Dokumen - Tips Cayetano Vs Monsod GR No 100113 September 3 1991

5/24/2018 Cayeta no vs. Monsod- G.R. No. 100113 Se pte mbe r 3, 1991 - slide pdf.
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G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSO, HON. !O"ITO R. SA#ONGA, COMMISSION ON
A$$OINTMENT, %n& HON. G'I##ERMO CARAG'E, in (is )%p%)it* %s
Se)ret%r* o+ -&et %n& M%n%ement, respon&ents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, !./p
We are faced here with a controversy of far-reaching proportions. While

ostensibly only legal issues are involved, the ourt!s decision in this case would
indubitably have a profound effect on the political aspect of our national
e"istence.
#he $%&' onstitution provides in Section $ ($), Article *+-
#here shall be a oission on Elections coposed of a hairan and si"
oissioners who shall be natural-born citiens of the /hilippines and, at the
tie of their appointent, at least thirty-five years of age, holders of a college
degree, and ust not have been candidates for any elective position in the
iediately preceding -elections. 0owever, a a1ority thereof, including the
hairan, shall be ebers of the /hilippine 2ar who have been engaged in the
practice of law for at least ten years. (Ephasis supplied)
#he afore3uoted provision is patterned after Section l(l), Article +**- of the $%'4
onstitution which siilarly provides
#here shall be an independent oission on Elections coposed of a

hairan and eight oissioners who shall be natural-born citiens of the
/hilippines and, at the tie of their appointent, at least thirty-five years of age
and holders of a college degree. 0owever, a a1ority thereof, including the
hairan, shall be ebers of the /hilippine 2ar who have been engaged in
the practice of law for at least ten years. ! (Ephasis supplied)
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5egrettably, however, there sees to be no 1urisprudence as to what constitutes

practice of law as a legal 3ualification 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. t is not li!ited to appearing in court, or advising and assisting in
the conduct of litigation, ut e!races the preparation of pleadings, and
other papers incident to actions and special proceedings, conve#ancing,
the preparation of legal instru!ents of all kinds, and the giving of all legal
advice to clients. t e!races all advice to clients and all actions taken for
the! in !atters connected with the law. An attorne# engages in the
practice of law # !aintaining an office where he is held out to e$an

attorne#, using a letterhead descriing hi!self as an attorne#, counseling
clients in legal !atters, negotiating with opposing counsel aout pending
litigation, and fi%ing and collecting fees for services rendered # his
associate. &%)2s #% i)tion%r*, 'rd ed.(
#he practice of law is not liited to the conduct of cases in court. ( Land Title
Abstract and Trust Co. v. Dworken,$6% 7hio St. 64, $%4 8.E. 9:;) A person is
also considered to be in the practice of law when he
... for valuable consideration engages in the business of advising person, firs,
associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective,
before any court, coissioner, referee, board, body, coittee, or coission
constituted by law or authoried to settle controversies and there, in such
representative capacity perfors any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. )therwise stated, one who,
in a representative capacit#, engages in the usiness of advising clients as
to their rights under the law, or while so engaged perfor!s an# act or acts
either in court or outside of court for that purpose, is engaged in the
practice of law. &St%te e4. re. M)ittri) v..C.S. -&e* %n& Co., *+ S.-. d
/0, '1+ 2o. 0(
#his ourt in the case of Philippine Lawyers Association v.Agrava, ($;: /hil.
$'4,$'9-$'') stated
The practice of law is not liited to the conduct of cases or litigation in court< it
ebraces the preparation of pleadings and other papers incident to actions and
special proceedings, the anageent of such actions and proceedings on behalf
of clients before 1udges and courts, and in addition, conveying. *n general, all
advice to clients, and all action ta=en for the in atters connected with the law
incorporation services, assessent and condenation services conteplating an
appearance before a 1udicial body, the foreclosure of a ortgage, enforceent of

a creditor!s clai in ban=ruptcy and insolvency proceedings, and conducting
proceedings in attachent, and in atters of estate and guardianship have been
held to constitute law practice, as do the preparation and drafting of legal
instruents, where the work done involves the deterination by the trained legal
ind of the legal effect of facts and conditions . (: A. Jr. p. 696, 694). (Ephasis
supplied)
Practice of law under ode conditions consists in no sall part of wor=

perfored outside of any court and having no iediate relation to proceedings
in court. *t ebraces conveyancing, the giving of legal advice on a large variety
of sub1ects, and the preparation and e"ecution of legal instruents covering an
e"tensive field of business and trust relations and other affairs. Although these
transactions ay have no direct connection with court proceedings, they are
always sub!ect to becoe involved in litigation . #hey re3uire in any aspects a
high degree of legal s=ill, a wide e"perience with en and affairs, and great
capacity for adaptation to difficult and cople" situations. #hese custoary
functions of an attorney or counselor at law bear an intiate relation to the
adinistration of 1ustice by the courts. 8o valid distinction, so far as concerns the
3uestion set forth in the order, can be drawn between that part of the wor= of the
lawyer which involves appearance in court and that part which involves advice
and drafting of instruents in his office. *t is of iportance to the welfare of the

