EN BANC

[G.R. No. 100113. September 3, 1991.]

RENATO L. CAYETANO, Petitioner, v. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA,

COMMISSION ON APPOINTMENTS, 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.

DECISION

PARAS, J.:

We are faced here with a controversy of far-reaching proportions While ostensibly only legal issues are
involved, the Court’s decision in this case would indubitably have a profound effect on the political aspect of
our national existence.

The 1987 Constitution provides in Section 1(1), Article IX-C: jgc:chanrob les.com. ph

"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 1(1), Article XII-C of the 1973 Constitution which
similarly provides:jg c:chan roble s.com. ph

"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 al 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. chan roble s virtual lawl ibra ry

Black defines "practice of law" as: jgc:chanrobles .com.p h

"The rendition of services requiring the knowledge and the application of legal principles and technique to
serve the interest of another with his consent. It is not limited to appearing in court, or advising and
assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to
actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the
giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters
connected with the law. An attorney engages in the practice of law by maintaining an office where he is held
out to be an attorney, using a letterhead describing himself as an attorney, counseling clients in legal
matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for
services rendered by his associate." (Black’s Law Dictionary, 3rd ed.).
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v.
Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when
he:jgc:chan roble s.com.p h

". . . 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: jgc:chan roble s.com.p h

"The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation
of pleadings and other papers incident to actions and special proceedings, the management of such actions
and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all
advice to clients, and all action taken for them in matters connected with the law incorporation services,
assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure
of a mortgage, enforcement of a creditor’s claim in bankruptcy and insolvency proceedings, and conducting
proceedings in attachment, and in matters of estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and conditions." (5 Am. Jr. p. 262, 263).
(Emphasis supplied)

"Practice of law under modern conditions consists in no small part of work performed outside of any court
and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal
advice on a large variety of subjects, and the preparation and execution of legal instruments covering an
extensive field of business and trust relations and other affairs. Although these transactions may have no
direct connection with court proceedings, they are always subject to become involved in litigation. They
require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These customary functions of an attorney or
counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction,
so far as concerns the question set forth in the order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part which involves advice and drafting of instruments in
his office. It is of importance to the welfare of the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all
times under the heavy trust obligations to clients which rests upon all attorneys." (Moran, Comments on the
Rules of Court, Vol. 3 [1953 ed.], p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313,
quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139, 144). (Emphasis ours).

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975)
listed the dimensions of the practice of law in even broader terms as advocacy, counseling 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 D. 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."chanrobles vi rt ual lawli bra ry

"MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our
review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement?

"THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

"MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others,
the qualifications provided for by Section 1 is that ‘They must be Members of the Philippine Bar’ — I am
quoting from the provision — ‘who have been engaged in the practice of law for at least ten years.’"

"To avoid any misunderstanding which would result in excluding members of the Bar who are now employed
in the COA or Commission on Audit, we would like to make the clarification that this provision on
qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law
outside the COA. We have to interpret this to mean that as long as the lawyers who are employed in the
COA are using their legal knowledge or legal talent in their respective work within COA, then they are
qualified to be considered for appointment as members or commissioners, even chairman, of the
Commission on Audit.

"This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it
important to take it up on the floor so that this interpretation may be made available whenever this
provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for
at least ten years is taken up.

"MR. OPLE. Will Commissioner Foz yield to just one question.

"MR. FOZ. Yes, Mr. Presiding Officer.

"MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a
law practice that is set forth in the Article on the Commission on Audit?"

MR. FOZ. We must consider the fact that the work of COA although it is auditing, will necessarily involve
legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the
necessary qualifications in accordance with the provision on qualifications under our provisions on the
Commission on Audit. And, therefore, the answer is yes.

"MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

"MR. FOZ. Yes, Mr. Presiding Officer.

"MR. OPLE. Thank you." cralaw virt ua1aw lib rary

. . . (Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two
Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less
than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice
of law for at least ten years. (Emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word
"lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority
of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons:
Illinois), 1986], p. 15]).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an
individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice
alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a
partnership and members of the firm are the partners. Some firms may be organized as professional
corporations and the members called shareholders. In either case, the members of the firm are the
experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneys called
"associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologies,
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.). chan roble s.com:c rala w:red

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 describe[d] as business counseling than in trying cases. The business lawyer has
been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be]
stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective."
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner will 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 will usually perform at least some
legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will
shift from one legal task or role such as advice-giving to an importantly different one such as representing a
client before an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types —
a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the
lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving,
document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and
mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very
important ways, at least theoretically, so as to remove from it some of the salient features of adversarial
litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers’ work the
constraints are imposed both by the nature of the client and by the way in which the lawyer is organized
into a social unit to perform that work. The most common of these roles are those of corporate practice and
government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in
corporate law practice, a departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law
practice. Lawyers and other professional groups, in particular those members participating in various legal-
policy decisional contexts, are finding that understanding the major emerging trends in corporation law is
indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the
nature and implications of the corporate law research function accompanied by an accelerating rate of
information accumulation. The recognition of the need for such improved corporate legal policy formulation,
particularly "model-making" and contingency planning," has impressed upon us the inadequacy of traditional
procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant
conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given
courses of action, and the need for fast decision and response in situations of acute danger have prompted
the use of sophisticated concepts of information flow theory, operational analysis, automatic data
processing, and electronic computing equipment. Understandably, an improved decisional structure must
stress the predictive component of the policy-making process, wherein a model", of the decisional context or
a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects
flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of
the law, the subject of corporate finance law has received relatively little organized and formalized attention
in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal
research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be
improved through an early introduction to multi-variable decisional contexts and the various approaches for
handling such problems. Lawyers, particularly with either a master’s or doctorate degree in business
administration or management, functioning at the legal policy level of decision-making now have some
appreciation for the concepts and analytical techniques of other professions which are currently engaged in
similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute
attorney because of the complex legal implications that arise from each and every necessary step in
securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989,
p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de

campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons
and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate
lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and
type of the corporation. Many smaller and some large corporations farm out all their legal problems to
private law firms. Many others have in-house counsel only for certain matters. Other corporation have a
staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation.
His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research,
acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory
agencies (including the Securities and Exchange Commission), and in other capacities which require an
ability to deal with the law.
chan roble s v irtua lawlib rary chan roble s.com:ch anro bles. com.ph

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 organization. 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, this is an area coveted
by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the
younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice,"
May 25, 1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of
Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good
lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business
Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we
talking of the traditional law teaching method of confining the subject study to the Corporation Code and the
Securities Code but an incursion as well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of
insights into current advances which are of particular significance to the corporate counsel; (2) an
introduction to usable disciplinary skills applicable to a corporate counsel’s management responsibilities; and
(3) a devotion to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking them.
Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate
counsel’s total learning.

Some current advances in behavior and policy sciences affect the counsel’s role. For that matter, the
corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the
firms he provides counsel for are required to make, and the need to think about a corporation’s strategy at
multiple levels. The salience of the nation-state is being reduced as firms deal both with global multinational
entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only
with public entities but with each other — often with those who are competitors in other arenas.

Also, the nature of the lawyer’s participation in decision-making within the corporation is rapidly changing.
The modern corporate lawyer has gained a new role as a stockholder — in some cases participating in the
organization and operations of governance through participation on boards and other decision-making roles.
Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers.
These trends are complicated as corporations organize for global operations. (Emphasis supplied).

The practising lawyer of today is familiar as well with governmental policies toward the promotion and
management of technology. New collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that differ from older, more adversarial
relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be
learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts
between governmental and business Japan’s MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group
within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to indentifiable factors in the group-context
interaction such as the groups actively revising their knowledge of the environment, coordinating work with
outsiders, promoting team achievements within the organization. In general, such external activities are
better predictors of team performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle
of corporations are challenged. Current research is seeking ways both to anticipate effective managerial
procedures and to understand relationships of financial liability and insurance considerations. (Emphasis
supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos: chanrob 1es vi rtua l 1aw lib rary

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
systems 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 kinds of negotiations. All integrated set of such tools provide coherent and effective
negotiation support, including hands-on on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas of
consideration, thus: chanrob 1es vi rtua l 1aw lib rary

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. chanrob les lawl ibra ry : redna d

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to
which legal consequences attach. It needs to be directly supportive of this nation’s evolving economic and
organizational fabric as firms change to stay competitive in a global, interdependent environment. The
practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a
global economy work.

Organization and Functioning of the Corporate Counsel’s Office. The general counsel has emerged in the last
decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility
for key aspects of the firm’s strategic issues, including structuring its global operations, managing improved
relationships with an increasingly diversified body of employees, managing expanded liability exposure,
creating new and varied interactions with public decision-makers, coping internally with more complex make
or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good
general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities.
And even if the corporate lawyer’s aim is not the understand all of the law’s effects on corporate activities,
he must, at the very least, also gain a working knowledge of the management issues if only to be able to
grasp not only the basic legal "constitution" or make-up of the modern 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," Jar. 11, 1989, p. 4). chanrobles law lib rary : red

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of
the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of
having been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the
COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of
the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod’s nomination,
petitioner as a citizen and taxpayer, filed the instant petition for Certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be
declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with
a grade of 86.55%. He has been a dues paying member of the Integrated Bar of the Philippines since its
inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten
years. (p. 124, Rollo).

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law
office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations
officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of
member-countries, negotiating loans and coordinating legal, economic, and project work of the Bank. Upon
returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of
an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive officer. As former Secretary-
General (1986) and National Chairman (1987) of NAMFREL. Monsod’s work involved being knowledgeable in
election law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of
advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen’s
Conference for Human Development, has worked with the under privileged sectors, such as the farmer and
urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law
and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the
Davide Commission, a quasi-judicial body, which conducted numerous hearings (1990) and as a member of
the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public
Officers, for which he was cited by the President of the Commission, Justice Cecilia Muñoz-Palma for
"innumerable amendments to reconcile government functions with individual freedoms and public
accountability and the party-list system for the House of Representative." (pp. 128-129 Rollo) (Emphasis
supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted
to meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower
concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts) who comprise the members of the team.
(Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2,
Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country’s Constitution; it lays down the law as far as the loan
transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5)
fundamental parts: (1) business terms; (2) borrower’s representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13)

In the same vein, lawyers play an important role in any debt restructuring program. For aside from
performing the tasks of legislative drafting and legal advising, they score national development policies as
key factors in maintaining their countries’ sovereignty. (Condensed from the work paper, entitled "Wanted:
Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the
United States Agency for International Development, during the Session on Law for the Development of
Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center
on August 26-31, 1973). (Emphasis supplied).

Loan concessions and compromises, perhaps even more so than purely re negotiation policies, demand
expertise in the law of contracts, in legislation and agreement drafting and in re negotiation. 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 complete debt restructuring
represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan
agreements — an adherence to the rule of law in domestic and international affairs of whose kind U.S.
Supreme Court Justice Oliver Wendell Holmes, Jr. once said: ‘They carry no banners, they beat no drums;
but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery.’
(See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine
Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term "practice of law", particularly the modern
concept of law practice, and taking into consideration the liberal construction intended by the framers of the
Constitution, Atty. Monsod s past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-
entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the
poor — verily more than satisfy the constitutional requirement — that he has been engaged in the practice
of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said: chanrobles.com : virtual law library

"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: jgc:chan rob les.com. ph

"It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements
are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the
Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another
person is more qualified for a particular position. It also has no authority to direct the appointment of a
substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing
authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject
to the only condition that the appointee should possess the qualifications required by law." (Emphasis
supplied).

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1)
nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the
President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . .
. (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman
of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution
which provides: jgc: chan robles .com.p h

"The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without re appointment. 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 re appointment. 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." cralaw virt ua1aw lib rary

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
practiced two or three times a week and would outlaw say, law practice once or twice a year for ten
consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made
use of a definition of law practice which really means nothing because the definition says that law practice."
. . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of
sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice
is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in
making use of the law, or in advising others on what the law means, are actually practicing law. In that
sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the
Philippine Bar, who has been practicing law for over ten years. This is different from the acts of persons
practicing 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: cha nro b1es vi rtua l 1aw lib ra ry

The Commission on the basis of evidence submitted during 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. chanroble s lawlib ra ry : rednad

Additionally, consider the following: c hanro b1es vi rt ual 1aw li bra ry

(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: jgc:chan roble s.com.p h

"We must interpret not by the letter that killeth, but by the spirit that giveth life." cra law virtua1aw li bra ry

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." cralaw virtua1aw li bra ry

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-
hot two or three inches away from in front of Samson’s eyes. This blinded the man. Upon hearing of what
had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous
fury, Accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch
his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit
of the agreement.

In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED.

Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.).

Sarmiento, J., is on leave.

Regalado and Davide, Jr., JJ., took no part.

