THIRD DIVISION

VIRGINIA VILLAFLORES, A. C. No. 7504

Complainant, Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
- versus - NACHURA, and
REYES, JJ.

Promulgated:

ATTY. SINAMAR E. LIMOS, November 23, 2007

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

CHICO-NAZARIO, J.:

Before Us is a Complaint[1] for Disbarment filed by complainant Virginia

Villaflores against respondent Atty. Sinamar Limos, charging the latter with Gross
Negligence and Dereliction of Duty.
Complainant Virginia Villaflores is the defendant in Civil Case No. 1218-BG
entitled, Spouses Sanchez represented by Judith Medina vs. Spouses Villaflores,
filed before the Regional Trial Court (RTC) of Bauang, La Union, Branch 33.

Receiving an unfavorable judgment, complainant sought the help of the

Public Attorneys Office (PAO) to appeal her case to the Court of Appeals. The
PAO filed for her a Notice of Appeal with the RTC.

1
 On 1 September 2004, complainant received a copy of a Notice[2] from the
Court of Appeals requiring her to file her appellants brief within 45 days from
receipt thereof.

Immediately thereafter, complainant approached respondent, who had

previously handled her sons case, to file on her behalf the required appellants
brief. Since respondent agreed to handle the appeal, complainant handed to
respondent on 8 September 2004 the amount of P10,000.00 as partial payment of
the latters acceptance fee of P20,000.00, together with the entire records of the
case. The following day, on 9 September 2004, complainant paid the balance of
respondents acceptance fee in the amount of P10,000.00. These payments were
duly receipted and acknowledged[3] by the respondent.

On 21 September 2004, an Employment Contract[4] was executed between

complainant and respondent whereby the former formally engaged the latters
professional services. Upon the execution of said contract, complainant again paid
the respondent the amount of P2,000.00 for miscellaneous expenses.[5]

On 14 January 2005, complainant received a copy of a Resolution [6] dated 6

January 2005 issued by the Court of Appeals dismissing her appeal for failure to
file her appellants brief within the reglementary period. Thus, on 17 January 2005,
complainant went to respondents office but failed to see respondent.

After several unsuccessful attempts to talk to the respondent, complainant

went to Manila on 18 January 2005 to seek help from another lawyer who agreed
to handle the case for her. On 19 January 2005, complainant went back to the
respondents office to retrieve the records of her case. Respondent allegedly refused
to talk to her.

Aggrieved by respondents actuations, complainant filed the instant

administrative complaint against respondent.

In her Answer,[7] respondent admitted her issuance of the acknowledgment

receipts for the aggregate amount of P22,000.00, the execution of the Employment
Contract between her and complainant, and the issuance by the Court of Appeals of
the Notice to File Appellants Brief and Resolution dated 6 January 2005. She,
2
however, denied all other allegations imputed against her. Respondent argued that
the non-filing of the appellants brief could be attributed to the fault of the
complainant who failed to inform her of the exact date of receipt of the Notice to
File Appellants Brief from which she could reckon the 45-day period to file the
same. Complainant allegedly agreed to return to respondent once she had
ascertained the actual date of receipt of said Notice, but she never
did. Complainant supposedly also agreed that in the event she could not give the
exact date of receipt of the Notice, respondent would just wait for a new Order or
Resolution from the Court of Appeals before she would file the appropriate
pleading. Respondent further contended that she had, in fact, already made
preliminary study and initial research of complainants case.

Pursuant to the complaint, a hearing was conducted by the Commission on

Bar Discipline of the Integrated Bar of the Philippines (IBP) at
the IBP Building, Ortigas Center, Pasig City, on 17 June 2005.

On 11 April 2006, Investigating Commissioner Acerey C. Pacheco submitted

his Report and Recommendation,[8] finding respondent liable for gross negligence
and recommending the imposition upon her of the penalty of one year suspension,
to wit:
WHEREFORE, it is respectfully recommended that herein
respondent be declared guilty of gross negligence in failing to file the
required appellants brief for which act she should be suspended from the
practice of law for a period of one (1) year. Also, it is recommended that
the respondent be ordered to return the amount of P22,000.00 that she
received from the complainant.

Thereafter, the IBP Board of Governors passed Resolution[9] No. XVII-2006-

584 dated 15 December 2006, approving with modification the recommendation of
the Investigating Commissioner, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED, with modification, the Report and Recommendation of
the Investigating Commissioner of the above-entitled case, herein made
part of this Resolution as Annex A; and, finding the recommendation
fully supported by the evidence on record and the applicable laws and

3
 rules, and considering Respondents gross negligence in failing to file the
required appellants brief, Atty. Sinamar E. Limos is hereby
SUSPENDED from the practice of law for three (3) months with
Warning that a repetition of similar conduct will be dealt with more
severely and ORDERED TO RETURN the amount of P22,000.00 she
received from complainant.

The core issue in this administrative case is whether the respondent

committed culpable negligence in handling complainants case as would warrant
disciplinary action.

After a careful review of the records and evidence, we find no cogent reason
to deviate from the findings and the recommendation of the IBP Board of
Governors and, thus, sustain the same. Respondents conduct in failing to file the
appellants brief for complainant before the Court of Appeals falls below the
standards exacted upon lawyers on dedication and commitment to their clients
cause.

