ACCORDINGLY,myvoteistoGRANTthepetitionandtodeclarerespondentMonsodasnotqualifiedfor thepositionofCOMELECChairmanfornothavingengagedinthepracticeoflawforatleastten(10)yearspriortohisappointmenttosuchposition.

________________

414SCRA109.

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Cayetanovs.Monsod

CRUZ,.J.,dissenting:

I amsincerely impressedby the ponencia ofmybrotherParas butfindImustdissentjustthesame.TherearecertainpointsonwhichImustdifferwithhimwhileofcourserespectinghisviewpoint.

To beginwith, I do not thinkwe are inhibited from examiningthequalificationsof the respondent simplybecausehisnominationhas been confirmed by the Commission on Appointments. In myview, this is not a political question that we are barred from



resolving.Determinationof the appointees credentials ismadeonthe basis of the established facts, not the discretion of that body.Evenifitwere,theexerciseofthatdiscretionwouldstillbesubjecttoourreview.

InLuego,whichiscitedintheponencia,whatwasinvolvedwasthe discretion of the appointing authority to choose between twoclaimants to the same office who both possessed the requiredqualifications. Itwas thatkindofdiscretion thatwesaidcouldnotbereviewed.

IfapersonelectedbynolessthanthesovereignpeoplemaybeoustedbythisCourtforlackoftherequiredqualifications,Iseenoreason why we cannot disqualify an appointee simply because hehaspassedtheCommissiononAppointments.

EventhePresidentofthePhilippinesmaybedeclaredineligibleby thisCourt inanappropriateproceedingnotwithstanding thathehasbeenfoundacceptablebynolessthantheenfranchisedcitizenry.Thereasonisthatwhatwewouldbeexaminingisnotthewisdomofhiselectionbutwhetherornothewasqualifiedtobeelectedinthefirstplace.

Comingnowtothequalificationsoftheprivaterespondent,Ifearthattheponenciamayhavebeentoosweepinginitsdefinitionofthephrase practice of law as to render the qualification practicallytoothless.Fromthenumerousactivitiesacceptedasembracedintheterm,Ihavetheuncomfortablefeelingthatonedoesnotevenhavetobe a lawyer to be engaged in thepractice of lawas long as hisactivitiesinvolvetheapplicationofsomelaw,howeverperipherally.The stock broker and the insurance adjuster and the realtor couldcome under the definition as they deal with or give advice onmattersthatarelikelytobecomeinvolvedinlitigation.

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Cayetanovs.Monsod

Thelawyerisconsideredengagedinthepracticeoflawevenifhismain occupation is another business and he interprets and appliessome law only as an incident of such business. That covers everycompany organized under the Corporation Code and regulated bythe SEC under P.D. 902A. Considering the ramifications of themodern society, there is hardly any activity that is not affectedbysome law or government regulation the businessman must knowaboutandobserve. In fact, againgoingby thedefinition, a lawyerdoesnotevenhavetobepartofabusinessconcerntobeconsidereda practitioner.He can be so deemedwhen, on his own, he rents a



house or buys a car or consults a doctor as these acts involve hisknowledgeandapplicationofthelawsregulatingsuchtransactions.If he operates a public utility vehicle as his main source oflivelihood,hewouldstillbedeemedengagedinthepracticeoflawbecause he must obey the Public Service Act and the rules andregulationsoftheEnergyRegulatoryBoard.

TheponenciaquotesanAmericandecisiondefiningthepracticeof law as the performance of any acts, . , in or out of court,commonly understood to be the practice of law, which tells usabsolutely nothing. The decision goes on to say that becauselawyers perform almost every function known in the commercialandgovernmental realm, suchadefinitionwouldobviouslybe tooglobaltobeworkable.

Theeffectof thedefinitiongiven in theponencia is toconsidervirtuallyeverylawyertobeengagedinthepracticeoflawevenifhedoes not earn his living, or at least part of it, as a lawyer. It isenough that his activities are incidentally (even if only remotely)connected with some law, ordinance, or regulation. The possibleexception is the lawyer whose income is derived from teachingballroom dancing or escorting wrinkled ladies with pubescentpretensions.