Separate Opinions

NARVASA, J., concurring: chan rob1es v irt ual 1aw l ib rary

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: chanrob1es v irt ual 1aw li bra ry

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 low 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." cralaw virtua1aw li bra ry

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 bounded 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 v. 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 v. Cotner, 127, p. 1, 87 Kan.
864, 42 LRA, M S. 768). Practice of law to fall within the prohibition of statute has been interpreted as
customarily or habitually holding one’s self out to the public as a lawyer and demanding payment for such
services (State v. 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:jgc:chanrob les.co m.ph

"1. Habituality. The term ‘practice of law’ implies customarily or habitually holding one’s self out to the
public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such
as when one sends a circular announcing the establishment of a law office for the general practice of law
(U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public,
and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in
the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of
acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing
State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the active and
continued practice of the legal profession and that his professional services are available to the public for
compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva,
supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge
and skill is within the term ‘practice of law’ (Ernani Paño, Bar Reviewer in Legal and Judicial Ethics, 1988
ed., p. 8 citing People v. People’s Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as
to the proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin,
supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected,
`all advice to clients and all action taken for them in matters connected with the law; are practicing law.
(Elwood Fitchette Et. Al., v. Arthur C. Taylor, 94A-L.R. 356-359).

3. Application of law, legal principle, practice, or procedure which calls for legal knowledge, training and
experience is within the term `practice of law’. (Martin supra).

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client
relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no
attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be
engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30)." 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent
Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.

The following relevant questions may be asked: chanrob1e s virtual 1aw lib rary

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 v. 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." cralaw vi rtua1aw lib rary

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:chan rob1e s virtual 1aw l ibra ry

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 his viewpoint.

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. chan roble s virtual law lib rary
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 disqualify 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."
cra law virt ua1aw lib ra ry

The lawyer is considered engaged in the practice of law even if his main occupation is another business and
he interprets and applies some law only as an incident of such business. That covers every company
organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not affected by some law or
government regulation the businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He
can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts
involve his knowledge and application of the laws regulating such transactions. If he operates a public utility
vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he
must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.

The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . .
in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The
decision goes on to say that "because lawyers perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global to be workable." cralaw virtua1aw li bra ry

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: chan rob1es v irt ual 1aw l ibra ry

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. chanrob les law li bra ry

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional
Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to
high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave
abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior
qualifications in terms of executive ability, proficiency in management, educational background, experience
in international banking and finance, and instant recognition by the public. His integrity and competence are
not questioned by the petitioner. What is before us is compliance with a specific requirement written into the
Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in
the practice of law for even one year. He is a member of the bar but to say that he has practiced law is
stretching the term beyond rational limits.

A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not
engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have
been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to
the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main
occupation is selling real estate, managing a business corporation, serving in fact-finding committee,
working in media, or operating a farm with no active involvement in the law, whether in Government or
private practice, except that in one joyful moment in the distant past, they happened to pass the bar
examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate
choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental,
intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires
committed participation in something which is the result of one’s decisive choice. It means that one is
occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention
during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission
on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if
appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar
examinations when he worked in his father’s law firm. Even then his law practice must have been extremely
limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of
Pennsylvania during that period. How could he practice law in the United States while not a member of the
Bar there?

The professional life of the respondent follows:jgc:c han robles. com.ph

"1.15.1 Respondent Monsod’s activities since his passing the Bar examinations in 1961 consist of the
following:chan rob1e s virtual 1aw l ibra ry

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

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: chan rob1e s virtual 1aw l ibra ry

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUN systems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following: c han rob1es v irt ual 1aw l ibra ry

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation"

(Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the
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 legal advice of legal services, he was the one receiving
that advice 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. chan robles lawlib rary : re dnad

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as
having a familiar and customary well-defined meaning. Every resident of this country who has reached the
age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is
useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman,
farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly
assert that as such, they are engaged in the practice of law?.

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not
satisfied with having been "a member of the Philippine bar for at least ten years.."

Some American courts have defined the practice of law, as follows: jgc:chan roble s.com.p h

"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 III. 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 III. 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: chan rob1e s virtual 1aw lib rary

x x x

"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-mine 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.’

x x x

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

x x x

". . . 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 ‘attorneys 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 gaining; . . . 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]): cha nro blesvi rtua lawlib rary

x x x

". . . Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p.
1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one’s self out to the public, as a lawyer and demanding
payment for such services. . . ." (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required component
of the meaning of practice of law in a Memorandum prepared and issued by it, to wit: jgc:chan roble s.com.p h

"1. Habituality. The term ‘practice of law’ implies customarily or 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 log citing
State v. Cotner, 127, p. 1, 87 Kan, 864)." (Rollo, p. 115).

x x x

While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the
use of such legal knowledge is incidental and consists of isolated activities which do not fall under the
denomination of practice of law. Admission to the practice of law was not required for membership in the
Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal
activities which may have been assigned to Mr. Monsod while a member may be likened to isolated
transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as
doing business in the Philippines. As in the practice of law, doing business also should be active and
continuous. Isolated business transactions or occasional, incidental and casual transactions are not within
the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of
Appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may
possess the background, competence, integrity, and dedication, to qualify for such high offices as President,
Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific
qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC
Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public
respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in
confirming the nomination of respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissents.

Endnotes:
 FIRST DIVISION

[G.R. Nos. 68843-44. September 2, 1991.]

MARIQUITA O. SUMAYA and LAGUNA AGRO-INDUSTRIAL

COCONUT COOPERATIVE, INC., Petitioners, v. THE HON.
INTERMEDIATE APPELLATE COURT, and AMADEO, SANCHO,
DONATO, LUIS, ERASTO, LUISA, JOSE and DOLORES, all
surnamed BALANTAKBO, Respondents.

Ceriaco A. Sumaya, for Petitioners.

Tomas P. Añonuevo for Private Respondents.

SYLLABUS

1. CIVIL LAW; LAND REGISTRATION; VOLUNTARY AND INVOLUNTARY

REGISTRATION; EFFECT OF ENTRY IN THE DAY BOOK WITHOUT
NOTING ON THE CERTIFICATE OF TITLE. — In the case of Bass v. De
la Rama, 73 Phil. 682, 685, the rule was laid down that the mere entry
of a document in the day book without noting it on the certificate of
title is not sufficient registration. However, that ruling was superseded
by the holding in the later six cases of Levin v. Bass, 91 Phil. 420. As
explained in Garcia v. C.A., Et Al., G.R. Nos. L-48971 and 49011,
January 20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine
in this jurisdiction. "That ruling was superseded by the holding in the
later six cases of Levin v. Bass, 91 Phil. 420, where a distinction was
made between voluntary and involuntary registration, such as the
registration of an attachment, levy upon execution, notice of lis
pendens, and the like. In case of involuntary registration, an entry
thereof in the day book is a sufficient notice to all persons even if the
owner’s duplicate certificate of title is not presented to the register of
deeds. "On the other hand, according to the said cases of Levin v.
Bass, in case of voluntary registration of documents an innocent
purchaser for value of registered land becomes the registered owner,
and, in contemplation of law the holder of a certificate of title, the
moment he presents and files a duly notarized and valid deed of sale
and the same is entered in the day book and at the same time he
surrenders or presents the owner’s duplicate certificate of title
covering the land sold and pays the registration fees, because what
remains to be done lies not within his power to perform. The register
of deeds is duty bound to perform it." (See Potenciano v. Dineros, 97
Phil. 196).

2. ID.; SUCCESSION; RESERVA TRONCAL; OBLIGATION OF THE

RESERVOR. — The obligation to reserve rests upon the reservor,
Consuelo Joaquin vda. de Balantakbo as provided in Article 891 of the
New Civil Code on reserva troncal. Consistent with the rule in reserva
viudal where the person obliged to reserve (the widowed spouse) had
the obligation to annotate in the Registry of Property the reservable
character of the property, in reserva troncal, the reservor (the
ascendant who inherited from a descendant property which the latter
inherited from another ascendant) has the duty to reserve and
therefore, the duty to annotate also.

3. ID.; ID.; ID.; RESERVABLE CHARACTER OF THE REAL PROPERTY

MUST BE ANNOTATED IN THE REGISTRY OF PROPERTY. — The
jurisprudential rule requiring annotation in the Registry of Property of
the right reserved in real property subject of reserva viudal insofar as
it is applied to reserva troncal stays despite the abolition of reserva
viudal in the New Civil Code. This rule is consistent with the rule
provided in the second paragraph of Section 51 of P.D. 1529, which
provides that; "The act of registration shall be the operative act to
convey or affect the land insofar as third persons are concerned . . .
."
cralaw virt ua1aw lib ra ry

4. ID.; ID.; ID.; ACTION FOR RECOVERY OF RESERVED PROPERTY;

PRESCRIPTIVE PERIOD. — The cause of action of the reservees did not
commence upon the death of the propositus Raul Balantakbo on June
13, 1952 but upon the death of the reservor Consuelo Vda. de
Balantakbo on June 3, 1968. Relatives within the third degree in
whose favor the right (or property) is reserved have no title of
ownership or of fee simple over the reserved property during the
lifetime of the reservor. Only when the reservor should die before the
reservees will the latter acquire the reserved property, thus creating a
fee simple, and only then will they take their place in the succession of
the descendant of whom they are relatives with in the third degree
(See Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58
Phil. 89). The reserva is extinguished upon the death of the reservor,
as it then becomes a right of full ownership on the part of the
reservatarios, who can bring a reinvindicatory suit therefor.
Nonetheless, this right if not exercised within the time for recovery
may prescribe in ten (10) years under the old Code of Civil Procedure
(see Carillo v. De Paz, G.R. No. L-22601, October 28, 1966, 18 SCRA
467, 473) or in thirty years under Article 1141 of the New Civil Code.

DECISION

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the

Intermediate Appellate Court (now Court of Appeals) in C.A. G.R. No.
CV-01292-93, which affirmed the decision of the Court of First
Instance (now Regional Trial Court) of Laguna in the consolidated
cases in Civil Case No. SC-956 1 and Civil Case No. SC-957. 2

The parties entered into a stipulation of facts in the court a quo, which
is summarized as follows: cha nrob les vi rtual lawli brary

Raul Balantakbo inherited from two (2) different ascendants the two
(2) sets of properties subject of this case: 1) A one-third (1/3)
interest, pro-indiviso in a parcel of land situated in Dita, Lilio (Liliw)
Laguna and described in paragraph 7 of the complaint in Civil Case No.
SC-956 from his father Jose, Sr., who died on January 28, 1945; and
2) A one-seventh (1/7) interest pro-indiviso in ten (10) parcels of
registered lands described in paragraph 6 of the complaint in Civil
Case No. SC-957 from his maternal grandmother, Luisa Bautista, who
died on November 3, 1950.

On June 13, 1952, Raul died intestate, single, without any issue, and
leaving only his mother, Consuelo Joaquin Vda. de Balantakbo, as his
sole surviving heir to the real properties above-mentioned.
On November 3, 1952, Consuelo adjudicated unto herself the above
described properties in an Affidavit entitled "Caudal Herederario del
finado Raul Balantakbo" which provided, among others: jgc:cha nroble s.com.p h

"I. Que de mi legitimo matrimonio con mi difunto esposo, Jose

Balantakbo, he tenido varios hijos, entre ellos si difunto hijo, llamado
Raul Balantakbo.

"II. Que mi referido hijo Raul Balantakbo, fallencio el 13 de Junio de

1952, en la Ciudad de Pasay, durante su minoria de edad sin dejar
testamento alguno." cralaw virt ua1aw lib rary

"III. Que el finado Raul Balantakbo al morir no ha dejado descendiente

alguno.

"IV. Que soy la unica ascendiente superviviento de mi referido hijo

Raul Balantakbo y por lo tanto su unica heredera formosa, legitima y
universal.

"V. Que el finado Raul Balantakbo murio sin dejar deuda alguna.

"VI. Que el finado al morir dejo propiedades consistentes en bienes

inmuebles situados en la Provincia de Laguna.

"VII. Que dichas propriedades fueron a su vez adquiridas por el finado

Raul Balantakbo per herencia de su difunto padre, Jose Balantakbo, y
de su tia abuela Luisa Bautista.

". . ." (Rollo, p. 29).

On December 21, 1959, Consuelo Joaquin vda de. Balantakbo sold the
property described in Civil Case No. SC-956 to Mariquita H. Sumaya.
The sale was evidenced by a deed attached as Annex "C" to the
complaint. The same property was subsequently sold by Mariquita
Sumaya to Villa Honorio Development Corporation, Inc., on December
30, 1963. On January 23, 1967, Villa Honorio Development
Corporation transferred and assigned its rights over the property in
favor of Agro-Industrial Coconut Cooperative, Inc. The documents
evidencing these transfers were registered in the Registry of Deeds of
Laguna and the corresponding certificates of titles were issued. The
properties are presently in the name of Agro-Industrial Coconut
Cooperative, Inc., 2/3 share and the remaining 1/3 share is in the
name of Sancho Balantakbo. chanrob les vi rtua lawlib rary chan robles .com:cha nro bles.c om.ph

Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo

sold the properties described in the complaint in Civil Case No. SC-957
to Villa Honorio Development Corporation, Inc. The latter in turn
transferred and assigned all its rights to the properties in favor of
Laguna Agro-Industrial Coconut Cooperative, Inc. which properties are
presently in its possession.

