Republic of the Philippines 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810,
SUPREME COURT 1813-1817, 1819-1826, 1829-1840, 1842-1847.
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the
President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive
Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity
as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his
capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right
recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as
the principle that laws to be valid and enforceable must be published in the
Official Gazette or otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish, and/or cause the
publication in the Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171,
179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326,
337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445,
447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594,
599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923,
935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166,
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130,
136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199,
202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-
245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289,
291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346,
349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-
440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587,
594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702,
712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281,
1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558,
1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628,
1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734,
1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787,
1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814,
1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840,
1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868,
1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963,
1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145,
2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471,
474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538,
543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594,
598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786,
788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39,
50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
 g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-
433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed
outright on the ground that petitioners have no legal personality or standing to
bring the instant petition. The view is submitted that in the absence of any
showing that petitioners are personally and directly affected or prejudiced by the
alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding,
they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of
the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation,
board or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy
in the ordinary course of law, the person aggrieved thereby may
file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do the
act required to be done to Protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the
wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition
concerns a public right and its object is to compel the performance of a public
duty, they need not show any specific interest for their petition to be given due
course.
The issue posed is not one of first impression. As early as the 1910 case
of Severino vs. Governor General, 3 this Court held that while the general rule is
that "a writ of mandamus would be granted to a private individual only in those
cases where he has some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he holds with the public
at large," and "it is for the public officers exclusively to apply for the writ when
public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special interest
in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec.
431].
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to compel the
Governor General to call a special election for the position of municipal president
in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice
Grant T. Trent said:
We are therefore of the opinion that the weight of authority
supports the proposition that the relator is a proper party to
proceedings of this character when a public right is sought to be
enforced. If the general rule in America were otherwise, we think
that it would not be applicable to the case at bar for the reason
'that it is always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule, because, if
under the particular circumstances the reason for the rule does
not exist, the rule itself is not applicable and reliance upon the
rule may well lead to error'
No reason exists in the case at bar for applying the general rule
insisted upon by counsel for the respondent. The circumstances
which surround this case are different from those in the United
States, inasmuch as if the relator is not a proper party to these
proceedings no other person could be, as we have seen that it is
not the duty of the law officer of the Government to appear and
represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality
in the aforementioned case apply squarely to the present petition. Clearly, the
right sought to be enforced by petitioners herein is a public right recognized by no
less than the fundamental law of the land. If petitioners were not allowed to
institute this proceeding, it would indeed be difficult to conceive of any other
person to initiate the same, considering that the Solicitor General, the
government officer generally empowered to represent the people, has entered
his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine
qua non requirement for the effectivity of laws where the laws themselves provide
for their own effectivity dates. It is thus submitted that since the presidential
issuances in question contain special provisions as to the date they are to take
effect, publication in the Official Gazette is not indispensable for their effectivity.
The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction
of said article. In a long line of decisions,4 this Court has ruled that publication in
the Official Gazette is necessary in those cases where the legislation itself does
not provide for its effectivity date-for then the date of publication is material for
determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into
effect.
Respondents' argument, however, is logically correct only insofar as it equates
the effectivity of laws with the fact of publication. Considered in the light of other
statutes applicable to the issue at hand, the conclusion is easily reached that said
Article 2 does not preclude the requirement of publication in the Official Gazette,
even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all
important legisiative acts and resolutions of a public nature of the,
Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be deemed by
said courts of sufficient importance to be so published; [4] such
documents or classes of documents as may be required so to be
published by law; and [5] such documents or classes of
documents as the President of the Philippines shall determine
from time to time to have general applicability and legal effect, or
which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and
conduct as citizens. Without such notice and publication, there would be no basis
for the application of the maxim "ignorantia legis non excusat." It would be the
height of injustice to punish or otherwise burden a citizen for the transgression of
a law of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people
have bestowed upon the President a power heretofore enjoyed solely by the
legislature. While the people are kept abreast by the mass media of the debates
and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-making
process of the President. Thus, without publication, the people have no means of
knowing what presidential decrees have actually been promulgated, much less a
definite way of informing themselves of the specific contents and texts of such
decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica
de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las
mismas por el Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall
be published in the Official Gazette ... ." The word "shall" used therein imposes
upon respondent officials an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters of public concern is to
be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents
with no discretion whatsoever as to what must be included or excluded from such
publication.
The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide for
fines, forfeitures or penalties for their violation or otherwise impose a burden or.
the people, such as tax and revenue measures, fall within this category. Other
presidential issuances which apply only to particular persons or class of persons
such as administrative and executive orders need not be published on the
assumption that they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public
nature" or "of general applicability" is a requirement of due process. It is a rule of
law that before a person may be bound by law, he must first be officially and
specifically informed of its contents. As Justice Claudio Teehankee said
in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions
which all form part of the law of the land, the requirement of due
process and the Rule of Law demand that the Official Gazette as
the official government repository promulgate and publish the
texts of all such decrees, orders and instructions so that the
people may know where to obtain their official and specific
contents.
The Court therefore declares that presidential issuances of general application,
which have not been published, shall have no force and effect. Some members
of the Court, quite apprehensive about the possible unsettling effect this decision
might have on acts done in reliance of the validity of those presidential decrees
which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which
had been enforced or implemented prior to their publication. The answer is all too
familiar. In similar situations in the past this Court had taken the pragmatic and
realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to
wit:
The courts below have proceeded on the theory that the Act of
Congress, having been found to be unconstitutional, was not a
law; that it was inoperative, conferring no rights and imposing no
duties, and hence affording no basis for the challenged decree.
Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry.
Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that
such broad statements as to the effect of a determination of
unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly
be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed
to have become vested, of status, of prior determinations deemed
to have finality and acted upon accordingly, of public policy in the
light of the nature both of the statute and of its previous
application, demand examination. These questions are among
the most difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous
decisions that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained
the right of a party under the Moratorium Law, albeit said right had accrued in his
favor before said law was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their
publication in the Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The past cannot always be erased
by a new judicial declaration ... that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of
the presidential decrees sought by petitioners to be published in the Official
Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937
to 1939, inclusive, have not been so published. 10 Neither the subject matters nor
the texts of these PDs can be ascertained since no copies thereof are available.
But whatever their subject matter may be, it is undisputed that none of these
unpublished PDs has ever been implemented or enforced by the government.
In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that
"publication is necessary to apprise the public of the contents of [penal]
regulations and make the said penalties binding on the persons affected thereby.
" The cogency of this holding is apparently recognized by respondent officials
considering the manifestation in their comment that "the government, as a matter
of policy, refrains from prosecuting violations of criminal laws until the same shall
have been published in the Official Gazette or in some other publication, even
though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official
Gazette all unpublished presidential issuances which are of general application,
and unless so published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably
written opinion of Justice Escolin. I am unable, however, to concur insofar as it
would unqualifiedly impose the requirement of publication in the Official Gazette
for unpublished "presidential issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even aware
of the existence of any legislative or executive act having the force and effect of
law. My point is that such publication required need not be confined to the Official
Gazette. From the pragmatic standpoint, there is an advantage to be gained. It
conduces to certainty. That is too be admitted. It does not follow, however, that
failure to do so would in all cases and under all circumstances result in a statute,
presidential decree or any other executive act of the same category being bereft
of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such
a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution
as Justice Plana so aptly pointed out. It is true that what is decided now applies
only to past "presidential issuances". Nonetheless, this clarification is, to my
mind, needed to avoid any possible misconception as to what is required for any
statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice
Plana. Its first paragraph sets forth what to me is the constitutional doctrine
applicable to this case. Thus: "The Philippine Constitution does not require the
publication of laws as a prerequisite for their effectivity, unlike some Constitutions
elsewhere. It may be said though that the guarantee of due process requires
notice of laws to affected Parties before they can be bound thereby; but such
notice is not necessarily by publication in the Official Gazette. The due process
clause is not that precise. 1 I am likewise in agreement with its closing paragraph:
"In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds
that such notice shall be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of
the government "must be ascertainable in some form if it is to be enforced at
all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by
Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is
thus essential. What I am not prepared to subscribe to is the doctrine that it must
be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that
does not dispose of the question of what is the jural effect of past presidential
decrees or executive acts not so published. For prior thereto, it could be that
parties aware of their existence could have conducted themselves in accordance
with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous
transactions based on such "Presidential Issuances" could be open to question.
Matters deemed settled could still be inquired into. I am not prepared to hold that
such an effect is contemplated by our decision. Where such presidential decree
or executive act is made the basis of a criminal prosecution, then, of course, its
ex post facto character becomes evident. 5 In civil cases though, retroactivity as
such is not conclusive on the due process aspect. There must still be a showing
of arbitrariness. Moreover, where the challenged presidential decree or executive
act was issued under the police power, the non-impairment clause of the