The relation of attorney and client begins from the time an attorney is retained.
[10]
To establish the professional relation, it is sufficient that the advice and
assistance of an attorney are sought and received in any manner pertinent to his
profession.[11]

It must be noted that as early as 8 September 2004, respondent already

agreed to take on complainants case, receiving from the latter partial payment of
her acceptance fee and the entire records of complainants case. The very next
day, 9 September 2004, complainant paid the balance of respondents acceptance
fee. Respondent admitted her receipt of P20,000.00 as acceptance fee for the legal
services she is to render to complainant and P2,000.00 for the miscellaneous
expenses she is to incur in handling the case, and the subsequent execution of the
employment contract between her and complainant. Hence, it can be said that as
early as 8 September 2004, respondents rendition of legal services to complainant
had commenced, and from then on, she should start protecting the complainants
interests. The employment contract between respondent and complainant already
existed as of 8 September 2004, although it was only reduced into writing on 21
September 2004. In short, respondents acceptance of the payment for her
4
professional fees and miscellaneous expenses, together with the records of the
case, effectively bars her from disclaiming the existence of an attorney-client
relationship between her and complainant.

No lawyer is obliged to advocate for every person who may wish to become
his client, but once he agrees to take up the cause of a client, the lawyer owes
fidelity to such cause and must be mindful of the trust and confidence reposed in
him.[12] Among the fundamental rules of ethics is the principle that an attorney who
undertakes an action impliedly stipulates to carry it to its termination, that is, until
the case becomes final and executory.

As ruled in Rabanal v. Tugade[13]:

Once he agrees to take up the cause of a client, the lawyer owes

fidelity to such cause and must always be mindful of the trust and
confidence reposed in him. He must serve the client with competence
and diligence, and champion the latters cause with wholehearted fidelity,
care, and devotion. Elsewise stated, he owes entire devotion to the
interest of the client, warm zeal in the maintenance and defense of his
clients rights, and the exertion of his utmost learning and ability to the
end that nothing be taken or withheld from his client, save by the rules of
law, legally applied. This simply means that his client is entitled to the
benefit of any and every remedy and defense that is authorized by the
law of the land and he may expect his lawyer to assert every such
remedy or defense. If much is demanded from an attorney, it is because
the entrusted privilege to practice law carries with it the correlative
duties not only to the client but also to the court, to the bar, and to the
public. A lawyer who performs his duty with diligence and candor not
only protects the interest of his client; he also serves the ends of justice,
does honor to the bar, and helps maintain the respect of the community
to the legal profession.

Respondents defense that complainant failed to inform her of the exact date
when to reckon the 45 days within which to file the appellants brief does not
inspire belief or, at the very least, justify such failure. If anything, it only shows
respondents cavalier attitude towards her clients cause.

5
 A case in point is Canoy v. Ortiz,[14] where the Court ruled that the lawyers
failure to file the position paper was per se a violation of Rule 18.03 of the
Code. There, the Court ruled that the lawyer could not shift the blame to his client
for failing to follow up his case because it was the lawyers duty to inform his client
of the status of cases.

Respondent cannot justify her failure to help complainant by stating that

after receipt of part of the acceptance fee, she did not hear anymore from
complainant.The persistence displayed by the complainant in prosecuting this
complaint belies her lack of enthusiasm in fighting for her rights, as alleged by
respondent.

This Court has emphatically ruled that the trust and confidence necessarily
reposed by clients requires in the attorney a high standard and appreciation of his
duty to his clients, his profession, the courts and the public. Every case a lawyer
accepts deserves his full attention, diligence, skill and competence, regardless of its
importance and whether he accepts it for a fee or for free. Certainly, a member of
the Bar who is worth his title cannot afford to practice the profession in a
lackadaisical fashion. A lawyers lethargy from the perspective of the Canons is
both unprofessional and unethical.[15]

A lawyer should serve his client in a conscientious, diligent and efficient

manner; and he should provide a quality of service at least equal to that which
lawyers generally would expect of a competent lawyer in a like situation. By
agreeing to be his clients counsel, he represents that he will exercise ordinary
diligence or that reasonable degree of care and skill having reference to the
character of the business he undertakes to do, to protect the clients interests and
take all steps or do all acts necessary therefor, and his client may reasonably expect
him to discharge his obligations diligently.[16]

Respondent has obviously failed to measure up to the foregoing standards.

It may be true that the complainant shares the responsibility for the lack of
communication between her and respondent, her counsel. Respondent, however,
should not have depended entirely on the information her client gave or at the time
6
the latter wished to give it. Respondent, being the counsel, more than her client,
should appreciate the importance of complying with the reglementary period for
the filing of pleadings and know the best means to acquire the information
sought.Had she made the necessary inquiries, respondent would have known the
reckoning date for the period to file appellants brief with the Court of Appeals. As
a lawyer representing the cause of her client, she should have taken more control
over her clients case.

Respondents dismal failure to comply with her undertaking is likewise

evident from the fact that up until 19 January 2005, when complainant retrieved
the entire records of her case, and more than four months from the time her
services were engaged by complainant, respondent still had not prepared the
appellants brief.

Rule 18.03 of the Code of Professional Responsibility for Lawyers states:

A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.

In this case, by reason of respondents negligence, the complainant suffered

actual loss. Complainant faced the risk of losing entirely her right to appeal and
had to engage the services of another lawyer to protect such a right.

This Court will not countenance respondents failure to observe the

reglementary period to file the appellants brief. Counsels are sworn to protect the
interests of their clients and in the process, should be knowlegeable about the rules
of procedure to avoid prejudicing the interests of their clients or worse,
compromising the integrity of the courts. Ignorance of the procedural rules on their
part is tantamount to inexcusable negligence.[17] However, the matter before us
does not even call for counsels knowledge of procedural rules, but merely her
managerial skills in keeping track of deadlines for filing necessary pleadings,
having difficulty with which, she could have always opted to timely withdraw from
the case in order not to prejudice further her clients interest.