Therespondentscredentialsareimpressive,tobesure,buttheydonotpersuademethathehasbeenengagedinthepracticeoflawfortenyearsasrequiredbytheConstitution.It isconcededthathehas been engaged in business and finance, in which areas he hasdistinguishedhimself,butasanexecutiveandeconomistandnotasa practicing lawyer. The plain fact is that he has occupied thevariouspositionslistedinhisresumebyvirtueofhisexperienceandprestigeasabusiness

236


Cayetanovs.Monsod

man and not as an attorneyatlaw whose principal attention isfocused on the law. Even if it be argued that he was acting as alawyerwhenhelobbiedinCongressforagrarianandurbanreform,served in the NAMFREL and the Constitutional Commission(together with nonlawyers like farmers and priests) and was amember of the Davide Commission, he has not proved that hisactivities in these capacities extended over the prescribed 10yearperiod of actual practice of the law. He is doubtless eminentlyqualifiedformanyotherpositionsworthyofhisabundanttalentsbutnotasChairmanoftheCommissiononElections.



IhavemuchadmirationforrespondentMonsod,nolessthanforMr.JusticeParas,butImustregretfullyvotetograntthepetition

DISSENTINGOPINION

GUTIERREZ,JR.,J.:

When this petitionwas filed, therewas hope that engaging in thepracticeof lawasaqualificationforpublicofficewouldbesettledonewayoranotherinfairlydefinitiveterms.Unfortunately,thiswasnottheresult.

Of the fourteen (14)memberCourt, 5 are of theview thatMr.ChristianMonsodengagedinthepracticeoflaw(withoneofthese5leavinghisvotebehindwhileonofficialleavebutnotexpressinghisclearstandonthematter)4categoricallystatingthathedidnotpractice law 2 voting in the result because therewas no error sogrossastoamounttograveabuseofdiscretiononeofofficialleavewithnoinstructions leftbehindonhowheviewedthe issueand2nottakingpartinthedeliberationsandthedecision.

Therearetwokeyfactorsthatmakeourtaskdifficult.Firstisourreviewing the work of a constitutional Commission onAppointmentswhosedutyispreciselytolookintothequalificationsofpersonsappointedtohighoffice.EveniftheCommissionerrs,wehavenopowertosetasideerror.Wecanlookonlyintograveabuseofdiscretionorwhimsicallyandarbitrariness.Second isourbeliefthat Mr. Monsod possesses superior qualifications in terms ofexecutiveability,proficiencyinmanage

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Cayetanovs.Monsod

ment, educational background, experience in international bankingandfinance,andinstantrecognitionbythepublic.Hisintegrityandcompetencearenotquestionedbythepetitioner.WhatisbeforeusiscompliancewithaspecificrequirementwrittenintotheConstitution.

Inspite of my high regard forMr.Monsod, I cannot shirk myconstitutionalduty.Hehasneverengagedinthepracticeoflawforeven one year. He is a member of the bar but to say that he haspracticedlawisstretchingthetermbeyondrationallimits.

Apersonmayhavepassedthebarexaminations.Butifhehasnotdedicated his life to the law, if he has not engaged in an activitywheremembershipinthebarisarequirement I fail toseehowhe



1.

2.

canclaimtohavebeenengagedinthepracticeoflaw.Engaging in the practice of law is a qualification not only for

COMELEC chairman but also for appointment to the SupremeCourtandalllowercourts.WhatkindofJudgesorJusticeswillwehave if there main occupation is selling real estate, managing abusinesscorporation,servinginfactfindingcommittee,workinginmedia, or operating a farmwithno active involvement in the law,whetherinGovernmentorprivatepractice,exceptthatinonejoyfulmoment in the distant past, they happened to pass the barexaminations?

TheConstitutionusesthephraseengagedinthepracticeoflawforatleasttenyears.Thedeliberatechoiceofwordsshowsthatthepractice envisioned is active and regular, not isolated, occasional,accidental,intermittent,incidental,seasonal,orextemporaneous.Tobe engaged in an activity for ten years requires committedparticipation in something which is the result of ones decisivechoice.Itmeansthatoneisoccupiedandinvolvedintheenterprise:one is obliged or pledged to carry it outwith intent and attentionduringthetenyearperiod.