Constitution may not always be successfully invoked. There must still be that
process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question
of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to
affirm that publication is essential to the effectivity of a legislative or executive act
of a general application. I am not in agreement with the view that such publication
must be in the Official Gazette. The Civil Code itself in its Article 2 expressly
recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a
legislative enactment, Republic Act No. 386. It does not and cannot have the
juridical force of a constitutional command. A later legislative or executive act
which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice
Escolin that presidential decrees and executive acts not thus previously
published in the Official Gazette would be devoid of any legal character. That
would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such
a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion
of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws
published and ascertainable and of equal application to all similarly
circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of
fair play and justice that a reasonable opportunity to be informed must be
afforded to the people who are commanded to obey before they can be punished
for its violation,1 citing the settled principle based on due process enunciated in
earlier cases that "before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the
Civil Code and the Revised Administrative Code, there would be no basis nor
justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the public
and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that
"only laws which are silent as to their effectivity [date] need be published in the
Official Gazette for their effectivity" is manifestly untenable. The plain text and
meaning of the Civil Code is that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is
otherwise provided, " i.e. a different effectivity date is provided by the law itself.
This proviso perforce refers to a law that has been duly published pursuant to the
basic constitutional requirements of due process. The best example of this is the
Civil Code itself: the same Article 2 provides otherwise that it "shall take effect
[only] one year [not 15 days] after such publication. 2 To sustain respondents'
misreading that "most laws or decrees specify the date of their effectivity and for
this reason, publication in the Official Gazette is not necessary for their
effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable
and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the
law itself before the completion of 15 days following its publication which is the
period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a
date of effectivity, it has to be published. What I would like to state in connection
with that proposition is that when a date of effectivity is mentioned in the decree
but the decree becomes effective only fifteen (15) days after its publication in the
Official Gazette, it will not mean that the decree can have retroactive effect to the
date of effectivity mentioned in the decree itself. There should be no retroactivity
if the retroactivity will run counter to constitutional rights or shall destroy vested
rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may be said
though that the guarantee of due process requires notice of laws to affected parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not
that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for
their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is
otherwise provided " Two things may be said of this provision: Firstly, it obviously
does not apply to a law with a built-in provision as to when it will take effect.
Secondly, it clearly recognizes that each law may provide not only a different
period for reckoning its effectivity date but also a different mode of notice. Thus, a
law may prescribe that it shall be published elsewhere than in the Official
Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition
that for their effectivity, laws must be published in the Official Gazette. The said
law is simply "An Act to Provide for the Uniform Publication and Distribution of
the Official Gazette." Conformably therewith, it authorizes the publication of the
Official Gazette, determines its frequency, provides for its sale and distribution,
and defines the authority of the Director of Printing in relation thereto. It also
enumerates what shall be published in the Official Gazette, among them,
"important legislative acts and resolutions of a public nature of the Congress of
the Philippines" and "all executive and administrative orders and proclamations,
except such as have no general applicability." It is noteworthy that not all
legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide
that publication in the Official Gazette is essential for the effectivity of laws. This
is as it should be, for all statutes are equal and stand on the same footing. A law,
especially an earlier one of general application such as Commonwealth Act No.
638, cannot nullify or restrict the operation of a subsequent statute that has a
provision of its own as to when and how it will take effect. Only a higher law,
which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice.
This is elementary fairness. However, I beg to disagree insofar as it holds that
such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the
necessity of such publication being in the Official Gazette.
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances
of a public nature or general applicability ineffective, until due publication thereof.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably
written opinion of Justice Escolin. I am unable, however, to concur insofar as it
would unqualifiedly impose the requirement of publication in the Official Gazette
for unpublished "presidential issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even aware
of the existence of any legislative or executive act having the force and effect of
law. My point is that such publication required need not be confined to the Official
Gazette. From the pragmatic standpoint, there is an advantage to be gained. It
conduces to certainty. That is too be admitted. It does not follow, however, that
failure to do so would in all cases and under all circumstances result in a statute,
presidential decree or any other executive act of the same category being bereft
of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such
a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution
as Justice Plana so aptly pointed out. It is true that what is decided now applies
only to past "presidential issuances". Nonetheless, this clarification is, to my
mind, needed to avoid any possible misconception as to what is required for any
statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice
Plana. Its first paragraph sets forth what to me is the constitutional doctrine
applicable to this case. Thus: "The Philippine Constitution does not require the
publication of laws as a prerequisite for their effectivity, unlike some Constitutions
elsewhere. It may be said though that the guarantee of due process requires
notice of laws to affected Parties before they can be bound thereby; but such
notice is not necessarily by publication in the Official Gazette. The due process
clause is not that precise. 1 I am likewise in agreement with its closing paragraph:
"In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds
that such notice shall be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of
the government "must be ascertainable in some form if it is to be enforced at
all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by
Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is
thus essential. What I am not prepared to subscribe to is the doctrine that it must
be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that
does not dispose of the question of what is the jural effect of past presidential
decrees or executive acts not so published. For prior thereto, it could be that
parties aware of their existence could have conducted themselves in accordance
with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous
transactions based on such "Presidential Issuances" could be open to question.
Matters deemed settled could still be inquired into. I am not prepared to hold that
such an effect is contemplated by our decision. Where such presidential decree
or executive act is made the basis of a criminal prosecution, then, of course, its
ex post facto character becomes evident. 5 In civil cases though, retroactivity as
such is not conclusive on the due process aspect. There must still be a showing
of arbitrariness. Moreover, where the challenged presidential decree or executive
act was issued under the police power, the non-impairment clause of the
Constitution may not always be successfully invoked. There must still be that
process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question
of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to
affirm that publication is essential to the effectivity of a legislative or executive act
of a general application. I am not in agreement with the view that such publication
must be in the Official Gazette. The Civil Code itself in its Article 2 expressly
recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a
legislative enactment, Republic Act No. 386. It does not and cannot have the
juridical force of a constitutional command. A later legislative or executive act
which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice
Escolin that presidential decrees and executive acts not thus previously
published in the Official Gazette would be devoid of any legal character. That
would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such
a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion
of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws
published and ascertainable and of equal application to all similarly
circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of
fair play and justice that a reasonable opportunity to be informed must be
afforded to the people who are commanded to obey before they can be punished
for its violation,1 citing the settled principle based on due process enunciated in
earlier cases that "before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the
Civil Code and the Revised Administrative Code, there would be no basis nor
justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the public
and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that
"only laws which are silent as to their effectivity [date] need be published in the
Official Gazette for their effectivity" is manifestly untenable. The plain text and
meaning of the Civil Code is that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is
otherwise provided, " i.e. a different effectivity date is provided by the law itself.
This proviso perforce refers to a law that has been duly published pursuant to the
basic constitutional requirements of due process. The best example of this is the
Civil Code itself: the same Article 2 provides otherwise that it "shall take effect
[only] one year [not 15 days] after such publication. 2 To sustain respondents'
misreading that "most laws or decrees specify the date of their effectivity and for
this reason, publication in the Official Gazette is not necessary for their
effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable
and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the
law itself before the completion of 15 days following its publication which is the
period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a
date of effectivity, it has to be published. What I would like to state in connection
with that proposition is that when a date of effectivity is mentioned in the decree
but the decree becomes effective only fifteen (15) days after its publication in the
Official Gazette, it will not mean that the decree can have retroactive effect to the
date of effectivity mentioned in the decree itself. There should be no retroactivity
if the retroactivity will run counter to constitutional rights or shall destroy vested
rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may be said
though that the guarantee of due process requires notice of laws to affected parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not
that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for
their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days GUTIERREZ, Jr., J., concurring:
following the completion of their publication in the Official Gazette, unless it is
otherwise provided " Two things may be said of this provision: Firstly, it obviously I concur insofar as publication is necessary but reserve my vote as to the
does not apply to a law with a built-in provision as to when it will take effect. necessity of such publication being in the Official Gazette.
Secondly, it clearly recognizes that each law may provide not only a different
period for reckoning its effectivity date but also a different mode of notice. Thus, a
law may prescribe that it shall be published elsewhere than in the Official
Gazette.
DE LA FUENTE, J., concurring:
Commonwealth Act No. 638, in my opinion, does not support the proposition
that for their effectivity, laws must be published in the Official Gazette. The said I concur insofar as the opinion declares the unpublished decrees and issuances
law is simply "An Act to Provide for the Uniform Publication and Distribution of of a public nature or general applicability ineffective, until due publication thereof.
the Official Gazette." Conformably therewith, it authorizes the publication of the
Official Gazette, determines its frequency, provides for its sale and distribution, Footnotes
and defines the authority of the Director of Printing in relation thereto. It also
enumerates what shall be published in the Official Gazette, among them, 1 Section 6. The right of the people to information on matters of
"important legislative acts and resolutions of a public nature of the Congress of public concern shag be recognized, access to official records,
the Philippines" and "all executive and administrative orders and proclamations, and to documents and papers pertaining to official acts,
except such as have no general applicability." It is noteworthy that not all transactions, or decisions, shag be afforded the citizens subject
legislative acts are required to be published in the Official Gazette but only to such limitation as may be provided by law.
"important" ones "of a public nature." Moreover, the said law does not provide
that publication in the Official Gazette is essential for the effectivity of laws. This 2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs.
is as it should be, for all statutes are equal and stand on the same footing. A law, Aidanese, 45 Phil. 345; Almario vs. City Mayor, 16 SCRA
especially an earlier one of general application such as Commonwealth Act No. 151;Parting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs.
638, cannot nullify or restrict the operation of a subsequent statute that has a Comelec, 95 SCRA 392.
provision of its own as to when and how it will take effect. Only a higher law,
which is the Constitution, can assume that role.
3 16 Phil. 366, 378.
In fine, I concur in the majority decision to the extent that it requires notice before
4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia
laws become effective, for no person should be bound by a law without notice.
vs. Balolong, 81 Phil. 486; Republic of the Philippines vs.
This is elementary fairness. However, I beg to disagree insofar as it holds that
Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs.
such notice shall be by publication in the Official Gazette.
Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46
Phil. 179.
Cuevas and Alampay, JJ., concur.
5 1 Manresa, Codigo Civil 7th Ed., p. 146.
6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. 6 Cf. Alalayan v. National Power Corporation, L-24396, July 29,
Secretary of Education, et al., 110 Phil. 150. 1968, 24 SCRA 172.