7
 The failure of respondent to file the appellants brief for complainant within
the reglementary period constitutes gross negligence in violation of the Code of
Professional Responsibility. In Perla Compania de Seguros, Inc. v. Saquilabon,
[18]
this Court held:

An attorney is bound to protect his clients interest to the best of his

ability and with utmost diligence. (Del Rosario v. Court of Appeals, 114
SCRA 159) A failure to file brief for his client certainly constitutes
inexcusable negligence on his part. (People v. Villar, 46 SCRA 107) The
respondent has indeed committed a serious lapse in the duty owed by
him to his client as well as to the Court not to delay litigation and to aid
in the speedy administration of justice. (People v. Daban, 43 SCRA 185;
People v. Estocada, 43 SCRA 515).

All told, we rule and so hold that on account of respondents failure to protect
the interest of complainant, respondent indeed violated Rule 18.03, Canon 18 of
the Code of Professional Responsibility. Respondent is reminded that the practice
of law is a special privilege bestowed only upon those who are competent
intellectually, academically and morally. This Court has been exacting in its
expectations for the members of the Bar to always uphold the integrity and dignity
of the legal profession and refrain from any act or omission which might lessen the
trust and confidence of the public.
In People v. Cawili,[19] we held that the failure of counsel to submit the brief
within the reglementary period is an offense that entails disciplinary
action. People v. Villar, Jr.[20] characterized a lawyers failure to file a brief for his
client as inexcusable neglect. In Blaza v. Court of Appeals,[21] we held that the
filing of a brief within the period set by law is a duty not only to the client, but also
to the court. Perla Compania de Seguros, Inc. v. Saquilabon [22] reiterated Ford v.
Daitol[23] and In re: Santiago F. Marcos[24] in holding that an attorneys failure to file
a brief for his client constitutes inexcusable negligence.

In cases involving a lawyers failure to file a brief or other pleadings before

an appellate court, we did not hesitate to suspend the erring member of the Bar
from the practice of law for three months, [25] six months,[26] or even disbarment in
severely aggravated cases.[27]

8
 WHEREFORE, the resolution of the IBP Board of Governors approving
and adopting the report and recommendation of the Investigating Commissioner is
hereby AFFIRMED. Accordingly, respondent ATTY. SINAMAR E. LIMOS is
hereby SUSPENDED from the practice of law for a period of THREE (3)
MONTHS, with a stern warning that a repetition of the same or similar
wrongdoing will be dealt with more severely. Furthermore, respondent is
hereby ORDEREDto return the amount of Twenty-Two Thousand Pesos
(P22,000.00), which she received from complainant Virginia Villaflores.

Let a copy of this decision be attached to respondents personal record with

the Office of the Bar Confidant and copies be furnished to all chapters of the
Integrated Bar of the Philippines and to all courts of the land.

SO ORDERED.

9
 EN BANC

MELVIN D. SMALL, A.C. No. 7021

Complainant,

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,
CARPIO,

- versus - AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA,

VELASCO, JR., and

NACHURA, JJ.

ATTY. JERRY BANARES, Promulgated:

Respondent. February 21, 2007

10
x------------------------------------------
- - - - - - - - -x

DECISION
CARPIO, J.:

The Case

This is a complaint for disbarment filed by Melvin D. Small

(complainant) against Atty. Jerry Banares[1] (respondent) for failure
to render legal services and to return the money received for his
legal services.

The Facts

On 30 August 2001, complainant engaged the services of

respondent in connection with several complaints to be filed
against one Lyneth Amar (Amar). Complainant paid
respondent P20,000 as acceptance fee. [2]

On 4 September 2001, complainant gave respondent P60,000 as

filing fees for the cases against Amar.[3] Respondent then wrote a
demand letter for Amar and talked to Amar on the
phone. Respondent also informed complainant that he
would be preparing the documents for the cases. Complainant
consistently communicated with respondent regarding the status

11
of the cases. But respondent repeatedly told complainant to wait
as respondent was still preparing the documents.

On 5 January 2002, complainant required respondent to present

all the documents respondent had prepared for the cases
against Amar. Respondent was not able to present any
document. This prompted complainant to demand for a full refund
of the fees he had paid respondent. [4] Complainant even hired the
services of Atty. Rizalino Simbillo to recover the money from
respondent. But respondent failed to return the money. Hence,
complainant filed a case for disbarment before the Integrated Bar
of the Philippines (IBP) against respondent.

On 15 October 2004, IBP Director for Bar Discipline Rogelio

A. Vinluan ordered respondent to submit his answer to the
complaint. Respondent did not file an answer despite receipt of
the order.

On 21 January 2005, IBP Investigating Commissioner Wilfredo E.J.E.

Reyes (IBP Commissioner Reyes) notified the parties to appear
before him for a mandatory conference on 3 March 2005. Only
complainant appeared at the conference. As there was no proof
that respondent received the notice, IBP Commissioner Reyes
reset the mandatory conference to 30 March 2005 and, later, to
14 April 2005. Respondent was warned that, if he fails to appear
at the conference, the case will be considered submitted for
resolution.

12
On the 14 April 2005 conference, only complainant appeared
despite respondents receipt of the notice. The Commission on Bar
Discipline considered the case submitted for resolution.

The IBPs Report and Recommendation

On 14 July 2005, IBP Commissioner Reyes submitted his Report

and Recommendation (Report) with the finding that respondent
failed to render any legal service to complainant despite having
been paid for his services. The Report considered complainants
evidence sufficient to find respondent guilty of violating Canons
16,[5] 18,[6] and 19[7] of the Code of Professional Responsibility
(Code). IBP Commissioner Reyes recommended the imposition on
respondent of a penalty of suspension from the practice of law for
two years and that respondent be ordered to return
complainants P80,000.