public that these anifold custoary functions be perfored by persons
possessed of ade3uate learning and s=ill, of sound oral character, and acting at
all ties under the heavy trust obligations to clients which rests upon all
attorneys. (Moran, Coents on the Rules of Court , >ol. 4 ?$%:4 ed.@ , p. 99:-
999, citing "n re #pinion of the $ustices ?Mass.@, $% 8.E. 4$4, 3uoted in Rhode
"s. %ar Assoc. v. Autoobile &ervice Assoc . ?5.*.@ $'% A. $4%,$). (Ephasis
ours)
The 3niversit# of the Philippines 4aw 5enter in conducting orientation

riefing for new law#ers &*/61$*/60( listed the di!ensions of the practice of
law in even roader ter!s as advocac#, counselling and pulic service .

7ne ay be a practicing attorney in following any line of eployent in the
profession. *f what he does e"acts =nowledge of the law and is of a =ind usual for
attorneys engaging in the active practice of their profession, and he follows soe
one or ore lines of eployent such as this he is a practicing attorney at law
within the eaning of the statute. ( %arr v. Cardell, $:: 8W 4$6)
Practice of law !eans an# activit#, in or out of court, which requires the
application of law, legal procedure, knowledge, training and e%perience.
"To engage in the practice of law is to perfor! those acts which are
characteristics of the profession. 7enerall#, to practice law is to give notice
or render an# kind of service, which device or service requires the use in
an# degree of legal knowledge or skill." &*** A4R '(
#he following records of the $%&9 onstitutional oission show that it has
adopted a liberal interpretation of the ter Bpractice of law.B
M5. C7D. 2efore we suspend the session, ay * a=e a anifestation which *
forgot to do during our review of the provisions on the oission on Audit. May
* be allowed to a=e a very brief stateent
#0E /5ES*F*8G 7CC*E5 (Mr. Jair).
#he oissioner will please proceed.
M5. C7D. This has to do with the 'ualifications of the ebers of the
Coission on Audit. Aong others, the 'ualifications provided for by &ection "
is that (They ust be )ebers of the Philippine %ar( * " a 'uoting fro the
provision * (who have been engaged in the practice of law for at least ten
years(.
#o avoid any isunderstanding which would result in e"cluding ebers of the

2ar who are now eployed in the 7A or oission on Audit, we would like to
ake the clarification that this provision on 'ualifications regarding ebers of
the %ar does not necessarily refer or involve actual practice of law outside the
C#A +e have to interpret this to ean that as long as the lawyers who are
eployed in the C#A are using their legal knowledge or legal talent in their
respective work within C#A, then they are 'ualified to be considered for
appointent as ebers or coissioners, even chairan, of the Coission
on Audit.
#his has been discussed by the oittee on onstitutional oissions and
Agencies and we dee it iportant to ta=e it up on the floor so that this
interpretation ay be ade available whenever this provision on the
3ualifications as regards ebers of the /hilippine 2ar engaging in the practice

of law for at least ten years is ta=en up.
M5. 7/E. Will oissioner Co yield to 1ust one 3uestion.
M5. C7D. Hes, Mr. /residing 7fficer.
M5. 7/E. "s he, in effect, saying that service in the C#A by a lawyer is
e'uivalent to the re'uireent of a law practice that is set forth in the Article on
the Coission on Audit
M5. C7D. +e ust consider the fact that the work of C#A, although it is
auditing, will necessarily involve legal work- it will involve legal work. And,
therefore, lawyers who are eployed in C#A now would have the necessary
'ualifications in accordance with the Provision on 'ualifications under our
provisions on the Coission on Audit. And, therefore, the answer is yes.
M5. 7/E. Hes. So that the construction given to this is that this is e3uivalent to
the practice of law.

M5. C7D. es, )r. Presiding #fficer .
M5. 7/E. Thank you.
... ( Ephasis supplied)
Section $($), Article *+-F of the $%&' onstitution, provides, aong others, that
the hairan and two oissioners of the oission on Audit (7A) should
either be certified public accountants with not less than ten years of auditing
practice, or ebers of the /hilippine 2ar who have been engaged in the
practice of law for at least ten years. (ephasis supplied)

orollary to this is the ter Bprivate practitionerB and which is in any ways
synonyous with the word Blawyer.B #oday, although any lawyers do not
engage in private practice, it is still a fact that the a1ority of lawyers are private
practitioners. (Gary Munne=e, #pportunities in Law Careers ?>GM areer
0orions *llinois@, ?$%&9@, p. $:).
At this point, it ight be helpful to define private practice . #he ter, as coonly
understood, eans Ban individual or organiation engaged in the business of