The parties admit that the certificates of titles covering the above
described properties do not contain any annotation of its reservable
character.

On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died.

On March 4, 1970, Amadeo, Sancho, Donato, Luis, and Erasto, all

surnamed Balantakbo, brothers in full blood of Raul Balantakbo and
Luisa, Jose and Dolores, also all surnamed Balantakbo, surviving
children of deceased Jose Balantakbo, Jr., another brother of the first
named Balantakbos, filed the above mentioned civil cases to recover
the properties described in the respective complaints which they
claimed were subject to a reserva troncal in their favor.

The court a quo found that the two (2) cases varied only in the
identity of the subject matter of res involved, the transferees, the
dates of the conveyances but involve the same legal question of
reserva troncal. Hence, the consolidation of the two (2) cases.

After trial, the court a quo rendered a joint decision in favor of the
Balantakbos, the dispositive portion of which reads: jgc:chan roble s.com.p h

"WHEREFORE, in both Civil Cases Nos. SC-956 and SC-957, judgment

is hereby rendered in favor of the plaintiffs and against the
defendants, as follows: jgc:chanrob les.com. ph

"1. Ordering the defendant Laguna Agro-Industrial Coconut

Cooperative, Inc. to convey to the plaintiffs —

"a.) In Civil Case No. SC-956 — the one-third (1/3) interest and
ownership, pro-indiviso, in and over the parcel of land described in
paragraph three (3) subparagraph 1, of pages one (1) and two (2) of
this decision;

"b.) In Civil Case No. SC-957 — the one-seventh (1/7) interest and
ownership, pro-indiviso, in and over the ten (10) parcels of land
described in paragraph three (3), subparagraph 2, of pages two (2)
and three (3) of this decision;

"c.) The plaintiffs are to share equally in the real properties herein
ordered to be conveyed to them by the defendants with plaintiffs
Luisa, Jose and Dolores, all surnamed Balantakbo, receiving one-third
(1/3) of the one share pertaining to the other plaintiffs who are their
uncles: jgc:chan roble s.com. ph

"2. Ordering the Laguna Agro-Industrial Coconut Cooperative, Inc. to

account for and pay to the plaintiffs the value of the produce from the
properties herein ordered to be returned to the plaintiffs, said
accounting and payment of income being for the period from January
3, 1968 until date of reconveyance of the properties herein
ordered: jg c:chan roble s.com. ph

"3. In each of Civil Cases Nos. SC-956 and SC-957, defendants are to
pay plaintiffs —

"a. One Thousand (P1,000.00) Pesos in litigation expenses

"b. Two Thousand (P2,000.00) Pesos in attorney’s fees.

"4. Defendants are to pay the costs in each of Civil Cases Nos. SC-956
and 957.

". . ." (p. 46, Rollo).

This decision was appealed to the appellate court which affirmed the
decision of the court a quo in toto. The motion for reconsideration was
denied (p. 65, Rollo) by the appellate court which found no cogent
reason to reverse the decision.

This petition before Us was filed on November 12, 1984 with the
petitioners assigning the following errors allegedly committed by the
appellate court: chan rob1e s vi rtual 1aw lib rary
I. The trial court erred in not finding defendants an (sic) innocent
purchaser for value and in good faith of the properties covered by
certificates of title subject of litigation.

II. The trial court erred in finding it unnecessary to annotate the

reservable interest of the reservee in the properties covered by
certificates of title subject of litigation.

III. The trial court erred in finding that the cause of action of the
plaintiffs (private respondents) has not yet prescribed.

IV. The trial court erred in awarding moral and actual damages in
favor of the plaintiffs by virtue of the institution of Civil Cases Nos.
956 and 957.

Petitioners would want this Court to reverse the findings of the court a
quo, which the appellate court affirmed, that they were not innocent
purchasers for value. According to petitioners, before they agreed to
buy the properties from the reservor (also celled reservista), Consuelo
Joaquin vda. de Balantakbo, they first sought the legal advice of their
family consultant who found that there was no encumbrance nor any
hen annotated on the certificate of title covering the properties.

The court a quo found otherwise. Upon the death of the propositus,
Raul Balantakbo, the reservista, Consuelo vda. de Balantakbo caused
the registration of an affidavit of self-adjudication of the estate of
Raul, wherein it was clearly stated that the properties were inherited
by Raul from his father Jose, Sr., as regards the subject matter of Civil
Case No. SC-956 and from his maternal grandmother, Luisa Bautista,
as regards the subject matter of Civil Case No. SC-957. The court a
quo further ruled that said affidavit was, in its form, declaration and
substance, a recording with the Registry of Deeds of the reservable
character of the properties. In Spanish language, the affidavit clearly
stated that the affiant, Consuelo, was a lone ascendant and heir to
Raul Balantakbo, her son, who died leaving properties previously
inherited from other ascendants and which properties were inventoried
in the said affidavit.

It was admitted that the certificates of titles covering the properties in

question show that they were free from any liens and encumbrances
at the time of the sale. The fact remains however, that the affidavit of
self-adjudication executed by Consuelo stating the source of the
properties thereby showing the reservable nature thereof was
registered with the Register of Deeds of Laguna, and this is sufficient
notice to the whole world in accordance with Section 52 of the
Property Registration Decree (formerly Sec. 51 of R.A. 496) which
provides: c han robles lawlib rary : re dnad

"SEC. 52. CONSTRUCTIVE NOTICE UPON REGISTRATION . — Every

conveyance, mortgage, lease, lien attachment, order, judgment,
instrument or entry affecting registered land shall, if registered, filed
or entered in the Office of the Register of Deeds for the province or
city where the land to which it relates lies, be constructive notice to all
persons from the time of such registering, filing or entering." cralaw virtua1aw l ibra ry

Thus, in Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969, 27

SCRA 706, 712-713, cited in People v. Reyes, G.R. Nos. 74226-27,
July 27, 1989, 175 SCRA 597; Garcia v. CA and PNB v. CA, Et Al., G.R.
Nos. L-48971 and L-40911, both dated January 22, 1980, 95 SCRA
380 and Legarda and Prieto v. Saleeby, 31 Phil. 590, 600, We held: jgc:cha nro bles.c om.ph
"When a conveyance has been properly recorded such record is
constructive notice of its contents and all interests, legal and
equitable, included therein . . .

"Under the rule of notice, it is presumed that the purchaser has

examined every instrument of record affecting the title. Such
presumption is irrebuttable. He is charged with notice of every fact
shown by the record and is presumed to know every fact shown by the
record and is presumed to know every fact which an examination of
the record would have disclosed. This presumption cannot be
overcome by proof of innocence or good faith. Otherwise, the very
purpose and object of the law requiring a record would be destroyed.
Such presumption cannot be defeated by proof of want of knowledge
of what the record contains any more than one may be permitted to
show that he was ignorant of the provisions of the law. The rule that
all persons must take notice of the facts which the public record
contains is a rule of law. The rule must be absolute, any variation
would lead to endless confusion and useless litigation. . . ."
cralaw virtua 1aw lib rary

In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid
down that the mere entry of a document in the day book without
noting it on the certificate of title is not sufficient registration.
However, that ruling was superseded by the holding in the later six
cases of Levin v. Bass, 91 Phil. 420. As explained in Garcia v. C.A., Et
Al., G.R. Nos. L-48971 and 49011, January 20, 1980, 95 SCRA 380,
388, which is the prevailing doctrine in this jurisdiction.

"That ruling was superseded by the holding in the later six cases of
Levin v. Bass, 91 Phil. 420, where a distinction was made between
voluntary and involuntary registration, such as the registration of an
attachment, levy upon execution, notice of lis pendens, and the like.
In cases of involuntary registration, an entry thereof in the day book is
a sufficient notice to all persons even if the owner’s duplicate
certificate of title is not presented to the register of deeds.

"On the other hand, according to the said cases of Levin v. Bass, in
case of voluntary registration of documents an innocent purchaser for
value of registered land becomes the registered owner, and, in
contemplation of law the holder of a certificate of title, the moment he
presents and files a duly notarized and valid deed of sale and the
same is entered in the day book and at the same time he surrenders
or presents the owner’s duplicate certificate of title covering the land
sold and pays the registration fees, because what remains to be done
lies not within his power to perform. The register of deeds is duty
bound to perform it." (See Potenciano v. Dineros, 97 Phil. 196).

In this case, the affidavit of self-adjudication executed by Consuelo

vda. de Balantakbo which contained a statement that the property was
inherited from a descendant, Raul, which has likewise inherited by the
latter from another ascendant, was registered with the Registry of
Property. The failure of the Register of Deeds to annotate the
reservable character of the property in the certificate of title cannot be
attributed to Consuelo.

Moreover, there is sufficient proof that the petitioners had actual

knowledge of the reservable character of the properties before they
bought the same from Consuelo. This matter appeared in the deed of
sale (Exhibit "C") executed by Consuelo in favor of Mariquita Sumaya,
the first vendee of the property litigated in Civil Case No. SC-956, as
follows:jgc:c hanrobles. com.ph

"x x x"
"That, I (Consuelo, vendor) an the absolute and exclusive owner of
the one-third (1/3) portion of the above described parcel of land by
virtue of the Deed of Extra-Judicial Partition executed by the Heirs of
the deceased Jose Balantakbo dated December 10, 1945 and said
portion in accordance with the partition above-mentioned was
adjudicated to Raul Balantakbo, single, to (sic) whom I inherited after
his death and this property is entirely free from any encumbrance of
any nature or kind whatsoever, . . . ." (p 42, Rollo)

It was admitted though that as regards the properties litigated in Civil

Case SC-957, no such admission was made by Consuelo to put Villa
Honorio Development on notice of the reservable character of the
properties. The affidavit of self-adjudication executed by Consuelo and
registered with the Registry would still be sufficient notice to bind
them. chanrob les.com : vi rtua l law lib ra ry

Moreover, the court a quo found that the petitioners and private
respondents were long time acquaintances; that the Villa Honorio
Development Corporation and its successors, the Laguna Agro-
Industrial Coconut Cooperative Inc., are family corporations of the
Sumayas and that the petitioners knew all along that the properties
litigated in this case were inherited by Raul Balantakbo from his father
and from his maternal grandmother, and that Consuelo Vda. de
Balantakbo inherited these properties from his son Raul.

The obligation to reserve rests upon the reservor, Consuelo Joaquin

vda. de Balantakbo. Article 891 of the New Civil Code on reserva
troncal provides: jgc:c han robles. com.ph

"Art. 891. The ascendant who inherits from his descendant any
property which the latter may have acquired by gratuitous title from
another ascendant or a brother or sister, is obliged to reserve such
property as he may have acquired by operation of law for the benefit
of relatives who are within the third degree and who belong to the line
from which said property came." (Emphasis supplied).

We do not agree, however, with the disposition of the appellate court

that there is no need to register the reservable character of the
property, if only for the protection of the reservees, against innocent
third persons. This was suggested as early as the case of Director of
Lands v. Aguas, G.R. No. 42737, August 11, 1936, 63 Phil. 279. The
main issue submitted for resolution therein was whether the
reservation established by Article 811 (now Art. 891 of the New Civil
Code) of the Civil Code, for the benefit of the relatives within the third
degree belonging to the line of the descendant from whom the
ascendant reservor received the property, should be understood as
made in favor of all the relatives within said degree and belonging to
the line above-mentioned, without distinction legitimate, natural and
illegitimate ones not having the legal status of natural children.
However, in an obiter dictum this Court stated therein: jgc:c hanrob les.com .ph

"The reservable character of a property is but a resolutory condition of

the ascendant reservor’s right of ownership. If the condition is fulfilled,
that is, if upon the ascendant reservor’s death there are relatives
having the status provided in Article 811 (Art. 891, New Civil Code),
the property passes, in accordance with this special order of
succession, to said relatives, or to the nearest of kin among them,
which question not being pertinent to this case, need not now be
determined. But if this condition is not fulfilled, the property is
released and will be adjudicated in accordance with the regular order
of succession. The fulfillment or non-fulfillment of the resolutory
condition, the efficacy or cessation of the reservation, the acquisition
of rights or loss of the vested ones, are phenomena which have
nothing to do with whether the reservation has been noted or not in
the certificate of title to the property. The purpose of the notation is
nothing more than to afford to the persons entitled to the reservation,
if any, due protection against any act of the reservor, which may
make it ineffective . . . ." (p. 292, ibid).

Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January 14,
1926, 48 Phil. 601, 603, this Court ruled that the reservable character
of a property may be lost to innocent purchasers for value.
Additionally, it was ruled therein that the obligation imposed on a
widowed spouse to annotate the reservable character of a property
subject of reserva viudal is applicable to reserva troncal. (See also
Edrozo v. Sablan, G.R. No. 6878, September 13, 1913, 25 Phil. 295).

"Since these parcels of land have been legally transferred to third

persons, Vicente Galang has lost ownership thereof and cannot now
register nor record in the Registry of Deeds their reservable character;
neither can he effect the fee simple, which does not belong to him, to
the damage of Juan Medina and Teodoro Jurado, who acquired the
said land in good faith, free of all incumbrances. An attempt was made
to prove that when Juan Medina was advised not to buy the land he
remarked, `Why, did he (Vicente Galang) not inherit it from his son?’
Aside from the fact that it is not clear whether this conservation took
place in 1913 or 1914, that is, before or after the sale, it does not
signify that he had any knowledge of the reservation. This did not
arise from the fact alone that Vicente Galang had inherited the land
from his son, but also from the fact that, by operation of law, the son
had inherited it from his mother Rufina Dizon, which circumstance, so
far as the record shows, Juan Medina had not been aware of. We do
not decide, however, whether or not Juan Medina and Teodoro Jurado
are obliged to acknowledge the reservation and to note the same in
their deeds, for the reason that there was no prayer to this effect in
the complaint and no question raised in regard thereto." c ralaw virtua1aw l ibra ry

Consistent with the rule in reserva viudal where the person obliged to
reserve (the widowed spouse) had the obligation to annotate in the
Registry of Property the reservable character of the property, in
reserva troncal, the reservor (the ascendant who inherited from a
descendant property which the latter inherited from another
descendant) has the duty to reserve and therefore, the duty to
annotate also.chanroble s.com.p h : virt ual law li bra ry

The jurisprudential rule requiring annotation in the Registry of

Property of the right reserved in real property subject of reserva
viudal insofar as it is applied to reserva troncal stays despite the
abolition of reserva viudal in the New Civil Code. This rule is consistent
with the rule provided in the second paragraph of Section 51 of P.D.
1529, which provides that: "The act of registration shall be the
operative act to convey or affect the land insofar as third persons are
concerned . . . ." (Emphasis supplied).

The properties involved in this case are already covered by a Torrens

title and unless the registration of the limitation is effected (either
actual or constructive), no third persons shall be prejudiced thereby.

The respondent appellate court did not err in finding that the cause of
action of the private respondents did not prescribe yet. The cause of
action of the reservees did not commence upon the death of the
propositus Raul Balantakbo on June 13, 1952 but upon the death of
the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives
within the third degree in whose favor the right (or property) is
reserved have no title of ownership or of fee simple over the reserved
property during the lifetime of the reservor. Only when the reservor
should die before the reservees will the latter acquire the reserved
property, thus creating a fee simple, and only then will they take their
place in the succession of the descendant of whom they are relatives
within the third degree (See Velayo Bernardo v. Siojo, G.R. No.
36078, March 11, 1933, 58 Phil. 89). The reserva is extinguished upon
the death of the reservor, as it then becomes a right of full ownership
on the part of the reservatarios, who can bring a reivindicatory suit
therefor. Nonetheless, this right if not exercised within the time for
recovery may prescribe in ten (10) years under the old Code of Civil
Procedure (see Carillo v. De Paz, G.R. No. L-22601, October 28, 1966,
18 SCRA 467, 473) or in thirty years under Article 1141 of the New
Civil Code. The actions for recovery of the reserved property was
brought by herein private respondents on March 4, 1970 or less than
two (2) years from the death of the reservor. Therefore, private
respondents’ cause of action has not prescribed yet.

Finally, the award of one thousand pesos (P1,000.00) for actual

litigation expenses and two thousand pesos (P2,000.00) for attorney’s
fees is proper under Article 2208(2) of the New Civil Code. Private
respondents were compelled to go to court to recover what rightfully
belongs to them. chanro bles vi rt ual lawli bra ry

ACCORDINGLY, the petition is DENIED. The questioned decision of the

Intermediate Appellate Court is AFFIRMED, except for the modification
on the necessity to annotate the reversable character of a property
subject of reserva troncal.

THIRD DIVISION

[G.R. No. 74630. September 30, 1991.]

THE PEOPLE OF THE

PHILIPPINES, Plaintiff-Appellee, v.
MAIDA TOMIO alias SATO TOSHIO and
NAKAJIMA TAGAHIRO alias YAMADA
TAKAO, Accused-Appellants.

[G.R. No. 75576.]

IN THE MATTER OF PETITION FOR

HABEAS CORPUS OF TADAHIRO
NAKAJIMA and TOMIO MAEDA,
petitioners.

The Solicitor General for Plaintiff-

Appellee.

Jose T. Arroyo for accused T. Nakajima.

Atienza, Tabora, Del Rosario & Castillo for

accused T. Maeda.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL

PROCEDURE; PROSECUTION OF
OFFENSES; RULE WHEN THE
INGREDIENTS OF THE CRIME WERE
COMMITTED IN VARIOUS PLACES. —
The essential ingredients of the kidnapping
were thus committed in various places. The
case can be filed with the appropriate court
in any of the places where the complainant
was brought to by the appellants in the
pursuit of or in connection with the crime
charged. Section 15 of Rule 110 of the
Rules of Court provides that subject to
existing laws, in all criminal prosecutions,
the action shall be instituted and tried in the
court of the municipality or territory
wherein the offense was committed or any
one of the essential ingredients thereof took
place.

2. ID.; ID.; JURISDICTION; MAY NO

LONGER BE INVOKED BY A PARTY
WHO VOLUNTARILY SUBMITTED HIS
CAUSE AND ACTIVELY
PARTICIPATED IN THE HEARING;
CASE AT BAR. — In the proceedings
below, there was not even the slightest
suggestion from the appellants to express
their doubts as to the jurisdiction of the
court over the case. They did not present
any evidence to show that all of the acts
involved in or related to the offense charged
took place outside Manila. On the contrary,
from their arraignment until the
promulgation of the decision, they
unequivocally recognized and then yielded
to the trial court’s jurisdiction over their
persons and the offense charged. They
voluntarily expressed their readiness to be
arraigned, as in fact they were, abandoning
in effect their urgent motion for
reinvestigation. They took very active part
in the trial by extensively and exhaustively
cross-examining the witnesses for the
prosecution, testifying for themselves in the
most detailed manner as possible to
conform with the strategy of their counsel,
and allowing themselves to be cross-
examined by the prosecuting fiscal. There
can be no doubt that such active
participation was motivated by one desire
and was riveted to one goal: a judgment of
acquittal on the merits, which necessarily
carried with it an unqualified invocation of
the jurisdiction and authority of the court.
Settled is the rule that a party who
voluntarily submitted his cause before a
trial court, actively participated in the
hearings therein, or invoked its jurisdiction,
may not be heard to question its
jurisdiction. It would be placing a premium
on bad faith and yielding to attempts to
make a mockery of the judicial process if a
party would be permitted to question the
very power and authority which he invokes
for his own benefit or advantage once he
fails to obtain it.

3. ID.; EVIDENCE; CREDIBILITY OF

WITNESS; FACTUAL FINDINGS OF
TRIAL COURT; RULE AND
EXCEPTION. — The trial court’s findings
were based on its appreciation of the
evidence for the parties which, in turn,
revolved upon the credibility of the
witnesses. It is well-settled that the
conclusion of the trial court on the
credibility of witnesses is entitled to great
weight and respect; and, unless there are
substantial facts and circumstances that
have been overlooked, which if considered
might affect the result of the case, such
findings are generally not disturbed on
appeal. The reason for this is that the trial
court is in a better position to observe the
deportment and demeanor of witnesses to
determine the veracity of their answers; it
has the inestimable advantage of observing
the detailed demeanor of the witnesses.

4. CONSTITUTIONAL LAW; BILL OF

RIGHTS; DUE PROCESS; REQUISITES.
— The requisites of due process are: (a) a
court or tribunal clothed with judicial
power to hear and determine the matter
before it; (b) jurisdiction lawfully acquired
by it over the person of the appellants and
over the offense; (c) the appellants were
given an opportunity to be heard; and (d)
judgment was rendered upon lawful
hearing.

5. ID.; ID.; ID.; NOT DENIED WHEN

THERE IS RAILROADED DISPOSITION
OF CASES. — Anent the denial of due
process, the main grievance of appellant
Tomio Maeda focuses on the alleged
"railroaded disposition of the case." In the
first place, the statements they made during
custodial interrogation were not taken into
account against them. On the contrary, the
trial court rejected such statements in toto
and deplored the failure of the police to
comply with the procedure prescribed by
this Court in making an arrest and in
conducting a custodial investigation. In the
second place, while it may be true that the
trial lasted only for a few days and the
decision was promulgated on the twelfth
day after the filing of the information, there
is nothing on record that may cast any
doubt on the impartiality and neutrality of
the judge or on the fairness of his decision
which, as We observe, manifests a careful
and thorough analysis of the evidence.
Appellants made no protest in the court
below as to the manner the trial was
conducted. After they completed their
testimonies and offered their Exhibit "1,"
their counsel announced that "we are
respectfully submitting our case for
decision of this Honorable Court."cralaw
virtua1aw library

6. ID.; ID.; ID.; NOT DENIED EVEN IF

THE CASE WAS NOT DISPOSED
WITHIN THE STATUTORY PERIOD
PROVIDED IN GENERAL ORDER NO.
39. — That General Order No. 39 directs
civil courts to dispose of the case within
twenty-four (24) hours after its filing by the
arresting officer, considering that the
offended party is a tourist, does not detract
from the above conclusion that appellants
were not deprived of due process. The
requirement, which is merely directory, is
not wanting in reason or purpose. They stay
of tourists in the country is limited in
duration. Tourism is a major dollar-earning
industry which the Government has been
trying to promote. Corollarily, it must have
to adopt policies to attract tourists and to
insure their safety and security while they
are in the country. Special laws bearing
upon procedure, with the end in view of
expediting the hearings and disposition of
criminal cases where tourists are the
offended parties, may be validly enacted
provided that there is substantial
compliance with procedural due process
and non-impairment of substantive due
process.

DECISION
DAVIDE, JR., J.:

Appellants were arrested at about 3:45

o’clock in the afternoon of 12 May 1986 at
the main branch of the Rizal Commercial
Banking Corporation (RCBC) in Makati,
Metro Manila, while allegedly receiving the
partial payment of the ransom money from
Tatsumi Nagao, a Japanese tourist. On 15
May 1986, an Information for Kidnapping
and serious illegal detention for ransom
(Article 267 of the Revised Penal Code)
was filed against them with the Regional
Trial Court of Manila by Vivencio Dionido,
Assistant City Fiscal of Manila, which was
docketed as Criminal Case No. 86-45055.
The accusatorial portion of the Information
reads:jgc:chanrobles.com.ph

"That on or about May 2, 1986, and

subsequently thereafter, in the City of
Manila, Philippines, the said accused,
conspiring and confederating together with
six (6) others whose true names, real
identities and present whereabouts are still
unknown and helping one another, being
then private individuals, did then and there
wilfully, unlawfully and feloniously, for the
purpose of extorting ransom from the
immediate family of TATSUMI NAGAO,
kidnap or detain the latter and deprive him
of his liberty, without legal justifications
and against his will.

Contrary to Law."cralaw virtua1aw library

The information was filed after an ex-parte

preliminary investigation, conducted
pursuant to General Order No. 39, since the
offended party is a tourist. This General
Order grants civil courts concurrent
jurisdiction with the military tribunals over
crimes where the offended party is a tourist
or a transient, which the former has to
dispose of within twenty-four (24) hours
after their filing by the arresting officers. 1

On 16 May 1988, the trial court issued an

Order setting the arraignment and trial of
the appellants on 19 May 1986 and
appointing Citizens Attorney Abdulkalim
Askali of the CLAO (now PAO) as counsel
de officio for the accused. 2

On 19 May 1986, appellants, through a de

parte counsel, Jose T. Arroyo, filed with the
Office of the City Fiscal of Manila a Very
Urgent Motion For Re-investigation 3
alleging therein that the Information was
filed without the benefit of a preliminary
investigation and that they are innocent,
which they can prove at a preliminary
investigation.

However, the records fail to show that Atty.

Arroyo insisted on this motion. On the
contrary, at the arraignment on 19 May
1986, he categorically stated that the
appellants were ready for arraignment, and
even requested for a Japanese interpreter,
which was not favorably acted upon since
the appellants understand and can speak
English and Tagalog. 4 Both having entered
a plea of not guilty, trial proceeded
immediately. 5

At the trial on that day and the succeeding

two days, the prosecution presented seven
witnesses, namely: Pat. Eugenio Guillermo,
Pat. Marlon Ursua, Cpl. Virgilio Cabural,
complainant Tatsumi Nagao, Sgt. Jovito
Gutierrez, Wally Martinez and Daishin
Nagao, and offered documentary
exhibits.chanrobles virtual lawlibrary

For their defense, appellants relied on their

own testimonies which they gave in open
court on 22 May 1986.