In a Resolution dated 12 November 2005, the IBP Board of

Governors adopted and approved the Report. The IBP Board of
Governors forwarded the instant case to the Court as provided
under Section 12(b), Rule 139-B[8] of the Rules of Court.

The Courts Ruling

We sustain the findings and recommendation of the IBP.

13
The Code provides that a lawyer shall serve his client with
competence and diligence.[9] The Code states that a lawyer shall
keep the client informed of the status of his case and shall
respond within a reasonable time to the clients request for
information.[10]

The records show that after receiving P80,000 respondent was

never heard from again. Respondent failed to give complainant an
update on the status of the cases.Moreover, it appears that
respondent failed to file the appropriate cases
against Amar. Respondents failure to communicate with
complainant was an unjustified denial of complainants right to be
fully informed of the status of the cases. When respondent agreed
to be complainants counsel, respondent undertook to take all the
necessary steps to safeguard complainants interests. [11] By his
inaction, respondent disregarded his duties as a lawyer.

The Code also mandates that every lawyer shall hold in trust all
moneys of his client that may come into his possession.
[12]
Furthermore, a lawyer shall account for all money received
from the client and shall deliver the funds of the client upon
demand.[13]

In Meneses v. Macalino,[14] the Court ruled that:

When a lawyer receives money from the client for a

particular purpose, the lawyer is bound to render an
accounting to the client showing that the money was
spent for the intended purpose. Consequently, if the
lawyer does not use the money for the intended purpose,

14
 the lawyer must immediately return the money to the
client.[15]

Respondent specifically received P80,000 for his legal services

and the filing fees for the cases against Amar. Since respondent
failed to render any legal service to complainant and he failed to
file a case against Amar, respondent should have promptly
accounted for and returned the money to complainant. But even
after demand, respondent did not return the money. Respondents
failure to return the money to complainant upon demand is a
violation of the trust reposed on him and is indicative of his lack
of integrity.[16]

Moreover, respondents misconduct is aggravated by his failure to

file an answer to the complaint and his refusal to appear at the
mandatory conference. The IBP rescheduled the mandatory
conference twice to give respondent a chance to answer the
complaint. Still, respondent failed to appear, exhibiting his lack of
respect for the IBP and its proceedings.[17]

The relation of attorney and client is highly fiduciary, requiring

utmost good faith, loyalty, and fidelity on the part of the
attorney. In this case, respondent clearly fell short of the demands
required of him as a member of the Bar.

WHEREFORE, we find respondent Atty. Jerry Banares GUILTY of

violating Canons 16 and 18 and Rules 16.01, 16.03, and 18.04 of
the Code of Professional Responsibility. Accordingly,
we SUSPEND respondent from the practice of law for two years

15
effective upon finality of this Decision. We ORDER respondent
to RETURN, within 30 days from notice of this decision,
complainants P80,000, with interest at 12% per annum from the
date of promulgation of this decision until full
payment. We DIRECT respondent to submit to the Court proof of
payment within fifteen days from payment of the full amount.

Let copies of this decision be furnished the Office of the Bar

Confidant, to be appended to respondents personal record as
attorney. Likewise, copies shall be furnished to the Integrated Bar
of the Philippines and all courts in the country for their
information and guidance.

SO ORDERED.

16
 SECOND DIVISION

[G.R. No. 101374. July 30, 1993.]

FORTUNE LIFE AND GENERAL INSURANCE CO.,

INC., Petitioners, v. THE COURT OF APPEALS and DELSAN
TRANSPORT LINES, INC., Respondents.

Raymundo A. Armovit for Petitioner.

Sycip, Salazar, Hernandez & Gatmaitan for Private

Respondent.

SYLLABUS

1. REMEDIAL LAW; APPEALS; INSTANCES WHEN THE TRIAL

COURT MAY EXERCISE "RESIDUAL" JURISDICTION AFTER
PERFECTION OF APPEAL; NOT APPLICABLE IN CASE AT BAR.
There is no controversy that the appeal of petitioner has been
perfected. As a necessary consequence thereof, the trial court
was divested or jurisdiction over the case. Section 9, Rule 41 of
the Rules of Court mentions three (3) instances when the trial
court is allowed to exercise "residual" jurisdiction after the
perfection of the appeal, namely: (1) to issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal; (2) to approve
compromises offered by the parties prior to the transmittal of the
record on appeal to the appellate court; and (3) to permit the
prosecution of paupers appeals. Petitioner relies on the first
instance as basis for its stand that the trial court has the
authority to hear its application for damages. Its reliance thereon
is misplaced. Although the application for damages is beyond the
scope of the matter to be litigated by the appeal, there is no
"protection and preservation" of its "rights" to speak of.
Respondent court was emphatic in its disquisition on this subject
matter: "The private respondents application for damages being

17
heard by the respondent court may not be considered an
exception to Section 9 of Rule 41 of the Rules of Court. The
provision speaks of protection and preservation of the rights of
the parties which do not involve any matter litigated by the
appeal. The action for damages, in fact, and in actuality,
however, is an act of vindication, is punitive in nature and not an
act to protect and preserve, but to punish and make one party,
the petitioner, to pay damages for having availed of a writ of
execution pending appeal . . .." . . "It is, moreover, clear that the
pursuit of damages against the bond posted by the petitioner in
this case, is a futile undertaking for by its express language,
approved by the respondent court, the bond may only be
answerable in damages where two conditions concur: one, that
judgment has, in fact, been rendered on appeal, and second, that
the judgment appealed from has been reversed on appeal. The
very proceedings before the respondent court, now sought to be
struck down, are the very reason preventing the realization of
these conditions." Thus, the trial court had no more jurisdiction to
issue the disputed orders inasmuch as the case had already come
under the exclusive appellate jurisdiction of the respondent court.