7 82 SCRA 30, dissenting opinion. Teehankee, J.:

8 308 U.S. 371, 374.
9 93 Phil.. 68,.
10 The report was prepared by the Clerk of Court after Acting
Director Florendo S. Pablo Jr. of the Government Printing Office,
failed to respond to her letter-request regarding the respective
dates of publication in the Official Gazette of the presidential
issuances listed therein. No report has been submitted by the
Clerk of Court as to the publication or non-publication of other
presidential issuances.
11 129 SCRA 174.
Fernando, CJ.:
1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late
Chief Justice Paras.
2 Notes in brackets supplied.
3 Respondents: comment, pp. 14-15.
Plana, J.:
* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The
legislature shall provide publication of all statute laws ... and no
general law shall be in force until published." See also S ate ex
rel. White vs. Grand Superior Ct., 71 ALR 1354, citing
Constitution of Indiana, U.S.A.

1 Separate Opinion of Justice Plana, first paragraph. He

mentioned in tills connection Article 7, Sec. 21 of the Wisconsin
Constitution and State ex rel. White v. Grand Superior Ct., 71
ALR 1354, citing the Constitution of Indiana, U.S.A

2 Ibid, closing paragraph.

3 Learned Hand, The Spirit of Liberty 104 (1960).

4 Cardozo, The Growth of the Law, 3 (1924).

5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January

30, 1982, 111 SCRA 433.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While
ostensibly only legal issues are involved, the Court's decision in this case would
indubitably have a profound effect on the political aspect of our national
existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and
six Commissioners who shall be natural-born citizens of the Philippines
and, at the time of their appointment, at least thirty-five years of age,
holders of a college degree, and must not have been candidates for any
elective position in the immediately preceding -elections. However, a
majority thereof, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law for at least
ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973
Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least thirty-five years of age
and holders of a college degree. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in the
practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes
practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of
legal principles and technique to serve the interest of another with his
consent. It is not limited to appearing in court, or advising and assisting in
the conduct of litigation, but embraces the preparation of pleadings, and
other papers incident to actions and special proceedings, conveyancing,
the preparation of legal instruments of all kinds, and the giving of all legal
advice to clients. It embraces all advice to clients and all actions taken for
them in matters connected with the law. An attorney engages in the
practice of law by maintaining an office where he is held out to be-an
attorney, using a letterhead describing himself as an attorney, counseling
clients in legal matters, negotiating with opposing counsel about pending
litigation, and fixing and collecting fees for services rendered by his
associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is
also considered to be in the practice of law when he:
 ... for valuable consideration engages in the business of advising person,
firms, associations or corporations as to their rights under the law, or
appears in a representative capacity as an advocate in proceedings
pending or prospective, before any court, commissioner, referee, board,
body, committee, or commission constituted by law or authorized to settle
controversies and there, in such representative capacity performs any act
or acts for the purpose of obtaining or defending the rights of their clients
under the law. Otherwise stated, one who, in a representative capacity,
engages in the business of advising clients as to their rights under the
law, or while so engaged performs any act or acts either in court or
outside of court for that purpose, is engaged in the practice of law. (State
ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil.
173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in
court; it embraces the preparation of pleadings and other papers incident
to actions and special proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts, and in
addition, conveying. In general, all advice to clients, and all action taken
for them in matters connected with the law incorporation services,
assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a
creditor's claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the work done
involves the determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal
advice on a large variety of subjects, and the preparation and execution
of legal instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may have no
direct connection with court proceedings, they are always subject to
become involved in litigation. They require in many aspects a high degree
of legal skill, a wide experience with men and affairs, and great capacity
for adaptation to difficult and complex situations. These customary
functions of an attorney or counselor at law bear an intimate relation to
the administration of justice by the courts. No valid distinction, so far as
concerns the question set forth in the order, can be drawn between that
part of the work of the lawyer which involves appearance in court and that
part which involves advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold customary
functions be performed by persons possessed of adequate learning and
skill, of sound moral character, and acting at all times under the heavy
trust obligations to clients which rests upon all attorneys.
(Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666,
citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted
in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A.
139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for
new lawyers (1974-1975) listed the dimensions of the practice of law in even
broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in
the profession. If what he does exacts knowledge of the law and is of a
kind usual for attorneys engaging in the active practice of their
profession, and he follows some one or more lines of employment such
as this he is a practicing attorney at law within the meaning of the statute.
(Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts which are characteristics of
the profession. Generally, to practice law is to give notice or render any kind of
service, which device or service requires the use in any degree of legal
knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has
adopted a liberal interpretation of the term "practice of law."
 MR. FOZ. Before we suspend the session, may I make a manifestation
which I forgot to do during our review of the provisions on the
Commission on Audit. May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" — I am
quoting from the provision — "who have been engaged in the practice of
law for at least ten years".
To avoid any misunderstanding which would result in excluding members of the
Bar who are now employed in the COA or Commission on Audit, we would like to
make the clarification that this provision on qualifications regarding members of
the Bar does not necessarily refer or involve actual practice of law outside the
COA We have to interpret this to mean that as long as the lawyers who are
employed in the COA are using their legal knowledge or legal talent in their
respective work within COA, then they are qualified to be considered for
appointment as members or commissioners, even chairman, of the Commission
on Audit.
This has been discussed by the Committee on Constitutional Commissions and
Agencies and we deem it important to take it up on the floor so that this
interpretation may be made available whenever this provision on the
qualifications as regards members of the Philippine Bar engaging in the practice
of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the
Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the
necessary qualifications in accordance with the Provision on
qualifications under our provisions on the Commission on Audit. And,
therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is
equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that
the Chairman and two Commissioners of the Commission on Audit (COA) should
either be certified public accountants with not less than ten years of auditing
practice, or members of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not
engage in private practice, it is still a fact that the majority of lawyers are private
practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career
Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in the business of
delivering legal services." (Ibid.). Lawyers who practice alone are often called
"sole practitioners." Groups of lawyers are called "firms." The firm is usually a
partnership and members of the firm are the partners. Some firms may be
organized as professional corporations and the members called shareholders. In
either case, the members of the firm are the experienced attorneys. In most
firms, there are younger or more inexperienced salaried attorneyscalled
"associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is
essentially tautologous, unhelpful defining the practice of law as that which
lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.:
Minnesota, 1986], p. 593). The practice of law is defined as the performance of
any acts . . . in or out of court, commonly understood to be the practice of law.
(State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863,
870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623,
626 [1941]). Because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously be too
global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most
publicly familiar role for lawyers as well as an uncommon role for the average
lawyer. Most lawyers spend little time in courtrooms, and a large percentage
spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless,
many lawyers do continue to litigate and the litigating lawyer's role colors much of
both the public image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history,
not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a
corporate lawyer, once articulated on the importance of a lawyer as a business
counselor in this wise: "Even today, there are still uninformed laymen whose
concept of an attorney is one who principally tries cases before the courts. The
members of the bench and bar and the informed laymen such as businessmen,
know that in most developed societies today, substantially more legal work is
transacted in law offices than in the courtrooms. General practitioners of law who
do both litigation and non-litigation work also know that in most cases they find
themselves spending more time doing what [is] loosely desccribe[d] as business
counseling than in trying cases. The business lawyer has been described as the
planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be]
stress[ed] that in law, as in medicine, surgery should be avoided where internal
medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).
In the course of a working day the average general practitioner wig engage in a
number of legal tasks, each involving different legal doctrines, legal skills, legal
processes, legal institutions, clients, and other interested parties. Even the
increasing numbers of lawyers in specialized practice wig usually perform at least
some legal services outside their specialty. And even within a narrow specialty
such as tax practice, a lawyer will shift from one legal task or role such as advice-
giving to an importantly different one such as representing a client before an
administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of
the relatively rare types — a litigator who specializes in this work to the exclusion
of much else. Instead, the work will require the lawyer to have mastered the full
range of traditional lawyer skills of client counselling, advice-giving, document
drafting, and negotiation. And increasingly lawyers find that the new skills of
evaluation and mediation are both effective for many clients and a source of
employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is
constrained in very important ways, at least theoretically, so as to remove from it
some of the salient features of adversarial litigation. Of these special roles, the
most prominent is that of prosecutor. In some lawyers' work the constraints are
imposed both by the nature of the client and by the way in which the lawyer is
organized into a social unit to perform that work. The most common of these
roles are those of corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are
emerging trends in corporate law practice, a departure from the traditional
concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires
an accurate understanding of the nature and implications of the corporate
law research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate
legal policy formulation, particularly "model-making" and "contingency
planning," has impressed upon us the inadequacy of traditional
procedures in many decisional contexts.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of
major trends, the necessity of estimating the consequences of given
courses of action, and the need for fast decision and response in
situations of acute danger have prompted the use of sophisticated
concepts of information flow theory, operational analysis, automatic data
processing, and electronic computing equipment. Understandably, an
improved decisional structure must stress the predictive component of
the policy-making process, wherein a "model", of the decisional context
or a segment thereof is developed to test projected alternative courses of
action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in
predicting and projecting the trends of the law, the subject of corporate
finance law has received relatively little organized and formalized
attention in the philosophy of advancing corporate legal education.
Nonetheless, a cross-disciplinary approach to legal research has become
a vital necessity.
Certainly, the general orientation for productive contributions by those
trained primarily in the law can be improved through an early introduction
to multi-variable decisional context and the various approaches for
handling such problems. Lawyers, particularly with either a master's or
doctorate degree in business administration or management, functioning
at the legal policy level of decision-making now have some appreciation
for the concepts and analytical techniques of other professions which are
currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing
and maintaining the business issue raised. (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred
to as the "abogado de campanilla." He is the "big-time" lawyer, earning
big money and with a clientele composed of the tycoons and magnates of
business and industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of
attorneys employed by a single corporation will vary with the size and
type of the corporation. Many smaller and some large corporations farm
out all their legal problems to private law firms. Many others have in-
house counsel only for certain matters. Other corporation have a staff
large enough to handle most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles
the legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out
as corporate secretary (in board meetings), appearances in both courts
