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THIRD DIVISION FOURTH

[G.R. No. 113725. June 29, 2000] (a)....It is also my command, in this my addition (Codicil), that should I die
and Jorge Rabadilla shall have already received the ownership of the said
JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
MARIA MARLENA[2] COSCOLUELLA Y BELLEZA Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G.
VILLACARLOS, respondents. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the
obligation until he dies, every year to give to Maria Marlina Coscolluela y
DECISION Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza
dies.
PURISIMA, J.:
FIFTH
This is a petition for review of the decision of the Court of Appeals, [3] dated
December 23, 1993, in CA-G.R. No. CV-35555, which set aside the
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392
decision of Branch 52 of the Regional Trial Court in Bacolod City, and
ordered the defendants-appellees (including herein petitioner), as heirs of of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-
Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its 4002 (10492), shall have the obligation to still give yearly, the sugar as
fruits and interests, to the estate of Aleja Belleza. specified in the Fourth paragraph of his testament, to Maria Marlina
Coscolluela y Belleza on the month of December of each year.
The antecedent facts are as follows:
SIXTH
In a Codicil appended to the Last Will and Testament of testatrix Aleja
I command, in this my addition (Codicil) that the Lot No. 1392, in the event
Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner,
that the one to whom I have left and bequeathed, and his heir shall later
Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters
sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have
of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre.
also the obligation to respect and deliver yearly ONE HUNDRED (100)
The said Codicil, which was duly probated and admitted in Special
Proceedings No. 4046 before the then Court of First Instance of Negros piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of
December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25)
Occidental, contained the following provisions:
piculs of Domestic, until Maria Marlina shall die, lastly should the buyer,
lessee or the mortgagee of this lot, not have respected my command in this
"FIRST my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately
seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it
I give, leave and bequeath the following property owned by me to Dr. Jorge over to my near desendants, (sic) and the latter shall then have the
Rabadilla resident of 141 P. Villanueva, Pasay City: obligation to give the ONE HUNDRED (100) piculs of sugar until Maria
Marlina shall die. I further command in this my addition (Codicil) that my heir
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of and his heirs of this Lot No. 1392, that they will obey and follow that should
Title No. RT-4002 (10942), which is registered in my name according to the they decide to sell, lease, mortgage, they cannot negotiate with others than
records of the Register of Deeds of Negros Occidental. my near descendants and my sister."[4]

(b) That should Jorge Rabadilla die ahead of me, the aforementioned Pursuant to the same Codicil, Lot No. 1392 was transferred to the
property and the rights which I shall set forth hereinbelow, shall be inherited deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498
and acknowledged by the children and spouse of Jorge Rabadilla. thereto issued in his name.

xxx
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and "That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of
children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed TCT No. 44489 will be delivered not later than January of 1989, more
Rabadilla. specifically, to wit:

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos 75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of
brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December
the Regional Trial Court in Bacolod City, against the above-mentioned heirs of each sugar crop year, in Azucar Sugar Central; and, this is considered
of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The compliance of the annuity as mentioned, and in the same manner will
Complaint alleged that the defendant-heirs violated the conditions of the compliance of the annuity be in the next succeeding crop years.
Codicil, in that:
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88,
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the will be complied in cash equivalent of the number of piculs as mentioned
Republic Planters Bank in disregard of the testatrix's specific instruction to therein and which is as herein agreed upon, taking into consideration the
sell, lease, or mortgage only to the near descendants and sister of the composite price of sugar during each sugar crop year, which is in the total
testatrix. amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

2. Defendant-heirs failed to comply with their obligation to deliver one That the above-mentioned amount will be paid or delivered on a staggered
hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs cash installment, payable on or before the end of December of every sugar
domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop year, to wit:
crop years 1985 up to the filing of the complaint as mandated by the Codicil,
despite repeated demands for compliance. For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1988-89;
3. The banks failed to comply with the 6th paragraph of the Codicil which
provided that in case of the sale, lease, or mortgage of the property, the For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 (P26,250.00) Pesos, payable on or before December of crop year 1989-90;
piculs of sugar per crop year to herein private respondent.
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
The plaintiff then prayed that judgment be rendered ordering defendant- (P26,250.00) Pesos, payable on or before December of crop year 1990-91;
heirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja and
Belleza, the cancellation of TCT No. 44498 in the name of the deceased,
Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
names of the surviving heirs of the late Aleja Belleza. (P26,250.00) Pesos, payable on or before December of crop year 1991-
92."[5]
On February 26, 1990, the defendant-heirs were declared in default but on
March 28, 1990 the Order of Default was lifted, with respect to defendant
However, there was no compliance with the aforesaid Memorandum of
Johnny S. Rabadilla, who filed his Answer, accordingly.
Agreement except for a partial delivery of 50.80 piculs of sugar
corresponding to sugar crop year 1988 -1989.
During the pre-trial, the parties admitted that:
On July 22, 1991, the Regional Trial Court came out with a decision,
On November 15, 1998, the plaintiff (private respondent) and a certain Alan dismissing the complaint and disposing as follows:
Azurin, son-in-law of the herein petitioner who was lessee of the property
and acting as attorney-in-fact of defendant-heirs, arrived at an amicable "WHEREFORE, in the light of the aforegoing findings, the Court finds that
settlement and entered into a Memorandum of Agreement on the obligation
the action is prematurely filed as no cause of action against the defendants
to deliver one hundred piculs of sugar, to the following effect:
has as yet arose in favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction from them simply The petition is not impressed with merit.
because they are the children of Jorge Rabadilla, the title holder/owner of
the lot in question, does not warrant the filing of the present complaint. The Petitioner contends that the Court of Appeals erred in resolving the appeal
remedy at bar must fall. Incidentally, being in the category as creditor of the in accordance with Article 882 of the New Civil Code on modal institutions
left estate, it is opined that plaintiff may initiate the intestate proceedings, if and in deviating from the sole issue raised which is the absence or
only to establish the heirs of Jorge Rabadilla and in order to give full prematurity of the cause of action. Petitioner maintains that Article 882 does
meaning and semblance to her claim under the Codicil. not find application as there was no modal institution and the testatrix
intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge
In the light of the aforegoing findings, the Complaint being prematurely filed Rabadilla, was to be substituted by the testatrix's "near descendants"
is DISMISSED without prejudice. should the obligation to deliver the fruits to herein private respondent be not
complied with. And since the testatrix died single and without issue, there
SO ORDERED."[6] can be no valid substitution and such testamentary provision cannot be
given any effect.
On appeal by plaintiff, the First Division of the Court of Appeals reversed the
decision of the trial court; ratiocinating and ordering thus: The petitioner theorizes further that there can be no valid substitution for the
reason that the substituted heirs are not definite, as the substituted heirs are
merely referred to as "near descendants" without a definite identity or
"Therefore, the evidence on record having established plaintiff-appellant's
right to receive 100 piculs of sugar annually out of the produce of Lot No. reference as to who are the "near descendants" and therefore, under
1392; defendants-appellee's obligation under Aleja Belleza's codicil, as Articles 843[8] and 845[9] of the New Civil Code, the substitution should be
deemed as not written.
heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellee's admitted non-compliance with said
obligation since 1985; and, the punitive consequences enjoined by both the The contentions of petitioner are untenable. Contrary to his supposition that
codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the the Court of Appeals deviated from the issue posed before it, which was the
estate of Aleja Belleza in case of such non-compliance, this Court deems it propriety of the dismissal of the complaint on the ground of prematurity of
proper to order the reconveyance of title over Lot No. 1392 from the estates cause of action, there was no such deviation. The Court of Appeals found
of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant that the private respondent had a cause of action against the petitioner. The
must institute separate proceedings to re-open Aleja Belleza's estate, disquisition made on modal institution was, precisely, to stress that the
secure the appointment of an administrator, and distribute Lot No. 1392 to private respondent had a legally demandable right against the petitioner
Aleja Belleza's legal heirs in order to enforce her right, reserved to her by pursuant to subject Codicil; on which issue the Court of Appeals ruled in
the codicil, to receive her legacy of 100 piculs of sugar per year out of the accordance with law.
produce of Lot No. 1392 until she dies.
It is a general rule under the law on succession that successional rights are
Accordingly, the decision appealed from is SET ASIDE and another one transmitted from the moment of death of the decedent[10] and compulsory
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to heirs are called to succeed by operation of law. The legitimate children and
reconvey title over Lot No. 1392, together with its fruits and interests, to the descendants, in relation to their legitimate parents, and the widow or
estate of Aleja Belleza. widower, are compulsory heirs.[11] Thus, the petitioner, his mother and
sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla,
succeeded the latter by operation of law, without need of further
SO ORDERED."[7]
proceedings, and the successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner
found his way to this Court via the present petition, contending that the
Under Article 776 of the New Civil Code, inheritance includes all the
Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of
property, rights and obligations of a person, not extinguished by his death.
the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in
ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject
institution within the purview of Article 882 of the New Civil Code. Codicil were transmitted to his forced heirs, at the time of his death. And
since obligations not extinguished by death also form part of the estate of Neither is there a fideicommissary substitution here and on this point,
the decedent; corollarily, the obligations imposed by the Codicil on the petitioner is correct. In a fideicommissary substitution, the first heir is strictly
deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory mandated to preserve the property and to transmit the same later to the
heirs upon his death. second heir.[15] In the case under consideration, the instituted heir is in fact
allowed under the Codicil to alienate the property provided the negotiation is
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge with the near descendants or the sister of the testatrix. Thus, a very
Rabadilla, subject to the condition that the usufruct thereof would be important element of a fideicommissary substitution is lacking; the obligation
delivered to the herein private respondent every year. Upon the death of Dr. clearly imposing upon the first heir the preservation of the property and its
Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over transmission to the second heir. "Without this obligation to preserve clearly
the said property, and they also assumed his (decedent's) obligation to imposed by the testator in his will, there is no fideicommissary
deliver the fruits of the lot involved to herein private respondent. Such substitution."[16] Also, the near descendants' right to inherit from the testatrix
obligation of the instituted heir reciprocally corresponds to the right of is not definite. The property will only pass to them should Dr. Jorge
private respondent over the usufruct, the fulfillment or performance of which Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to
is now being demanded by the latter through the institution of the case at private respondent.
bar. Therefore, private respondent has a cause of action against petitioner
and the trial court erred in dismissing the complaint below. Another important element of a fideicommissary substitution is also missing
here. Under Article 863, the second heir or the fideicommissary to whom the
Petitioner also theorizes that Article 882 of the New Civil Code on modal property is transmitted must not be beyond one degree from the first heir or
institutions is not applicable because what the testatrix intended was a the fiduciary. A fideicommissary substitution is therefore, void if the first heir
substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's is not related by first degree to the second heir.[17] In the case under
near descendants should there be noncompliance with the obligation to scrutiny, the near descendants are not at all related to the instituted heir, Dr.
deliver the piculs of sugar to private respondent. Jorge Rabadilla.