delivering legal services.B ("bid.). awyers who practice alone are often called
Bsole practitioners.B Groups of lawyers are called Bfirs.B #he fir is usually a
partnership and ebers of the fir are the partners. Soe firs ay be
organied as professional corporations and the ebers called shareholders. *n
either case, the ebers of the fir are the e"perienced attorneys. *n ost
firs, there are younger or ore ine"perienced salaried attorneyscalled
Bassociates.B ("bid.).
#he test that defines law practice by loo=ing to traditional areas of law practice is
essentially tautologous, unhelpful defining the practice of law as that which
lawyers do. (harles W. Wolfra, )odern Legal /thics ?West /ublishing o.
Minnesota, $%&9@, p. :%4). #he practice of law is defined as the perforance of
any acts . . . in or out of court, coonly understood to be the practice of law.
(&tate %ar Ass0n v. Connecticut %ank 1 Trust Co ., $: onn. 666, $; A.6d &94,
&'; ?$%:&@ ?3uoting 2rievance Co. v. Payne, $6& onn. 46:, 66 A.6d 964,
969 ?$%$@). 2ecause lawyers perfor alost every function =nown in the
coercial and governental real, such a definition would obviously be too
global to be wor=able.(Wolfra, op. cit.).
#he appearance of a lawyer in litigation in behalf of a client is at once the ost
publicly failiar role for lawyers as well as an uncoon role for the average
lawyer. Most lawyers spend little tie in courtroos, and a large percentage
spend their entire practice without litigating a case. ( "bid., p. :%4). 8onetheless,
any lawyers do continue to litigate and the litigating lawyer!s role colors uch of
both the public iage and the self perception of the legal profession. ( "bid.).
*n this regard thus, the doinance of litigation in the public ind reflects history,
not reality. ("bid.). Why is this so 5ecall that the late Ale"ander Syip, a
corporate lawyer, once articulated on the iportance of a lawyer as a business
counselor in this wise BEven today, there are still uninfored layen whose
concept of an attorney is one who principally tries cases before the courts. #he
ebers of the bench and bar and the infored layen such as businessen,
=now that in ost developed societies today, substantially ore legal wor= is
transacted in law offices than in the courtroos. General practitioners of law who
do both litigation and non-litigation wor= also =now that in ost cases they find
theselves spending ore tie doing what ?is@ loosely desccribe?d@ as business
counseling than in trying cases. #he business lawyer has been described as the
planner, the diagnostician and the trial lawyer, the surgeon. *?t@ need not ?be@
stress?ed@ that in law, as in edicine, surgery should be avoided where internal
edicine can be effective.B ( %usiness &tar, Borporate Cinance aw,B Jan. $$,
$%&%, p. ).
*n the course of a wor=ing day the average general practitioner wig engage in a
nuber of legal tas=s, each involving different legal doctrines, legal s=ills, legal
processes, legal institutions, clients, and other interested parties. Even the
increasing nubers of lawyers in specialied practice wig usually perfor at least
soe legal services outside their specialty. And even within a narrow specialty
such as ta" practice, a lawyer will shift fro one legal tas= or role such as advice-
giving to an iportantly different one such as representing a client before an
adinistrative agency. (Wolfra, supra, p. 9&').
2y no eans will ost of this wor= involve litigation, unless the lawyer is one of
the relatively rare types I a litigator who specialies in this wor= to the e"clusion
of uch else. *nstead, the wor= will re3uire the lawyer to have astered the full
range of traditional lawyer s=ills of client counselling, advice-giving, docuent
drafting, and negotiation. And increasingly lawyers find that the new s=ills of
evaluation and ediation are both effective for any clients and a source of
eployent. ("bid.).
Most lawyers will engage in non-litigation legal wor= or in litigation wor= that is
constrained in very iportant ways, at least theoretically, so as to reove fro it

soe of the salient features of adversarial litigation. 7f these special roles, the
ost proinent is that of prosecutor. *n soe lawyers! wor= the constraints are
iposed both by the nature of the client and by the way in which the lawyer is
organied into a social unit to perfor that wor=. #he ost coon of these
roles are those of corporate practice and governent legal service. ( "bid.).
*n several issues of the %usiness &tar, a business daily, herein below 3uoted are
eerging trends in corporate law practice, a departure fro the traditional

concept of practice of law.
We are e"periencing today what truly ay be called a revolutionary
transforation in corporate law practice. awyers and other professional groups,
in particular those ebers participating in various legal-policy decisional
conte"ts, are finding that understanding the a1or eerging trends in corporation
law is indispensable to intelligent decision-a=ing.
onstructive ad1ustent to a1or corporate probles of today re3uires an
accurate understanding of the nature and iplications of the corporate law
research function accopanied by an accelerating rate of inforation
accuulation. #he recognition of the need for such iproved corporate legal
policy forulation, particularly Bodel-a=ingB and Bcontingency planning,B has
ipressed upon us the inade3uacy of traditional procedures in any decisional
conte"ts.
*n a cople" legal proble the ass of inforation to be processed, the sorting
and weighing of significant conditional factors, the appraisal of a1or trends, the
necessity of estiating the conse3uences of given courses of action, and the
need for fast decision and response in situations of acute danger have propted
the use of sophisticated concepts of inforation flow theory, operational analysis,
autoatic data processing, and electronic coputing e3uipent.
nderstandably, an iproved decisional structure ust stress the predictive
coponent of the policy-a=ing process, wherein a BodelB, of the decisional
conte"t or a segent thereof is developed to test pro1ected alternative courses of
action in ters of futuristic effects flowing therefro.
Although ebers of the legal profession are regularly engaged in predicting