On 27 May 1986, the trial court

promulgated a decision finding the
appellants guilty beyond reasonable doubt
of the crime charged and sentencing each of
them to suffer the death penalty and to pay
the costs. 6

The case is now before Us for automatic

review.

The facts of the case, as established by the

evidence for the prosecution and
summarized by the Solicitor General in the
Brief for the Appellee,
are:jgc:chanrobles.com.ph

"Tatsumi Nagao, a Japanese national,

arrived in Manila on April 29, 1986 for a
five-day vacation tour and was billeted at
the Holiday Inn (pp. 5-6, tsn, May 21,
1986).
On May 2, 1986, while Nagao was having
lunch alone at the coffee shop of the hotel,
two (2) Japanese men approached his table
and asked him if he were a Japanese to
which he answered in the affirmative.
Later, he came to know one of the men as
Maida Tomio alias Sato Toshio and the
other as Mitamura. They joined him at his
table and informed him that they have been
in the Philippines for quite a time and
offered themselves as his guides in Manila.
Thereafter, Mitamura brought him to the
sauna bath of the hotel and a department
store in Manila. Eventually, they ended up
at the Leo’s Restaurant located along Roxas
Boulevard at around 7:30 o’clock in the
evening where they had dinner. Before
leaving the restaurant, Nagao’s companion
placed a pack of cigarettes on his (Nagao’s)
shirt pocket and instructed him to just wait
because he has to talk to a taxi driver. After
taking a few steps from the restaurant,
Nagao was approached by five (5)
plainclothesmen who identified themselves
as policemen. They bodily searched him
and found the pack of cigarettes earlier
given him which the policemen claimed
contained marijuana. Thereafter, the
policemen brought him to the Southern
Police District Station (pp. 23-26, tsn, May
20, 1986).

While Nagao was at the police

station, Accused-appellant Tagahiro
Nakajima alias Yamada arrived. Later, Sato
Toshio alias Maida Tomio also arrived.
Both acted as interpreters for him. One of
them informed him that if he is found guilty
of possession of marijuana, he can be
sentenced from six (6) to twelve (12) years
imprisonment. The two (2) then suggested
that Nagao give money to the policemen
who, they claim, demanded U.S.
$100,000.00 for his release. Nagao agreed.
Thereafter, Toshio and Nakajima informed
him that they had advanced the payment of
the bribe money to the policemen who,
accordingly, agreed to release him (pp. 36-
41, tsn, May 20, 1986).

Thereafter, Nagao returned to his hotel

escorted by the appellants and a policeman.
While there, his escorts did not allow him
to leave the hotel. They also demanded that
he immediately call up his parents in Japan
for the money they allegedly advanced.
Instead of calling up his parents, he called
up a friend and told him of his predicament.
The three escorts stayed with him in the
hotel up to 10:00 o’clock the following
morning. Thereafter, they checked out and
transferred to the Intercontinental Hotel in
Makati. Appellants again ordered Nagao to
call up his parents. Later, appellants
transferred Nagao to the Philippine Village
Hotel where they again asked him to call up
his father in Japan about the money.
Nagao’s father refused to pay the amount
demanded but when Sato talked to him over
the phone, he agreed to pay three million
yen (pp. 17-31, tsn, May 21, 1986).

From the Philippine Village Hotel, Nagao

was brought by the appellants to the Virra
Condominium in Makati. When he called
up his father upon orders of the appellants,
he learned that his father had already
remitted money to the Rizal Commercial
and Banking Corporation (RCBC) in
Makati. Forthwith, appellants brought
Nagao to RCBC where he withdrew U.S.
$1,850.00 and gave it to them. Upon
leaving the bank, they were met by
policemen from the Western Police District
whose help had been earlier sought on May
8, 1986 by the Japanese Embassy in
Manila. Appellants and Nagao were
brought to the Western Police District for
investigation (pp. 38-40, tsn, May 19,
1986).

Appellants ware subsequently charged with

the crime of kidnapping and serious illegal
detention . . . ." 7

Upon the other hand, the version of the

accused-appellants a testified to by them, is
summarized by the trial court as
follows:jgc:chanrobles.com.ph

"The version given by the defense in

exculpation of the accused is as
follows:chanrob1es virtual 1aw library

On May 2, 1986, the accused NAKAJIMA

TAGAHIRO alias YAMADA TAKAO met
for the first time Tatsumi Nagao at the
Southern Police District headquarters in
Manila. Tatsumi had been arrested by the
police earlier for possessing marijuana
cigarettes and since he could not speak
English very well he was contacted to act as
Nagao’s interpreter. Nagao intimated to
him that he (Nagao) wanted so settle the
case and offered money to the police. The
accused MAIDA TOMIO alias SATO
TOSHIO later came and together they
requested the police to release Nagao
because according to him the marijuana
was not his but belonged to somebody who
gave it to him. Nagao told the accused that
he offered to pay the amount of
US$100,000 to the police which he said he
would borrow them from a friend. Yamada
told Nagao that the amount was too much
and suggested that he (Nagao) should call
his father in Japan to send the money here.
Nagao was ultimately released by the police
for some reason not known to Yamada and
he went back to his hotel at Holiday Inn
together with the accused YAMADA and
SATO.

At the hotel Nagao called up his friend in

Japan with the help of YAMADA who
placed the call since Nagao cannot speak
English. YAMADA did not have occasion
to talk to Nagao’s friend over the hone.
After 30 minutes, another call was made by
Nagao to Japan. That night of May 2 both
accused slept with Nagao in the latter’s
room at Holiday Inn due to Nagao’s request
not to leave him inside the hotel.

The following day, May 3, Nagao did not

know where to go so the accused suggested
they look for the cheapest hotel or one
where they could stay on credit. The
accused MAIDA then made arrangements
with a travel agency and, after checking in
at the Intercontinental Hotel, they checked
out at Holiday Inn and transferred to the
Intercontinental Hotel where they stayed up
to May 7. At this hotel, Nagao made many
phone calls to Japan the accused
YAMADA always placing the calls for
Nagao. During their stay at the hotel the
accused and Nagao went on foot to see a
movie at the Quad Theater and to eat at a
Japanese restaurant. They also went to
Maalicaya Sauna Bath in Quezon City
about four time around 10:00 to 11:00 in
the evening where Nagao was left alone in
one of the rooms with his massage girl
attendant. On some of those occasions
Nagao would finish first and would wait for
the accused at the lobby. Twice Yamada
brought Nagao to his house because Nagao
requested him not to leave him. On one
occasion, the three of them brought down a
Filipina girl from their hotel room but only
Nagao accompanied her outside the hotel
for five to fifteen minutes to see her off and
then he came back to the
hotel.chanrobles.com : virtual law library

Yamada denies that he and Sato were

always guarding Nagao. As a matter of fact,
one time while they were at Virra
Condominium the accused went out
together to meet some Japanese in Roxas
Boulevard around midnight and went back
to the hotel almost 4:00 in the morning
leaving Nagao alone in the hotel room in
the meantime. At Virra Condominium they
stayed for two (2) or three (3) days together
in one room with Nagao sometimes holding
the key to the room. There Nagao also
would go out to buy something, eat meals
and have some fun. He even bought Nagao,
who was with him, a T-shirt in Makati
where there were many people. With the
help of accused Maida, Nagao made an
overseas call to Japan at Virra.

The reason they went along with Nagao to

the RCBC bank on May 12 was that he did
not know how to go there so they brought
him to the bank so that he could withdraw
the remittance from Japan which was
intended as payment for his hotel
accommodation and other expenses. After
their arrest at the bank they were brought to
the WPD headquarters about 4:30 in the
afternoon where he (Yamada) was hit by
the policemen on his face, body and
abdomen. He was also brought inside a
room where his hands and feet were tied
with a rope and his face covered with cloth
after which water was poured on his nose
and mouth while the police were asking
him questions. In fact, they started hitting
him at the bank while he was handcuffed.
Besides, his watch costing around 250,000
yen, his 100 grams 18-karat gold bracelet
and his necklace were all taken from him
and his Mustang car confiscated. His
driver’s license was also taken and he lost
his money in the amount of almost
P3,000.00. The police did not even want to
accept the name that he gave them which
was Nakajima Tagahiro but insisted on
adopting Yamada as his name. When his
statement was taken he was not asked to
seek the assistance of a lawyer. It was the
investigator who made the answers in the
statement and he was not even allowed to
read it but just to sign it which he did
almost 3:00 or 4:00 in the morning already
after being subjected to blows on his face.
He declared that he never demanded money
from Nagao for his release.chanrobles law
library : red

On cross-examination Yamada admitted he

is an immigrant and has stayed in the
Philippines for almost 12 years but is
always going back and forth to Japan.

TOMIO MAIDA alias Sato Toshio also met

Tatsumi Nagao for the first time on May
12, 1986 but at the coffee shop of Holiday
Inn where Tatsumi was staying. SATO had
a Japanese guest who needed to change his
Philippine pesos to Japanese yen since he
was going back to Japan and it was Tatsumi
whom SATO saw at the coffee shop and
whom he requested to make the currency
exchange. Tatsumi was subsequently
invited by a Mr. Mitamura to SATO’s table
where there were many Japanese. Sato left
ahead for the airport leaving Tatsumi and
Mitamura in conversation. When SATO
saw Tatsumi again it was at the Southern
Police District headquarters that same day
being arrested for illegal possession of
marijuana. He talked to the police men and
requested for an interpreter for Nagao since
he cannot understand and speak English
well. He found out Nagao had promised to
pay the policemen $100,000 already but he
was not able to put up the amount. Anyway,
he went to the Holiday Inn and there
discovered that Nagao had no more money
and they talked about the hotel
accommodation and other expenses starting
the following day. Nagao tried and was able
to contact his friend whom SATO did not
know. SATO was able to speak over the
phone with Mr. Nagao in Japan who asked
him to explain what happened. From
Holiday Inn they transferred to
Intercontinental Hotel where Nagao was
able to check in without his passport as
SATO brought him an accommodation
request from El Sol travel agency. While
they were at the Intercontinental Hotel there
was no reason Nagao could not leave the
hotel as he was always free to leave it. They
also went to Maalicaya Sauna Bath where
they each had separate rooms.

When he was arrested at the bank with his

co-accused his watch, his wallet and his
money totaling around P900.00 were taken
by the policemen including his necklace
and gold bracelet. They also boxed him.
During the investigation they let him he
down on the table with his hands
handcuffed and, while his face was covered
with cloth, they poured water on it. Since
he was afraid of what the policemen would
do to him he just signed the statement. He
did not even know the lawyer Bienvenido
de los Reyes who was supposed to assist
him during the investigation. He was not
allowed to read the statement before he
signed it.

From Intercontinental Hotel they

transferred to Virra condominium. He
brought Tatsumi there because he requested
him to look for a cheaper hotel.