Again, the contention is without merit. The Court of Appeals erred not in ruling that the institution of Dr. Jorge
Rabadilla under subject Codicil is in the nature of a modal institution and
therefore, Article 882 of the New Civil Code is the provision of law in point.
Substitution is the designation by the testator of a person or persons to take
Articles 882 and 883 of the New Civil Code provide:
the place of the heir or heirs first instituted. Under substitutions in general,
the testator may either (1) provide for the designation of another heir to
whom the property shall pass in case the original heir should die before Art. 882. The statement of the object of the institution or the application of
him/her, renounce the inheritance or be incapacitated to inherit, as in a the property left by the testator, or the charge imposed on him, shall not be
simple substitution,[12] or (2) leave his/her property to one person with the considered as a condition unless it appears that such was his intention.
express charge that it be transmitted subsequently to another or others, as
in a fideicommissary substitution.[13] The Codicil sued upon contemplates That which has been left in this manner may be claimed at once provided
neither of the two. that the instituted heir or his heirs give security for compliance with the
wishes of the testator and for the return of anything he or they may receive,
In simple substitutions, the second heir takes the inheritance in default of together with its fruits and interests, if he or they should disregard this
the first heir by reason of incapacity, predecease or renunciation. [14] In the obligation.
case under consideration, the provisions of subject Codicil do not provide
that should Dr. Jorge Rabadilla default due to predecease, incapacity or Art. 883. When without the fault of the heir, an institution referred to in the
renunciation, the testatrix's near descendants would substitute him. What preceding article cannot take effect in the exact manner stated by the
the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill testator, it shall be complied with in a manner most analogous to and in
the conditions imposed in the Codicil, the property referred to shall be conformity with his wishes.
seized and turned over to the testatrix's near descendants.
The institution of an heir in the manner prescribed in Article 882 is what is
known in the law of succession as an institucion sub modo or a modal
institution. In a modal institution, the testator states (1) the object of the mortgage or otherwise negotiate the property involved. The Codicil further
institution, (2) the purpose or application of the property left by the testator, provides that in the event that the obligation to deliver the sugar is not
or (3) the charge imposed by the testator upon the heir.[18] A "mode" respected, Marlena Belleza Coscuella shall seize the property and turn it
imposes an obligation upon the heir or legatee but it does not affect the over to the testatrix's near descendants. The non-performance of the said
efficacy of his rights to the succession.[19] On the other hand, in a conditional obligation is thus with the sanction of seizure of the property and reversion
testamentary disposition, the condition must happen or be fulfilled in order thereof to the testatrix's near descendants. Since the said obligation is
for the heir to be entitled to succeed the testator. The condition suspends clearly imposed by the testatrix, not only on the instituted heir but also on
but does not obligate; and the mode obligates but does not suspend. [20] To his successors-in-interest, the sanction imposed by the testatrix in case of
some extent, it is similar to a resolutory condition.[21] non-fulfillment of said obligation should equally apply to the instituted heir
and his successors-in-interest.
From the provisions of the Codicil litigated upon, it can be gleaned
unerringly that the testatrix intended that subject property be inherited by Dr. Similarly unsustainable is petitioner's submission that by virtue of the
Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an amicable settlement, the said obligation imposed by the Codicil has been
obligation on the said instituted heir and his successors-in-interest to deliver assumed by the lessee, and whatever obligation petitioner had become the
one hundred piculs of sugar to the herein private respondent, Marlena obligation of the lessee; that petitioner is deemed to have made a
Coscolluela Belleza, during the lifetime of the latter. However, the testatrix substantial and constructive compliance of his obligation through the
did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his consummated settlement between the lessee and the private respondent,
institution as a devisee, dependent on the performance of the said and having consummated a settlement with the petitioner, the recourse of
obligation. It is clear, though, that should the obligation be not complied the private respondent is the fulfillment of the obligation under the amicable
with, the property shall be turned over to the testatrix's near descendants. settlement and not the seizure of subject property.
The manner of institution of Dr. Jorge Rabadilla under subject Codicil is
evidently modal in nature because it imposes a charge upon the instituted Suffice it to state that a Will is a personal, solemn, revocable and free act by
heir without, however, affecting the efficacy of such institution. which a person disposes of his property, to take effect after his
death.[25] Since the Will expresses the manner in which a person intends
Then too, since testamentary dispositions are generally acts of liberality, an how his properties be disposed, the wishes and desires of the testator must
obligation imposed upon the heir should not be considered a condition be strictly followed. Thus, a Will cannot be the subject of a compromise
unless it clearly appears from the Will itself that such was the intention of agreement which would thereby defeat the very purpose of making a Will.
the testator. In case of doubt, the institution should be considered as modal
and not conditional.[22] WHEREFORE, the petition is hereby DISMISSED and the decision of the
Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555
Neither is there tenability in the other contention of petitioner that the private AFFIRMED. No pronouncement as to costs
respondent has only a right of usufruct but not the right to seize the property
itself from the instituted heir because the right to seize was expressly limited SO ORDERED.
to violations by the buyer, lessee or mortgagee.
Melo, J., (Chairman), concur in the separate opinion of Justice Vitug.
In the interpretation of Wills, when an uncertainty arises on the face of the
Will, as to the application of any of its provisions, the testator's intention is to Vitug, J., see separate opinion.
be ascertained from the words of the Will, taking into consideration the
circumstances under which it was made.[23] Such construction as will sustain
and uphold the Will in all its parts must be adopted.[24] Panganiban, J., join the separate opinion of Justice Vitug.

Subject Codicil provides that the instituted heir is under obligation to deliver Gonzaga-Reyes, J., no part.
One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella.
Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should they sell, lease,
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of
Republic of the Philippines the Philippines and, at the time of their appointment, at least thirty-five years
SUPREME COURT of age and holders of a college degree. However, a majority thereof,
Manila 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)
SECOND DIVISION

G.R. No. 100113 September 3, 1991 Regrettably, however, there seems to be no jurisprudence as to what
constitutes practice of law as a legal qualification to an appointive office.
RENATO CAYETANO, petitioner,
vs. Black defines "practice of law" as:
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as The rendition of services requiring the knowledge and the application of
Secretary of Budget and Management, respondents. 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
Renato L. Cayetano for and in his own behalf. 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
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner. 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
PARAS, J.: fixing and collecting fees for services rendered by his associate. (Black's
Law Dictionary, 3rd ed.)
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 The practice of law is not limited to the conduct of cases in court. (Land Title
would indubitably have a profound effect on the political aspect of our Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A
national existence. person is also considered to be in the practice of law when he:

The 1987 Constitution provides in Section 1 (1), Article IX-C: ... for valuable consideration engages in the business of advising person,
firms, associations or corporations as to their rights under the law, or
There shall be a Commission on Elections composed of a Chairman and six appears in a representative capacity as an advocate in proceedings pending
Commissioners who shall be natural-born citizens of the Philippines and, at or prospective, before any court, commissioner, referee, board, body,
the time of their appointment, at least thirty-five years of age, holders of a committee, or commission constituted by law or authorized to settle
college degree, and must not have been candidates for any elective position controversies and there, in such representative capacity performs any act or
in the immediately preceding -elections. However, a majority thereof, acts for the purpose of obtaining or defending the rights of their clients
including the Chairman, shall be members of the Philippine Bar who have under the law. Otherwise stated, one who, in a representative capacity,
been engaged in the practice of law for at least ten years. (Emphasis engages in the business of advising clients as to their rights under the law,
supplied) 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)
The aforequoted provision is patterned after Section l(l), Article XII-C of the
1973 Constitution which similarly provides:
This Court in the case of Philippine Lawyers Association v.Agrava, (105 One may be a practicing attorney in following any line of employment in the
Phil. 173,176-177) stated: 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
The practice of law is not limited to the conduct of cases or litigation in court; he follows some one or more lines of employment such as this he is a
it embraces the preparation of pleadings and other papers incident to practicing attorney at law within the meaning of the statute. (Barr v. Cardell,
actions and special proceedings, the management of such actions and 155 NW 312)
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 Practice of law means any activity, in or out of court, which requires the
matters connected with the law incorporation services, assessment and application of law, legal procedure, knowledge, training and experience. "To
condemnation services contemplating an appearance before a judicial body, engage in the practice of law is to perform those acts which are
the foreclosure of a mortgage, enforcement of a creditor's claim in characteristics of the profession. Generally, to practice law is to give notice
bankruptcy and insolvency proceedings, and conducting proceedings in or render any kind of service, which device or service requires the use in
attachment, and in matters of estate and guardianship have been held to any degree of legal knowledge or skill." (111 ALR 23)
constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained The following records of the 1986 Constitutional Commission show that it
legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). has adopted a liberal interpretation of the term "practice of law."
(Emphasis supplied)
MR. FOZ. Before we suspend the session, may I make a manifestation
Practice of law under modem conditions consists in no small part of work which I forgot to do during our review of the provisions on the Commission
performed outside of any court and having no immediate relation to on Audit. May I be allowed to make a very brief statement?
proceedings in court. It embraces conveyancing, the giving of legal advice
on a large variety of subjects, and the preparation and execution of legal
THE PRESIDING OFFICER (Mr. Jamir).
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 The Commissioner will please proceed.
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 MR. FOZ. This has to do with the qualifications of the members of the
and complex situations. These customary functions of an attorney or Commission on Audit. Among others, the qualifications provided for by
counselor at law bear an intimate relation to the administration of justice by Section I is that "They must be Members of the Philippine Bar" I am
the courts. No valid distinction, so far as concerns the question set forth in quoting from the provision "who have been engaged in the practice of
the order, can be drawn between that part of the work of the lawyer which law for at least ten years".
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 To avoid any misunderstanding which would result in excluding members of
public that these manifold customary functions be performed by persons the Bar who are now employed in the COA or Commission on Audit, we
possessed of adequate learning and skill, of sound moral character, and would like to make the clarification that this provision on qualifications
acting at all times under the heavy trust obligations to clients which rests regarding members of the Bar does not necessarily refer or involve actual
upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 practice of law outside the COA We have to interpret this to mean that as
ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, long as the lawyers who are employed in the COA are using their legal
quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. knowledge or legal talent in their respective work within COA, then they are
139,144). (Emphasis ours) qualified to be considered for appointment as members or commissioners,
even chairman, of the Commission on Audit.
The University of the Philippines Law Center in conducting orientation
briefing for new lawyers (1974-1975) listed the dimensions of the practice of This has been discussed by the Committee on Constitutional Commissions
law in even broader terms as advocacy, counselling and public service. 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 Some firms may be organized as professional corporations and the
practice of law for at least ten years is taken up. members called shareholders. In either case, the members of the firm are
the experienced attorneys. In most firms, there are younger or more
MR. OPLE. Will Commissioner Foz yield to just one question. inexperienced salaried attorneyscalled "associates." (Ibid.).

MR. FOZ. Yes, Mr. Presiding Officer. The test that defines law practice by looking to traditional areas of law
practice is essentially tautologous, unhelpful defining the practice of law as
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West
equivalent to the requirement of a law practice that is set forth in the Article Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as
on the Commission on Audit? 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.
MR. FOZ. We must consider the fact that the work of COA, although it is Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform
auditing, will necessarily involve legal work; it will involve legal work. And, almost every function known in the commercial and governmental realm,
therefore, lawyers who are employed in COA now would have the such a definition would obviously be too global to be workable.(Wolfram, op.
necessary qualifications in accordance with the Provision on qualifications cit.).
under our provisions on the Commission on Audit. And, therefore, the
answer is yes.
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
MR. OPLE. Yes. So that the construction given to this is that this is average lawyer. Most lawyers spend little time in courtrooms, and a large
equivalent to the practice of law. percentage spend their entire practice without litigating a case. (Ibid., p.
593). Nonetheless, many lawyers do continue to litigate and the litigating
MR. FOZ. Yes, Mr. Presiding Officer. lawyer's role colors much of both the public image and the self perception of
the legal profession. (Ibid.).
MR. OPLE. Thank you.
In this regard thus, the dominance of litigation in the public mind reflects
... ( Emphasis supplied) 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
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, as a business counselor in this wise: "Even today, there are still uninformed
that the Chairman and two Commissioners of the Commission on Audit laymen whose concept of an attorney is one who principally tries cases
(COA) should either be certified public accountants with not less than ten before the courts. The members of the bench and bar and the informed
years of auditing practice, or members of the Philippine Bar who have been laymen such as businessmen, know that in most developed societies today,
engaged in the practice of law for at least ten years. (emphasis supplied) 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
Corollary to this is the term "private practitioner" and which is in many ways
more time doing what [is] loosely desccribe[d] as business counseling than
synonymous with the word "lawyer." Today, although many lawyers do not
in trying cases. The business lawyer has been described as the planner, the
engage in private practice, it is still a fact that the majority of lawyers are
diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed]
private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM
that in law, as in medicine, surgery should be avoided where internal
Career Horizons: Illinois], [1986], p. 15).
medicine can be effective." (Business Star, "Corporate Finance Law," Jan.
11, 1989, p. 4).
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in the
In the course of a working day the average general practitioner wig engage
business of delivering legal services." (Ibid.). Lawyers who practice alone
in a number of legal tasks, each involving different legal doctrines, legal
are often called "sole practitioners." Groups of lawyers are called "firms."
skills, legal processes, legal institutions, clients, and other interested parties.
The firm is usually a partnership and members of the firm are the partners.
Even the increasing numbers of lawyers in specialized practice wig usually
perform at least some legal services outside their specialty. And even within danger have prompted the use of sophisticated concepts of information flow
a narrow specialty such as tax practice, a lawyer will shift from one legal theory, operational analysis, automatic data processing, and electronic
task or role such as advice-giving to an importantly different one such as computing equipment. Understandably, an improved decisional structure
representing a client before an administrative agency. (Wolfram, supra, p. must stress the predictive component of the policy-making process, wherein
687). a "model", of the decisional context or a segment thereof is developed to
test projected alternative courses of action in terms of futuristic effects
By no means will most of this work involve litigation, unless the lawyer is flowing therefrom.
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 Although members of the legal profession are regularly engaged in
mastered the full range of traditional lawyer skills of client counselling, predicting and projecting the trends of the law, the subject of corporate
advice-giving, document drafting, and negotiation. And increasingly lawyers finance law has received relatively little organized and formalized attention
find that the new skills of evaluation and mediation are both effective for in the philosophy of advancing corporate legal education. Nonetheless, a
many clients and a source of employment. (Ibid.). cross-disciplinary approach to legal research has become a vital necessity.

Most lawyers will engage in non-litigation legal work or in litigation work that Certainly, the general orientation for productive contributions by those
is constrained in very important ways, at least theoretically, so as to remove trained primarily in the law can be improved through an early introduction to
from it some of the salient features of adversarial litigation. Of these special multi-variable decisional context and the various approaches for handling
roles, the most prominent is that of prosecutor. In some lawyers' work the such problems. Lawyers, particularly with either a master's or doctorate
constraints are imposed both by the nature of the client and by the way in degree in business administration or management, functioning at the legal
which the lawyer is organized into a social unit to perform that work. The policy level of decision-making now have some appreciation for the
most common of these roles are those of corporate practice and concepts and analytical techniques of other professions which are currently
government legal service. (Ibid.). engaged in similar types of complex decision-making.