2. ID.; ID.; ID.; DOCTRINE OF ESTOPPEL; NOT APPRECIATED IN

CASE AT BAR. Nor are we inclined to sanction the application of
the doctrine of estoppel by laches to the prejudice of
private Respondent. This doctrine is an equitable principle applied
to promote but never to defeat justice. It should be noted that
private respondent opposed petitioners application for damages
by citing Section 5, Rule 39 of the Rules of Court and, in effect,
questioning the trial courts jurisdiction thereon. Additionally,
private respondent set up the defense of lack of jurisdiction, in its
motion for reconsideration dated March 5, 1990. There was no
unreasonable delay by private respondent in assailing the
jurisdiction of the trial court. Adherence to our exceptional ruling
in Tijam v. Sibonghanoy and other cases is unwarranted. Instead,
we uphold the fundamental rule that a court of justice could only
validly act upon a cause of action or subject matter of a case over
which it has jurisdiction and said jurisdiction is one conferred by
law; and cannot be acquired through, or waived by any act or
18
omission of the parties. [Dy, Et Al., v. NLRC, Et Al., G.R. No.
68544, 145 SCRA 211 (1986) citing Lagman v. Court of Appeals,
44 SCRA 234].

DECISION

NOCON, J.:

This is a petition for review on certiorari seeking reversal of the

decision of public respondent Court of Appeals, dated February 7,
1991, in CA-G.R. SP No. 21046; and its resolution dated August
12, 1991. 1

The antecedent facts, briefly stated, are as follows:chanrob1es

virtual 1aw library

In Civil Case No. 85-29991, entitled "Delsan Transport Lines, Inc.

v. Fortune Life and General Insurance Company, Inc.," the
Regional Trial Court of Manila rendered judgment dated
November 21, 1985, in favor of plaintiff, the dispositive portion of
which reads:jgc:chanrobles.com.ph

"FOR ALL THE FOREGOING CONSIDERATIONS, the Court orders

the defendant (Fortune Life) to:chanrob1es virtual 1aw library

1. Pay plaintiff (Delsan) the amount of P1,952,302.00 with

double the ceiling as that prescribed by the Monetary Board after
thirty (30) days from submission of proof of loss to defendant;

2. Pay plaintiff (Delsan) the sum of P50,000.00 as and for

exemplary damages;

3. Pay plaintiff (Delsan) the amount of P50,000.00 as and for

attorneys fees; and

19
4. The cost of suit.

"SO ORDERED." 2

On December 11, 1985, private respondent Delsan Transport

Lines, Inc. filed a motion for execution pending appeal. It invoked
as "good reason" petitioners alleged fraud and deceit in not
informing the former of the latters change in corporate name. Its
motion was supported by a bond which states, in relevant
portion:jgc:chanrobles.com.ph

"NOW THEREFORE, we DELSAN TRANSPORT LINES, INC. as

Principal and FIRST INTEGRATED BONDING AND INSURANCE CO.
INC., a corporation duly organized and existing under the (sic)
virtue of the laws of the Philippines with, principal office at 7th
Floor, Victoria Building, U.N. Avenue, Ermita, Manila, Philippines,
as Surely, hereby jointly and severally bind ourselves in the sum
of PESOS, FIVE HUNDRED THOUSAND (P500,000.00) only,
Philippine Currency, in favor of the appellant in the event the
judgment in the case is reversed by the Appellate Court." 3

The motion was opposed by petitioner. While the motion was

pending, or on December 20, 1985, petitioner filed its notice of
appeal.

On January 2, 1986, the trial court issued a writ of execution

pending appeal. Petitioner filed a motion for reconsideration but
this was denied. The Sheriff garnished its bank deposit and levied
upon its properties. Petitioner then filed a petition
for certiorari before the Court of Appeals. The trial courts order
granting the writ of execution pending appeal was set aside on
the ground that, inter alia, the alleged "good reason" of private
respondent was insufficient to justify the issuance of said writ.
This Court affirmed the action of the Court of Appeals in G.R. No.
75461.

On August 16, 1986, petitioner filed before the trial court an

application for damages against the bond and
20
private Respondent. This was opposed by private respondent,
citing Section 5, Rule 39 of the Rules of Court which
provides:jgc:chanrobles.com.ph

"SEC. 5. Effect of reversal of executed judgment. Where the

judgment executed is reversed totally or partially on appeal, on
trial court, on motion, after the case is remanded to it, may issue
such orders of restitutions as equity and justice may warrant
under the circumstances."cralaw virtua1aw library

On August 11, 1988, the trial court issued an order which, in

part, reads:jgc:chanrobles.com.ph

"Factual background of the case which gave rise to this

application for damages, show that a decision was rendered by
the Court against the herein defendant and on December 20,
1985, the latter filed its Notice of appeal; a motion for execution
pending appeal was filed by the plaintiff and on December 11,
1985, the plaintiff offered to post a bond in support of its motion
for execution pending appeal, conditioned to answer for any
damages which the defendant may suffer by reason of the
execution . . .; that on the basis of the said offer, the Court
granted execution pending appeal in its Order of January 2, 1986,
fixing the amount of the bond at P500,000.00; on March 31,
1986 the plaintiff filed a surety bond which, however, is different
in tenor and condition from what the plaintiff offered. The Court,
laboring under the terms of plaintiffs motion, issued a writ of
execution pending appeal. The said variance in the conditions
between the bond offered to be filed and that which was actually
filed remains unexplained, in fact they discovered said variance
only after this application was filed. The Court needs to receive
evidence to enable it to resolve the issue whether or not such
bond filed should answer for any damages sustained, and if in the
affirmative, the extent of such damages. The resolution of the
said application for damages at this stage will facilitate the
conclusion of the entire case for all parties, in that any appeal will
comprehend in a single instance the incident at bar along with the
main case, which also will be economical in money and time for
21
the parties and the courts as well.