and pro1ecting the trends of the law, the sub1ect of corporate finance law has
received relatively little organied and foralied attention in the philosophy of
advancing corporate legal education. 8onetheless, a cross-disciplinary approach
to legal research has becoe a vital necessity.
ertainly, the general orientation for productive contributions by those trained
priarily in the law can be iproved through an early introduction to ulti-
variable decisional conte"t and the various approaches for handling such
probles. awyers, particularly with either a aster!s or doctorate degree in
business adinistration or anageent, functioning at the legal policy level of
decision-a=ing now have soe appreciation for the concepts and analytical
techni3ues of other professions which are currently engaged in siilar types of
cople" decision-a=ing.
#ruth to tell, any situations involving corporate finance probles would re3uire
the services of an astute attorney because of the cople" legal iplications that
arise fro each and every necessary step in securing and aintaining the
business issue raised. ( %usiness &tar, Borporate Cinance aw,B Jan. $$, $%&%,
p. ).
*n our litigation-prone country, a corporate lawyer is assiduously referred to as
the Babogado de capanilla.B 0e is the Bbig-tieB lawyer, earning big oney and
with a clientele coposed of the tycoons and agnates of business and industry.
Fespite the growing nuber of corporate lawyers, any people could not e"plain
what it is that a corporate lawyer does. Cor one, the nuber of attorneys
eployed by a single corporation will vary with the sie and type of the
corporation. Many saller and soe large corporations far out all their legal
probles to private law firs. Many others have in-house counsel only for certain
atters. 7ther corporation have a staff large enough to handle ost legal
probles in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal
affairs of a corporation. 0is areas of concern or 1urisdiction ay include, inter
alia corporate legal research, ta" laws research, acting out as corporate
secretary (in board eetings), appearances in both courts and other ad1udicatory
agencies (including the Securities and E"change oission), and in other
capacities which re3uire an ability to deal with the law.
At any rate, a corporate lawyer ay assue responsibilities other than the legal
affairs of the business of the corporation he is representing. These include such
atters as deterining policy and becoing involved in anageent.
( Ephasis supplied.)
*n a big copany, for e"aple, one ay have a feeling of being isolated fro the
action, or not understanding how one!s wor= actually fits into the wor= of the
orgarniation. #his can be frustrating to soeone who needs to see the results of
his wor= first hand. *n short, a corporate lawyer is soeties offered this fortune
to be ore closely involved in the running of the business.
Moreover, a corporate lawyer!s services ay soeties be engaged by a
ultinational corporation (M8). Soe large M8s 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 sall nuber of copanies
and law firs. 2ecause wor=ing in a foreign country is perceived by any as
glaorous, tills is an area coveted by corporate lawyers. *n ost cases, however,
the overseas 1obs go to e"perienced attorneys while the younger attorneys do
their Binternational practiceB in law libraries. ( %usiness &tar, Borporate aw
/ractice,B May 6:,$%%;, p. ).

#his brings us to the inevitable, i.e., the role of the lawyer in the real of finance.
#o borrow the lines of 0arvard-educated lawyer 2ruce Wassertein, to wit BA bad
lawyer is one who fails to spot probles, a good lawyer is one who perceives the
difficulties, and the e"cellent lawyer is one who surounts the.B ( %usiness &tar,
Borporate Cinance aw,B Jan. $$, $%&%, p. ).
#oday, the study of corporate law practice direly needs a Bshot in the ar,B so to
spea=. 8o longer are we tal=ing of the traditional law teaching ethod of
confining the sub1ect study to the orporation ode and the Securities ode but
an incursion as well into the intertwining odern anageent issues.
Such corporate legal anageent issues deal priarily with three (4) types of
learning ($) ac3uisition of insights into current advances which are of particular
significance to the corporate counsel< (6) an introduction to usable disciplinary
s=ins applicable to a corporate counsel!s anageent responsibilities< and (4) a
devotion to the organiation and anageent of the legal function itself.
#hese three sub1ect areas ay be thought of as intersecting circles, with a
shared area lin=ing the. 7therwise =nown as Bintersecting anagerial
1urisprudence,B it fors a unifying thee for the corporate counsel!s total
learning.
Soe current advances in behavior and policy sciences affect the counsel!s role.
Cor that atter, the corporate lawyer reviews the globaliation process, including
the resulting strategic repositioning that the firs he provides counsel for are
re3uired to a=e, and the need to thin= about a corporation!s< strategy at ultiple
levels. #he salience of the nation-state is being reduced as firs deal both with
global ultinational entities and siultaneously with sub-national governental
units. Cirs increasingly collaborate not only with public entities but with each
other I often with those who are copetitors in other arenas.
Also, the nature of the lawyer0s participation in decision3aking within the
corporation is rapidly changing. The ode corporate lawyer has gained a new
role as a stakeholder * in soe cases participating in the organi4ation and
operations of governance through participation on boards and other decision3
aking roles. 7ften these new patterns develop alongside e"isting legal
institutions and laws are perceived as barriers. #hese trends are coplicated as
corporations organie for global operations. ( Ephasis supplied)
The practising lawyer of today is failiar as well with governental policies
toward the prootion and anageent of technology. 5ew collaborative
arrangeents for prooting specific technologies or copetitiveness ore
generally re'uire approaches fro industry that differ fro older, ore
adversarial relationships and traditional fors of seeking to influence
governental policies. And there are lessons to be learned fro other countries.
*n Europe, /sprit, /ureka and Race are e"aples of collaborative efforts
between governental and business Japan!s )"T" is world faous. (Ephasis
supplied)
Collowing the concept of boundary spanning, the office of the orporate ounsel
coprises a distinct group within the anagerial structure of all =inds of
organiations. Effectiveness of both long-ter and teporary groups within
organiations has been found to be related to indentifiable factors in the group-
conte"t interaction such as the groups actively revising their =nowledge of the
environent coordinating wor= with outsiders, prooting tea achieveents
within the organiation. *n general, such e"ternal activities are better predictors of
tea perforance than internal group processes.
"n a crisis situation, the legal anagerial capabilities of the corporate lawyer vis3
a3vis the anagerial ettle of corporations are challenged . urrent research is
see=ing ways both to anticipate effective anagerial procedures and to
understand relationships of financial liability and insurance considerations.
(Ephasis supplied)
5egarding the s=ills to apply by the corporate counsel, three factors are apropos
6irst &yste Dynaics. #he field of systes dynaics has been found an
effective tool for new anagerial thin=ing regarding both planning and pressing
iediate probles. An understanding of the role of feedbac= loops, inventory
levels, and rates of flow, enable users to siulate all sorts of systeatic probles
I physical, econoic, anagerial, social, and psychological. 5ew prograing
techni'ues now ake the syste dynaics principles ore accessible to