In several issues of the Business Star, a business daily, herein below Truth to tell, many situations involving corporate finance problems would
quoted are emerging trends in corporate law practice, a departure from the require the services of an astute attorney because of the complex legal
traditional concept of practice of law. implications that arise from each and every necessary step in securing and
maintaining the business issue raised. (Business Star, "Corporate Finance
We are experiencing today what truly may be called a revolutionary Law," Jan. 11, 1989, p. 4).
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy In our litigation-prone country, a corporate lawyer is assiduously referred to
decisional contexts, are finding that understanding the major emerging as the "abogado de campanilla." He is the "big-time" lawyer, earning big
trends in corporation law is indispensable to intelligent decision-making. money and with a clientele composed of the tycoons and magnates of
business and industry.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law Despite the growing number of corporate lawyers, many people could not
research function accompanied by an accelerating rate of information explain what it is that a corporate lawyer does. For one, the number of
accumulation. The recognition of the need for such improved corporate legal attorneys employed by a single corporation will vary with the size and type
policy formulation, particularly "model-making" and "contingency planning," of the corporation. Many smaller and some large corporations farm out all
has impressed upon us the inadequacy of traditional procedures in many their legal problems to private law firms. Many others have in-house counsel
decisional contexts. only for certain matters. Other corporation have a staff large enough to
handle most legal problems in-house.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of major A corporate lawyer, for all intents and purposes, is a lawyer who handles the
trends, the necessity of estimating the consequences of given courses of legal affairs of a corporation. His areas of concern or jurisdiction may
action, and the need for fast decision and response in situations of acute include, inter alia: corporate legal research, tax laws research, acting out as
corporate secretary (in board meetings), appearances in both courts and responsibilities; and (3) a devotion to the organization and management of
other adjudicatory agencies (including the Securities and Exchange the legal function itself.
Commission), and in other capacities which require an ability to deal with
the law. These three subject areas may be thought of as intersecting circles, with a
shared area linking them. Otherwise known as "intersecting managerial
At any rate, a corporate lawyer may assume responsibilities other than the jurisprudence," it forms a unifying theme for the corporate counsel's total
legal affairs of the business of the corporation he is representing. These learning.
include such matters as determining policy and becoming involved in
management. ( Emphasis supplied.) Some current advances in behavior and policy sciences affect the counsel's
role. For that matter, the corporate lawyer reviews the globalization process,
In a big company, for example, one may have a feeling of being isolated including the resulting strategic repositioning that the firms he provides
from the action, or not understanding how one's work actually fits into the counsel for are required to make, and the need to think about a
work of the orgarnization. This can be frustrating to someone who needs to corporation's; strategy at multiple levels. The salience of the nation-state is
see the results of his work first hand. In short, a corporate lawyer is being reduced as firms deal both with global multinational entities and
sometimes offered this fortune to be more closely involved in the running of simultaneously with sub-national governmental units. Firms increasingly
the business. collaborate not only with public entities but with each other often with
those who are competitors in other arenas.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few Also, the nature of the lawyer's participation in decision-making within the
opportunities available to corporate lawyers to enter the international law corporation is rapidly changing. The modem corporate lawyer has gained a
field. After all, international law is practiced in a relatively small number of new role as a stakeholder in some cases participating in the organization
companies and law firms. Because working in a foreign country is perceived and operations of governance through participation on boards and other
by many as glamorous, tills is an area coveted by corporate lawyers. In decision-making roles. Often these new patterns develop alongside existing
most cases, however, the overseas jobs go to experienced attorneys while legal institutions and laws are perceived as barriers. These trends are
the younger attorneys do their "international practice" in law libraries. complicated as corporations organize for global operations. ( Emphasis
(Business Star, "Corporate Law Practice," May 25,1990, p. 4). supplied)

This brings us to the inevitable, i.e., the role of the lawyer in the realm of The practising lawyer of today is familiar as well with governmental policies
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, toward the promotion and management of technology. New collaborative
to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one arrangements for promoting specific technologies or competitiveness more
who perceives the difficulties, and the excellent lawyer is one who generally require approaches from industry that differ from older, more
surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, adversarial relationships and traditional forms of seeking to influence
p. 4). governmental policies. And there are lessons to be learned from other
countries. In Europe, Esprit, Eureka and Race are examples of collaborative
Today, the study of corporate law practice direly needs a "shot in the arm," efforts between governmental and business Japan's MITI is world famous.
so to speak. No longer are we talking of the traditional law teaching method (Emphasis supplied)
of confining the subject study to the Corporation Code and the Securities
Code but an incursion as well into the intertwining modern management Following the concept of boundary spanning, the office of the Corporate
issues. Counsel comprises a distinct group within the managerial structure of all
kinds of organizations. Effectiveness of both long-term and temporary
Such corporate legal management issues deal primarily with three (3) types groups within organizations has been found to be related to indentifiable
of learning: (1) acquisition of insights into current advances which are of factors in the group-context interaction such as the groups actively revising
particular significance to the corporate counsel; (2) an introduction to usable their knowledge of the environment coordinating work with outsiders,
disciplinary skins applicable to a corporate counsel's management promoting team achievements within the organization. In general, such
external activities are better predictors of team performance than internal needs to be directly supportive of this nation's evolving economic and
group processes. organizational fabric as firms change to stay competitive in a global,
interdependent environment. The practice and theory of "law" is not
In a crisis situation, the legal managerial capabilities of the corporate lawyer adequate today to facilitate the relationships needed in trying to make a
vis-a-vis the managerial mettle of corporations are challenged. Current global economy work.
research is seeking ways both to anticipate effective managerial procedures
and to understand relationships of financial liability and insurance Organization and Functioning of the Corporate Counsel's Office. The
considerations. (Emphasis supplied) general counsel has emerged in the last decade as one of the most vibrant
subsets of the legal profession. The corporate counsel hear responsibility
Regarding the skills to apply by the corporate counsel, three factors for key aspects of the firm's strategic issues, including structuring its global
are apropos: operations, managing improved relationships with an increasingly diversified
body of employees, managing expanded liability exposure, creating new
First System Dynamics. The field of systems dynamics has been found an and varied interactions with public decision-makers, coping internally with
effective tool for new managerial thinking regarding both planning and more complex make or by decisions.
pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all sorts This whole exercise drives home the thesis that knowing corporate law is
of systematic problems physical, economic, managerial, social, and not enough to make one a good general corporate counsel nor to give him a
psychological. New programming techniques now make the system full sense of how the legal system shapes corporate activities. And even if
dynamics principles more accessible to managers including corporate the corporate lawyer's aim is not the understand all of the law's effects on
counsels. (Emphasis supplied) corporate activities, he must, at the very least, also gain a working
knowledge of the management issues if only to be able to grasp not only the
basic legal "constitution' or makeup of the modem corporation. "Business
Second Decision Analysis. This enables users to make better decisions
Star", "The Corporate Counsel," April 10, 1991, p. 4).
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 The challenge for lawyers (both of the bar and the bench) is to have more
of cases. (Emphasis supplied) 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
Third Modeling for Negotiation Management. Computer-based models can territory. What transpires next is a dilemma of professional security: Will the
be used directly by parties and mediators in all lands of negotiations. All lawyer admit ignorance and risk opprobrium?; or will he feign understanding
and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989,
integrated set of such tools provide coherent and effective negotiation
p. 4).
support, including hands-on on instruction in these techniques. A simulation
case of an international joint venture may be used to illustrate the point.
Respondent Christian Monsod was nominated by President Corazon C.
[Be this as it may,] the organization and management of the legal function, 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.
concern three pointed areas of consideration, thus:
Petitioner opposed the nomination because allegedly Monsod does not
possess the required qualification of having been engaged in the practice of
Preventive Lawyering. Planning by lawyers requires special skills that law for at least ten years.
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with
On June 5, 1991, the Commission on Appointments confirmed the
minimizing the risks of legal trouble and maximizing legal rights for such
nomination of Monsod as Chairman of the COMELEC. On June 18, 1991,
legal entities at that time when transactional or similar facts are being
he took his oath of office. On the same day, he assumed office as Chairman
considered and made.
of the COMELEC.
Managerial Jurisprudence. This is the framework within which are
undertaken those activities of the firm to which legal consequences attach. It
Challenging the validity of the confirmation by the Commission on are the legal officer (such as the legal counsel), the finance manager, and
Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, an operations officer (such as an official involved in negotiating the
filed the instant petition for certiorari and Prohibition praying that said contracts) who comprise the members of the team. (Guillermo V. Soliven,
confirmation and the consequent appointment of Monsod as Chairman of "Loan Negotiating Strategies for Developing Country Borrowers," Staff
the Commission on Elections be declared null and void. Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11).
(Emphasis supplied)
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 After a fashion, the loan agreement is like a country's Constitution; it lays
paying member of the Integrated Bar of the Philippines since its inception in down the law as far as the loan transaction is concerned. Thus, the meat of
1972-73. He has also been paying his professional license fees as lawyer any Loan Agreement can be compartmentalized into five (5) fundamental
for more than ten years. (p. 124, Rollo) parts: (1) business terms; (2) borrower's representation; (3) conditions of
closing; (4) covenants; and (5) events of default. (Ibid., p. 13).
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 In the same vein, lawyers play an important role in any debt restructuring
the World Bank Group (1963-1970), Monsod worked as an operations program. For aside from performing the tasks of legislative drafting and
officer for about two years in Costa Rica and Panama, which involved legal advising, they score national development policies as key factors in
getting acquainted with the laws of member-countries negotiating loans and maintaining their countries' sovereignty. (Condensed from the work paper,
coordinating legal, economic, and project work of the Bank. Upon returning entitled "Wanted: Development Lawyers for Developing Nations," submitted
to the Philippines in 1970, he worked with the Meralco Group, served as by L. Michael Hager, regional legal adviser of the United States Agency for
chief executive officer of an investment bank and subsequently of a International Development, during the Session on Law for the Development
business conglomerate, and since 1986, has rendered services to various of Nations at the Abidjan World Conference in Ivory Coast, sponsored by
companies as a legal and economic consultant or chief executive officer. As the World Peace Through Law Center on August 26-31, 1973). ( Emphasis
former Secretary-General (1986) and National Chairman (1987) of supplied)
NAMFREL. Monsod's work involved being knowledgeable in election law.
He appeared for NAMFREL in its accreditation hearings before the Loan concessions and compromises, perhaps even more so than purely
Comelec. In the field of advocacy, Monsod, in his personal capacity and as renegotiation policies, demand expertise in the law of contracts, in
former Co-Chairman of the Bishops Businessmen's Conference for Human legislation and agreement drafting and in renegotiation. Necessarily, a
Development, has worked with the under privileged sectors, such as the sovereign lawyer may work with an international business specialist or an
farmer and urban poor groups, in initiating, lobbying for and engaging in economist in the formulation of a model loan agreement. Debt restructuring
affirmative action for the agrarian reform law and lately the urban land contract agreements contain such a mixture of technical language that they
reform bill. Monsod also made use of his legal knowledge as a member of should be carefully drafted and signed only with the advise of competent
the Davide Commission, a quast judicial body, which conducted numerous counsel in conjunction with the guidance of adequate technical support
hearings (1990) and as a member of the Constitutional Commission (1986- personnel. (See International Law Aspects of the Philippine External Debts,
1987), and Chairman of its Committee on Accountability of Public Officers, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321).
for which he was cited by the President of the Commission, Justice Cecilia ( Emphasis supplied)
Muoz-Palma for "innumerable amendments to reconcile government
functions with individual freedoms and public accountability and the party-
A critical aspect of sovereign debt restructuring/contract construction is the
list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis
set of terms and conditions which determines the contractual remedies for a
supplied)
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
Just a word about the work of a negotiating team of which Atty. Monsod the recourse open to either party when the other fails to discharge an
used to be a member. obligation. For a compleat debt restructuring represents a devotion to that
principle which in the ultimate analysis is sine qua non for foreign loan
In a loan agreement, for instance, a negotiating panel acts as a team, and agreements-an adherence to the rule of law in domestic and international
which is adequately constituted to meet the various contingencies that arise affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes,
during a negotiation. Besides top officials of the Borrower concerned, there 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 and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers,
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and p. 200)
4, Third and Fourth Quarters, 1977, p. 265).
The power of the Commission on Appointments to give its consent to the
Interpreted in the light of the various definitions of the term Practice of law". nomination of Monsod as Chairman of the Commission on Elections is
particularly the modern concept of law practice, and taking into mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which
consideration the liberal construction intended by the framers of the provides:
Constitution, Atty. Monsod's past work experiences as a lawyer-economist,
a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of The Chairman and the Commisioners shall be appointed by the President
contracts, and a lawyer-legislator of both the rich and the poor verily with the consent of the Commission on Appointments for a term of seven
more than satisfy the constitutional requirement that he has been years without reappointment. Of those first appointed, three Members shall
engaged in the practice of law for at least ten years. hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any
Besides in the leading case of Luego v. Civil Service Commission, 143 vacancy shall be only for the unexpired term of the predecessor. In no case
SCRA 327, the Court said: shall any Member be appointed or designated in a temporary or acting
capacity.
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 Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
condition being that the appointee should possess the qualifications definition of the practice of law is the traditional or stereotyped notion of law
required by law. If he does, then the appointment cannot be faulted on the practice, as distinguished from the modern concept of the practice of law,
ground that there are others better qualified who should have been which modern connotation is exactly what was intended by the eminent
preferred. This is a political question involving considerations of wisdom framers of the 1987 Constitution. Moreover, Justice Padilla's definition
which only the appointing authority can decide. (emphasis supplied) would require generally a habitual law practice, perhaps practised two or
three times a week and would outlaw say, law practice once or twice a year
No less emphatic was the Court in the case of (Central Bank v. Civil Service for ten consecutive years. Clearly, this is far from the constitutional intent.
Commission, 171 SCRA 744) where it stated:
Upon the other hand, the separate opinion of Justice Isagani Cruz states
It is well-settled that when the appointee is qualified, as in this case, and all that in my written opinion, I made use of a definition of law practice which
the other legal requirements are satisfied, the Commission has no really means nothing because the definition says that law practice " . . . is
alternative but to attest to the appointment in accordance with the Civil what people ordinarily mean by the practice of law." True I cited the
Service Law. The Commission has no authority to revoke an appointment definition but only by way of sarcasm as evident from my statement that the
on the ground that another person is more qualified for a particular position. definition of law practice by "traditional areas of law practice is
It also has no authority to direct the appointment of a substitute of its choice. essentially tautologous" or defining a phrase by means of the phrase itself
To do so would be an encroachment on the discretion vested upon the that is being defined.
appointing authority. An appointment is essentially within the discretionary
power of whomsoever it is vested, subject to the only condition that the Justice Cruz goes on to say in substance that since the law covers almost
appointee should possess the qualifications required by law. ( Emphasis all situations, most individuals, in making use of the law, or in advising
supplied) 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
The appointing process in a regular appointment as in the case at bar, lawyer, a member of the Philippine Bar, who has been practising law for
consists of four (4) stages: (1) nomination; (2) confirmation by the over ten years. This is different from the acts of persons practising
Commission on Appointments; (3) issuance of a commission (in the law, without first becoming lawyers.
Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment;
Justice Cruz also says that the Supreme Court can even disqualify an No blade shall touch his skin;
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 No blood shall flow from his veins.
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
When Samson (his long hair cut by Delilah) was captured, the procurator
incumbent President?
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
We now proceed: happened to her beloved, Delilah was beside herself with anger, and fuming
with righteous fury, accused the procurator of reneging on his word. The
The Commission on the basis of evidence submitted doling the public procurator calmly replied: "Did any blade touch his skin? Did any blood flow
hearings on Monsod's confirmation, implicitly determined that he possessed from his veins?" The procurator was clearly relying on the letter, not the
the necessary qualifications as required by law. The judgment rendered by spirit of the agreement.
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 In view of the foregoing, this petition is hereby DISMISSED.
discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly
SO ORDERED.
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 Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
amount to lack or excess of jurisdiction and would warrant the issuance of Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
the writs prayed, for has been clearly shown.
Sarmiento, J., is on leave.
Additionally, consider the following:
Regalado, and Davide, Jr., J., took no part.
(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. Separate Opinions
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: NARVASA, J., concurring:

We must interpret not by the letter that killeth, but by the spirit that giveth I concur with the decision of the majority written by Mr. Justice Paras, albeit
life. 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
Take this hypothetical case of Samson and Delilah. Once, the procurator of Appointments-that the appointment of respondent Monsod as Chairman of
Judea asked Delilah (who was Samson's beloved) for help in capturing the Commission on Elections should, on the basis of his stated
Samson. Delilah agreed on condition that 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 an active, habitual, repeated or customary action.1 To "practice" law, or any
paragraph of Section 1, Article VIII of the Constitution. I therefore vote to profession for that matter, means, to exercise or pursue an employment or
DENY the petition. 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
PADILLA, J., dissenting: 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
The records of this case will show that when the Court first deliberated on
than as head or attorney of a Legal Department of a corporation or a
the Petition at bar, I voted not only to require the respondents to comment
governmental agency, cannot be said to be in the practice of law.
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 As aptly held by this Court in the case of People vs. Villanueva:2
qualification for the office. My purpose in voting for a TRO was to prevent
the inconvenience and even embarrassment to all parties concerned were Practice is more than an isolated appearance for it consists in frequent or
the Court to finally decide for respondent Monsod's disqualification. customary actions, a succession of acts of the same kind. In other words, it
Moreover, a reading of the Petition then in relation to established is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42
jurisprudence already showed prima facie that respondent Monsod did not LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
possess the needed qualification, that is, he had not engaged in the practice been interpreted as customarily or habitually holding one's self out to the
of law for at least ten (10) years prior to his appointment as COMELEC public as a lawyer and demanding payment for such services (State vs.
Chairman. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).

After considering carefully respondent Monsod's comment, I am even more It is worth mentioning that the respondent Commission on Appointments in
convinced that the constitutional requirement of "practice of law for at least a Memorandum it prepared, enumerated several factors determinative of
ten (10) years" has not been met. whether a particular activity constitutes "practice of law." It states:

The procedural barriers interposed by respondents deserve scant 1. Habituality. The term "practice of law" implies customarily or habitually
consideration because, ultimately, the core issue to be resolved in this holding one's self out to the public as a lawyer (People vs. Villanueva, 14
petition is the proper construal of the constitutional provision requiring a SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when
majority of the membership of COMELEC, including the Chairman thereof to one sends a circular announcing the establishment of a law office for the
"have been engaged in the practice of law for at least ten (10) years." (Art. general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes
IX(C), Section 1(1), 1987 Constitution). Questions involving the construction the oath of office as a lawyer before a notary public, and files a
of constitutional provisions are best left to judicial resolution. As declared manifestation with the Supreme Court informing it of his intention to practice
in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial law in all courts in the country (People v. De Luna, 102 Phil. 968).
department is thrown the solemn and inescapable obligation of interpreting
the Constitution and defining constitutional boundaries." 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
The Constitution has imposed clear and specific standards for a COMELEC a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v.
Chairman. Among these are that he must have been "engaged in the Cotner, 127, p. 1, 87 Kan, 864).
practice of law for at least ten (10) years." It is the bounden duty of this
Court to ensure that such standard is met and complied with. 2. Compensation. Practice of law implies that one must have presented
himself to be in the active and continued practice of the legal profession and
What constitutes practice of law? As commonly understood, "practice" that his professional services are available to the public for compensation,
refers to the actual performance or application of knowledge as as a service of his livelihood or in consideration of his said services. (People
distinguished from mere possession of knowledge; it connotes v. Villanueva, supra). Hence, charging for services such as preparation of
documents involving the use of legal knowledge and skill is within the term such were isolated transactions or activities which do not qualify his past
"practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, endeavors as "practice of law." To become engaged in the practice of law,
1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. there must be a continuity, or a succession of acts. As observed by the
901) and, one who renders an opinion as to the proper interpretation of a Solicitor General in People vs. Villanueva:4
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 Essentially, the word private practice of law implies that one must have
N.Y.S. 462) If compensation is expected, all advice to clients and all action presented himself to be in the activeand continued practice of the legal
taken for them in matters connected with the law; are practicing law. profession and that his professional services are available to the public for a
(Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359) compensation, as a source of his livelihood or in consideration of his said
services.
3. Application of law legal principle practice or procedure which calls for
legal knowledge, training and experience is within the term "practice of law". ACCORDINGLY, my vote is to GRANT the petition and to declare
(Martin supra) 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
4. Attorney-client relationship. Engaging in the practice of law presupposes to his appointment to such position.
the existence of lawyer-client relationship. Hence, where a lawyer
undertakes an activity which requires knowledge of law but involves no CRUZ, J., dissenting:
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 I am sincerely impressed by the ponencia of my brother Paras but find I
a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).3
must dissent just the same. There are certain points on which I must differ
with him while of course respecting hisviewpoint.
The above-enumerated factors would, I believe, be useful aids in
determining whether or not respondent Monsod meets the constitutional To begin with, I do not think we are inhibited from examining the
qualification of practice of law for at least ten (10) years at the time of his qualifications of the respondent simply because his nomination has been
appointment as COMELEC Chairman.
confirmed by the Commission on Appointments. In my view, this is not a
political question that we are barred from resolving. Determination of the
The following relevant questions may be asked: 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
1. Did respondent Monsod perform any of the tasks which are peculiar to would still be subject to our review.
the practice of law?
In Luego, which is cited in the ponencia, what was involved was the
2. Did respondent perform such tasks customarily or habitually? discretion of the appointing authority to choosebetween two claimants to the
same office who both possessed the required qualifications. It was that kind
3. Assuming that he performed any of such tasks habitually, did he do so of discretion that we said could not be reviewed.
HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
COMELEC Chairman? 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
Given the employment or job history of respondent Monsod as appears from cannot disqualified an appointee simply because he has passed the
the records, I am persuaded that if ever he did perform any of the tasks Commission on Appointments.
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. Even the President of the Philippines may be declared ineligible by this
Court in an appropriate proceeding notwithstanding that he has been found
While it may be granted that he performed tasks and activities which could acceptable by no less than the enfranchised citizenry. The reason is that
be latitudinarianly considered activities peculiar to the practice of law, like what we would be examining is not the wisdom of his election but whether
the drafting of legal documents and the rendering of legal opinion or advice, or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that an executive and economist and not as a practicing lawyer. The plain fact is
the ponencia may have been too sweeping in its definition of the phrase that he has occupied the various positions listed in his resume by virtue of
"practice of law" as to render the qualification practically toothless. From the his experience and prestige as a businessman and not as an attorney-at-
numerous activities accepted as embraced in the term, I have the law whose principal attention is focused on the law. Even if it be argued that
uncomfortable feeling that one does not even have to be a lawyer to be he was acting as a lawyer when he lobbied in Congress for agrarian and
engaged in the practice of law as long as his activities involve the urban reform, served in the NAMFREL and the Constitutional Commission
application of some law, however peripherally. The stock broker and the (together with non-lawyers like farmers and priests) and was a member of
insurance adjuster and the realtor could come under the definition as they the Davide Commission, he has not proved that his activities in these
deal with or give advice on matters that are likely "to become involved in capacities extended over the prescribed 10-year period of actual practice of
litigation." the law. He is doubtless eminently qualified for many other positions worthy
of his abundant talents but not as Chairman of the Commission on
The lawyer is considered engaged in the practice of law even if his main Elections.
occupation is another business and he interprets and applies some law only
as an incident of such business. That covers every company organized I have much admiration for respondent Monsod, no less than for Mr. Justice
under the Corporation Code and regulated by the SEC under P.D. 902-A. Paras, but I must regretfully vote to grant the petition.
Considering the ramifications of the modern society, there is hardly any
activity that is not affected by some law or government regulation the GUTIERREZ, JR., J., dissenting:
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 When this petition was filed, there was hope that engaging in the practice of
be considered a practitioner. He can be so deemed when, on his own, he law as a qualification for public office would be settled one way or another in
rents a house or buys a car or consults a doctor as these acts involve his
fairly definitive terms. Unfortunately, this was not the result.
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 Of the fourteen (14) member Court, 5 are of the view that Mr. Christian
Public Service Act and the rules and regulations of the Energy Regulatory Monsod engaged in the practice of law (with one of these 5 leaving his vote
Board. 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
The ponencia quotes an American decision defining the practice of law as
discretion; one of official leave with no instructions left behind on how he
the "performance of any acts ... in or out of court, commonly understood to viewed the issue; and 2 not taking part in the deliberations and the decision.
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 There are two key factors that make our task difficult. First is our reviewing
too global to be workable." 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
The effect of the definition given in the ponencia is to consider virtually
look only into grave abuse of discretion or whimsically and arbitrariness.
every lawyer to be engaged in the practice of law even if he does not earn
Second is our belief that Mr. Monsod possesses superior qualifications in
his living, or at least part of it, as a lawyer. It is enough that his activities are
terms of executive ability, proficiency in management, educational
incidentally (even if only remotely) connected with some law, ordinance, or
background, experience in international banking and finance, and instant
regulation. The possible exception is the lawyer whose income is derived
recognition by the public. His integrity and competence are not questioned
from teaching ballroom dancing or escorting wrinkled ladies with pubescent by the petitioner. What is before us is compliance with a specific
pretensions. requirement written into the Constitution.

The respondent's credentials are impressive, to be sure, but they do not


Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional
persuade me that he has been engaged in the practice of law for ten years
duty. He has never engaged in the practice of law for even one year. He is a
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
member of the bar but to say that he has practiced law is stretching the term 2. 1963-1970: World Bank Group Economist, Industry Department;
beyond rational limits. Operations, Latin American Department; Division Chief, South Asia and
Middle East, International Finance Corporation
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 3. 1970-1973: Meralco Group Executive of various companies, i.e.,
membership in the bar is a requirement I fail to see how he can claim to Meralco Securities Corporation, Philippine Petroleum Corporation,
have been engaged in the practice of law. Philippine Electric Corporation

Engaging in the practice of law is a qualification not only for COMELEC 4. 1973-1976: Yujuico Group President, Fil-Capital Development
chairman but also for appointment to the Supreme Court and all lower Corporation and affiliated companies
courts. What kind of Judges or Justices will we have if there main
occupation is selling real estate, managing a business corporation, serving 5. 1976-1978: Finaciera Manila Chief Executive Officer
in fact-finding committee, working in media, or operating a farm with no
active involvement in the law, whether in Government or private practice,
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
except that in one joyful moment in the distant past, they happened to pass
the bar examinations?
7. 1986-1987: Philippine Constitutional Commission Member
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 8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup
envisioned is active and regular, not isolated, occasional, accidental, Attempt Member
intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in
an activity for ten years requires committed participation in something which 9. Presently: Chairman of the Board and Chief Executive Officer of the
is the result of one's decisive choice. It means that one is occupied and following companies:
involved in the enterprise; one is obliged or pledged to carry it out with intent
and attention during the ten-year period. a. ACE Container Philippines, Inc.

I agree with the petitioner that based on the bio-data submitted by b. Dataprep, Philippines
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 c. Philippine SUNsystems Products, Inc.
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
d. Semirara Coal Corporation
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 e. CBL Timber Corporation
in the United States while not a member of the Bar there?
Member of the Board of the Following:
The professional life of the respondent follows:
a. Engineering Construction Corporation of the Philippines
1.15.1. Respondent Monsod's activities since his passing the Bar
examinations in 1961 consist of the following: b. First Philippine Energy Corporation

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of c. First Philippine Holdings Corporation
Pennsylvania
d. First Philippine Industrial Corporation
e. Graphic Atelier 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
f. Manila Electric Company 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
g. Philippine Commercial Capital, Inc.
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77
N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards
h. Philippine Electric Corporation State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