"The Court therefore resolves to receive evidence against the

plaintiff and the First Integrated Bonding Co., Inc., on the
application for damages." 4

The trial court then proceeded to receive petitioners evidence,

having issued an order on December 18, 1989, ruling that private
respondent had waived its right to cross-examine petitioners
witness. Private respondent filed a motion for reconsideration
which was denied on February 6, 1990.

On March 5, 1990, private respondent filed another motion for

reconsideration assailing the trial courts jurisdiction in issuing the
orders dated August 11, 1988, December 18, 1989 and February
6, 1990. It prayed that the records of the case be elevated
immediately to the appellate court pursuant to the notice of
appeal which was filed by petitioner.

On May 15, 1990, the trial court denied private respondents

motion, based on the following:jgc:chanrobles.com.ph

"Submitted for the Courts resolution, is a Motion for

Reconsideration dated March 5, 1990 filed by plaintiff alleging
that appeal having been perfected, this Court has already lost
jurisdiction to entertain defendants Application for Damages filed
on August 16, 1986, so that all orders of this Court relative to
said application, more particularly the orders dated August 11,
1988, December 18, 1989 and February 6, 1990 should be set
aside as null and void.

"Defendant, in its Comment/Opposition to Motion for

Reconsideration on March 26, 1990, argues that the rule that
once the appeal is perfected the Trial Court loses its jurisdiction
only comprehends matters subject of the appeal and not those
purely collateral or supplemental, and lying outside the issues
framed in the appeal. Defendant also invokes the rule that
damages enforceable against a bond, supporting a provisional
22
relief dissolved because improvidently issued, must be proved
before judgment in the main case becomes final, or the same will
be barred.

"The Court agrees with the defendants statement on what the

rule is in (sic) respect to proceedings to claim damages on a
bond. More appropriately since the records of the case are still
with the Court and have not been elevated to the Court of
Appeals.

"The Supreme Court has already ruled with finality on the

impropriety of the levy of execution pending appeal on
defendants properties. This Court as far back as its order of
September 9, 1988 had already declared that the resolution of
the said application for damages will facilitate the conclusion of
the entire case for all parties any appeal will encompass the
main case as well as the present incident to pave the way for a
single decision of all litigated issues. The former counsel and all
the parties have even agreed to this procedure for reasons above
stated. This is in accord with law and jurisdiction, not to mention
sound procedural policy." 5

Thereafter, private respondent filed a petition for certiorari,

prohibition and mandamus before public respondent Court of
Appeals seeking to annul the August 11, 1988, December 18,
1989, February 6, 1990 and May 15, 1990 orders of the trial
court; to prohibit the trial court from conducting further
proceedings; and to compel the trial court to forward the records
of the case to the appellate court since it has lost jurisdiction over
the case in view of the appeal of petitioner.

On February 7, 1991, respondent court ruled in favor of

private Respondent. The dispositive portion of its decision
reads:jgc:chanrobles.com.ph

"WHEREFORE, the writs prayed for are hereby granted, and the
orders of August 11, 1988, December 18, 1989, February 16
(sic), 1990 and May 15, 1990 are hereby annulled and set aside.
23
The respondent court is ordered to desist from further
proceedings in Civil Case No. 85-29991, and ordered to elevate
immediately to this Court the records of the said case. No costs.

"SO ORDERED." 6

For lack of merit, the motion for reconsideration was denied in its
resolution dated August 12, 1991. 7

Hence, the present petition for review on certiorari.

The sole issue raised herein is: upon perfection of petitioners

appeal of the trial courts decision, does said court retain
jurisdiction to hear the application for damages against the bond
that was posted in support of private respondents motion for
execution pending appeal?

Petitioner insists that even upon perfection of its appeal from the
decision on the merits, the trial court retains jurisdiction to hear
its application for damages. The general rule is, petitioner states,
once the appeal from a trial court judgment has been perfected
said court loses jurisdiction over the case. By way of exception, it
retains jurisdiction, inter alia, to issue orders for the protection
and preservation of the rights of the parties which do not involve
any matter litigated by the appeal. Under the facts of this case,
upon perfection of the appeal to respondent court, the trial court
lost its jurisdiction over the case only insofar as the subject
matter of the appeal is concerned but not the right of petitioner
to recover damages against the bond. The cause of action in the
first is the occurrence of the risk insured under the marine policy
whereas in the second, it is the breach of the condition in the
bond, to wit: "to answer for any damages which the defendant
may suffer by reason of the execution." Granting arguendo that
the trial court lacked jurisdiction to entertain the claim for
damages, private respondent is estopped by laches from raising
the same.

The decision and resolution of respondent court, which petitioner

24
asks this Court to set aside, deserve our affirmance.