and other adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to deal with
the law.
At any rate, a corporate lawyer may assume responsibilities other than
the legal affairs of the business of the corporation he is
representing. These include such matters as determining policy and
becoming involved in management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated
from the action, or not understanding how one's work actually fits into the
work of the orgarnization. This can be frustrating to someone who needs
to see the results of his work first hand. In short, a corporate lawyer is
sometimes offered this fortune to be more closely involved in the running
of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by
a multinational corporation (MNC). Some large MNCs provide one of the
few opportunities available to corporate lawyers to enter the international
law field. After all, international law is practiced in a relatively small
number of companies and law firms. Because working in a foreign
country is perceived by many as glamorous, tills is an area coveted by
corporate lawyers. In most cases, however, the overseas jobs go to
experienced attorneys while the younger attorneys do their "international
practice" in law libraries. (Business Star, "Corporate Law Practice," May
25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce
Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a
good lawyer is one who perceives the difficulties, and the excellent
lawyer is one who surmounts them." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the
arm," so to speak. No longer are we talking of the traditional law teaching
method of confining the subject study to the Corporation Code and the
Securities Code but an incursion as well into the intertwining modern
management issues.
Such corporate legal management issues deal primarily with three (3)
types of learning: (1) acquisition of insights into current advances which
are of particular significance to the corporate counsel; (2) an introduction
to usable disciplinary skins applicable to a corporate counsel's
management responsibilities; and (3) a devotion to the organization and
management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with
a shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the
counsel's role. For that matter, the corporate lawyer reviews the
globalization process, including the resulting strategic repositioning that
the firms he provides counsel for are required to make, and the need to
think about a corporation's; strategy at multiple levels. The salience of the
nation-state is being reduced as firms deal both with global multinational
entities and simultaneously with sub-national governmental units. Firms
increasingly collaborate not only with public entities but with each other
— often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained
a new role as a stakeholder — in some cases participating in the
organization and operations of governance through participation on
boards and other decision-making roles. Often these new patterns
develop alongside existing legal institutions and laws are perceived as
barriers. These trends are complicated as corporations organize for
global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental
policies toward the promotion and management of technology. New
collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of
seeking to influence governmental policies. And there are lessons to be
learned from other countries. In Europe, Esprit, Eureka and Race are
examples of collaborative efforts between governmental and business
Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all
kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to indentifiable
factors in the group-context interaction such as the groups actively
revising their knowledge of the environment coordinating work with
outsiders, promoting team achievements within the organization. In
general, such external activities are better predictors of team
performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate
lawyer vis-a-vis the managerial mettle of corporations are challenged.
Current research is seeking ways both to anticipate effective managerial
procedures and to understand relationships of financial liability and
insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has been found
an effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all
sorts of systematic problems — physical, economic, managerial, social,
and psychological. New programming techniques now make the system
dynamics principles more accessible to managers — including corporate
counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department,
it can be used to appraise the settlement value of litigation, aid in
negotiation settlement, and minimize the cost and risk involved in
managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models
can be used directly by parties and mediators in all lands of negotiations.
All integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A
simulation case of an international joint venture may be used to illustrate
the point.
[Be this as it may,] the organization and management of the legal
function, concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such
legal entities at that time when transactional or similar facts are being
considered and made.
Managerial Jurisprudence. This is the framework within which are
undertaken those activities of the firm to which legal consequences
attach. It needs to be directly supportive of this nation's evolving
economic and organizational fabric as firms change to stay competitive in
a global, interdependent environment. The practice and theory of "law" is
not adequate today to facilitate the relationships needed in trying to make
a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The
general counsel has emerged in the last decade as one of the most
vibrant subsets of the legal profession. The corporate counsel hear
responsibility for key aspects of the firm's strategic issues, including
structuring its global operations, managing improved relationships with an
increasingly diversified body of employees, managing expanded liability
exposure, creating new and varied interactions with public decision-
makers, coping internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is
not enough to make one a good general corporate counsel nor to give
him a full sense of how the legal system shapes corporate activities. And
even if the corporate lawyer's aim is not the understand all of the law's
effects on corporate activities, he must, at the very least, also gain a
working knowledge of the management issues if only to be able to grasp
not only the basic legal "constitution' or makeup of the modem
corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p.
4).
The challenge for lawyers (both of the bar and the bench) is to have more
than a passing knowledge of financial law affecting each aspect of their
work. Yet, many would admit to ignorance of vast tracts of the financial
law territory. What transpires next is a dilemma of professional security:
Will the lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate Finance
law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino
to the position of Chairman of the COMELEC in a letter received by the
Secretariat of the Commission on Appointments on April 25, 1991. Petitioner
opposed the nomination because allegedly Monsod does not possess the
required qualification of having been engaged in the practice of law for at least
ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of
Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of
office. On the same day, he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments
of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant
petition for certiorari and Prohibition praying that said confirmation and the
consequent appointment of Monsod as Chairman of the Commission on
Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86-55%. He has been a dues paying
member of the Integrated Bar of the Philippines since its inception in 1972-73. He
has also been paying his professional license fees as lawyer for more than ten
years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty.
Monsod worked in the law office of his father. During his stint in the World Bank
Group (1963-1970), Monsod worked as an operations officer for about two years
in Costa Rica and Panama, which involved getting acquainted with the laws of
member-countries negotiating loans and coordinating legal, economic, and
project work of the Bank. Upon returning to the Philippines in 1970, he worked
with the Meralco Group, served as chief executive officer of an investment bank
and subsequently of a business conglomerate, and since 1986, has rendered
services to various companies as a legal and economic consultant or chief
executive officer. As former Secretary-General (1986) and National Chairman
(1987) of NAMFREL. Monsod's work involved being knowledgeable in election
law. He appeared for NAMFREL in its accreditation hearings before the Comelec.
In the field of advocacy, Monsod, in his personal capacity and as former Co-
Chairman of the Bishops Businessmen's Conference for Human Development,
has worked with the under privileged sectors, such as the farmer and urban poor
groups, in initiating, lobbying for and engaging in affirmative action for the
agrarian reform law and lately the urban land reform bill. Monsod also made use
of his legal knowledge as a member of the Davide Commission, a quast judicial
body, which conducted numerous hearings (1990) and as a member of the
Constitutional Commission (1986-1987), and Chairman of its Committee on
Accountability of Public Officers, for which he was cited by the President of the
Commission, Justice Cecilia Muñoz-Palma for "innumerable amendments to
reconcile government functions with individual freedoms and public accountability
and the party-list system for the House of Representative. (pp. 128-129 Rollo) (
Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to
be a member.
In a loan agreement, for instance, a negotiating panel acts as a team,
and which is adequately constituted to meet the various contingencies
that arise during a negotiation. Besides top officials of the Borrower
concerned, there are the legal officer (such as the legal counsel), the
finance manager, and an operations officer (such as an official involved in
negotiating the contracts) who comprise the members of the team.
(Guillermo V. Soliven, "Loan Negotiating Strategies for Developing
Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines,
Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays
down the law as far as the loan transaction is concerned. Thus, the meat
of any Loan Agreement can be compartmentalized into five (5)
fundamental parts: (1) business terms; (2) borrower's representation; (3)
conditions of closing; (4) covenants; and (5) events of default. (Ibid., p.
13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and
legal advising, they score national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from the work
paper, entitled "Wanted: Development Lawyers for Developing Nations,"
submitted by L. Michael Hager, regional legal adviser of the United States
Agency for International Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in Ivory Coast,
sponsored by the World Peace Through Law Center on August 26-31,
1973). ( Emphasis supplied)
 Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in
legislation and agreement drafting and in renegotiation. Necessarily, a
sovereign lawyer may work with an international business specialist or an
economist in the formulation of a model loan agreement. Debt
restructuring contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed only with the
advise of competent counsel in conjunction with the guidance of
adequate technical support personnel. (See International Law Aspects of
the Philippine External Debts, an unpublished dissertation, U.S.T.
Graduate School of Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is
the set of terms and conditions which determines the contractual
remedies for a failure to perform one or more elements of the contract. A
good agreement must not only define the responsibilities of both parties,
but must also state the recourse open to either party when the other fails
to discharge an obligation. For a compleat debt restructuring represents a
devotion to that principle which in the ultimate analysis is sine qua non for
foreign loan agreements-an adherence to the rule of law in domestic and
international affairs of whose kind U.S. Supreme Court Justice Oliver
Wendell Holmes, Jr. once said: "They carry no banners, they beat no
drums; but where they are, men learn that bustle and bush are not the
equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The
Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine
Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law".
particularly the modern concept of law practice, and taking into consideration the
liberal construction intended by the framers of the Constitution, Atty. Monsod's
past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-
entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator
of both the rich and the poor — verily more than satisfy the constitutional
requirement — that he has been engaged in the practice of law for at least ten
years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA
327, the Court said:
Appointment is an essentially discretionary power and must be performed
by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on
the ground that there are others better qualified who should have been
preferred. This is a political question involving considerations of wisdom
which only the appointing authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and
all the other legal requirements are satisfied, the Commission has no
alternative but to attest to the appointment in accordance with the Civil
Service Law. The Commission has no authority to revoke an appointment
on the ground that another person is more qualified for a particular
position. It also has no authority to direct the appointment of a substitute
of its choice. To do so would be an encroachment on the discretion
vested upon the appointing authority. An appointment is essentially within
the discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required by
law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of
four (4) stages: (1) nomination; (2) confirmation by the Commission on
Appointments; (3) issuance of a commission (in the Philippines, upon submission
by the Commission on Appointments of its certificate of confirmation, the
President issues the permanent appointment; and (4) acceptance e.g., oath-
taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14,
1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is mandated
by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of seven
 years without reappointment. Of those first appointed, three Members
shall hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no
case shall any Member be appointed or designated in a temporary or
acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of
law practice, as distinguished from the modern concept of the practice of
law, which modern connotation is exactly what was intended by the
eminent framers of the 1987 Constitution. Moreover, Justice Padilla's
definition would require generally a habitual law practice, perhaps
practised two or three times a week and would outlaw say, law practice
once or twice a year for ten consecutive years. Clearly, this is far from the
constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in
my written opinion, I made use of a definition of law practice which really means