anagers * including corporate counsels . (Ephasis supplied)
&econd Decision Analysis. This enables users to ake better decisions involving
cople7ity and uncertainty. "n the conte7t of a law departent, it can be used to
appraise the settleent value of litigation, aid in negotiation settleent, and
inii4e the cost and risk involved in anaging a portfolio of cases . (Ephasis
supplied)
Third )odeling for 5egotiation )anageent . oputer-based odels can be
used directly by parties and ediators in all lands of negotiations. All integrated
set of such tools provide coherent and effective negotiation support, including
hands-on on instruction in these techni3ues. A siulation case of an international
1oint venture ay be used to illustrate the point.

?2e this as it ay,@ the organiation and anageent of the legal function,
concern three pointed areas of consideration, thus
Preventive Lawyering. /lanning by lawyers re3uires special s=ills that coprise a
a1or part of the general counsel!s responsibilities. #hey differ fro those of
reedial law. /reventive lawyering is concerned with iniiing the ris=s of legal
trouble and a"iiing legal rights for such legal entities at that tie when
transactional or siilar facts are being considered and ade.

)anagerial $urisprudence. #his is the fraewor= within which are underta=en
those activities of the fir to which legal conse3uences attach. *t needs to be
directly supportive of this nation!s evolving econoic and organiational fabric as
firs change to stay copetitive in a global, interdependent environent. #he
practice and theory of BlawB is not ade3uate today to facilitate the relationships
needed in trying to a=e a global econoy wor=.
#rgani4ation and 6unctioning of the Corporate Counsel0s #ffice . #he general
counsel has eerged in the last decade as one of the ost vibrant subsets of the
legal profession. #he corporate counsel hear responsibility for =ey aspects of the
fir!s strategic issues, including structuring its global operations, anaging
iproved relationships with an increasingly diversified body of eployees,
anaging e"panded liability e"posure, creating new and varied interactions with
public decision-a=ers, coping internally with ore cople" a=e or by

decisions.
#his whole e"ercise drives hoe the thesis that =nowing corporate law is not
enough to a=e one a good general corporate counsel nor to give hi a full
sense of how the legal syste shapes corporate activities. And even if the
corporate lawyer!s ai is not the understand all of the law!s effects on corporate
activities, he ust, at the very least, also gain a wor=ing =nowledge of the
anageent issues if only to be able to grasp not only the basic legal
Bconstitution! or a=eup of the ode corporation. B%usiness &tarB, B#he
orporate ounsel,B April $;, $%%$, p. ).
#he challenge for lawyers (both of the bar and the bench) is to have ore than a
passing =nowledge of financial law affecting each aspect of their wor=. Het, any
would adit to ignorance of vast tracts of the financial law territory. What
transpires ne"t is a dilea of professional security Will the lawyer adit
ignorance and ris= opprobriu< or will he feign understanding and ris=
e"posure (%usiness &tar, Borporate Cinance law,B Jan. $$, $%&%, p. ).
5espondent hristian Monsod was noinated by /resident oraon . A3uino
to the position of hairan of the 7MEE in a letter received by the