i. Tarlac Reforestation and Environment Enterprises 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
j. Tolong Aquaculture Corporation "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
k. Visayan Aquaculture Corporation 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
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22) 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 Ill. 462,176 N.E. 901. (People v. Schafer, 87
There is nothing in the above bio-data which even remotely indicates that
N.E. 2d 773, 776)
respondent Monsod has given the lawenough 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 For one's actions to come within the purview of practice of law they should
working as a lawyer, he has lawyers working for him. Instead of giving not only be activities peculiar to the work of a lawyer, they should also be
receiving that legal advice of legal services, he was the oneadvice and performed, habitually, frequently or customarily, to wit:
those services as an executive but not as a lawyer.
xxx xxx xxx
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 Respondent's answers to questions propounded to him were rather evasive.
various fields of endeavor such as commerce, industry, civic work, blue He was asked whether or not he ever prepared contracts for the parties in
ribbon investigations, agrarian reform, etc. where such knowledge would be real-estate transactions where he was not the procuring agent. He
helpful. answered: "Very seldom." In answer to the question as to how many times
he had prepared contracts for the parties during the twenty-one years of his
I regret that I cannot join in playing fast and loose with a term, which even business, he said: "I have no Idea." When asked if it would be more than
an ordinary layman accepts as having a familiar and customary well-defined half a dozen times his answer was I suppose. Asked if he did not recall
meaning. Every resident of this country who has reached the age of making the statement to several parties that he had prepared contracts in a
discernment has to know, follow, or apply the law at various times in his life. large number of instances, he answered: "I don't recall exactly what was
Legal knowledge is useful if not necessary for the business executive, said." When asked if he did not remember saying that he had made a
legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, practice of preparing deeds, mortgages and contracts and charging a fee to
market vendor, and student to name only a few. And yet, can these people the parties therefor in instances where he was not the broker in the deal, he
honestly assert that as such, they are engaged in the practice of law? 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
The Constitution requires having been "engaged in the practice of law for at
everything that is on the books as far as real estate is concerned."
least ten years." It is not satisfied with having been "a member of the
Philippine bar for at least ten years."
xxx xxx xxx
Some American courts have defined the practice of law, as follows:
Respondent takes the position that because he is a real-estate broker he It is to be noted that the Commission on Appointment itself
has a lawful right to do any legal work in connection with real-estate recognizes habituality as a required component of the meaning of practice
transactions, especially in drawing of real-estate contracts, deeds, of law in a Memorandum prepared and issued by it, to wit:
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 l. Habituality. The term 'practice of law' implies customarilyor habitually
connection. ... (People v. Schafer, 87 N.E. 2d 773) 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
xxx xxx xxx 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
... An attorney, in the most general sense, is a person designated or oath of office as a lawyer before a notary public, and files a manifestation
employed by another to act in his stead; an agent; more especially, one of a with the Supreme Court informing it of his intention to practice law in all
class of persons authorized to appear and act for suitors or defendants in courts in the country (People v. De Luna, 102 Phil. 968).
legal proceedings. Strictly, these professional persons are attorneys at law,
and non-professional agents are properly styled "attorney's in fact;" but the Practice is more than an isolated appearance, for it consists in frequent or
single word is much used as meaning an attorney at law. A person may be customary action, a succession of acts of the same kind. In other words, it is
an attorney in facto for another, without being an attorney at law. Abb. Law a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v.
Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
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 xxx xxx xxx
(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
While the career as a businessman of respondent Monsod may have
state of his business; (4) to keep his secrets confided to him as such. ... His
profited from his legal knowledge, the use of such legal knowledge is
rights are to be justly compensated for his services." Bouv. Law Dict. tit.
incidental and consists of isolated activities which do not fall under the
"Attorney." The transitive verb "practice," as defined by Webster, means 'to
denomination of practice of law. Admission to the practice of law was not
do or perform frequently, customarily, or habitually; to perform by a
required for membership in the Constitutional Commission or in the Fact-
succession of acts, as, to practice gaming, ... to carry on in practice, or
Finding Commission on the 1989 Coup Attempt. Any specific legal activities
repeated action; to apply, as a theory, to real life; to exercise, as a
which may have been assigned to Mr. Monsod while a member may be
profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v.
likened to isolated transactions of foreign corporations in the Philippines
Bryan, S.E. 522, 523; Emphasis supplied) 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
In this jurisdiction, we have ruled that the practice of law denotes frequency and continuous. Isolated business transactions or occasional, incidental and
or a succession of acts. Thus, we stated in the case of People v. Villanueva casual transactions are not within the context of doing business. This was
(14 SCRA 109 [1965]): our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143
SCRA 288 [1986]).
xxx xxx xxx
Respondent Monsod, corporate executive, civic leader, and member of the
... Practice is more than an isolated appearance, for it consists in frequent or Constitutional Commission may possess the background, competence,
customary actions, a succession of acts of the same kind. In other words, it integrity, and dedication, to qualify for such high offices as President, Vice-
is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 President, Senator, Congressman or Governor but the Constitution in
LRA, M.S. 768). Practice of law to fall within the prohibition of statute has prescribing the specific qualification of having engaged in the practice of law
been interpreted as customarily or habitually holding one's self out to the for at least ten (10) years for the position of COMELEC Chairman has
public, as a lawyer and demanding payment for such services. ... . (at p. ordered that he may not be confirmed for that office. The Constitution
112) charges the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave After considering carefully respondent Monsod's comment, I am even more
abuse of discretion in confirming the nomination of respondent Monsod as convinced that the constitutional requirement of "practice of law for at least
Chairman of the COMELEC. ten (10) years" has not been met.

I vote to GRANT the petition. The procedural barriers interposed by respondents deserve scant
consideration because, ultimately, the core issue to be resolved in this
Bidin, J., dissent 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
Separate Opinions in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial
department is thrown the solemn and inescapable obligation of interpreting
NARVASA, J., concurring: the Constitution and defining constitutional boundaries."

I concur with the decision of the majority written by Mr. Justice Paras, albeit The Constitution has imposed clear and specific standards for a COMELEC
only in the result; it does not appear to me that there has been an adequate Chairman. Among these are that he must have been "engaged in the
showing that the challenged determination by the Commission on practice of law for at least ten (10) years." It is the bounden duty of this
Appointments-that the appointment of respondent Monsod as Chairman of Court to ensure that such standard is met and complied with.
the Commission on Elections should, on the basis of his stated
qualifications and after due assessment thereof, be confirmed-was attended What constitutes practice of law? As commonly understood, "practice"
by error so gross as to amount to grave abuse of discretion and refers to the actual performance or application of knowledge as
consequently merits nullification by this Court in accordance with the second distinguished from mere possession of knowledge; it connotes
paragraph of Section 1, Article VIII of the Constitution. I therefore vote to an active, habitual, repeated or customary action.1 To "practice" law, or any
DENY the petition. profession for that matter, means, to exercise or pursue an employment or
profession actively, habitually, repeatedly or customarily.
Melencio-Herrera, J., concur.
Therefore, a doctor of medicine who is employed and is habitually
PADILLA, J., dissenting: 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
The records of this case will show that when the Court first deliberated on said to practice his profession as an accountant. In the same way, a lawyer
the Petition at bar, I voted not only to require the respondents to comment who is employed as a business executive or a corporate manager, other
on the Petition, but I was the sole vote for the issuance of a temporary than as head or attorney of a Legal Department of a corporation or a
restraining order to enjoin respondent Monsod from assuming the position governmental agency, cannot be said to be in the practice of law.
of COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent As aptly held by this Court in the case of People vs. Villanueva:2
the inconvenience and even embarrassment to all parties concerned were
the Court to finally decide for respondent Monsod's disqualification. Practice is more than an isolated appearance for it consists in frequent or
Moreover, a reading of the Petition then in relation to established customary actions, a succession of acts of the same kind. In other words, it
jurisprudence already showed prima facie that respondent Monsod did not is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42
possess the needed qualification, that is, he had not engaged in the practice LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
of law for at least ten (10) years prior to his appointment as COMELEC been interpreted as customarily or habitually holding one's self out to the
Chairman. public as a lawyer and demanding payment for such services (State vs.
Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in The above-enumerated factors would, I believe, be useful aids in
a Memorandum it prepared, enumerated several factors determinative of determining whether or not respondent Monsod meets the constitutional
whether a particular activity constitutes "practice of law." It states: qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.
1. Habituality. The term "practice of law" implies customarily or habitually
holding one's self out to the public as a lawyer (People vs. Villanueva, 14 The following relevant questions may be asked:
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 1. Did respondent Monsod perform any of the tasks which are peculiar to
general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the practice of law?
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
2. Did respondent perform such tasks customarily or habitually?
law in all courts in the country (People v. De Luna, 102 Phil. 968).
3. Assuming that he performed any of such tasks habitually, did he do so
Practice is more than an isolated appearance for it consists in frequent or
HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
customary action, a succession of acts of the same kind. In other words, it is
COMELEC Chairman?
a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v.
Cotner, 127, p. 1, 87 Kan, 864).
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
2. Compensation. Practice of law implies that one must have presented
which constitute the practice of law, he did not do so HABITUALLY for at
himself to be in the active and continued practice of the legal profession and least ten (10) years prior to his appointment as COMELEC Chairman.
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 While it may be granted that he performed tasks and activities which could
documents involving the use of legal knowledge and skill is within the term be latitudinarianly considered activities peculiar to the practice of law, like
"practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, the drafting of legal documents and the rendering of legal opinion or advice,
1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. such were isolated transactions or activities which do not qualify his past
901) and, one who renders an opinion as to the proper interpretation of a endeavors as "practice of law." To become engaged in the practice of law,
statute, and receives pay for it, is to that extent, practicing law there must be a continuity, or a succession of acts. As observed by the
(Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 Solicitor General in People vs. Villanueva:4
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. Essentially, the word private practice of law implies that one must have
(Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359) presented himself to be in the activeand continued practice of the legal
profession and that his professional services are available to the public for a
3. Application of law legal principle practice or procedure which calls for compensation, as a source of his livelihood or in consideration of his said
legal knowledge, training and experience is within the term "practice of law". services.
(Martin supra)
ACCORDINGLY, my vote is to GRANT the petition and to declare
4. Attorney-client relationship. Engaging in the practice of law presupposes respondent Monsod as not qualified for the position of COMELEC Chairman
the existence of lawyer-client relationship. Hence, where a lawyer for not having engaged in the practice of law for at least ten (10) years prior
undertakes an activity which requires knowledge of law but involves no to his appointment to such position.
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 CRUZ, J., dissenting:
a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).3
I am sincerely impressed by the ponencia of my brother Paras but find I businessman must know about and observe. In fact, again going by the
must dissent just the same. There are certain points on which I must differ definition, a lawyer does not even have to be part of a business concern to
with him while of course respecting hisviewpoint. 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
To begin with, I do not think we are inhibited from examining the knowledge and application of the laws regulating such transactions. If he
qualifications of the respondent simply because his nomination has been operates a public utility vehicle as his main source of livelihood, he would
confirmed by the Commission on Appointments. In my view, this is not a still be deemed engaged in the practice of law because he must obey the
political question that we are barred from resolving. Determination of the Public Service Act and the rules and regulations of the Energy Regulatory
appointee's credentials is made on the basis of the established facts, not Board.
the discretion of that body. Even if it were, the exercise of that discretion
would still be subject to our review. 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
In Luego, which is cited in the ponencia, what was involved was the be the practice of law," which tells us absolutely nothing. The decision goes
discretion of the appointing authority to choosebetween two claimants to the on to say that "because lawyers perform almost every function known in the
same office who both possessed the required qualifications. It was that kind commercial and governmental realm, such a definition would obviously be
of discretion that we said could not be reviewed. too global to be workable."