nothing because the definition says that law practice " . . . is what people
ordinarily mean by the practice of law." True I cited the definition but only by way
of sarcasm as evident from my statement that the definition of law practice by
"traditional areas of law practice is essentially tautologous" or defining a phrase
by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others on
what the law means, are actually practicing law. In that sense, perhaps, but we
should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the
Philippine Bar, who has been practising law for over ten years. This is different
from the acts of persons practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected
President of the Philippines, say, on the ground that he lacks one or more
qualifications. This matter, I greatly doubt. For one thing, how can an action or
petition be brought against the President? And even assuming that he is indeed
disqualified, how can the action be entertained since he is the incumbent
President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings
on Monsod's confirmation, implicitly determined that he possessed the necessary
qualifications as required by law. The judgment rendered by the Commission in
the exercise of such an acknowledged power is beyond judicial interference
except only upon a clear showing of a grave abuse of discretion amounting to
lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where
such grave abuse of discretion is clearly shown shall the Court interfere with the
Commission's judgment. In the instant case, there is no occasion for the exercise
of the Court's corrective power, since no abuse, much less a grave abuse of
discretion, that would amount to lack or excess of jurisdiction and would warrant
the issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the
President, may the Supreme Court reverse the Commission, and thus in
effect confirm the appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be
incredible that the U.S. Supreme Court would still reverse the U.S.
Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth
life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson's beloved) for help in capturing Samson.
Delilah agreed on condition that —
 No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed
an iron rod burning white-hot two or three inches away from in front of Samson's
eyes. This blinded the man. Upon hearing of what had happened to her beloved,
Delilah was beside herself with anger, and fuming with righteous fury, accused
the procurator of reneging on his word. The procurator calmly replied: "Did any
blade touch his skin? Did any blood flow from his veins?" The procurator was
clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only
in the result; it does not appear to me that there has been an adequate showing
that the challenged determination by the Commission on Appointments-that the
appointment of respondent Monsod as Chairman of the Commission on Elections
should, on the basis of his stated qualifications and after due assessment
thereof, be confirmed-was attended by error so gross as to amount to grave
abuse of discretion and consequently merits nullification by this Court in
accordance with the second paragraph of Section 1, Article VIII of the
Constitution. I therefore vote to DENY the petition.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the
Petition at bar, I voted not only to require the respondents to comment on the
Petition, but I was the sole vote for the issuance of a temporary restraining order
to enjoin respondent Monsod from assuming the position of COMELEC
Chairman, while the Court deliberated on his constitutional qualification for the
office. My purpose in voting for a TRO was to prevent the inconvenience and
even embarrassment to all parties concerned were the Court to finally decide for
respondent Monsod's disqualification. Moreover, a reading of the Petition then in
relation to established jurisprudence already showed prima facie that respondent
Monsod did not possess the needed qualification, that is, he had not engaged in
the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more
convinced that the constitutional requirement of "practice of law for at least ten
(10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration
because, ultimately, the core issue to be resolved in this petition is the proper
construal of the constitutional provision requiring a majority of the membership of
COMELEC, including the Chairman thereof to "have been engaged in the
practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987
Constitution). Questions involving the construction of constitutional provisions are
best left to judicial resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC
Chairman. Among these are that he must have been "engaged in the practice of
law for at least ten (10) years." It is the bounden duty of this Court to ensure that
such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to
the actual performance or application of knowledge as distinguished from mere
possession of knowledge; it connotes an active, habitual, repeated or customary
action.1 To "practice" law, or any profession for that matter, means, to exercise or
pursue an employment or profession actively, habitually,
repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the
tasks of a nursing aide, cannot be said to be in the "practice of medicine." A
certified public accountant who works as a clerk, cannot be said to practice his
profession as an accountant. In the same way, a lawyer who is employed as a
business executive or a corporate manager, other than as head or attorney of a
Legal Department of a corporation or a governmental agency, cannot be said to
be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words,
it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864,
42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute
has been interpreted as customarily or habitually holding one's self out to
the public as a lawyer and demanding payment for such services (State
vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a
Memorandum it prepared, enumerated several factors determinative of whether a
particular activity constitutes "practice of law." It states:
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
SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when
one sends a circular announcing the establishment of a law office for the
general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his intention to
practice law in all courts in the country (People v. De Luna, 102 Phil.
968).
Practice is more than an isolated appearance for it consists in frequent or
customary action, a succession of acts of the same kind. In other words,
it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State
v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented
himself to be in the active and continued practice of the legal profession
and that his professional services are available to the public for
compensation, as a service of his livelihood or in consideration of his said
services. (People v. Villanueva, supra). Hence, charging for services
such as preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Paño, Bar Reviewer in
Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's
Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion
as to the proper interpretation of a statute, and receives pay for it, is to
that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v.
Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is
expected, all advice to clients and all action taken for them in matters
connected with the law; are practicing law. (Elwood Fitchette et al., v.
Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for
legal knowledge, training and experience is within the term "practice of
law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law
presupposes the existence of lawyer-client relationship. Hence, where a
lawyer undertakes an activity which requires knowledge of law but
involves no attorney-client relationship, such as teaching law or writing
law books or articles, he cannot be said to be engaged in the practice of
his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).3
The above-enumerated factors would, I believe, be useful aids in determining
whether or not respondent Monsod meets the constitutional qualification of
practice of law for at least ten (10) years at the time of his appointment as
COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the
practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so
HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the
records, I am persuaded that if ever he did perform any of the tasks which
constitute the practice of law, he did not do so HABITUALLY for at least ten (10)
years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be
latitudinarianly considered activities peculiar to the practice of law, like the
drafting of legal documents and the rendering of legal opinion or advice, such
were isolated transactions or activities which do not qualify his past endeavors as
"practice of law." To become engaged in the practice of law, there must be
a continuity, or a succession of acts. As observed by the Solicitor General
in People vs. Villanueva:4
Essentially, the word private practice of law implies that one must have
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 compensation, as a source of his livelihood or in consideration of his
said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent
Monsod as not qualified for the position of COMELEC Chairman for not having
engaged in the practice of law for at least ten (10) years prior to his appointment
to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must
dissent just the same. There are certain points on which I must differ with him
while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of
the respondent simply because his nomination has been confirmed by the
Commission on Appointments. In my view, this is not a political question that we
are barred from resolving. Determination of the appointee's credentials is made
on the basis of the established facts, not the discretion of that body. Even if it
were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of
the appointing authority to choosebetween two claimants to the same office who
both possessed the required qualifications. It was that kind of discretion that we
said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this
Court for lack of the required qualifications, I see no reason why we cannot
disqualified an appointee simply because he has passed the Commission on
Appointments.
Even the President of the Philippines may be declared ineligible by this Court in
an appropriate proceeding notwithstanding that he has been found acceptable by
no less than the enfranchised citizenry. The reason is that what we would be
examining is not the wisdom of his election but whether or not he was qualified to
be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that
the ponencia may have been too sweeping in its definition of the phrase "practice
of law" as to render the qualification practically toothless. From the numerous
activities accepted as embraced in the term, I have the uncomfortable feeling that
one does not even have to be a lawyer to be engaged in the practice of law as
long as his activities involve the application of some law, however peripherally.
The stock broker and the insurance adjuster and the realtor could come under
the definition as they deal with or give advice on matters that are likely "to
become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main
occupation is another business and he interprets and applies some law only as
an incident of such business. That covers every company organized under the
Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not affected
by some law or government regulation the businessman must know about and
observe. In fact, again going by the definition, a lawyer does not even have to be
part of a business concern to be considered a practitioner. He can be so deemed
when, on his own, he rents a house or buys a car or consults a doctor as these
acts involve his knowledge and application of the laws regulating such
transactions. If he operates a public utility vehicle as his main source of
livelihood, he would still be deemed engaged in the practice of law because he
must obey the Public Service Act and the rules and regulations of the Energy
Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the
"performance of any acts ... in or out of court, commonly understood to be the
practice of law," which tells us absolutely nothing. The decision goes on to say
that "because lawyers perform almost every function known in the commercial
and governmental realm, such a definition would obviously be too global to be
workable."
The effect of the definition given in the ponencia is to consider virtually every
lawyer to be engaged in the practice of law even if he does not earn his living, or
at least part of it, as a lawyer. It is enough that his activities are incidentally (even
if only remotely) connected with some law, ordinance, or regulation. The possible
exception is the lawyer whose income is derived from teaching ballroom dancing
or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not
persuade me that he has been engaged in the practice of law for ten years as
required by the Constitution. It is conceded that he has been engaged in
business and finance, in which areas he has distinguished himself, but as an
executive and economist and not as a practicing lawyer. The plain fact is that he
has occupied the various positions listed in his resume by virtue of his experience
and prestige as a businessman and not as an attorney-at-law whose principal
attention is focused on the law. Even if it be argued that he was acting as a
lawyer when he lobbied in Congress for agrarian and urban reform, served in the
NAMFREL and the Constitutional Commission (together with non-lawyers like
farmers and priests) and was a member of the Davide Commission, he has not
proved that his activities in these capacities extended over the prescribed 10-
year period of actual practice of the law. He is doubtless eminently qualified for
many other positions worthy of his abundant talents but not as Chairman of the
Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law
as a qualification for public office would be settled one way or another in fairly
definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod
engaged in the practice of law (with one of these 5 leaving his vote behind while
on official leave but not expressing his clear stand on the matter); 4 categorically
stating that he did not practice law; 2 voting in the result because there was no
error so gross as to amount to grave abuse of discretion; one of official leave with
no instructions left behind on how he viewed the issue; and 2 not taking part in
the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the
work of a constitutional Commission on Appointments whose duty is precisely to
look into the qualifications of persons appointed to high office. Even if the
Commission errs, we have no power to set aside error. We can look only into
grave abuse of discretion or whimsically and arbitrariness. Second is our belief
that Mr. Monsod possesses superior qualifications in terms of executive ability,
proficiency in management, educational background, experience in international
banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is How could he practice law in the United States while not a member of the Bar
compliance with a specific requirement written into the Constitution. there?