Secretariat of the oission on Appointents on April 6:, $%%$. /etitioner
opposed the noination because allegedly Monsod does not possess the
re3uired 3ualification of having been engaged in the practice of law for at least
ten years.
7n June :, $%%$, the oission on Appointents confired the noination of
Monsod as hairan of the 7MEE. 7n June $&, $%%$, he too= his oath of
office. 7n the sae day, he assued office as hairan of the 7MEE.
hallenging the validity of the confiration by the oission on Appointents
of Monsod!s noination, petitioner as a citien and ta"payer, filed the instant
petition for certiorari and /rohibition praying that said confiration and the
conse3uent appointent of Monsod as hairan of the oission on
Elections be declared null and void.
Atty. hristian Monsod is a eber of the /hilippine 2ar, having passed the bar
e"ainations of $%9; with a grade of &9-::K. 0e has been a dues paying
eber of the *ntegrated 2ar of the /hilippines since its inception in $%'6-'4. 0e
has also been paying his professional license fees as lawyer for ore than ten
years. (p. $6, 5ollo)
After graduating fro the ollege of aw (./.) and having hurdled the bar, Atty.
)onsod worked in the law office of his father. Furing his stint in the World 2an=
Group ($%94-$%';), )onsod worked as an operations officer for about two years
in Costa Rica and Panaa, which involved getting ac'uainted with the laws of
eber3countries negotiating loans and coordinating legal, econoic, and
pro!ect work of the %ank. 8pon returning to the Philippines in 9:;<, he worked
with the )eralco 2roup, served as chief e7ecutive officer of an investent bank
and subse'uently of a business congloerate, and since 9:=>, has rendered
services to various copanies as a legal and econoic consultant or chief
e7ecutive officer. As forer &ecretary32eneral ?9:=>@ and 5ational Chairan
?9:=;@ of 5A)6R/L. )onsod0s work involved being knowledgeable in election
law. e appeared for 5A)6R/L in its accreditation hearings before the
Coelec. "n the field of advocacy, )onsod, in his personal capacity and as
forer Co3Chairan of the %ishops %usinessen0s Conference for uan

Developent, has worked with the under privileged sectors, such as the farer
and urban poor groups, in initiating, lobbying for and engaging in affirative
action for the agrarian refor law and lately the urban land refor bill. )onsod
also ade use of his legal knowledge as a eber of the Davide Coission, a
'uast !udicial body, which conducted nuerous hearings ?9::<@ and as a
eber of the Constitutional Coission ?9:=>39:=;@, and Chairan of its
Coittee on Accountability of Public #fficers, for which he was cited by the
President of the Coission, $ustice Cecilia )uBo43Pala for (innuerable
aendents to reconcile governent functions with individual freedos and
public accountability and the party3list syste for the ouse of Representative.
?pp. 9=39: Rollo@ ? /phasis supplied@
Just a word about the work of a negotiating tea of which Atty. Monsod used to
be a eber.
*n a loan agreeent, for instance, a negotiating panel acts as a tea, and which
is ade3uately constituted to eet the various contingencies that arise during a
negotiation. 2esides top officials of the 2orrower concerned, there are the legal
officer (such as the legal counsel), the finance anager, and an operations
officer (such as an official involved in negotiating the contracts ) who coprise the
ebers of the tea. (Guillero >. Soliven, Boan 8egotiating Strategies for
Feveloping ountry 2orrowers,B Staff /aper 8o. 6, entral 2an= of the
/hilippines, Manila, $%&6, p. $$). (Ephasis supplied)
After a fashion, the loan agreeent is li=e a country!s onstitution< it lays down
the law as far as the loan transaction is concerned. #hus, the eat of any oan
Agreeent can be copartentalied into five (:) fundaental parts ($)

business ters< (6) borrower!s representation< (4) conditions of closing< ()
covenants< and (:) events of default. ( "bid., p. $4).
*n the sae vein, lawyers play an iportant role in any debt restructuring
progra. Cor aside fro perforing the tas=s of legislative drafting and legal
advising, they score national developent policies as =ey factors in aintaining
their countries! sovereignty. (ondensed fro the wor= paper, entitled BWanted
Fevelopent awyers for Feveloping 8ations,B subitted by . Michael 0ager,

regional legal adviser of the nited States Agency for *nternational Fevelopent,
during the Session on aw for the Fevelopent of 8ations at the Abid1an World
onference in *vory oast, sponsored by the World /eace #hrough aw enter
on August 69-4$, $%'4). ( Ephasis supplied)
Loan concessions and coproises, perhaps even ore so than purely
renegotiation policies, deand e7pertise in the law of contracts, in legislation and
agreeent drafting and in renegotiation . 8ecessarily, a sovereign lawyer ay
wor= with an international business specialist or an econoist in the forulation
of a odel loan agreeent. Febt restructuring contract agreeents contain such
a i"ture of technical language that they should be carefully drafted and signed
only with the advise of copetent counsel in con1unction with the guidance of
ade3uate technical support personnel. ( &ee "nternational Law Aspects of the
Philippine /7ternal Debts, an unpublished dissertation, .S.#. Graduate School