There is no controversy that the appeal of petitioner has been

perfected. As a necessary consequence thereof, the trial court
was divested or jurisdiction over the case. 8 Section 9, Rule 41 of
the Rules of Court mentions three (3) instances when the trial
court is allowed to exercise "residual" jurisdiction after the
perfection of the appeal, namely: (1) to issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal; (2) to approve
compromises offered by the parties prior to the transmittal of the
record on appeal to the appellate court; and (3) to permit the
prosecution of paupers appeals. Petitioner relies on the first
instance as basis for its stand that the trial court has the
authority to hear its application for damages. Its reliance thereon
is misplaced. Although the application for damages is beyond the
scope of the matter to be litigated by the appeal, there is no
"protection and preservation" of its "rights" to speak of.
Respondent court was emphatic in its disquisition on this subject
matter:jgc:chanrobles.com.ph

"The private respondents application for damages being heard by

the respondent court may not be considered an exception to
Section 9 of Rule 41 of the Rules of Court. The provision speaks
of protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal. The action for
damages, in fact, and in actuality, however, is an act of
vindication, is punitive in nature and not an act to protect and
preserve, but to punish and make one party, the petitioner, to pay
damages for having availed of a writ of execution pending
appeal . . ." 9

x x x

"It is, moreover, clear that the pursuit of damages against the
bond posted by the petitioner in this case, is a futile undertaking
for by its express language, approved by the respondent court,
the bond may only be answerable in damages where two

25
conditions concur: one, that judgment has, in fact, been rendered
on appeal, and second, that the judgment appealed from has
been reversed on appeal. The very proceedings before the
respondent court, now sought to be struck down, are the very
reason preventing the realization of these conditions." 10

Thus, the trial court had no more jurisdiction to issue the

disputed orders inasmuch as the case had already come under
the exclusive appellate jurisdiction of the respondent court.

Nor are we inclined to sanction the application of the doctrine of

estoppel by laches to the prejudice of private Respondent. This
doctrine is an equitable principle applied to promote but never to
defeat justice. 11 It should be noted that private respondent
opposed petitioners application for damages by citing Section 5,
Rule 39 of the Rules of Court and, in effect, questioning the trial
courts jurisdiction thereon. Additionally, private respondent set
up the defense of lack of jurisdiction, in its motion for
reconsideration dated March 5, 1990. There was no unreasonable
delay by private respondent in assailing the jurisdiction of the
trial court. Adherence to our exceptional ruling in Tijam v.
Sibonghanoy 12 and other cases is unwarranted. Instead, we
uphold the fundamental rule that a court of justice could only
validly act upon a cause of action or subject matter of a case over
which it has jurisdiction and said jurisdiction is one conferred by
law; and cannot be acquired through, or waived by any act or
omission of the parties. 13

WHEREFORE, the petition is hereby DENIED. The decision of the

Court of Appeals dated February 7, 1991 and its resolution dated
August 12, 1991 are AFFIRMED.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

26
 EN BANC

G.R. No. L-19450 May 27, 1965

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SIMPLICIO VILLANUEVA, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

Magno T. Buese for defendant-appellant.

PAREDES, J.:

On September 4, 1959, the Chief of Police of Alaminos, Laguna, charged

Simplicio Villanueva with the Crime of Malicious Mischief before the Justice
of the Peace Court of said municipality. Said accused was represented by
counsel de officio but later on replaced by counsel de parte. The
complainant in the same case was represented by City Attorney Ariston
Fule of San Pablo City, having entered his appearance as private
prosecutor, after securing the permission of the Secretary of Justice. The
condition of his appearance as such, was that every time he would appear
at the trial of the case, he would be considered on official leave of absence,
and that he would not receive any payment for his services. The
appearance of City Attorney Fule as private prosecutor was questioned by
the counsel for the accused, invoking the case of Aquino, et al. vs. Blanco,
et al.,
L-1532, Nov. 28, 1947, wherein it was ruled that "when an attorney had
been appointed to the position of Assistant Provincial Fiscal or City Fiscal
and therein qualified, by operation of law, he ceased to engage in private
law practice." Counsel then argued that the JP Court in entertaining the
appearance of City Attorney Fule in the case is a violation of the above
ruling. On December 17, 1960 the JP issued an order sustaining the
legality of the appearance of City Attorney Fule.

Under date of January 4, 1961, counsel for the accused presented a

"Motion to Inhibit Fiscal Fule from Acting as Private Prosecutor in this

27
Case," this time invoking Section 32, Rule 27, now Sec. 35, Rule 138,
Revised Rules of Court, which bars certain attorneys from practicing.
Counsel claims that City Attorney Fule falls under this limitation. The JP
Court ruled on the motion by upholding the right of Fule to appear and
further stating that he (Fule) was not actually enagaged in private law
practice. This Order was appealed to the CFI of Laguna, presided by the
Hon. Hilarion U. Jarencio, which rendered judgment on December 20,
1961, the pertinent portions of which read:

The present case is one for malicious mischief. There being no

reservation by the offended party of the civil liability, the civil action
was deemed impliedly instituted with the criminal action. The
offended party had, therefore, the right to intervene in the case and
be represented by a legal counsel because of her interest in the civil
liability of the accused.

Sec. 31, Rule 127 of the Rules of Court provides that in the court of a
justice of the peace a party may conduct his litigation in person, with
the aid of an agent or friend appointed by him for that purpose, or
with the aid of an attorney. Assistant City Attorney Fule appeared in
the Justice of the Peace Court as an agent or friend of the offended
party. It does not appear that he was being paid for his services or
that his appearance was in a professional capacity. As Assistant City
Attorney of San Pablo he had no control or intervention whatsoever in
the prosecution of crimes committed in the municipality of Alaminos,
Laguna, because the prosecution of criminal cases coming from
Alaminos are handled by the Office of the Provincial Fiscal and not by
the City Attornev of San Pablo. There could be no possible conflict in
the duties of Assistant City Attorney Fule as Assistant City Attorney of
San Pablo and as private prosecutor in this criminal case. On the
other hand, as already pointed out, the offended party in this criminal
case had a right to be represented by an agent or a friend to protect
her rights in the civil action which was impliedly instituted together
with the criminal action.