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. The professional life of the respondent follows:
He has never engaged in the practice of law for even one year. He is a member
of the bar but to say that he has practiced law is stretching the term beyond 1.15.1. Respondent Monsod's activities since his passing the Bar
rational limits. examinations in 1961 consist of the following:

A person may have passed the bar examinations. But if he has not dedicated his 1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of
life to the law, if he has not engaged in an activity where membership in the bar is Pennsylvania
a requirement I fail to see how he can claim to have been engaged in the practice
of law. 2. 1963-1970: World Bank Group — Economist, Industry Department;
Operations, Latin American Department; Division Chief, South Asia and
Engaging in the practice of law is a qualification not only for COMELEC chairman Middle East, International Finance Corporation
but also for appointment to the Supreme Court and all lower courts. What kind of
Judges or Justices will we have if there main occupation is selling real estate, 3. 1970-1973: Meralco Group — Executive of various companies, i.e.,
managing a business corporation, serving in fact-finding committee, working in Meralco Securities Corporation, Philippine Petroleum Corporation,
media, or operating a farm with no active involvement in the law, whether in Philippine Electric Corporation
Government or private practice, except that in one joyful moment in the distant
past, they happened to pass the bar examinations?
4. 1973-1976: Yujuico Group — President, Fil-Capital Development
Corporation and affiliated companies
The Constitution uses the phrase "engaged in the practice of law for at least ten
years." The deliberate choice of words shows that the practice envisioned is
5. 1976-1978: Finaciera Manila — Chief Executive Officer
active and regular, not isolated, occasional, accidental, intermittent, incidental,
seasonal, or extemporaneous. To be "engaged" in an activity for ten years
requires committed participation in something which is the result of one's decisive 6. 1978-1986: Guevent Group of Companies — Chief Executive Officer
choice. It means that one is occupied and involved in the enterprise; one is
obliged or pledged to carry it out with intent and attention during the ten-year 7. 1986-1987: Philippine Constitutional Commission — Member
period.
8. 1989-1991: The Fact-Finding Commission on the December 1989
I agree with the petitioner that based on the bio-data submitted by respondent Coup Attempt — Member
Monsod to the Commission on Appointments, the latter has not been engaged in
the practice of law for at least ten years. In fact, if appears that Mr. Monsod has 9. Presently: Chairman of the Board and Chief Executive Officer of the
never practiced law except for an alleged one year period after passing the bar following companies:
examinations when he worked in his father's law firm. Even then his law practice
must have been extremely limited because he was also working for M.A. and Ph. a. ACE Container Philippines, Inc.
D. degrees in Economics at the University of Pennsylvania during that period.
 b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the 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 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.
The deliberations before the Commission on Appointments show an effort to
equate "engaged in the practice of law" with the use of legal knowledge in
various fields of endeavor such as commerce, industry, civic work, blue ribbon
investigations, agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an
ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of discernment
has to know, follow, or apply the law at various times in his life. Legal knowledge
is useful if not necessary for the business executive, legislator, mayor, barangay
captain, teacher, policeman, farmer, fisherman, market vendor, and student to
name only a few. And yet, can these people honestly assert that as such, they
are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least
ten years." It is not satisfied with having been "a member of the Philippine bar for
at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection
with litigation but also services rendered out of court, and it includes the
giving of advice or the rendering of any services requiring the use of legal
skill or knowledge, such as preparing a will, contract or other instrument,
the legal effect of which, under the facts and conditions involved, must be
carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill.
282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of
what constitutes the practice of law. "Practicing law" has been defined as
 "Practicing as an attorney or counselor at law according to the laws and
customs of our courts, is the giving of advice or rendition of any sort of
service by any person, firm or corporation when the giving of such advice
or rendition of such service requires the use of any degree of legal
knowledge or skill." Without adopting that definition, we referred to it as
being substantially correct in People ex rel. Illinois State Bar Ass'n v.
People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v.
Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not
only be activities peculiar to the work of a lawyer, they should also be performed,
habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather
evasive. He was asked whether or not he ever prepared contracts for the
parties in real-estate transactions where he was not the procuring agent.
He answered: "Very seldom." In answer to the question as to how many
times he had prepared contracts for the parties during the twenty-one
years of his business, he said: "I have no Idea." When asked if it would
be more than half a dozen times his answer was I suppose. Asked if he
did not recall making the statement to several parties that he had
prepared contracts in a large number of instances, he answered: "I don't
recall exactly what was said." When asked if he did not remember saying
that he had made a practice of preparing deeds, mortgages and contracts
and charging a fee to the parties therefor in instances where he was not
the broker in the deal, he answered: "Well, I don't believe so, that is not a
practice." Pressed further for an answer as to his practice in preparing
contracts and deeds for parties where he was not the broker, he finally
answered: "I have done about everything that is on the books as far as
real estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he
has a lawful right to do any legal work in connection with real-estate
transactions, especially in drawing of real-estate contracts, deeds,
mortgages, notes and the like. There is no doubt but that he has engaged
in these practices over the years and has charged for his services in that
connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or
employed by another to act in his stead; an agent; more especially, one
of a class of persons authorized to appear and act for suitors or
defendants in legal proceedings. Strictly, these professional persons are
attorneys at law, and non-professional agents are properly styled
"attorney's in fact;" but the single word is much used as meaning an
attorney at law. A person may be an attorney in facto for another, without
being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or
attorney at law, says Webster, is an officer of a court of law, legally
qualified to prosecute and defend actions in such court on the retainer of
clients. "The principal duties of an attorney are (1) to be true to the court
and to his client; (2) to manage the business of his client with care, skill,
and integrity; (3) to keep his client informed as to the state of his
business; (4) to keep his secrets confided to him as such. ... His rights
are to be justly compensated for his services." Bouv. Law Dict. tit.
"Attorney." The transitive verb "practice," as defined by Webster, means
'to do or perform frequently, customarily, or habitually; to perform by a
succession of acts, as, to practice gaming, ... to carry on in practice, or
repeated action; to apply, as a theory, to real life; to exercise, as a
profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State
v. Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a
succession of acts. Thus, we stated in the case of People v. Villanueva (14
SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of
768). Practice of law to fall within the prohibition of statute has been interpreted appeals, 143 SCRA 288 [1986]).
as customarily or habitually holding one's self out to the public, as a lawyer and
demanding payment for such services. ... . (at p. 112) Respondent Monsod, corporate executive, civic leader, and member of the
Constitutional Commission may possess the background, competence, integrity,
It is to be noted that the Commission on Appointment itself and dedication, to qualify for such high offices as President, Vice-President,
recognizes habituality as a required component of the meaning of practice of law Senator, Congressman or Governor but the Constitution in prescribing the
in a Memorandum prepared and issued by it, to wit: 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
l. Habituality. The term 'practice of law' implies customarilyor habitually confirmed for that office. The Constitution charges the public respondents no less
holding one's self out to the public as a lawyer (People v. Villanueva, 14 than this Court to obey its mandate.
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 I, therefore, believe that the Commission on Appointments committed grave
general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one abuse of discretion in confirming the nomination of respondent Monsod as
takes the oath of office as a lawyer before a notary public, and files a Chairman of the COMELEC.
manifestation with the Supreme Court informing it of his intention to
practice law in all courts in the country (People v. De Luna, 102 Phil. I vote to GRANT the petition.
968).
Bidin, J., dissent
Practice is more than an isolated appearance, for it consists in frequent
or customary action, a succession of acts of the same kind. In other
words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing
State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
Separate Opinions
xxx xxx xxx
NARVASA, J., concurring:
While the career as a businessman of respondent Monsod may have profited
I concur with the decision of the majority written by Mr. Justice Paras, albeit only
from his legal knowledge, the use of such legal knowledge is incidental and
in the result; it does not appear to me that there has been an adequate showing
consists of isolated activities which do not fall under the denomination of practice
that the challenged determination by the Commission on Appointments-that the
of law. Admission to the practice of law was not required for membership in the
appointment of respondent Monsod as Chairman of the Commission on Elections
Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup
should, on the basis of his stated qualifications and after due assessment
Attempt. Any specific legal activities which may have been assigned to Mr.
thereof, be confirmed-was attended by error so gross as to amount to grave
Monsod while a member may be likened to isolated transactions of foreign
abuse of discretion and consequently merits nullification by this Court in
corporations in the Philippines which do not categorize the foreign corporations
accordance with the second paragraph of Section 1, Article VIII of the
as doing business in the Philippines. As in the practice of law, doing
Constitution. I therefore vote to DENY the petition.
business also should be active and continuous. Isolated business transactions or
occasional, incidental and casual transactions are not within the context of doing
Melencio-Herrera, J., concur.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the
Petition at bar, I voted not only to require the respondents to comment on the
Petition, but I was the sole vote for the issuance of a temporary restraining order
to enjoin respondent Monsod from assuming the position of COMELEC
Chairman, while the Court deliberated on his constitutional qualification for the
office. My purpose in voting for a TRO was to prevent the inconvenience and
even embarrassment to all parties concerned were the Court to finally decide for
respondent Monsod's disqualification. Moreover, a reading of the Petition then in
relation to established jurisprudence already showed prima facie that respondent
Monsod did not possess the needed qualification, that is, he had not engaged in
the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more
convinced that the constitutional requirement of "practice of law for at least ten
(10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration
because, ultimately, the core issue to be resolved in this petition is the proper
construal of the constitutional provision requiring a majority of the membership of
COMELEC, including the Chairman thereof to "have been engaged in the
practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987
Constitution). Questions involving the construction of constitutional provisions are
best left to judicial resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC
Chairman. Among these are that he must have been "engaged in the practice of
law for at least ten (10) years." It is the bounden duty of this Court to ensure that
such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to
the actual performance or application of knowledge as distinguished from mere
possession of knowledge; it connotes an active, habitual, repeated or customary
action.1 To "practice" law, or any profession for that matter, means, to exercise or
pursue an employment or profession actively, habitually,
repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the
tasks of a nursing aide, cannot be said to be in the "practice of medicine." A
certified public accountant who works as a clerk, cannot be said to practice his
profession as an accountant. In the same way, a lawyer who is employed as a
business executive or a corporate manager, other than as head or attorney of a
Legal Department of a corporation or a governmental agency, cannot be said to
be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words,
it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864,
42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute
has been interpreted as customarily or habitually holding one's self out to
the public as a lawyer and demanding payment for such services (State
vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a
Memorandum it prepared, enumerated several factors determinative of whether a
particular activity constitutes "practice of law." It states:
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
SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when
one sends a circular announcing the establishment of a law office for the
general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his intention to
practice law in all courts in the country (People v. De Luna, 102 Phil.
968).
 Practice is more than an isolated appearance for it consists in frequent or The following relevant questions may be asked:
customary action, a succession of acts of the same kind. In other words,
it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State 1. Did respondent Monsod perform any of the tasks which are peculiar to the
v. Cotner, 127, p. 1, 87 Kan, 864). practice of law?