IagreewiththepetitionerthatbasedonthebiodatasubmittedbyrespondentMonsodtotheCommissiononAppointments, thelatterhasnotbeenengagedinthepracticeoflawforatleasttenyears.Infact,ifappearsthatMr.Monsodhasneverpracticedlawexceptforanallegedoneyearperiodafterpassingthebarexaminationswhenheworkedinhisfatherslawfirm.EventhenhislawpracticemusthavebeenextremelylimitedbecausehewasalsoworkingforM.A.andPh.D.degreesin

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Cayetanovs.Monsod

Economics at the University of Pennsylvania during that period.HowcouldhepracticelawintheUnitedStateswhilenotamemberoftheBarthere?

Theprofessionallifeoftherespondentfollows:

1.15.1 Respondent Monsods activities since his passing the Barexaminationsin1961consistofthefollowing:

19611963:M.A. in Economics (Ph. D. candidate), University ofPennsylvania

19631970:WorldBankGroupEconomist,IndustryDepartmentOperations, Latin American Department Division Chief, South



3.

4.

5.

6.

7.

8.

9.

a.

b.

c.

d.

e.

a.

b.

c.

d.

e.

f.

g.

h.

i.

j.

k.

1.

AsiaandMiddleEast,InternationalFinanceCorporation

19701973:MeralcoGroupExecutiveofvariouscompanies, i.e.,MeralcoSecuritiesCorporation,PhilippinePetroleumCorporation,PhilippineElectricCorporation

19731976: Yujuico GroupPresident, FilCapital DevelopmentCorporationandaffiliatedcompanies

19761978:FinacieraManilaChiefExecutiveOfficer

19781986: Guevent Group of CompaniesChief ExecutiveOfficer

19861987:PhilippineConstitutionalCommissionMember

19891991: The FactFindingCommission on theDecember 1989CoupAttemptMember

Presently: Chairman of the Board and Chief ExecutiveOfficer ofthefollowingcompanies:

ACEContainerPhilippines,Inc.

Dataprep,Philippines

PhilippineSUNsystemsProducts,Inc.

SemiraraCoalCorporation

CBLTimberCorporation

MemberoftheBoardoftheFollowing:

EngineeringConstructionCorporationofthePhilippines

FirstPhilippineEnergyCorporation

FirstPhilippineHoldingsCorporation

FirstPhilippineIndustrialCorporation

GraphicAtelier

ManilaElectricCompany

PhilippineCommercialCapital,Inc.

PhilippineElectricCorporation

TarlacReforestationandEnvironmentEnterprises

TolongAquacultureCorporation

VisayanAquacultureCorporation

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Cayetanovs.Monsod

GuimarasAquacultureCorporation



(Rollo,pp.2122)

There is nothing in the above biodata which even remotelyindicates that respondent Monsod has given the law enoughattention or a certain degree of commitment and participation aswould support in all sincerity and candor the claim of havingengagedinitspracticeforatleasttenyears.Insteadofworkingasalawyer, he has lawyers working for him. Instead of giving legaladvice of legal services, hewas the one receiving that advice andthoseservicesasanexecutivebutnotasalawyer.

ThedeliberationsbeforetheCommissiononAppointmentsshowanefforttoequateengagedinthepracticeoflaw?withtheuseoflegal knowledge in various fields of endeavor such as commerce,industry,civicwork,blueribboninvestigations,agrarianreform,etc.wheresuchknowledgewouldbehelpful.

I regret that Icannot join inplayingfastand loosewitha term,which even an ordinary layman accepts as having a familiar andcustomarywelldefinedmeaning.Everyresidentofthiscountrywhohasreachedtheageofdiscernmenthastoknow,follow,orapplythelaw at various times in his life. Legal knowledge is useful if notnecessary for the business executive, legislator, mayor, barangaycaptain, teacher,policeman, farmer, fisherman,marketvendor,andstudent to name only a few. And yet, can these people honestlyassertthatassuch,theyareengagedinthepracticeoflaw?