If a person elected by no less than the sovereign people may be ousted by The effect of the definition given in the ponencia is to consider virtually
this Court for lack of the required qualifications, I see no reason why we every lawyer to be engaged in the practice of law even if he does not earn
cannot disqualified an appointee simply because he has passed the his living, or at least part of it, as a lawyer. It is enough that his activities are
Commission on Appointments. 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
Even the President of the Philippines may be declared ineligible by this
Court in an appropriate proceeding notwithstanding that he has been found pretensions.
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 The respondent's credentials are impressive, to be sure, but they do not
or not he was qualified to be elected in the first place. 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
Coming now to the qualifications of the private respondent, I fear that business and finance, in which areas he has distinguished himself, but as
the ponencia may have been too sweeping in its definition of the phrase 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
"practice of law" as to render the qualification practically toothless. From the
his experience and prestige as a businessman and not as an attorney-at-
numerous activities accepted as embraced in the term, I have the
law whose principal attention is focused on the law. Even if it be argued that
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 he was acting as a lawyer when he lobbied in Congress for agrarian and
application of some law, however peripherally. The stock broker and the urban reform, served in the NAMFREL and the Constitutional Commission
(together with non-lawyers like farmers and priests) and was a member of
insurance adjuster and the realtor could come under the definition as they
the Davide Commission, he has not proved that his activities in these
deal with or give advice on matters that are likely "to become involved in
capacities extended over the prescribed 10-year period of actual practice of
litigation."
the law. He is doubtless eminently qualified for many other positions worthy
of his abundant talents but not as Chairman of the Commission on
The lawyer is considered engaged in the practice of law even if his main Elections.
occupation is another business and he interprets and applies some law only
as an incident of such business. That covers every company organized
I have much admiration for respondent Monsod, no less than for Mr. Justice
under the Corporation Code and regulated by the SEC under P.D. 902-A.
Paras, but I must regretfully vote to grant the petition.
Considering the ramifications of the modern society, there is hardly any
activity that is not affected by some law or government regulation the
GUTIERREZ, JR., J., dissenting: 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
When this petition was filed, there was hope that engaging in the practice of envisioned is active and regular, not isolated, occasional, accidental,
law as a qualification for public office would be settled one way or another in intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in
fairly definitive terms. Unfortunately, this was not the result. 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
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 and attention during the ten-year period.
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 I agree with the petitioner that based on the bio-data submitted by
result because there was no error so gross as to amount to grave abuse of respondent Monsod to the Commission on Appointments, the latter has not
discretion; one of official leave with no instructions left behind on how he been engaged in the practice of law for at least ten years. In fact, if appears
viewed the issue; and 2 not taking part in the deliberations and the decision. 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
There are two key factors that make our task difficult. First is our reviewing
because he was also working for M.A. and Ph. D. degrees in Economics at
the work of a constitutional Commission on Appointments whose duty is
the University of Pennsylvania during that period. How could he practice law
precisely to look into the qualifications of persons appointed to high office.
in the United States while not a member of the Bar there?
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 The professional life of the respondent follows:
terms of executive ability, proficiency in management, educational
background, experience in international banking and finance, and instant 1.15.1. Respondent Monsod's activities since his passing the Bar
recognition by the public. His integrity and competence are not questioned examinations in 1961 consist of the following:
by the petitioner. What is before us is compliance with a specific
requirement written into the Constitution. 1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of
Pennsylvania
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 2. 1963-1970: World Bank Group Economist, Industry Department;
member of the bar but to say that he has practiced law is stretching the term Operations, Latin American Department; Division Chief, South Asia and
beyond rational limits. Middle East, International Finance Corporation

A person may have passed the bar examinations. But if he has not 3. 1970-1973: Meralco Group Executive of various companies, i.e.,
dedicated his life to the law, if he has not engaged in an activity where Meralco Securities Corporation, Philippine Petroleum Corporation,
membership in the bar is a requirement I fail to see how he can claim to Philippine Electric Corporation
have been engaged in the practice of law.
4. 1973-1976: Yujuico Group President, Fil-Capital Development
Engaging in the practice of law is a qualification not only for COMELEC Corporation and affiliated companies
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
5. 1976-1978: Finaciera Manila Chief Executive Officer
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, 6. 1978-1986: Guevent Group of Companies Chief Executive Officer
except that in one joyful moment in the distant past, they happened to pass
the bar examinations? 7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup There is nothing in the above bio-data which even remotely indicates that
Attempt Member respondent Monsod has given the lawenough attention or a certain degree
of commitment and participation as would support in all sincerity and candor
9. Presently: Chairman of the Board and Chief Executive Officer of the the claim of having engaged in its practice for at least ten years. Instead of
following companies: working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and
those services as an executive but not as a lawyer.
a. ACE Container Philippines, Inc.

The deliberations before the Commission on Appointments show an effort to


b. Dataprep, Philippines
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
c. Philippine SUNsystems Products, Inc. ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.
d. Semirara Coal Corporation
I regret that I cannot join in playing fast and loose with a term, which even
e. CBL Timber Corporation an ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of
Member of the Board of the Following: 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,
a. Engineering Construction Corporation of the Philippines 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?
b. First Philippine Energy Corporation
The Constitution requires having been "engaged in the practice of law for at
c. First Philippine Holdings Corporation
least ten years." It is not satisfied with having been "a member of the
Philippine bar for at least ten years."
d. First Philippine Industrial Corporation
Some American courts have defined the practice of law, as follows:
e. Graphic Atelier
The practice of law involves not only appearance in court in connection with
f. Manila Electric Company 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
g. Philippine Commercial Capital, Inc. knowledge, such as preparing a will, contract or other instrument, the legal
effect of which, under the facts and conditions involved, must be carefully
h. Philippine Electric Corporation determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77
N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards
i. Tarlac Reforestation and Environment Enterprises State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

j. Tolong Aquaculture Corporation 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
k. Visayan Aquaculture Corporation 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
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22) 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 Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 officer of a court of law, legally qualified to prosecute and defend actions in
N.E. 2d 773, 776) 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
For one's actions to come within the purview of practice of law they should client with care, skill, and integrity; (3) to keep his client informed as to the
not only be activities peculiar to the work of a lawyer, they should also be state of his business; (4) to keep his secrets confided to him as such. ... His
performed, habitually, frequently or customarily, to wit: 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
xxx xxx xxx
succession of acts, as, to practice gaming, ... to carry on in practice, or
repeated action; to apply, as a theory, to real life; to exercise, as a
Respondent's answers to questions propounded to him were rather evasive. profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v.
He was asked whether or not he ever prepared contracts for the parties in Bryan, S.E. 522, 523; Emphasis supplied)
real-estate transactions where he was not the procuring agent. He
answered: "Very seldom." In answer to the question as to how many times
In this jurisdiction, we have ruled that the practice of law denotes frequency
he had prepared contracts for the parties during the twenty-one years of his
or a succession of acts. Thus, we stated in the case of People v. Villanueva
business, he said: "I have no Idea." When asked if it would be more than
(14 SCRA 109 [1965]):
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 xxx xxx xxx
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 ... Practice is more than an isolated appearance, for it consists in frequent or
the parties therefor in instances where he was not the broker in the deal, he customary actions, a succession of acts of the same kind. In other words, it
answered: "Well, I don't believe so, that is not a practice." Pressed further is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42
for an answer as to his practice in preparing contracts and deeds for parties LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
where he was not the broker, he finally answered: "I have done about been interpreted as customarily or habitually holding one's self out to the
everything that is on the books as far as real estate is concerned." public, as a lawyer and demanding payment for such services. ... . (at p.
112)
xxx xxx xxx
It is to be noted that the Commission on Appointment itself
Respondent takes the position that because he is a real-estate broker he recognizes habituality as a required component of the meaning of practice
has a lawful right to do any legal work in connection with real-estate of law in a Memorandum prepared and issued by it, to wit:
transactions, especially in drawing of real-estate contracts, deeds,
mortgages, notes and the like. There is no doubt but that he has engaged in l. Habituality. The term 'practice of law' implies customarilyor habitually
these practices over the years and has charged for his services in that holding one's self out to the public as a lawyer (People v. Villanueva, 14
connection. ... (People v. Schafer, 87 N.E. 2d 773) 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
xxx xxx xxx 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
... An attorney, in the most general sense, is a person designated or 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).
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, Practice is more than an isolated appearance, for it consists in frequent or
and non-professional agents are properly styled "attorney's in fact;" but the customary action, a succession of acts of the same kind. In other words, it is
single word is much used as meaning an attorney at law. A person may be a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v.
an attorney in facto for another, without being an attorney at law. Abb. Law Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx

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., dissent