2. Compensation. Practice of law implies that one must have presented 2. Did respondent perform such tasks customarily or habitually?
himself to be in the active and continued practice of the legal profession
and that his professional services are available to the public for 3. Assuming that he performed any of such tasks habitually, did he do so
compensation, as a service of his livelihood or in consideration of his said HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
services. (People v. Villanueva, supra). Hence, charging for services COMELEC Chairman?
such as preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Paño, Bar Reviewer in
Given the employment or job history of respondent Monsod as appears from the
Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's
records, I am persuaded that if ever he did perform any of the tasks which
Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion
constitute the practice of law, he did not do so HABITUALLY for at least ten (10)
as to the proper interpretation of a statute, and receives pay for it, is to
years prior to his appointment as COMELEC Chairman.
that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v.
Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is
expected, all advice to clients and all action taken for them in matters While it may be granted that he performed tasks and activities which could be
connected with the law; are practicing law. (Elwood Fitchette et al., v. latitudinarianly considered activities peculiar to the practice of law, like the
Arthur C. Taylor, 94A-L.R. 356-359) drafting of legal documents and the rendering of legal opinion or advice, such
were isolated transactions or activities which do not qualify his past endeavors as
"practice of law." To become engaged in the practice of law, there must be
3. Application of law legal principle practice or procedure which calls for
a continuity, or a succession of acts. As observed by the Solicitor General
legal knowledge, training and experience is within the term "practice of
in People vs. Villanueva:4
law". (Martin supra)
Essentially, the word private practice of law implies that one must have
4. Attorney-client relationship. Engaging in the practice of law
presented himself to be in the activeand continued practice of the legal
presupposes the existence of lawyer-client relationship. Hence, where a
profession and that his professional services are available to the public
lawyer undertakes an activity which requires knowledge of law but
for a compensation, as a source of his livelihood or in consideration of his
involves no attorney-client relationship, such as teaching law or writing
said services.
law books or articles, he cannot be said to be engaged in the practice of
his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).3
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent
Monsod as not qualified for the position of COMELEC Chairman for not having
The above-enumerated factors would, I believe, be useful aids in determining
engaged in the practice of law for at least ten (10) years prior to his appointment
whether or not respondent Monsod meets the constitutional qualification of
to such position.
practice of law for at least ten (10) years at the time of his appointment as
COMELEC Chairman.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must
dissent just the same. There are certain points on which I must differ with him
while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of
the respondent simply because his nomination has been confirmed by the
Commission on Appointments. In my view, this is not a political question that we
are barred from resolving. Determination of the appointee's credentials is made
on the basis of the established facts, not the discretion of that body. Even if it
were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of
the appointing authority to choosebetween two claimants to the same office who
both possessed the required qualifications. It was that kind of discretion that we
said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this
Court for lack of the required qualifications, I see no reason why we cannot
disqualified an appointee simply because he has passed the Commission on
Appointments.
Even the President of the Philippines may be declared ineligible by this Court in
an appropriate proceeding notwithstanding that he has been found acceptable by
no less than the enfranchised citizenry. The reason is that what we would be
examining is not the wisdom of his election but whether or not he was qualified to
be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that
the ponencia may have been too sweeping in its definition of the phrase "practice
of law" as to render the qualification practically toothless. From the numerous
activities accepted as embraced in the term, I have the uncomfortable feeling that
one does not even have to be a lawyer to be engaged in the practice of law as
long as his activities involve the application of some law, however peripherally.
The stock broker and the insurance adjuster and the realtor could come under
the definition as they deal with or give advice on matters that are likely "to
become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main
occupation is another business and he interprets and applies some law only as
an incident of such business. That covers every company organized under the
Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not affected
by some law or government regulation the businessman must know about and
observe. In fact, again going by the definition, a lawyer does not even have to be
part of a business concern to be considered a practitioner. He can be so deemed
when, on his own, he rents a house or buys a car or consults a doctor as these
acts involve his knowledge and application of the laws regulating such
transactions. If he operates a public utility vehicle as his main source of
livelihood, he would still be deemed engaged in the practice of law because he
must obey the Public Service Act and the rules and regulations of the Energy
Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the
"performance of any acts . . . in or out of court, commonly understood to be the
practice of law," which tells us absolutely nothing. The decision goes on to say
that "because lawyers perform almost every function known in the commercial
and governmental realm, such a definition would obviously be too global to be
workable."
The effect of the definition given in the ponencia is to consider virtually every
lawyer to be engaged in the practice of law even if he does not earn his living, or
at least part of it, as a lawyer. It is enough that his activities are incidentally (even
if only remotely) connected with some law, ordinance, or regulation. The possible
exception is the lawyer whose income is derived from teaching ballroom dancing
or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not
persuade me that he has been engaged in the practice of law for ten years as
required by the Constitution. It is conceded that he has been engaged in
business and finance, in which areas he has distinguished himself, but as an
executive and economist and not as a practicing lawyer. The plain fact is that he
has occupied the various positions listed in his resume by virtue of his experience
and prestige as a businessman and not as an attorney-at-law whose principal
attention is focused on the law. Even if it be argued that he was acting as a
lawyer when he lobbied in Congress for agrarian and urban reform, served in the
NAMFREL and the Constitutional Commission (together with non-lawyers like
farmers and priests) and was a member of the Davide Commission, he has not
proved that his activities in these capacities extended over the prescribed 10-
year period of actual practice of the law. He is doubtless eminently qualified for
many other positions worthy of his abundant talents but not as Chairman of the
Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law
as a qualification for public office would be settled one way or another in fairly
definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod
engaged in the practice of law (with one of these 5 leaving his vote behind while
on official leave but not expressing his clear stand on the matter); 4 categorically
stating that he did not practice law; 2 voting in the result because there was no
error so gross as to amount to grave abuse of discretion; one of official leave with
no instructions left behind on how he viewed the issue; and 2 not taking part in
the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the
work of a constitutional Commission on Appointments whose duty is precisely to
look into the qualifications of persons appointed to high office. Even if the
Commission errs, we have no power to set aside error. We can look only into
grave abuse of discretion or whimsically and arbitrariness. Second is our belief
that Mr. Monsod possesses superior qualifications in terms of executive ability,
proficiency in management, educational background, experience in international
banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is
compliance with a specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty.
He has never engaged in the practice of law for even one year. He is a member
of the bar but to say that he has practiced law is stretching the term beyond
rational limits.
A person may have passed the bar examinations. But if he has not dedicated his
life to the law, if he has not engaged in an activity where membership in the bar is
a requirement I fail to see how he can claim to have been engaged in the practice
of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman
but also for appointment to the Supreme Court and all lower courts. What kind of
Judges or Justices will we have if there main occupation is selling real estate,
managing a business corporation, serving in fact-finding committee, working in
media, or operating a farm with no active involvement in the law, whether in
Government or private practice, except that in one joyful moment in the distant
past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten
years." The deliberate choice of words shows that the practice envisioned is
active and regular, not isolated, occasional, accidental, intermittent, incidental,
seasonal, or extemporaneous. To be "engaged" in an activity for ten years
requires committed participation in something which is the result of one's decisive
choice. It means that one is occupied and involved in the enterprise; one is
obliged or pledged to carry it out with intent and attention during the ten-year
period.
I agree with the petitioner that based on the bio-data submitted by respondent
Monsod to the Commission on Appointments, the latter has not been engaged in
the practice of law for at least ten years. In fact, if appears that Mr. Monsod has
never practiced law except for an alleged one year period after passing the bar
examinations when he worked in his father's law firm. Even then his law practice
must have been extremely limited because he was also working for M.A. and Ph.
D. degrees in Economics at the University of Pennsylvania during that period.
How could he practice law in the United States while not a member of the Bar
there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar e. CBL Timber Corporation
examinations in 1961 consist of the following:
Member of the Board of the Following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of
Pennsylvania a. Engineering Construction Corporation of the Philippines