of aw, $%&', p. 46$). ( Ephasis supplied)
A critical aspect of sovereign debt restructuringLcontract construction is the set of
ters and conditions which deterines the contractual reedies for a failure to
perfor one or ore eleents of the contract. A good agreeent ust not only
define the responsibilities of both parties, but ust also state the recourse open
to either party when the other fails to discharge an obligation. Cor a copleat
debt restructuring represents a devotion to that principle which in the ultiate
analysis is sine 'ua non for foreign loan agreeents-an adherence to the rule of
law in doestic and international affairs of whose =ind .S. Supree ourt
Justice 7liver Wendell 0oles, Jr. once said B#hey carry no banners, they beat
no drus< but where they are, en learn that bustle and bush are not the e3ual
of 3uiet genius and serene astery.B (See 5icardo J. 5oulo, B#he 5ole of
awyers in Coreign *nvestents,B *ntegrated 2ar of the /hilippine Journal, >ol.
$:, 8os. 4 and , #hird and Courth uarters, $%'', p. 69:).
"nterpreted in the light of the various definitions of the ter Practice of law(.
particularly the odern concept of law practice, and taking into consideration the
liberal construction intended by the fraers of the Constitution, Atty. )onsod0s
past work e7periences as a lawyer3econoist, a lawyer3anager, a lawyer3
entrepreneur of industry, a lawyer3negotiator of contracts, and a lawyer3legislator
of both the rich and the poor * verily ore than satisfy the constitutional
re'uireent * that he has been engaged in the practice of law for at least ten
years.
2esides in the leading case of Luego v. Civil &ervice Coission, $4 S5A
46', the ourt said
Appointent is an essentially discretionary power and ust be perfored by the

officer in which it is vested according to his best lights, the only condition being
that the appointee should possess the 3ualifications re3uired by law. *f he does,
then the appointent cannot be faulted on the ground that there are others better
3ualified who should have been preferred. This is a political 'uestion involving
considerations of wisdo which only the appointing authority can decide .
(ephasis supplied)
8o less ephatic was the ourt in the case of ( Central %ank v. Civil &ervice
Coission, $'$ S5A ') where it stated
*t is well-settled that when the appointee is 3ualified, as in this case, and all the
other legal re3uireents are satisfied, the oission has no alternative but to
attest to the appointent in accordance with the ivil Service aw. #he
oission has no authority to revo=e an appointent on the ground that
another person is ore 3ualified for a particular position. *t also has no authority
to direct the appointent of a substitute of its choice. #o do so would be an
encroachent on the discretion vested upon the appointing authority. An
appointent is essentially within the discretionary power of whosoever it is
vested, sub!ect to the only condition that the appointee should possess the
'ualifications re'uired by law. ( Ephasis supplied)
#he appointing process in a regular appointent as in the case at bar, consists of

four () stages ($) noination< (6) confiration by the oission on
Appointents< (4) issuance of a coission (in the /hilippines, upon subission
by the oission on Appointents of its certificate of confiration, the
/resident issues the peranent appointent< and () acceptance e.g., oath-
ta=ing, posting of bond, etc. . . . ( Lacson v. Roero , 8o. -4;&$, 7ctober $,
$%%< Gonales, aw on /ublic 7fficers, p. 6;;)
#he power of the oission on Appointents to give its consent to the
noination of Monsod as hairan of the oission on Elections is andated
by Section $(6) Sub-Article , Article *+ of the onstitution which provides
#he hairan and the oisioners shall be appointed by the /resident with
the consent of the oission on Appointents for a ter of seven years
without reappointent. 7f those first appointed, three Mebers shall hold office
for seven years, two Mebers for five years, and the last Mebers for three
years, without reappointent. Appointent to any vacancy shall be only for the
une"pired ter of the predecessor. *n no case shall any Meber be appointed or
designated in a teporary or acting capacity.
Anent Justice #eodoro /adilla!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 fro the odern concept of the practice of law, which
odern connotation is e7actly what was intended by the einent fraers of the
9:=; Constitution. Moreover, Justice /adilla!s definition would re3uire generally a
habitual law practice, perhaps practised two or three ties a wee= and would
outlaw say, law practice once or twice a year for ten consecutive years. learly,
this is far fro the constitutional intent.
pon the other hand, the separate opinion of Justice *sagani ru states that in
y written opinion, * ade use of a definition of law practice which really eans
nothing because the definition says that law practice B . . . is what people
ordinarily ean by the practice of law.B #rue * cited the definition but only by way
of sarcas as evident fro y stateent that the definition of law practice by
Btraditional areas of law practice is essentially tautologousB or defining a phrase