On cross-examination SATO disclosed that

the Japanese Mitamura whom he met for
the first time on May 2, 1986, informed him
that a Japanese was arrested by the police
for possessing marijuana and that when he
arrived at the police headquarters he found
out it was Nagao who was the one
arrested." 8

The trial court ruled that the accused-

appellants were guilty as charged because
they deprived the offended party, Tatsumi
Nagao, of his liberty for the purpose of
extorting ransom from him. It
said:jgc:chanrobles.com.ph

"It must be noted that during all this time,

from the evening of May 2 until the arrest
of the accused in the afternoon of May 12,
it cannot be denied that the accused were
always with Tatsumi, singly or both of
them, at his hotel room and never losing
sight of him. As a matter of fact, the only
instance he was ever allowed to go out on
his own was at the Intercontinental Hotel
when he accompanied a girl out of the hotel
to send her off but it was only for about five
to fifteen minutes and even then the
accused were likewise downstairs at the
hotel that Tatsumi thought he was only
being tested by the accused whether he
would escape. Besides, we have to consider
that as far as Tatsumi Nagao was concerned
he was in a foreign country with no
relatives nor close friends. He could not
even speak or understand English well
much less speak or understand any
Philippine language. On top of this, he had
no more money as this was taken from him
by the police and, worse, his passport was
being held by the accused thus destroying
any hope of escape from them. Even if he
did escape, where would he go without any
money or passport and how would he be
able to communicate with people since he
could not speak English or Tagalog
Moreover, what was foremost in his mind
was that he was merely on a temporary
leash (sic) from the police who were poised
to arrest him anytime he reneged on his
alleged promise to pay. This would mean at
least six years imprisonment not to mention
the ignominy he would cause on his person
and the consequent scandal since he is a
Buddhist priest. During all this time that he
was with the accused he knew that the only
way he could prevent any further restraint
on his person was to pay the accused from
the remittance of his father in Japan. That is
why, even if the accused were not armed
and did not physically restrain his
movements, all these circumstances taken
together created in Tatsumi Nagao such
fear which actually restrained him from
doing what he freely wanted to do and
resulted in a deprivation of his liberty. In
other words, while there was no money to
give to the accused he was stuck with
them.cralawnad

The Court does not believe the allegation of

the accused that they were not demanding
any money from Tatsumi Nagao for why
would they, who only came to know
Tatsumi Nagao on May 2, stick to him like
a leech from that date until they were
arrested on May 12? It could not have been
being simply charitable since it would have
been more logical to take Nagao
temporarily into their homes to avoid
further expenses if their intention was really
only to help their fellow
countryman.chanrobles law library : red

What was then the purpose in demanding

for the money? The accused suggest that it
was for the purpose of reimbursing them for
the expenses they had incurred in
accommodating Tatsumi Nagao in the
hotels and other places. Even if the purpose
of the deprivation of liberty of Tatsumi
Nagao alleged by the defense be accepted
— that is, to compel payment for the
expenses incurred by the accused — under
Article 267 of the Revised Penal Code, as
amended by Republic Act No. 1084, the
offense is still kidnapping for ransom.
Under American rulings, ‘ransom’ has been
held to mean in its ordinary sense as
‘money,’ price or consideration paid or
demanded for redemption of a captured
person or persons, a payment that releases
from ‘captivity’ (See 75 C.J. 458; 36 Words
and Phrases, 102; Keith v. State, 163, So.
136, 120 Fla. 847). Since the accused in this
case demanded and received money as a
requisite for releasing Tatsumi Nagao from
their hold, whatever other motive may have
impelled them to do so, the money is still
‘ransom’ under the law." 9

On 22 July 1986, Atty. Arroyo filed with

this Court his Withdrawal of Appearance as
counsel for the appellant Maida Tomio. 10
The law firm of Atienza, Tabora, Del
Rosario and Castillo then entered its
appearance for the latter.

On 18 August 1986, before they could file

their Brief, appellants, through another
lawyer, Atty. Dominador R. Sta. Maria, Jr.,
filed with this Court a petition for habeas
corpus, 11 which was docketed as G.R. No.
75576. They allege therein that the decision
of the court below in Criminal Case No. 86-
45055, subject of G.R. No. 74630, is "void
and illegal" because, among other things,
before being investigated, they were
tortured, threatened and deprived of their
constitutional rights to due process and
equal protection of the laws; moreover,
aside from the fact that no preliminary
investigation was conducted, the
complainant’s father influenced the Judge
directly making the latter’s decision
"partial, bias (sic) and prejudiced," and the
trial court lacked jurisdiction over the
offense charged as it was committed at the
Holiday Inn Hotel in Roxas Boulevard,
Pasay City, not in Manila. In the resolution
of 19 August 1986, 12 the Court noted that
the questions raised in the petition are also
the subject of the appeal in G.R. No. 74630;
consequently, the former is but a
duplication of the latter which is awaiting
the filing of briefs. However, without
giving due course to said petition, it
required respondents to comment thereon.

In the meantime, specifically on 29 August

1986, appellant Tagahiro Nakajima filed his
Brief in G.R. No. 74630 13 wherein he
ascribes to the trial court the commission of
the following errors:chanrob1es virtual 1aw
library
"I

. . . IN CONVICTING THE ACCUSED OF

THE CRIME OF KIDNAPPING;
II

. . . IN FINDING THAT FROM THE

EVENING OF MAY 2 TO MAY 12, THE
ACCUSED WAS ALWAYS WITH
NAGAO;
III

. . . IN CONCLUDING THAT ESCAPE

FOR TATSUMI NAGAO WAS
IMPOSSIBLE BECAUSE HE IS IN A
FOREIGN COUNTRY WITH NO CLOSE
RELATIVES AND FRIENDS, BECAUSE
HE COULD NOT EVEN SPEAK OR
UNDERSTAND ENGLISH WELL OR
UNDERSTAND ANY PHILIPPINE
LANGUAGE, AND BECAUSE HE HAD
NO MONEY AND PASSPORT, WITH
NOWHERE TO GO;
IV

. . . IN FINDING THAT THE ACCUSED

HELD THE PASSPORT OF TATSUMI
NAGAO;
V

. . . IN CONCLUDING THAT IT WOULD

HAVE BEEN MORE LOGICAL IF THEY
TOOK NAGAO TO THEIR OWN
HOUSES;.
VI

. . . IN CONCLUDING THAT THE

ACCUSED DEMANDED FOR RANSOM;
and
VII

. . . IN FINDING THAT THE ACCUSED

DEMANDED AND RECEIVED MONEY
AS PREREQUISITE FOR RELEASING
NAGAO."cralaw virtua1aw library

By way of an additional assigned error,

which is unnumbered, but which he claims
to invoke for the first time, he alleges that
the trial court has no jurisdiction over the
crime charged because it was not
committed in Manila; if it were committed
at the Holiday Inn Hotel, which is not
located in Manila but in Pasay City, it is the
proper court of the latter city which has
jurisdiction over it.

Upon the other hand, appellant Tomio

Maeda, through his counsel, filed his Brief
14 on 18 October 1986. He contends
that:chanrob1es virtual 1aw library
"I

THE TRIAL COURT ERRED IN ITS

HURRIED AND RAILROADED
DISPOSITION OF THE CASE OF THE
ACCUSED TOMIO MAEDA AND
TAGAHIRO NAKAJIMA WHOSE
RIGHTS TO DUE PROCESS AND FAIR
AND IMPARTIAL PUBLIC TRIAL
WERE DENIED.
II

THE TRIAL COURT ERRED IN

COMPLETELY DISREGARDING THE
POSITIVE AND CATEGORICAL
TESTIMONIES OF THE ACCUSED
TOMIO MAEDA AND TAGAHIRO
NAKAJIMA THAT THEY DID NOT
KIDNAP OR DETAIN COMPLAINANT
NAGAO NOR DID THEY DEMAND
MONEY FOR HIS RELEASE.
III

THE TRIAL COURT ERRED IN

FINDING THAT ALL THE ELEMENTS
OF KIDNAPPING WITH RANSOM
WERE PRESENT NOTWITHSTANDING
THE FACT THAT THE EVIDENCE
PRESENTED BY THE PROSECUTION
WERE GROSSLY INSUFFICIENT TO
ESTABLISH THE EXISTENCE OF THE
ALLEGED OFFENSE.
IV

THE TRIAL COURT ERRED IN NOT

ACQUITTING ACCUSED TOMIO
MAEDA AND TAGAHIRO NAKAJIMA
ON THE GROUND THAT THEIR GUILT
HAS NOT BEEN PROVEN BEYOND
REASONABLE DOUBT."cralaw
virtua1aw library

On 27 November 1986, the Plaintiff-

Appellee, through the Office of the
Solicitor General, filed a motion for leave
to file a consolidated Appellee’s Brief, 15
which the court granted in the resolution of
2 December 1986. 16

Then, on 4 December 1986, the Office of

the Solicitor General filed a Comment for
the respondents in G.R. No. 75578 17
asserting therein that considering that
petitioners (accused-appellants) perfected
their appeal from the challenged decision,
they cannot avail of the writ of habeas
corpus since the main purpose of the latter
is to determine whether or not a petitioner
is legally detained. 18 The issues then in the
petition should be threshed out in the
appeal.

In the resolution of 29 January 1987, 19 We

dismissed the petition for habeas corpus on
the ground that, per Section 4 of Rule 102
of the Rules of Court, where the
commitment is pursuant to a judgment of
conviction, the writ of habeas corpus will
not lie. We further
said:jgc:chanrobles.com.ph

"In the present case, the petitioners have

been found guilty beyond reasonable doubt
of kidnapping with ransom. They were
accordingly sentenced and are now
suffering imprisonment by virtue thereof.
Dismissal of the petition is thus warranted,
for their assertion that they are being
illegally deprived of freedom is without
support in law.chanrobles.com.ph : virtual
law library

Moreover, considering that the substance of

the issues under consideration is closely
interrelated or shows a ‘parallelism’ to the
errors allegedly incurred by the trial court
and assigned by petitioners in their briefs
filed in G.R. No. 74630, the Court agrees
with the submission of the Solicitor General
that the matters in controversy should be
resolved in G.R. No. 74630. This is in
conformity with the settled rule that ‘when
a court has jurisdiction of the offense
charged and the person of the accused, its
judgment, order or decree is valid and is not
subject to collateral attack by habeas
corpus, for this cannot be made to perform
the function of a writ of error, and this
holds true even if the judgment, order or
decree was erroneous.’ (Sotto v. Director of
Prisons, 5 SCRA 293, citing Vda. de
Talavera v. Superintendent and Warden of
the Correcional (sic) Institution, 67 Phil.
538)."cralaw virtua1aw library

Unsatisfied with the said Resolution,

petitioners filed on 17 March 1987 a motion
for its reconsideration, 20 focusing on the
issue of lack of jurisdiction on the part of
the trial court, to which a Comment was
filed by the Office of the Solicitor General
on 10 April 1987. 21 Thereafter, petitioners
filed a reply to the comment. 22

This motion remains unresolved.

On 14 April 1987, the Office of the

Solicitor General filed the Appellee’s Brief
in G.R. No. 74630 wherein it prays that this
Court affirm the judgment of conviction but
reduce the penalty to reclusion
perpetua pursuant to the new Constitution.
23

The assigned errors of both appellants in

G.R. No. 74630 boil down to the following
issues:chanrob1es virtual 1aw library

1) Jurisdiction, which, as admitted by

appellant Nakajima, is raised for the first
time;

2) Denial of due process, as raised by

appellant Tomio Maeda; and

3) Sufficiency of the evidence for the

prosecution to prove the crime charged.
I

There is no merit in the claim of lack of

jurisdiction. From the totality of the
evidence presented by both parties, the
conclusion is inescapable that during the
period from 2 to 12 May 1986, the
complainant was brought to or taken from
different places by the appellants. More
specifically, on 2 May 1986, the day when
they made their initial, but crucial move on
their target, the complainant (hereinafter
referred to as Mr. Nagao), appellants,
through the overt act of accused Tomio
Maeda alias Sato Toshio and another
Japanese, brought complainant to "some
other places in Manila" 24 after they
succeeded in getting his trust and
confidence, following a conversation over
lunch in a coffee shop at Holiday Inn Hotel.

The essential ingredients of the crime

charged were thus committed in various
places.

The case can, therefore, be filed with the

appropriate court in any of the places where
the complainant was brought to by the
appellants in the pursuit of or in connection
with the crime charged. Section 15 of Rule
110 of the Rules of Court provides that
subject to existing laws, in all criminal
prosecutions, the action shall be instituted
and tried in the court of the municipality or
territory wherein the offense was
committed or any one of the essential
ingredients thereof took place.25cralaw:red

Moreover, in the proceedings below, there

was not even the slightest suggestion from
the appellants to express their doubts as to
the jurisdiction of the court over the case.
They did not present any evidence to show
that all of the acts involved in or related to
the offense charged took place outside
Manila. On the contrary, from their
arraignment until the promulgation of the
decision, they unequivocally recognized
and then yielded to the trial court’s
jurisdiction over their persons and the
offense charged. They voluntarily
expressed their readiness to be arraigned,
26 as in fact they were, abandoning in
effect their urgent motion for
reinvestigation. They took very active part
in the trial by extensively and exhaustively
cross-examining the witnesses for the
prosecution, testifying for themselves in the
most detailed manner as possible to
conform with the strategy of their counsel,
and allowing themselves to be cross-
examined by the prosecuting fiscal. There
can be no doubt that such active
participation was motivated by one desire
and was riveted to one goal: a judgment of
acquittal on the merits, which necessarily
carried with it an unqualified invocation of
the jurisdiction and authority of the court.
Settled is the rule that a party who
voluntarily submitted his cause before a
trial court, actively participated in the
hearings therein, or invoked its jurisdiction,
may not be heard to question its
jurisdiction. 27 It would be placing a
premium on bad faith and yielding to
attempts to make a mockery of the judicial
process if a party would be permitted to
question the very power and authority
which he invokes for his own benefit or
advantage once he fails to obtain it.
II

Anent the denial of due process, the main

grievance of appellant Tomio Maeda
focuses on the alleged "railroaded
disposition of the case." The filing of the
case pursuant to General Order No. 39,
which mandates that it should be disposed
of within twenty-four (24) hours after filing
by the arresting officer, is inconsistent with
the need to make a thorough review and
assessment of the facts, considering the
gravity of the imposable penalty. He further
claims that they were tortured and forced to
sign statements in the absence of their
lawyer, and that the trial on the merits was
an example of "justice in haste, justice
denied."cralaw virtua1aw library

We are not impressed by the plea.