TheConstitution requires havingbeen engaged in thepracticeoflawforatleasttenyears.ItisnotsatisfiedwithhavingbeenamemberofthePhilippinebarforatleasttenyears.

Some American courts have defined the practice of law, asfollows:

Thepracticeoflawinvolvesnotonlyappearanceincourtinconnectionwithlitigationbutalsoservicesrenderedoutofcourt,anditincludesthegivingofadvice or the rendering of any services requiring the use of legal skill orknowledge, suchaspreparingawill, contractorother instrument, the legaleffect ofwhich, under the facts and conditions involved,must be carefullydetermined.People ex rel.ChicagoBarAssnv.Tinkoff, 399 III. 282, 77N.E.2d693Peopleexrel.IllinoisStateBarAssnv.PeoplesStockYardsStateBank,344III.462,176N.E.901,andcasescited.

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Cayetanovs.Monsod

Itwouldbedifficult,ifnotimpossibletolaydownaformulaordefinitionof



what constitutes the practice of law. Practicing law has been defined asPracticing as an attorney or counselor at law according to the laws andcustoms of our courts, is the giving of advice or rendition of any sort ofservicebyanyperson,firmorcorporationwhenthegivingofsuchadviceorrenditionof suchservice requires theuseofanydegreeof legalknowledgeor skill. Without adopting that definition, we referred to it as beingsubstantially correct in People ex rel. Illinois State Bar Assn v. PeoplesStockYardsStateBank,344III.462,176N.E.901."(Peoplev.Schafer,87N.E.2d773,776)

Foronesactionstocomewithinthepurviewofpracticeoflawtheyshouldnotonlybeactivitiespeculiar totheworkofalawyer, theyshould alsobeperformed, habitually, frequently or customarily, towit:

xxxxxxxxxRespondents answers to questions propounded to him were rather

evasive. He was asked whether or not he ever prepared contracts for theparties in realestate transactionswherehewasnot theprocuringagent.Heanswered:Veryseldom.Inanswertothequestionastohowmanytimeshehad prepared contracts for the parties during the twentynine years of hisbusiness,hesaid:Ihavenoidea.WhenaskedifitwouldbemorethanhalfadozentimeshisanswerwasIsuppose.Askedifhedidnotrecallmakingthe statement to several parties that he had prepared contracts in a largenumber of instances, he answered: I dont recall exactly what was said.When asked if he did not remember saying that he hadmade a practice ofpreparing deeds,mortgages and contracts and charging a fee to the partiestherefor in instanceswherehewasnot thebroker in thedeal,heanswered:Well,Idontbelieveso,thatisnotapractice/Pressedfurtherforanansweras tohispractice inpreparingcontractsanddeeds forpartieswherehewasnotthebroker,hefinallyanswered:Ihavedoneabouteverythingthatisonthebooksasfarasrealestateisconcerned.

xxxxxxxxxRespondent takes the position that because he is a realestate broker he

has a lawful right to do any legal work in connection with realestatetransactions,especiallyindrawingofrealestatecontracts,deeds,mortgages,notes and the like. There is no doubt but that he has engaged in thesepracticesovertheyearsandhaschargedforhisservicesinthatconnection.xxx.(Peoplev.Schafer,87N.E.2d773)

xxxxxxxxx

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x x x. An attorney, in the most general sense, is a person designated oremployedbyanother toact inhissteadanagentmoreespecially,oneofaclass of persons authorized to appear and act for suitors or defendants inlegal proceedings. Strictly, these professional persons are attorneys at law,and nonprofessional agents are properly styled attorneys in fact but thesinglewordismuchusedasmeaninganattorneyatlaw.Apersonmaybeanattorney in facto for another,without being an attorney at law.Abb. LawDict.Attorney/Apublicattorney,orattorneyatlaw,saysWebster,isanofficerofacourtoflaw,legallyqualifiedtoprosecuteanddefendactionsinsuchcourtontheretainerofclients.Theprincipaldutiesofanattorneyare(1)tobetruetothecourtandtohisclient(2)tomanagethebusinessofhisclientwithcare,skill,andintegrity(3)tokeephisclientinformedastothestateofhisbusiness(4) tokeephissecretsconfidedtohimassuch.xxxHis rights are to be justly compensated for his services.Bouv.LawDict.tit.Attorney.Thetransitiveverbpractice,asdefinedbyWebster,meansto door perform frequently, customarily, or habitually to perform by asuccessionofacts,as, topracticegamingxxx tocarryoninpractice,orrepeated action to apply, as a theory, to real life to exercise, as aprofession, trade, art. etc. as, to practice law or medicine, etc. x x x.(Statev.Bryan,S.E.522,523Emphasissupplied)