by eans of the phrase itself that is being defined.
Justice ru goes on to say in substance that since the law covers alost all
situations, ost individuals, in a=ing use of the law, or in advising others on
what the law eans, are actually practicing law. *n that sense, perhaps, but we
should not lose sight of the fact that Mr. Monsod is a lawyer, a eber of the
Philippine %ar, who has been practising law for over ten years. #his is different
fro the acts of persons practising law, without first becoing lawyers.
Justice ru also says that the Supree ourt can even dis3ualify an elected
/resident of the /hilippines, say, on the ground that he lac=s one or ore
3ualifications. #his atter, * greatly doubt. Cor one thing, how can an action or
petition be brought against the /resident And even assuing that he is indeed
dis3ualified, how can the action be entertained since he is the incubent
/resident
We now proceed
#he oission on the basis of evidence subitted doling the public hearings
on Monsod!s confiration, iplicitly deterined that he possessed the necessary
3ualifications as re3uired by law. #he 1udgent rendered by the oission in
the e"ercise of such an ac=nowledged power is beyond 1udicial interference
e"cept only upon a clear showing of a grave abuse of discretion aounting to
lac= or e"cess of 1urisdiction. (Art. >***, Sec. $ onstitution). #hus, only where
such grave abuse of discretion is clearly shown shall the ourt interfere with the
oission!s 1udgent. *n the instant case, there is no occasion for the e"ercise
of the ourt!s corrective power, since no abuse, uch less a grave abuse of
discretion, that would aount to lac= or e"cess of 1urisdiction and would warrant
the issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following
($) *f the oission on Appointents re!ects a noinee by the /resident, ay
the Supree ourt reverse the oission, and thus in effect confir the
appointent learly, the answer is in the negative.
(6) *n the sae vein, ay the ourt re!ect the noinee, who the oission
has confired #he answer is li=ewise clear.

(4) *f the nited States Senate (which is the confiring body in the .S.
ongress) decides to confira /residential noinee, it would be incredible that
the .S. Supree ourt would still reverse the .S. Senate.
Cinally, one significant legal a"i is
We ust interpret not by the letter that =illeth, but by the spirit that giveth life.
#a=e this hypothetical case of Sason and Felilah. 7nce, the procurator of
Judea as=ed Felilah (who was Sason!s beloved) for help in capturing Sason.
Felilah agreed on condition that I
8o blade shall touch his s=in<
8o blood shall flow fro his veins.
When Sason (his long hair cut by Felilah) was captured, the procurator placed
an iron rod burning white-hot two or three inches away fro in front of Sason!s
eyes. #his blinded the an. pon hearing of what had happened to her beloved,
Felilah was beside herself with anger, and fuing with righteous fury, accused
the procurator of reneging on his word. #he procurator cally replied BFid any
blade touch his s=in Fid any blood flow fro his veinsB #he procurator was
clearly relying on the letter, not the spirit of the agreeent.
*n view of the foregoing, this petition is hereby F*SM*SSEF.
S7 75FE5EF.
6ernan, C.$., 2riBo3A'uino and )edialdea, $$., concur.
6eliciano, $., " certify that he voted to disiss the petition. ?6ernan, C.$.@
&ariento, $., is on leave.

Regalado, and Davide, $r., $., took no part.

Dokumen - Tips Cayetano Vs Monsod GR No 100113 September 3 1991

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5/24/2018 Cayeta no vs. Monsod- G.R. No. 100113 Se pte mbe r 3, 1991 - slide pdf.

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

We are faced here with a controversy of far-reaching proportions. While

#here shall be an independent oission on Elections coposed of a

5egrettably, however, there sees to be no 1urisprudence as to what constitutes

practice of law # !aintaining an office where he is held out to e$an

/0, '1+ 2o. 0(

appearance before a 1udicial body, the foreclosure of a ortgage, enforceent of

Practice of law under ode conditions consists in no sall part of wor=

and drafting of instruents in his office. *t is of iportance to the welfare of the

The 3niversit# of the Philippines 4aw 5enter in conducting orientation

law in even roader ter!s as advocac#, counselling and pulic service .

#o avoid any isunderstanding which would result in e"cluding ebers of the

3ualifications as regards ebers of the /hilippine 2ar engaging in the practice

the practice of law.

practice of law for at least ten years. (ephasis supplied)

understood, eans Ban individual or organiation engaged in the business of

constrained in very iportant ways, at least theoretically, so as to reove fro it

eerging trends in corporate law practice, a departure fro the traditional

Although ebers of the legal profession are regularly engaged in predicting

/ractice,B May 6:,$%%;, p. ).

techni'ues now ake the syste dynaics principles ore accessible to

1oint venture ay be used to illustrate the point.

transactional or siilar facts are being considered and ade.

public decision-a=ers, coping internally with ore cople" a=e or by

5espondent hristian Monsod was noinated by /resident oraon . A3uino

to the position of hairan of the 7MEE in a letter received by the

forer Co3Chairan of the %ishops %usinessen0s Conference for uan

Agreeent can be copartentalied into five (:) fundaental parts ($)

Fevelopent awyers for Feveloping 8ations,B subitted by . Michael 0ager,

Philippine /7ternal Debts, an unpublished dissertation, .S.#. Graduate School

Appointent is an essentially discretionary power and ust be perfored by the

#he appointing process in a regular appointent as in the case at bar, consists of

this is far fro the constitutional intent.

Btraditional areas of law practice is essentially tautologousB or defining a phrase

has confired #he answer is li=ewise clear.

&ariento, $., is on leave.

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