28
 In view of the foregoing, this Court holds that Asst. City Attorney
Ariston D. Fule may appear before the Justice of the Peace Court of
Alaminos, Laguna as private prosecutor in this criminal case as an
agent or a friend of the offended party.

WHEREFORE, the appeal from the order of the Justice of the Peace
Court of Alaminos, Laguna, allowing the apprearance of Ariston D.
Fule as private prosecutor is dismissed, without costs.

The above decision is the subject of the instant proceeding.

The appeal should be dismissed, for patently being without

merits.1wph1.t

Aside from the considerations advanced by the learned trial judge,

heretofore reproduced, and which we consider plausible, the fallacy of the
theory of defense counsel lies in his confused interpretation of Section 32
of Rule 127 (now Sec. 35, Rule 138, Revised Rules), which provides that
"no judge or other official or employee of the superior courts or of the office
of the Solicitor General, shall engage in private practice as a member of the
bar or give professional advice to clients." He claims that City Attorney
Fule, in appearing as private prosecutor in the case was engaging in
private practice. We believe that the isolated appearance of City Attorney
Fule did not constitute private practice within the meaning and
contemplation of the Rules. 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 customarily and demanding payment
for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644, 647). The
appearance as counsel on one occasion is not conclusive as determinative
of engagement in the private practice of law. The following observation of
the Solicitor General is noteworthy:

29
 Essentially, the word private practice of law implies that one must
have presented himself to be in the active and continued practice of
the legal profession and that his professional services are available to
the public for a compensation, as a source of his livelihood or in
consideration of his said services.

For one thing, it has never been refuted that City Attorney Fule had been
given permission by his immediate superior, the Secretary of Justice, to
represent the complainant in the case at bar, who is a relative.

CONFORMABLY WITH ALL THE FOREGOING, the decision appealed

from should be, as it is hereby affirmed, in all respects, with costs against
appellant..

SO ORDERED.

30
 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.:p

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:

31
 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

32
 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,
33
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

34
 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.

35
 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?

36
 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

37
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

38
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.
39
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

40
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.

41
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).

42
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
43
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.

44
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.

45
[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
46
 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

47
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
Muoz-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.

48
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

49
 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

50
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

51
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
52
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:

53
 (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.

54
SO ORDERED.

Fernan, C.J., Grio-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:

55
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
56
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

57
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 Pao, 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,
58
 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 active and continued
practice of the legal profession and that his professional

59
 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 choose between two claimants to
the same office who both possessed the required qualifications. It was that
kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by

this Court for lack of the required qualifications, I see no reason why we
cannot 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

60
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

61
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.

62
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
63
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 examinations in 1961 consist of the following:

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

of Pennsylvania

2. 1963-1970: World Bank Group Economist, Industry

Department; Operations, Latin American Department; Division
Chief, South Asia and Middle East, International Finance
Corporation

64
3. 1970-1973: Meralco Group Executive of various
companies, i.e., Meralco Securities Corporation, Philippine
Petroleum Corporation, Philippine Electric Corporation

4. 1973-1976: Yujuico Group President, Fil-Capital

Development Corporation and affiliated companies

5. 1976-1978: Finaciera Manila Chief Executive Officer

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

Officer

7. 1986-1987: Philippine Constitutional Commission Member

8. 1989-1991: The Fact-Finding Commission on the December

1989 Coup Attempt Member

9. Presently: Chairman of the Board and Chief Executive Officer

of the following companies:

a. ACE Container Philippines, Inc.

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

65
 e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the law enough attention or a certain degree
of commitment and participation as would support in all sincerity and
candor the claim of having engaged in its practice for at least ten years.
Instead of working as a lawyer, he has lawyers working for him. Instead of
giving 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,

66
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:

67
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

68
 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

69
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

70
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

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

71
second paragraph of Section 1, Article VIII of the Constitution. I therefore
vote to DENY the petition.

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."

72
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:

73
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 Pao, 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)

74
 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
75
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 active and continued
practice of the legal profession and that his professional
services are available to the public for a compensation, as a
source of his livelihood or in consideration of his said services.

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 choose between two claimants to
the same office who both possessed the required qualifications. It was that
kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by

this Court for lack of the required qualifications, I see no reason why we

76
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.

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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:

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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.

79
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 examinations in 1961 consist of the following:

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

of Pennsylvania

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

3. 1970-1973: Meralco Group Executive of various

companies, i.e., Meralco Securities Corporation, Philippine
Petroleum Corporation, Philippine Electric Corporation

4. 1973-1976: Yujuico Group President, Fil-Capital

Development Corporation and affiliated companies

5. 1976-1978: Finaciera Manila Chief Executive Officer

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

Officer

7. 1986-1987: Philippine Constitutional Commission Member

8. 1989-1991: The Fact-Finding Commission on the December

1989 Coup Attempt Member

9. Presently: Chairman of the Board and Chief Executive Officer

of the following companies:

a. ACE Container Philippines, Inc.

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

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 b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the law enough attention or a certain degree
of commitment and participation as would support in all sincerity and
candor the claim of having engaged in its practice for at least ten years.
Instead of working as a lawyer, he has lawyers working for him. Instead of
giving 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-

82
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)

83
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)

84
 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.
85
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

86
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.

87