In this jurisdiction,we have ruled that the practice of lawdenotesfrequency or a succession of acts. Thus, we stated in the case ofPeoplev.Villanueva(14SCRA109[1965]):

x x x Practice is more than an isolated appearance, for it consists infrequent or customary actions, a succession of acts of the same kind. Inotherwords, it is frequent habitual exercise (State v.Cotner, 127, p. 1, 87Kan.864,42LRA,M.S.768).Practiceoflawtofallwithintheprohibitionofstatutehasbeeninterpretedascustomarilyorhabituallyholdingonesselfouttothepublic,asalawyeranddemandingpaymentforsuchservices.xx."(atp.112)

It is to be noted that the Commission on Appointment itselfrecognizeshabitualityasaarequiredcomponentofthemeaningofpracticeoflawinaMemorandumpreparedandissuedbyit,towit:

1.Habituality.Thetermpracticeoflawimpliescustomarilyorhabituallyholdingonesselfouttothepublicasalawyer(Peoplev.

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Villanueva,14SCRA109 citingState v,Bryan, 4S.E. 522, 98N.C. 644)such as when one sends a circular announcing the establishment of a lawofficeforthegeneralpracticeoflaw(U.S.v.NoyBosque,8Phil.146),orwhen one takes the oath of office as a lawyer before a notary public, andfilesamanifestationwiththeSupremeCourtinformingitofhisintentiontopracticelawinallcourtsinthecountry(Peoplev.DeLuna,102Phil.,968).

Practiceismorethananisolatedappearance,foritconsistsinfrequentorcustomaryaction,asuccessionofactsofthesamekind.Inotherwords,itisa habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v.Cotner,127,p.1,87Kan,864)."(Rollo,p.115)

xxxxxxxxx

WhilethecareerasabusinessmanofrespondentMonsodmayhaveprofitedfromhislegalknowledge,theuseofsuchlegalknowledgeis incidental and consists of isolated activities which do not fallunderthedenominationofpracticeoflaw.Admissiontothepracticeof law was not required for membership in the ConstitutionalCommissionor intheFactFindingCommissiononthe1989CoupAttempt.Anyspecificlegalactivitieswhichmayhavebeenassignedto Mr. Monsod while a member may be likened to isolatedtransactionsofforeigncorporationsinthePhilippineswhichdonotcategorize the foreign corporations as doing business in thePhilippines.Asinthepracticeoflaw,doingbusinessalsoshouldbeactiveandcontinuous. Isolatedbusiness transactionsoroccasional,incidentalandcasualtransactionsarenotwithinthecontextofdoingbusiness. This was our ruling in the case ofAntamConsolidated,Inc.v.CourtofAppeals,143SCRA288[1986]).

Respondent Monsod, corporate executive, civic leader, andmember of the Constitutional Commission may possess thebackground, competence, integrity, and dedication, to qualify forsuch high offices as President, VicePresident, Senator,Congressman or Governor but the Constitution in prescribing thespecificqualificationofhavingengagedinthepracticeoflawforatleast ten (10) years for the position of COMELEC Chairman hasordered that he may not be confirmed for that office. TheConstitutioncharges thepublicrespondentsno less than thisCourttoobeyitsmandate,

I, therefore, believe that the Commission on Appointmentscommittedgraveabuseofdiscretioninconfirmingthenomina

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tionofrespondentMonsodasChairmanoftheCOMELEC.IvotetoGRANTthepetition.Petitiondismissed.

Note.Viewthatthecourtshouldnotimposeitsviewonareaswithin the competence of policy makers. (Garcia vs. Board oflnvestments,191SCRA288.)

o0o

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Cayetano v. Monsod

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