In the first place, the statements they made

during custodial interrogation were not
taken into account against them. On the
contrary, the trial court rejected such
statements in toto and deplored the failure
of the police to comply with the procedure
prescribed by this Court in making an arrest
and in conducting a custodial investigation.
Said the trial court:jgc:chanrobles.com.ph

"At the outset, it may not be amiss to

immediately point out that in the case of
Morales v. Ponce Enrile, 121 SCRA 538,
and reiterated in the more recent case of
People v. Galit, G.R. No. 51770, March 20,
1985, 28 the Honorable Supreme Court laid
down the correct procedure for peace
officers to follow when making an arrest
and in conducting a custodial investigation,
thus:chanrob1es virtual 1aw library

‘7. At the time a person is arrested, it shall

be the duty of the arresting officer to inform
him of the reason for the arrest and he must
be shown the warrant of arrest, if any. He
shall be informed of his constitutional
rights to remain silent and to counsel, and
that any statement he might make could be
used against him. The person arrested shall
have the right to communicate with his
lawyer, a relative, or anyone he chooses by
the most expedient means — by telephone
if possible — or by letter or messenger. It
shall be the responsibility of the arresting
officer to see to it that this is accomplished.
No custodial investigation shall be
conducted unless it be in the presence of
counsel engaged by the person arrested, by
any person on his behalf, or appointed by
the court upon petition of either the
detainee himself or by anyone on his
behalf. The right to counsel may be waived
but the waiver shall not be valid unless
made with the assistance of counsel. Any
statement obtained in violation of the
procedure herein laid down, whether
exculpatory or inculpatory, in whole or in
part, shall be inadmissible in evidence.’

The Court notes in this case that there was

not even am attempt on the part of the
police investigators to allow or give a
chance to the accused to be assisted by a
counsel of their own choice during the
custodial investigation. When, indeed a
lawyer was provided the accused he turned
out to be, after all, a team member of the
same police force investigating the accused.
When the accused finally signed their
respective statements it was already in the
early morning of the following day when
the said lawyer who was supposed to assist
them was no longer around. Even the
waiver of the accused Yamada of his right
to counsel has not been shown to have been
assisted by counsel. The Court therefore
doubts the voluntariness of the statements
of the accused (Exhs. "C" and "K"). Hence,
the same must be rejected in toto."cralaw
virtua1aw library

In the second place, while it may be true

that the trial lasted only for a few days and
the decision was promulgated on the
twelfth day after the filing of the
information, there is nothing on record that
may cast any doubt on the impartiality and
neutrality of the judge or on the fairness of
his decision which, as We observe,
manifests a careful and thorough analysis of
the evidence. Appellants made no protest in
the court below as to the manner the trial
was conducted. After they completed their
testimonies and offered their Exhibit "1,"
their counsel announced that awe are
respectfully submitting our case for
decision of this Honorable Court." 29 They
did not even ask for time to submit a
memorandum to aid the court in
appreciating the evidence, if indeed the
facts and the issues were complicated. They
cannot now be heard to complain that it
hastily decided the case, or that it did not
make a thorough review and assessment of
the evidence.cralawnad

In the third place, all the requisites of due

process are present in this case, to wit: (a) a
court or tribunal clothed with judicial
power to hear and determine the matter
before it; (b) jurisdiction lawfully acquired
by it over the person of the appellants and
over the offense; (c) the appellants were
given an opportunity to be heard; and (d)
judgment was rendered upon lawful
hearing. 30

In People v. Castillo, Et Al., 31 We ruled

that if an accused has been proceeded
against under an orderly process of law, and
only punished after inquiry or investigation
upon notice to him, with opportunity to be
heard, and a judgment rendered within the
authority of the constitutional law, then he
has had due process. In the instant case, as
stated in the discussion above on
jurisdiction, the accused-appellants actively
participated in the hearing of the case
before he trial court and had full and
unhampered opportunity to cross-examine
the witnesses for the prosecution and to
present their own evidence.

That General Order No. 39 directs civil

courts to dispose of the case within twenty-
four (24) hours after its filing by the
arresting officer, considering that the
offended party is a tourist, does not detract
from the above conclusion that appellants
were not deprived of due process. The
requirement, which is merely directory, is
not wanting in reason or purpose. The stay
of tourists in the country is limited in
duration. Tourism is a major dollar-earning
industry which the Government has been
trying to promote. Corollarily, it must have
to adopt policies to attract tourists and to
insure their safety and security while they
are in the country. Special laws bearing
upon procedure, with the end in view of
expediting the hearings and disposition of
criminal cases where tourists are the
offended parties, may be validly enacted
provided that there is substantial
compliance with procedural due process
and non-impairment of substantive due
process.
III

The third issue requires a determination as

to whether or not the prosecution has
established beyond reasonable doubt the
elements of the offense charged. Appellants
contend that it has not, for Mr. Nagao was
not restrained of his liberty; he was free and
could have easily escaped. As to the
ransom, appellant Tagahiro Nakajima
asserts that:jgc:chanrobles.com.ph

"The money remitted by Nagao’s father

was for the payment of his son’s hotel bills,
and not for ransom purposes (p. 96, tsn.,
May 21, 1986). Further Nagao’s father
testified that ‘That reason why I remitted
this money because I want to know whether
my son can get this money and to know the
whereabout of my son, sir." (p. 107, tsn.,
May 21, 1986)." 32

However, appellant Tomio Maeda has a

different version. According to him, it was
in payment of the sum which they advanced
to the police for and in behalf of Mr. Nagao
to secure the latter’s release, and the
amount spent for hotel accommodations
and additional expenses they incurred in his
behalf. Otherwise
stated:jgc:chanrobles.com.ph

". . . a simple contract of loan existed

between complainant and the accused
whereby the complainant incurred a legal as
well as moral obligation to pay for the
expenses advanced by the 2 accused in his
favor. This is another reason why
complainant stayed in the company of the
accused. In the words of the complainant
himself, he deemed it ‘an obligation upon
himself to pay for the expenses’ advanced
by the 2 accused in accommodating him
(tsn, May 21, 1986, p. 24-25). Thus, there
was no force or compulsion in exacting
payment from the accused. There was no
demand, as there was no need for it. The
complainant knew that he had an obligation
and that he had to comply with it. The
money to be paid was rightfully due to the 2
accused. It was nothing more than a
payment for a debt in money." 33

The trial court found otherwise. Its findings

were based on its appreciation of the
evidence for the parties which, in turn,
revolved upon the credibility of the
witnesses. It is well-settled that the
conclusion of the trial court on the
credibility of witnesses is entitled to great
weight and respect; and, unless there are
substantial facts and circumstances that
have been overlooked, which if considered
might effect the result of the case, such
findings are generally not disturbed on
appeal. The reason for this is that the trial
court is in a better position to observe the
deportment and demeanor of witnesses to
determine the veracity of their answers; 34
it has the inestimable advantage of
observing the detailed demeanor of the
witnesses. 35

We find no reason to depart from this rule.

A painstaking review of the evidence in this
case clearly discloses the correctness of
such findings.

The evidence for the prosecution has

established beyond reasonable doubt that
appellants, together with their co-
conspirators, had an elaborate and carefully
designed plan to kidnap Mr. Nagao in order
to obtain ransom from him. The plan was
effectively carried out at lunchtime on 2
May 1986 at the coffee shop in Holiday Inn
Hotel when appellant Tomio Maeda alias
Sato Toshio approached Mr. Nagao to find
out if the latter had Japanese yen to be
converted to Philippine pesos because a
friend was to leave for Japan and needed
the yen; Tomio succeeded in having
P1,100.00 exchanged for 10,000.00 yen
belonging to Mr. Nagao. Then, another
Japanese companion of Tomio, one Mr.
Mitamura, invited complainant to join them
at their table. Tomio left them and
proceeded to the airport to send off his
friend who was to depart for Japan. 36 By
his additional admissions on cross-
examination, he clearly revealed, though
rather unwittingly, how the plot would be
pursued with the assistance of law
enforcement authorities. As early as 3:00
o’clock in the afternoon of that day, Mr.
Mitamura called Tomio by telephone to
inform him that a Japanese was arrested for
having marijuana in his possession,
although the name of the latter was not
mentioned. Without even being informed as
to where the arrested party was brought,
Tomio proceeded to the Southern Police
District and, upon arriving there at 4:00
o’clock, merely informed the police that a
Japanese has marijuana in his possession.
He could not, however, mention the name
of said Japanese. 37

It should be stressed that at that time, Mr.

Nagao had not yet been "arrested" by five
(5) policemen of the Southern Police
District for possession of a pack of
cigarettes allegedly containing marijuana.
He was arrested after seven o’clock that
evening following a dinner at Leo’s
Restaurant.chanrobles law library

This visit then of Tomio to the Southern

Police District must have had something to
do with a conspiratorial arrangement with
some personnel of said office, more
specifically the five policemen who, at past
7:00 o’clock that evening, pounced on Mr.
Nagao and "arrested" him for alleged
possession of marijuana.

From the Southern Police District, Tomio

called Mitamura, who was in the
complainant’s room at Holiday Inn Hotel;
Mitamura told him that they were to take
their dinner at Leo’s Restaurant. They did
in fact have dinner at Leo’s Restaurant, 38
although on direct examination, he said that
after the meeting at lunchtime, he saw
complainant again only at the Southern
Police District. 39

At Leo’s Restaurant, Tomio

claims:jgc:chanrobles.com.ph

"a . . . . Later on we saw one Japanese

holding marijuana inside the restaurant and
then Mr. Mitamura requested to call or
contact the police in order that this Japanese
who was in possession of marijuana be
arrested.

q So you were informed by Mitamura to

contact the southern police district (sic) that
there was this two (sic) Japanese inside the
Leo’s restaurant who was in possession
marijuana cigarette (sic)?

a Yes, sir.

q These two Japanese were left at Leo’s

restaurant and one Japanese was in
possession of marijuana cigarettes?

a Yes, sir.

q And did this police officer arrested (sic)

these (sic) Japanese who is (sic) in
possession of marijuana?

a Yes, sir.

q And who made this plan?

a What plan, sir?

q About you and the southern police. At

about 7:00 o’clock were (sic) this Japanese
holding marijuana was arrested?

a That was not a plan, sir. I got only the

information from Mr. Mitamura that some
Japanese were in possession of marijuana.

q You just gather (sic) this information

from Mr. Mitamura but you really inform
(sic) the police?

a Yes, sir.

q So that is the plan of Mr. Mitamura?

a I think so, sir." 40

Other than Mr. Nagao, no other Japanese

was "arrested" for alleged possession of
marijuana at Leo’s restaurant in the evening
of 2 May 1986, after a pack of cigarettes
was placed inside his left shirt pocket by,
according to him, a Japanese.

After complainant was "arrested" by the

five policemen from the Southern Police
District and brought to the headquarters,
Tomio showed up, talked to Mr. Nagao and
the policemen and recommended the
assistance of an interpreter since, according
to him, Mr. Nagao cannot understand and
speak English well. 41 The interpreter he
had in mind was his co-accused Tagahiro
Nakajima, who he forthwith called; the
latter lost no time in coming to the Southern
Police District to act as Mr. Nagao’s
interpreter. 42 Mr. Nakajima offered
additional information not disclosed earlier,
i.e., the policemen "found" in the
possession of complainant, not just one
pack of cigarettes containing 15 sticks of
marijuana, but a smuggling belt. 43

At the Southern Police District, appellants

informed Mr. Nagao that if found guilty of
possession of marijuana he can be
sentenced anywhere from 6 to 12 years of
imprisonment. The two then proposed that
he should give money to the policemen,
who, they claimed, demanded
U.S.$100,000.00. They informed him that if
he will not give the money, his name and
his case would be published in the
newspapers because, at that time, there
were some newspaper reporters outside.
Mr. Nagao, however, did not have the
money; he proposed to contact his parents.
However, after they talked to the police in
another room, they informed him that they
had advanced the payment to the police
who thereafter released him. The appellants
and a policeman then brought him to his
room at the Holiday Inn Hotel. 44

The foregoing scenarios were part of the

script. With the obvious connivance of the
police, they put the pressure on the
complainant by demanding, allegedly for
and in consideration of his release, the
amount aforestated. Under the
circumstances, with the threat of adverse
publicity and imprisonment, it was easy to
work on him. To show that they
commiserated with him, they made it
appear that they advanced the money to the
police. We are, however, convinced that the
accused-appellants never advanced the
money. That is why they stuck to the
complainant like "a leech," as vividly
described by the trial court, after he was
eventually "released" by the police. There is
no doubt in Our mind that during the period
from 3 May 1986 until the accused-
appellants were arrested on 12 May 1986,
complainant was moved from one hotel to
another by the appellants, effectively
depriving him of his liberty. As correctly
observed by the Solicitor General, while it
may be conceded that complainant had the
freedom of locomotion, he "did not have
the freedom to leave the hotel premises at
will and go wherever he pleased." 45 To
keep him within their control, appellant
Tagahiro Nakajima, who is a businessman
and a resident of 101 Peter’s Street, BF
Homes, Parañaque, Metro Manila, had to
abandon his business and his family to be
with Mr. Nagao. Thus, as he admitted upon
question by the court, he was, from 3 to 12
May 1986, with the complainant at Holiday
Inn Hotel, Intercontinental Hotel,
Philippine Village Hotel and Virra
Condominium. He slept there, not in his
residence. 46 The suite (73) which they
occupied at Virra Condominium is owned
by his co-accused Tomio Maeda. 47