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

3. 1970-1973: Meralco Group — Executive of various companies, i.e., d. First Philippine Industrial Corporation
Meralco Securities Corporation, Philippine Petroleum Corporation,
Philippine Electric Corporation
e. Graphic Atelier
4. 1973-1976: Yujuico Group — President, Fil-Capital Development
f. Manila Electric Company
Corporation and affiliated companies
g. Philippine Commercial Capital, Inc.
5. 1976-1978: Finaciera Manila — Chief Executive Officer
h. Philippine Electric Corporation
6. 1978-1986: Guevent Group of Companies — Chief Executive Officer
i. Tarlac Reforestation and Environment Enterprises
7. 1986-1987: Philippine Constitutional Commission — Member
j. Tolong Aquaculture Corporation
8. 1989-1991: The Fact-Finding Commission on the December 1989
Coup Attempt — Member
k. Visayan Aquaculture Corporation
9. Presently: Chairman of the Board and Chief Executive Officer of the
following companies: l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

a. ACE Container Philippines, Inc. There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the lawenough attention or a certain degree of
commitment and participation as would support in all sincerity and candor the
b. Dataprep, Philippines
claim of having engaged in its practice for at least ten years. Instead of working
as a lawyer, he has lawyers working for him. Instead of giving receiving that legal
c. Philippine SUNsystems Products, Inc. advice of legal services, he was the oneadvice and those services as an
executive but not as a lawyer.
d. Semirara Coal Corporation
The deliberations before the Commission on Appointments show an effort to
equate "engaged in the practice of law" with the use of legal knowledge in
various fields of endeavor such as commerce, industry, civic work, blue ribbon
investigations, agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an
ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of discernment
has to know, follow, or apply the law at various times in his life. Legal knowledge
is useful if not necessary for the business executive, legislator, mayor, barangay
captain, teacher, policeman, farmer, fisherman, market vendor, and student to
name only a few. And yet, can these people honestly assert that as such, they
are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least
ten years." It is not satisfied with having been "a member of the Philippine bar for
at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection
with litigation but also services rendered out of court, and it includes the
giving of advice or the rendering of any services requiring the use of legal
skill or knowledge, such as preparing a will, contract or other instrument,
the legal effect of which, under the facts and conditions involved, must be
carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill.
282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of
what constitutes the practice of law. "Practicing law" has been defined as
"Practicing as an attorney or counselor at law according to the laws and
customs of our courts, is the giving of advice or rendition of any sort of
service by any person, firm or corporation when the giving of such advice
or rendition of such service requires the use of any degree of legal
knowledge or skill." Without adopting that definition, we referred to it as
being substantially correct in People ex rel. Illinois State Bar Ass'n v.
People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v.
Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not
only be activities peculiar to the work of a lawyer, they should also be performed,
habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather
evasive. He was asked whether or not he ever prepared contracts for the
parties in real-estate transactions where he was not the procuring agent.
He answered: "Very seldom." In answer to the question as to how many
times he had prepared contracts for the parties during the twenty-one
years of his business, he said: "I have no Idea." When asked if it would
be more than half a dozen times his answer was I suppose. Asked if he
did not recall making the statement to several parties that he had
prepared contracts in a large number of instances, he answered: "I don't
recall exactly what was said." When asked if he did not remember saying
that he had made a practice of preparing deeds, mortgages and contracts
and charging a fee to the parties therefor in instances where he was not
the broker in the deal, he answered: "Well, I don't believe so, that is not a
practice." Pressed further for an answer as to his practice in preparing
contracts and deeds for parties where he was not the broker, he finally
answered: "I have done about everything that is on the books as far as
real estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he
has a lawful right to do any legal work in connection with real-estate
transactions, especially in drawing of real-estate contracts, deeds,
mortgages, notes and the like. There is no doubt but that he has engaged
in these practices over the years and has charged for his services in that
connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
 ... An attorney, in the most general sense, is a person designated or
employed by another to act in his stead; an agent; more especially, one
of a class of persons authorized to appear and act for suitors or
defendants in legal proceedings. Strictly, these professional persons are
attorneys at law, and non-professional agents are properly styled
"attorney's in fact;" but the single word is much used as meaning an
attorney at law. A person may be an attorney in facto for another, without
being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or
attorney at law, says Webster, is an officer of a court of law, legally
qualified to prosecute and defend actions in such court on the retainer of
clients. "The principal duties of an attorney are (1) to be true to the court
and to his client; (2) to manage the business of his client with care, skill,
and integrity; (3) to keep his client informed as to the state of his
business; (4) to keep his secrets confided to him as such. ... His rights
are to be justly compensated for his services." Bouv. Law Dict. tit.
"Attorney." The transitive verb "practice," as defined by Webster, means
'to do or perform frequently, customarily, or habitually; to perform by a
succession of acts, as, to practice gaming, ... to carry on in practice, or
repeated action; to apply, as a theory, to real life; to exercise, as a
profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State
v. Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a
succession of acts. Thus, we stated in the case of People v. Villanueva (14
SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S.
768). Practice of law to fall within the prohibition of statute has been interpreted
as customarily or habitually holding one's self out to the public, as a lawyer and
demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself
recognizes habituality as a required component of the meaning of practice of law
in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually
holding one's self out to the public as a lawyer (People v. Villanueva, 14
SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when
one sends a circular announcing the establishment of a law office for the
general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his intention to
practice law in all courts in the country (People v. De Luna, 102 Phil.
968).
Practice is more than an isolated appearance, for it consists in frequent
or customary action, a succession of acts of the same kind. In other
words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing
State v. 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

Footnotes

1 Webster's 3rd New International Dictionary.

2 14 SCRA 109

3 Commission on Appointments' Memorandum dated 25 June 1991 RE:

WHAT CONSTITUTES PRACTICE OF LAW, pp. 6-7.

4 14 SCRA 109.