Moreover, appellants never refuted the

testimony of Mr. Nagao made during cross-
examination, that at the hotel they told him
that if he did not pay them the amount
demanded by the policemen, plus the hotel
bills and other expenses, they would do
something to him; they kept on telling him
that if he did not pay them, the policemen
would arrest him. 48

We are not persuaded by the theory of the

appellants that the money involved was not
ransom money, but rather payment of hotel
bills (as claimed by Tagahiro Nakajima) or
for reimbursement of the sum they
advanced to pay the policemen and for the
hotel accommodations and additional
expenses spent for complainant (as claimed
by Tomio Maeda). In the first place, none
of them claimed that either or both of them
advanced the money to the police. As a
matter of fact, Tagahiro Nakajima testified
that he saw the complainant counting the
money:jgc:chanrobles.com.ph
"q Awhile (sic) ago you stated that he even
offered money to the police?

a Yes, sir.

q How much?

a When I was reaching (sic) to them, they

are (sic) writing in papers, after that I think
he was counting dollar and he told us one
hundred thousand US dollar, but suring
(sic) that time I was doubtful how come
that big amount he cannot pay the (sic)
amount of (sic) One Hundred Thousand US
dollar (sic).

q Now, after that, what happened next?

a After that he told me that he will just

borrow from his friend One Hundred
Thousand US dollar. I told him that is
impossible and that is too much, and I also
told him you better talk to your father to
send money then after that he called up to
Japan (sic).

q Now, was he released by the police?

a Yes, sir." 49

Upon the other hand, as far as could be

gathered from the testimony of Mr. Tomio
Maeda on direct examination, the money
given to the police did not also come from
him. Thus:jgc:chanrobles.com.ph

"q Did you know as to how much money

did he promised (sic) to the police?

a Yes, sir.

q How much?

a One Hundred Thousand US. Dollar (sic)

($100,000.00), sir.

q And do you know if he was able to put up

that amount to the police?

a No, sir.

q Now, from the headquarter (sic), where

did you go?

a At Holiday Inn Hotel, sir.

q And upon reaching Holiday Inn Hotel,
what happened or what did you do?

a Mr. Nagao don’t (sic) have any money

anymore so we are talking (sic) about hotel
accommodation and other expenses starting
the next day and he is (sic) also trying to
contact his friend, sir." 50

What then was the money they advanced to

the police? Nothing. However, they
succeeded in making it appear to Mr.
Nagao, after they came out of the room at
the Southern Police District, that they
advanced the amount to the police, for
which reason he was released. This was
part of the strategem to give a semblance of
legality to the demand for
ransom.chanrobles lawlibrary : rednad

Now then, if indeed the appellants only

wanted reimbursement for the money
"paid" to the police, and that they were
merely motivated by a desire to help a
fellow Japanese in distress, why did they
have to bring him from one expensive hotel
to the other, thereby incurring more
expenses? Why did they not bring him to
their homes, as the trial court asked, if only
to show their genuine concern for him?

Even granting for the sake of argument that,

in effect, there was created a simple loan
contract between appellants and Mr. Nagao,
as asserted by appellant Tomio Maeda, the
deprivation of the former’s liberty until the
amount shall have been fully "paid" to
them, is still kidnapping or illegal detention
for ransom. In People v. Akiran, Et Al., 51
this Court, through Justice J.P. Bengzon,
ruled that even if the kidnapping were to
compel the victim to fulfill his promise of
defraying the hospital expenses of a brother
of one of the accused, there is still
kidnapping for ransom, since if that were
indeed the purpose, the accused need not
kidnap the victim. Elaborating thereon, the
Court stated that the last paragraph of
Article 267 of the Revised Penal Code, as
amended by R.A. No. 1084, which took
effect on 15 June 1954, which increases the
penalty for kidnapping and serious illegal
detention if it is committed for the purpose
of extorting ransom from the victim or any
other person, even if none of the
circumstances mentioned in said Article
were present in the commission of the
offense is:jgc:chanrobles.com.ph

". . . derived from statutes of the United

States, particularly the Lindbergh Law.
Thus, American jurisprudence thereon has
persuasive application.’Ransom’ under
American rulings, as used in statutes
making kidnapping with intent to hold for
ransom a capital offense, has been held to
mean in its ordinary sense as ‘money, price,
or consideration paid or demanded for
redemption of a captured person or persons,
a payment that releases from captivity.’ 52
Since the accused in this case demanded
and received money as a requisite for
releasing a person from captivity, whatever
other motive may have impelled them to do
so, the money is still ransom under the
law." 53

The doctrine in the Akiran case is

applicable here.

Thus, even if the theory of Tomio is

correct, it was not necessary for him and his
co-accused Nakajima to deprive the
complainant of his liberty to compel him to
pay the alleged loan.

We thus hold that upon the evidence

adduced by the prosecution, the guilt of the
accused for the crime charged was proven
beyond reasonable doubt and the trial court
committed no error in convicting them
accordingly. In view, however, of Section
19(1) of Article III of the 1987 Constitution
which abolishes the death penalty and
provides that any death penalty already
imposed shall be reduced to reclusion
perpetua, the penalty imposed by the trial
court is deemed reduced to reclusion
perpetua.

In the light of the foregoing, the motion of

appellants dated 16 March 1987 to
reconsider Our resolution of 29 January
1987 in G.R. No. 75576 must also be
Denied for lack of merit.

This should not, however, end the story of

Mr. Nagao. As adverted to earlier, other
parties, namely, Mr. Mitamura, a Japanese
national, and the five policemen from the
Southern Police District, could be deeply
involved in the conspiracy to kidnap him
for ransom. Our examination of the records
fails to show that Mr. Mitamura and the
policemen were investigated or prosecuted
in connection with this case. This Court
would be remiss in its duty if it were to
close its eyes on this matter, more
specifically on the alleged involvement of
the policemen. Policemen are supposed to
enforce the law, protect the people, and
maintain peace and order. At the people’s
expense, they don the uniform of authority
and are allowed to carry the instruments of
legal violence. As such, they are bound to
faithfully adhere to the Constitutional
directive to be at all times accountable to
the people, serve them with utmost
responsibility, integrity, loyalty and
efficiency. 54 When they fail in that sacred
duty and become the lawbreakers, they
have no business staying a minute longer in
their offices and wearing their uniforms.
They deserve nothing but the severest
criminal and administrative penalties the
law provides. The people’s taxes should
never be used to maintain and support
scalawags in our law enforcement agencies
who may use their uniforms and their
lawfully issued weapons as convenient
shields or instruments for the perpetration
of their evil deeds. Accordingly, We direct
the Philippine National Police to conduct a
thorough investigation, if none has been
done so far, into the involvement of the five
policemen of the Southern Police District
and, should the evidence warrant, file the
appropriate criminal and administrative
cases against them. As regards Mr.
Mitamura, if he is still in the Philippines,
efforts must be exerted by the Bureau of
Immigration and Deportation, in
coordination with the National Bureau of
Investigation, to have him investigated and
prosecuted, should the evidence warrant.
No alien should be allowed to abuse
Philippine hospitality and make our country
a happy hunting ground for his criminal
activities.chanrobles.com.ph : virtual law
library

WHEREFORE, judgment is hereby

rendered:chanrob1es virtual 1aw library

1. In G.R. No. 74630, AFFIRMING,

subject to the above provision of Section
19(1) of Article III of the 1987
Constitution, the decision of the trial court
in Criminal Case No. 86-45055, and

2. In G.R. No. 75576, DENYING, for lack

of merit, the motion to reconsider the
resolution of 20 January 1987.

Costs against appellants.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and

Bidin, JJ., concur.
Endnotes:

1. We ruled in Olaguer, Et. Al. v. Military

Commission No. 34, Et Al., 150 SCRA 144
(1987), that Proclamation No. 2045, dated
17 January 1981, officially lifting martial
law in the Philippines and abolishing all
military tribunals created pursuant to the
national emergency, effectively divested all
military tribunals of its supposed authority
to try civilians.

2. RTC Original records, 5.

3. RTC Original records, 12.

4. TSN-Gomez, 19 May 1986, 4-10.

5. Loc-cit., 15.

6. Id., 59-75.

7. Rollo, G.R. No. 74630, 163-166.

8. RTC Original records, 67-71.

9. RTC Original records, 73-75.

10. Rollo, G.R. No. 74630, 38.

11. Id., G.R. No. 75576, 2-25.

12. Id., 123.

13. Id., G.R. No. 74630, 46, et seq.

14. Rollo, G.R. No. 74630, 60, et seq.

15. Id., 136.

16. Id., 139.

17. Rollo, G.R. No. 75576, 155-161.

18. Citing Paguntalan v. Director of

Prisons, 57 Phil. 141; Quintos v. Director of
Prisons, 55 Phil. 304.

19. Loc. cit., 164-166.

20. Rollo, G.R. No. 75576, 173.

21. Id., 181.

22. Id., 195.

23. Id., 161.

24. TSN-Monares, 20 may 1986, 26.

25. U.S. v. Laureaga, Et Al., 2 Phil. 71;

U.S. v. Bernabe, 23 Phil. 154; U.S. v.
Santiago, 27 Phil. 408; Tuzon v. Cruz, 66
SCRA 235.

26. TSN-Monares, 19 May 1986.

27. Standard Mineral Products, Inc. v.

Court of Appeals, Et Al., 184 SCRA 571;
PNB v. IAC, Et Al., 143 SCRA 299;
Royales, Et. Al. v. IAC, Et Al., 127 SCRA
470; Nueva Viscaya Chamber of
Commerce, Et. Al. v. CA, Et Al., 97 SCRA
853; Zulueta, Et Al., v. Pan American
World Airways, Inc., 49 SCRA 1; Tijam,
Et. Al. v. Sibonghanoy, Et Al., 23 SCRA
29.

28. 135 SCRA 465.

29. TSN-Monares, 22 May 1986, 130.

30. Banco Español de Filipino v. Palanca,

37 Phil. 921; Macabingkil v. Yatco, Et Al.,
21 SCRA 150; Apurillo v. Garciano, Et Al.,
28 SCRA 1054; Shell Company of the
Philippines v. Enage, 49 SCRA 416; and
Lorenzana v. Cayetano, 68 SCRA 485.

31. 76 Phil. 72. See also People v. Muit,

117 SCRA 696.

32. Brief For Appellant Tagahiro Nakajima,

39.

33. Brief for Appellant Tomio Maeda, 41-

42; Rollo, G.R. No. 74630, 104-
105. Emphasis supplied.
34. People v. Patola, 141 SCRA 397;
People v. Bautista, 142 SCRA 649; People
v. Adones, Et Al., 144 SCRA 364; People
v. Patog, 144 SCRA 429; People v. Veloso,
148 SCRA 60; People v. Cruz, 151 SCRA
609; Cortez, Et. Al. v. Court of Appeals, Et
Al., 163 SCRA 139; People v. De Guia,
185 SCRA 336; People v. Alburo, 184
SCRA 655; People v. Tan, 187 SCRA 385;
People v. Timbang, 189 SCRA 279.

35. People v. Perez, 175 SCRA 203.

36. Testimony of Appellant Tomio Maeda;

TSN-Monares, 22 May 1986, 77-79.

37. Id., 109-110.

38. Testimony of Appellant Tomio Maeda;

TSN-Monares, 22 May 1986, 77-79.

39. Id., 86.

40. TSN-Monares, 22 May 1986, 111-113.

41. Id., 83-84.

42. Testimony of Tagahiro Nakajima TSN-

Monares, 22 May 1986, 4-5.

43. Id., 6.

44. Testimony of Complainant; TSN-

Monares, 2 May 1986, 37-43.

45. Rollo, G.R. No. 74630, 180.

46. TSN-Monares, 22 May 1986, 64-65.

47. Id., 61.

48. TSN-Gomez, 21 May 1986, 77-78.

49. TSN-Monares, 22 May 1986, 8-9.

50. TSN-Monares, 22 May 1986, 85-86.

51. 124 Phil. 749.

52. Citing Corpus Juris Secundum, 458; 36

Words and Phrases, 102; Keith, Et. Al. v.
State, 163 So. 136, 120 Fla. 847.

53. People v. Akiran, Et Al., supra., at 756-

757.
54. Section 1, Article XI, 1987
Constitution.